BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.163 of 2014

Date of Instt. 14.05.2014

Date of Decision :14.05.2015

1.Anita Kumari aged about 35 years wife of Rajinder Kumar daughter of Krishan Kumar;

2. Rajinder Kumar aged about 40 years son of Kashmiri Lal;

Both resident of H.No.EB-84, Quzi Mohall, Police Station Div.No.3, Jalandhar City.

..........Complainants

Versus

1. Air France Customer Service, 8th Floor, Tower No.8C, Cyber CIty, DLF Phase-II, NH8, Gurgaon-122002.

2. Air France Office, Paris-Roissy/Charies De Gaulie, Air France Headquarters, Global Corporate Sales, CLTS, 45, rue de Paris, 95703, Roissy CDG Cedex, France.

3. Air France Office, Paris, Global Corporation Sales, JH.TS, 30 Avenue Leon Gaumont, 75985 Paris Cedex-20.

4. O.G.Travel through its Partner Rajesh Kumar, BMC Chowk, Near Bus Stand, Jalandhar.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Rajneesh Khanna Adv., counsel for complainants.

Sh.Vipin Kanwal Adv., counsel for OP No.1.

Opposite parties No.2,3,4 exparte.

Order

J.S.Bhatia (President)

1. The complainants have filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the opposite party No.1 is the customer service of opposite parties No.2 and 3 and the opposite parties No.2 and 3 are duly incorporated company at Paris and is engaged in the business of carrying persons and their luggage from one place to another through aeroplane and having its registered office at Global Corporate Sales, CLTS, 45, rue de Paris, 95703, Roissy CDG Cedex, France as well as having registered office at JH.TS, 30 Avenue Leon Gaumont, 75985 Paris Cedex-20. The opposite party No.1 is the service office of opposite parties No.2 and 3 at 8th Floor, Tower No.8C, Cyber CIty, DLF Phase-II, NH8, Gurgaon-122002. Both the complainants and their minor children had booked their tickets for journey from Jalandhar to Paris from arranging the tickets agency after paying the huge amount to them as demanded by the said agency and thereafter the complainants alongwith their children on 20.1.2013 have gone to Paris. Due to some change in the plans of the complainants, the complainants have decided to return back to India as the complainants and their family members were fully satisfied from their tour. The complainants alongwith their children due to abovesaid reasons have arranged a flight No.AF0226TN No.AF533125 on 5.2.2013 from Frankfurt for India via Paris to New Delhi. The complainant at the time of boarding the above said flight from Frankfurt to New Delhi have also kept their baggage in the Cargo of air line of opposite party containing important documents like pan card, driving license, valuable things like Sony Digital Camera, perfumes 4 to 5 in numbers, clothes, jackets, ladies suits, sweater colour black and 820 Euros alongwith 4500/- Indian Currency of total 23 Kg as per the prescribed weight allowed to the passenger with the hope that they will collect the same at the time of leaving the said flight at New Delhi Airport. The complainants and their family reached at Indira Gandhi International Airport on 5.2.2013 and surprised to see that their above said luggage duly booked before the opposite parties vide tag No.AF533125 has been missing and the same has been declared as lost by the opposite parties on account of the negligence, deficiency in services on the part of the opposite parties. The complainant then immediately informed the concerned authority at Indira Gandhi International Airport and have also reported the matter in writing with regard to the missing of the above said luggage from the airline of the opposite parties which was duly received by the opposite parties. The complainants have also mentioned each and every lost articles contained in the luggage of the complainants. The opposite parties fully assured to the complainants after receiving the complaint from the complainants that the opposite parties will locate and handover the luggage containing the articles therein of the complainant to the complainants with immediate effect otherwise the opposite parties will pay the entire costs of the said articles lying in the baggage alongwith other compensatory costs to the complainants. The complainants after the loss of the above said articles as mentioned above have approached the opposite parties on many occasions and enquired about the fate of the lost baggage in the France Air Flight and the opposite parties after receiving the complaints of the complainants have made the reply to the effect that the opposite parties are making every possible steps to the locate the luggage of the complainants. On such like averments, the complainants have prayed for directing the opposite parties to pay them Rs.1,47,549/- being the price of the lost articles alongwith interest. They have also claimed for damages and litigation expenses.

2. Upon notice, opposite party No.1 appeared and filed a written reply pleading that it is the case of the complainant that they had booked their tickets allegedly through the opposite party No.4. The complainants traveled from Delhi to Paris on 21st and Paris Zurich on 26th and returned from Frankfurt to Delhi via Paris on 5th February,2013, being satisfied by their trip. Upon arrival in Delhi on 5.2.2013 check-in-baggage of the complainants did not arrive with them. A Property Irregularity Report was filled up by the complainant No.1. Inspite of all the efforts made by opposite party No.1/Airline, the baggage could not be traced and was declared lost on 3.4.2013. The opposite party, thereafter, requested the complainants on numerous occasions to furnish invoice/bills to process their claim as per the applicable laws/procedures. The complainants have deliberately omitted the fact that they have intentionally failed to provide the bills of the items in the lost baggage inspite of several reminders by the opposite party No.1. The opposite party No.1 has never avoided its obligation and had made all efforts to locate the concerned baggage of the complainant. However, unfortunately, as the baggage could not be found, the liability of the opposite party No.1 is thus limited as per the provisions of the general conditions of carriage of the opposite party No.1 and also as per the provisions of Carriage by Air Act, 1972. Since no special declaration was made by the complainants at the time of check-in and no additional charges were paid towards the same in terms of the above enabling provision, the claims as raised by the complainants are false and frivolous and liable to be rejected. It denied other material averments of the complainants. It has also pleaded that this forum has no territorial jurisdiction.

3. Upon notice, opposite parties No.2,3,4 did not appear and as such they were proceeded against exparte.

4. In support of their complaint, learned counsel for the complainants has tendered into evidence affidavits Ex.CA and Ex.CB alongwith copies of documents Ex.C1 to Ex.C31 and closed evidence.

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OPA/A alongwith copies of documents Ex.OP1/1 to Ex.OP1/3 and evidence of opposite party No.1 closed by order.

6. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of complainant.

7. So far as, the jurisdiction of this Forum is concerned, it is case of the complainants that they purchased the tickets from opposite party No.4 at Jalandhar. So in our opinion, this forum has jurisdiction to try and deiced the present complaint. The facts involved in the present case are not much disputed. It is not disputed that while returning from France to New Delhi via Paris on 5.2.2013 one check-in baggage of the complainant was lost or did not reach the destination. Complainant lodged complaint in this regard with the opposite party No.1 airline. The opposite party No.1 failed to trace out the missing baggage of the complainants and was declared as lost vide letter Ex.C20. According to the complainant the lost baggage was containing articles worth Rs.1,47,549/-. Now the question which falls for determination is, as to what extent there is liability of the airline in respect of the lost or missing baggage of the passenger? The complainants have not made any special declaration regarding the articles in their baggage. So in absence of any special declaration, the liability of the airline is limited as per provision of Carriage by Air Act, 1972. In Eqypt Air Vs Smt.Sai Leelavathi, Revision Petiton No.830 of 2005 decided on 16.2.2006 the baggage of the passenger was lost and he filed the consumer complaint claiming Rs.1,89,436/- and the district Forum allowed claim of Rs.1,17,000/- alongwith interest and costs. However, appeal filed by the appellant was dismissed by Hon'ble State Commission of Karnatka. The airline filed revision petition before Hon'ble National Commission contending that as per Carriage by Air Act, 1972, the liability of the carrier is 20 US Dollars per KG subject to maximum 20 KG which works out to 400 US Dollars and in these circumstances, the Hon'ble National Commission held as under:-

"In our view there is a specific provision under the Carriage by Air Act, 1972, Schedule II Rule 22 which provides for the maximum limit of payment of compensation in such cases. In this view of the matter, this revision application requires to be allowed. Petitioner is directed to pay an amount equivalent to 400 US$ to the complainant".

8. So in absence of specific declaration, the complainants in this case are only entitled to 400 US Dollars or its equivalent value in rupees as per prevalent rate i.e on the date of order. The complainants have also prayed for damages and litigation expenses. No doubt, the liability of the carrier in respect of missing or lost baggage is limited according to the rule 22 of Carriage by Air Act but the Forum is not debarred from granting compensation to the aggrieved passengers on account of deficiency in service. The very fact that the baggage of the complainant was lost itself proves deficiency in service on part of the opposite parties. The complainants had to face harassment and mental agony due to loss of baggage. They entered into length correspondence with the opposite party No.1 airline regarding missing baggage and ultimately they had to file the present complaint. So, they are also entitled to compensation and litigation expenses.

9. In view of above discussion, the present complaint is accepted against opposite party No.1 and it is directed to pay 400 US Dollars or it is equivalent value in rupees as per exchange rate prevalent today i.e on the date of order besides Rs.25000/- in lump sum on account of compensation and litigation expenses to the complainants in equal shares. The payment be made within one month from the date of receipt of copy of this order failing which the opposite party No.1 shall be liable to pay interest on the entire awarded amount @ 9% per annum after the expiry of said period of one month till the date of payment. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

14.05.2015 Member Member President