State Consumer Disputes Redressal Commission
Ashish Kumar vs Indigo Interglobe Aviation Ltd & Anr. on 12 April, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2015/567
Instituted on : 02.11.2015
Ashish Kumar, S/o Late R.K. Kumar,
Resident of - House No.59, Sector 1, Geetanjali Nagar,
Raipur, District Raipur (C.G.) ... Appellants
Vs.
1. Indigo, Inter Globe Aviation Limited,
Global Business Park,
Gurgaon, Haryana
2. Indigo, Inter Globe Aviation Limited,
Mana Airport,
District Raipur (C.G.) .... Respondents
Appeal No.FA/2015/640
Instituted on : 16.12.2015
1. Indigo, Inter Globe Aviation Limited,
Global Business Park,
Gurgaon, Haryana
2. Indigo, Inter Globe Aviation Limited,
Mana Airport,
Raipur (C.G.) ... Appellants
Vs.
Ashish Kumar, S/o Late R.K. Kumar,
R/o : Flat No.59, Sector - 1, Geetanjali Nagar,
Raipur (C.G.) - 492001 .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER HON'BLE SHRI NARENDRA GUPTA, MEMBER // 2 // COUNSEL FOR THE PARTIES IN BOTH THE APPEALS:-
Shri R.K. Bhawnani, for the complainant - Ashish Kumar. Shri Anikit Jain, for the opposite parties, Indigo, Inter Globe Aviation Limited, Gurgaon, Haryana and Indigo, Inter Globe Aviarion Limited, Raipur (C.G.).
O RDER Dated : 12/04/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2015/567 as well as Appeal No. FA/2015/640, which have been preferred respectively by the complainant - Ashish Kumar and the OPs Indigo, Inter Globe Aviation Limited, Gurgaon Haryana and Indigo, Inter Globe Aviation Limited, Raipur (C.G.), of Complaint Case No.320/2014 against the order dated 22.09.2015, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"). By the impugned order, the learned District Forum, has partly allowed the complaint of the complainant and directed the OPs to jointly and severally pay within a period of one month from the date of order, which is as under :-
(a) The OPs will pay a sum of Rs.51,680/- (Rupees Fifty One Thousand Six Hundred and Eighty) to the complainant along with interest @ 9% p.a to the complainant from the date of filing of the complaint i.e. 18.06.2014 till realisation.
(b) The OPs will pay a sum of Rs.5,000/- (Rupees Five Thousand ) to the complainant towards compensation for mental agony.
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(c) The OPs will pay a sum of Rs.2,000/- (Rupees Two Thousand)to the complainant towards cost of litigation.
2. The complainant has filed appeal No.FA/2015/567 for enhancement of the award and the OPs have filed Appeal No. FA/2015/640 for setting aside the impugned order of the District Forum. The original of this order be retained in the file of Appeal No.FA/2015/567 and it's copy be placed in the file of Appeal No.FA/2015/640.
3. Briefly stated the facts of the complaint of the complainant are that the complainant booked a ticket from the OPs from Bangkok to Kolkata. The Flight number of the OPs was 6E78 and the date of journey was 20.03.2014. The complainant purchased some goods for his family and purchased a watch for his cousin sister. The complainant kept watch, laptop, I-pad, imported cosmetic, Rayban- Gogle, leather, ladies purse, mobile I-phone charger, camera, clothes and local thai gift in the suitcase. The value of these goods was near about Rs.1,50,000/-. The complainant at the time of check-in gave the above articles in luggage, which is confirmed by the receipt of suitcase book which was affixed in the ticket. When the flight of the complainant reached to Kolkata then the same was not received by him, the complainant immediately contacted in this regard to the OPs and made complaint. The OPs lodged the complaint of the complainant and // 4 // provided a Certificate in which it is mentioned that the suitcase was not found. The complainant gave written complaint in this regard to the OPs and also gave detailed description the goods which were kept in the suitcase. The OPs assured the complainant that they will trace the suitcase at the earliest and provide the same to the complainant otherwise they will pay the amount of loss suffered by the complainant, but the OPs did not take any action regarding the suitcase of the complainant. The complainant gave intimation through email to OPs several time and requested the OPs to return the suitcase but the OPs did not take any action and they are giving false assurance to him. The OPs issued a Certificate to the complainant in respect of missing of the suitcase but even then they did not settle the claim of the complainant and also did not pay the compensation to the complainant. The above act of the OPs comes in the category of deficiency in service and unfair trade practice. The complainant gave intimation through email to the OPs to return the suitcase along with goods, otherwise amount of the loss be provided. The OPs vide email dated 20.05.2014 intimated the complainant that they will pay 400 US$ to the complainant, which is equivalent to Rs.23,000/-, in respect of the bag, which was lost. The complainant informed the OPs that the cost of the goods was Rs.1,50,000/- and in this regard the complainant had immediately gave intimation to the OPs, but even then the OPs did not provide the amount for actual loss and sending a letter for Rs.23,000/- is contrary to // 5 // law and the same is not acceptable to the complainant. The complainant personally contacted the OPs in this regard and request to pay the compensation for actual loss, but the OPs did not give any reply. Hence the complainant filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
4. The OPs filed their joint written statement and averred that the impugned complaint is liable to be rejected with exemplary costs on account of the complainant suppressing material facts and documents viz, the Conditions of Carriage which constitute a binding contract between the Complainant and the OPs. All the bookings generated for Indigo's flight are governed by Indigo's fare rules and Conditions of Carriage and the IndiGo Conditions of Carriage that are available at Airport Counters or www.goindigo.in and, as stated above, are contractually binding upon the parties, including the complainant herein. The complaint's lost baggage containing valuable items like watches, laptop, ipad and clothes valued by him to Rs.1.50 lacs was checked in under the luggage and not a hand baggage. Under the conditions of carriage it is strongly advised to avoid carrying any expensive and delicate items in the baggage. The passenger can carry such items in their checked-in baggage at their own risk or carry in their hand baggage. The revenant terms of the said "Conditions of Carriage"
// 6 // is mentioned in Clause 9.3. The complainant gave his suitcase against the terms and conditions, therefore, the OPs are not liable to pay any compensation to the complainant.
On perusal of the Condition No.9.3 of Conditions of Carriage, it is very clear that the passenger must not check-in the specified valuable items in their baggage or carry at their own risk. The OPs shall not accept any responsibility for such items carried by the Customers in their checked-in baggage in accordance to conditions of carriage, as happened in the instant case. Under another condition of carriage in relation to damage to baggage the OPs had maintained the maximum limit of compensation in accordance to the Montreal Convention 1999 which amounts to US$20 per kilo for checked baggage. According to Condition No.16.4 of the Conditions of Carriage, the complainant is only entitled for US# 20 per kilo for Checked Baggage which sums upto US# 400, as the complainant's lost luggage weights 20 kgs. Therefore, the compensation computed above amounts to US$ 400 shall be the maximum liability to be compensation to the complainant.
The impugned complaint is liable to be rejected with exemplary costs in view of the fact that it is entirely frivolous and vexatious and the contents of which are false to the complainant's knowledge. The complainant has clearly improved upon his version of the actual facts and events in order to extort monies from the opposite parties on // 7 // entirely false and untenable grounds as is evident from the following facts :-
a. That on arrival of the complainant vide IndiGo flight bearing No.6E78 at Kolkata Airport on 20.03.2014 sourced from Bangkok, the complainant approached the officials of the OPs and informed that his baggage bearing Tag No.6E0312029955 was missing.
b. Accordingly, the officials of the OPs, in terms with the Conditions of Carriage, immediately gave the complainant a PIR form which is a Property Irregularity Report. The complainant filled up the PRI form with the particulars of the missing baggage to enable the OPs to find the baggage. That despite taking all steps to locate the baggage of the complainant, the baggage could not be traced and the same was duly communicated to the complainant with an offer for maximum compensation that could have been offered in the present case.
c. The complainant had forwarded an email to the OPs in relation to the aforesaid issue which properly replied by them vide email dated 31.03.2014. The date of email sent by the complainant cannot be scrutinized from the copy of // 8 // forwarded email because the copy of email annexed with the complaint was an incomplete email.
d. However, despite best efforts of the OPs, the missing baggage could not be traced and therefore, the OPs vide email dated 20.05.2014, in terms of the Conditions of Carriage offered to compensate the complainant an amount of USS400 (US Dollars Four Hundred Only) as the maximum liability that can be compensated as per the Warsaw Convention 1929 or the Montreal Convention 1999 (as may be applicable). The complainant for the reasons best known to him did not accept the said amount and has filed the impugned complaint clearly exaggerating its claim to extort monies from the OPs.
In this regard, the complainant vide his email dated 23.03.2014 had particularly mentioned that the missing baggage contains valuable watches, laptop, ipaid and clothes which values to Rs.1.50 lacs approx. Also, the complainant under the impugned complaint before the District Forum had mentioned a loss of consumables amounting to Rs.1,50,000/-. However, the complainant in support of his claims had annexed only a single invoice under which the important details of the related transaction i.e. name of purchaser, particulars of items purchased are not visible, as it // 9 // is covered with an another receipt over it. Moreover, the said invoice bearing No.16340037 dated 19.03.2014 valued to Rs.6,175/- Thai Baht (which amounts to INR 11,680/- as per the prevailing rate on the said date which was 1 Thai Baht = 1.8914 INR) with the impugned complaint. For ascertaining the value of damages, no basis is given by the complainant under the impugned complaint with supporting evidences or tax invoices equivalent to the damages received by the complainant on the purchase of items which were lost. Therefore, it clearly shows an improvement of acts with exaggerated claims which are baseless because also in the event of loss, the same must be supported with proper evidences to substantiate the claim. The OPs cannot be held liable for the loss caused, apart from the admitted liability and offering compensation to the complainant amount to US$400 (20 Kgs @ US$20/- per KG) on 20.05.2014, (which amounts to INR 23,427/- as per the prevailing rate on the said date which was 1 US $ 58.5679 INR) admissible under the Conditions of Carriage, fact of which has already been communicated to the complainant . According to the OPs Conditions of Carriage :
"IndiGo shall have no liability whatsoever for damage to articles not permitted to be contained in Checked Baggage as // 10 // per the provisions of these Terms and Conditions (including, without limitation, fragile or perishable items, items having a special value, such as money."
Therefore, in the light of the aforementioned conditions of carriage, the submissions with respect to the suitcase with Tag allegedly containing the valuable belonging is denied for lack of evidence and further the OPs cannot be held responsible for the purported loss caused, if any. On inquiring with the OPs staff, the complainant was guided towards filling the Property Irregularity Report (PIR) which would assist the OPs to trace the missing luggage on the basis of description provided therein. Further the OPs made all efforts to trace the missing baggage but could not be found and therefore offered the complainant an amount of US$400 towards compensation in terms of the maximum liability as per the Conditions of Carriage. The complaint is liable to be dismissed with exemplary cost.
5. The complainant filed documents. Document A-1 is receipt dated 19.03.2014, A-2 is receipt, A-3 is Property Irregularity Report (PIR), A-4 to A-6 are email sent etc. // 11 //
6. The OPs have also filed documents. Document Annexure R/1 is copy of the Indigo Conditions of Carriage, Annexure R/2 is copy of email dated 23.03.2014 etc. Annexure R/3 is receipt, Annexure R/4 is email sent by the OPs to the complainant.
7. Learned District Forum after having considered the material placed before it by the parties, has allowed the complaint of the complainant and directed the OPs to pay compensation to the complainant, as mentioned in para 1 of this order.
8. Shri Ankit Jain, learned counsel appearing for the Indigo Inter Globe Aviation Limited (Appellants of Appeal No.FA/2015/640 and OPs in the original complaint) has argued that the impugned order passed by the District Forum is erroneous and the District Forum has wrongly fastened the liability of loss of baggage of the complainant on the OPs. The complainant is only entitled to US$ 400, which comes nears about Rs.23,000/-. The District Forum has wrongly awarded a sum of Rs.51,680/- to the complainant and also erroneously awarded Rs.5,000/- towards compensation for mental agony and Rs.2,000/- towards cost of litigation. Therefore, the appeal of the OPs be allowed and impugned order be set aside.
9. Shri R.K. Bhawnani, learned counsel appearing for Ashish Kumar (Appellant of Appeal No.FA/2015/567 and complainant in // 12 // original complaint) has argued that the complainant has adduced cogent evidence to prove that kept articles valuing Rs.1,50,000/- in the suit case, but learned District Forum has wrongly disallowed the above amount and only grant a sum of Rs.51,680/- to the complainant. The District Forum has only granted a sum of Rs.5,000/- towards compensation for mental agony, which is on lower side and Rs.2,000/- towards cost of litigation, is also on lower side, therefore, the award of the District Forum be enhanced and the complainant is entitled to get a sum of Rs.1,50,000/- towards cost of the articles kept in the suitcase, which was lost and he is also entitled to get a sum of Rs.2,00,000/- towards compensation for mental agony. He placed reliance on Indigo, Inter Globe Aviation Limited, Gurgaon, Haryana & another Vs. Vimal Tanwani - Appeal No.FA/2014/447 decided by this Commission on 07.04.2015.
10. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
11. The complainant pleaded that he booked a ticket from the OPs from Bangkok to Ko,lkata. The flight No. of the OPs was 6E78 and the date of journey was 20.03.2014. The complainant purchased some goods for his family and also purchased a watch for his cousin sister. The complainant kept watch, laptop, I-pad, imported cosmetic, Rayban Gogle, leather, ladies purse, mobile I-phone charger, camera, clothes // 13 // and local thai gift in the suitcase valuing Rs.1,50,000/- and luggage tag was affixed by the employees of the OPs in the ticket. When the flight reached to Kolkata the suitcase was not received by the complainant and the same was lost. The complainant made complaint with the OPs. The complaint was registered by the OPs and a Certificate was given by the OPs to the complainant regarding non-receipt of the case. The complainant filed documents. A-2 is photocopy of tag issued to the complainant which is bearing no. 6E 0312029755 - SEQ - 0135,. A-3 is Property Irregularity Report (PIR) dated 20.03.2014. A-5 is letter dated 23.03.2014 sent by the complainant through email to the OPs. A-4 is letter dated 31.03.2014 sent by the OPs through email to the complainant. A-6 is also a letter dated 20.05.2014 sent by OPs through email to the complainant. In A-6 it is mentioned thus :-
"As per the baggage irregularity report, one baggage weighing 20 kilos was reported missing. Therefore, in conclusion we wish to offer you compensation amount of USD 400.00 which is in line of our conditions of carriage."
12. From bare perusal of the above documents, it appears that the complainant has not received the suitcase which was lost from the OPs. The OPs submitted that according to Carriage by Air Act, 1972 the complainant is entitled for USD 400.00 which comes near about Rs.23,000/- as per terms and conditions of the Carriage. The above submission of the OPs is not acceptable.
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13. The complainant specifically pleaded that he purchase wrist watch and other articles and kept the same in the suitcase. According to the complainant, the total value of the articles was Rs.1,50,000/-, but learned District Forum has observed that the complainant has only filed one document regarding the articles. Had the articles were purchased by the complainant, then he would have filed receipt in respect of purchase of the articles, but he did not file any receipt, therefore, it cannot be held that the complainant kept the articles in the suitcase valuing Rs.1,50,000/-. It can safely be presumed that the complainant had gone to foreign, then he would have purchased some articles for his family members, therefore, it deems fit to award a sum of Rs.40,000/- along with Rs.11,680/-, which is cost of the wrist watch and the District Forum award a sum of Rs.51,680/- to the complainant. The finding recorded by the District Forum is reasonable and does not suffer from any irregularity and illegality. The complainant has not been able to prove that he kept the articles valuing Rs.1,50,000/- in the in the suitcase, therefore for want of proper documents and evidence the finding recorded by the District Forum, does not call for any interference by this Commission.
14. In the instant case, the learned District Forum only awarded a sum of Rs.5,000/- (Rupees Five Thousand) as compensation for mental agony and Rs.2,000/- (Rupees Two Thousand) towards cost of litigation // 15 // to the complainant. In our view the amount awarded by the District Forum towards compensation for mental agony is on lower side. Looking to the facts and circumstances of the case and cost of the articles, it is just and proper to award a sum of Rs.20,000/- (Rs. Twenty Thousand) to the complainant towards compensation for mental agony and Rs.5,000/- (Five Thousand) for cost of litigation.
15. Therefore, the appeal No.FA/2015/640 filed by the OPs, is liable to be and is hereby dismissed. The appeal No.FA/2015/567 filed by the complainant, is partly allowed and it is directed that the OPs will pay a sum of Rs.20,000/- (Rupees Twenty Thousand) instead of Rs.5,000/- (Rupees Five Thousand) towards compensation for mental agony and a sum of Rs.5,000/- (Rupees Five Thousand) instead of Rs.2,000/- (Rupees Two Thousand) towards cost of litigation to the complainant. The remaining part of the impugned order will remain unaltered. No order as to the cost of these appeals. Both appeals are disposed off accordingly.
(Justice R.S. Sharma)(Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta)
President Member Member Member
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