DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.257/2018

Mr. Sandeep Goel

S/o Suresh Goel

R/o C-85, Shivalik

New Delhi-110017.                                               .…Complainant

                                                 VERSUS

Air India Ltd.

A Union Government Company

Having its Regd. Office at : Airlines House

113, Gurudwara Road

New Delhi-110001.

Etihad Airways

A company incorporated in

The United Arab Emirates

Having its Regd. Branch Office in

India at Etihad Airways

 1^st Floor Sunder Mahal

1⁴¹ Marine Drive

Churchgate, Mumbai-400020

Also at:

Etihad Airways

201/218, 2^nd Floor

Narain Manzil, Barakhamba Road

Connaught Place

New Delhi-110001.                                                        ….Opposite Parties

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Present:      Adv. Ishani Banerjee for complainant.

Present:      Adv. Deeksha Arora for OP-1.

ORDER

Date of Institution:07.09.2018

Date of Order       :07.09.2024

President: Ms. Monika A Srivastava

Complainant has filed the present complaint seeking compensation of Rs.1,20,000/- in lieu of the item in the baggage; pay a sum of Rs.2,00,000/- for loss of data  on computer; Rs.1,50,000/- on account of mental trauma and agony.  OP-1 is Air India Ltd. and OP-2 is Etihad Airlines.

1. It the case of the complainant that he had booked a flight ticket from New York to New Delhi for 21.09.2016.  Complainant’s tickets and boarding pass are annexed as annexure C-1 (colly).  It is stated that the complainant’s luggage including a carton with the word ‘Dell’ printed on it the said carton contained the computer Dell T20 along with the hard disk, computer components, certain expensive professional related books and other reading material besides personal and clothing items. The computer box contained essential and confidential documents related to the business of the complainant who is an architect.

2. At the time of check -in, complainant was advised by the personnel of OP-1 that his luggage should be wrapped in blue coloured plastic wrap so as to prevent it from damage and avoid pilferage as the carton contained high items.  As advised the carton was fully wrapped in blue coloured plastic wrap and tag was attached by the airline personnel.

3. Upon reaching Delhi Airport, complainant collected his carton after duly checking the tag however after reaching home with the carton was not the one that he had given for check-in at New York and in fact belonged to one Ms. Sakina Begum,  a passenger travelling to Karachi via Etihad Airways  the airline operated by OP-2.

4. The complainant then contacted OP-1 on 22.09.2016 and informed them and asked them to return his carton at the earliest.  Complainant received a response on 24.09.2016 wherein he was informed that the agent wrapping the cartons at the check-in counter had negligently exchanged the baggage tag of the complainant with other passenger and therefore their baggage had been misplaced.  Further, the complainant was assured that OP-1 had contacted OP-2 who would be informing the passenger that the carton had been exchanged and the efforts were made to retrieve complainant’s carton.  Copies of emails exchanged between the parties are annexed as annexure C-2 (colly).

5. Complainant duly deposited the carton that had mistakenly come into his possession with OP-1 and on the insistence of OP-1 made a ‘courtesy claim’ with OP-1 at IGIA (T-3), New Delhi.

6. A representative of OP-1 contacted the complainant on 14.10.2016 informing him that his baggage has been traced and asking him to identify the same, complainant promptly responded on email by identifying the carton, describing the content of the same in order to aid in the identification of the lost carton.  Copy of the email exchanged between the complainant and OP-1 is annexure C-3.

7. It is the grievance of the complainant that despite his prompt response no action was taken by OP-1 to trace and return his misplaced carton.  After many weeks unanswered reminders complainant was informed that though OP-2 was expected to deliver his carton and the same has been delayed and after this communication OP-1, avoided the calls and emails of the complainant. Copies of email exchanged are annexed as annexure   C-4.

8. Thereafter complainant approached OP-2 to retrieve his lost carton however, OP-2 replied on 11.04.2017 denying of knowledge of the complainant’s carton and redirected the complainant to OP-1.  Copy of the email exchanged between complainant and OP-2 is annexed as annexure C-5.

9. It is the case of the complainant that all his attempts to contact both the OPs have been futile and he has been made to run from  pillar to post without receiving any response. It is stated that OP-1 has been negligent in cross tagging his bag with that of another passenger and failing to recover it despite several reminders. It is stated that OP-2 was duty bound to enable the return of the complainant’s baggage once it was identified to be in their custody. However, they have chosen to deny all knowledge of his baggage.

10. It is stated by the complainant that on account of deficiency in service of the OPs complainant has not received either his baggage or the compensation.  It is stated that he had to suffer great loss due to mis-placement of his baggage and suffered additional monetary loss as the lost computer box material contained important and confidential work products related to complainant’s business.

11. In their reply, OP-1 has stated that there is no cause of action which has arisen against OP-1.  It is stated that the complainant has concealed the fact that OP-2 had found a baggage of the complainant from one of its passengers after it was wrongly taken by the passenger and after obtaining it, again mixed if and ultimately lost in transit while sending the same to the complainant.  This is clear from the legal notice of the complainant dated 12.02.2017.  Copy of the legal notice dated 12.02.2017 is annexed as annexure R-1.

12. It is further stated that complainant has misrepresented the fact for this Commission to believe that the subject baggage/carton was wrapped by OP-1 to the contract wrapping baggage is a service provided at all major  airports by the airports itself and are contracted to third parties or provided by the airports for all travellers irrespective of the airline that they are travelling.  This is used by the passengers who want to ensure safety of their goods from any tampering.  It is stated that the carton mixed up has happened purely because of the negligence of the complainant himself or at best the concerned baggage wrapping company provided by JFK Airport.  It was the duty of the complainant to be aware of his baggage and therefore no negligence can be cast on OP-1.

13. It is stated that as per the condition of the contract in general, carriers’ liability and contract ends when the passenger collects his or her luggage from the baggage belt after confirming the tag number which was given to him at the time of boarding the flight.  It is stated that in this case the carton was taken by OP-1 believing it to be that of the complainant which was provided by the complainant to the staff of OP-1 at JFK Airport check in counter on 21.09.2016.  OP-1 took the carton believing it to be that of complainant from the baggage belt after confirming the tag number which was given to him at New York which has been admitted by the complainant in his complaint.

14. It is stated that complainant has raised an absurd argument that it is the OP-1 which has cross tagged someone else’s baggage of a different airline.  It is stated that check-in counters of airline take one passenger at a time for the purpose of check-in for providing a boarding pass to that passenger and in case a check-in luggage provide a check-in tag to the passenger.  It is stated that counter of one airline does not facilitate passenger of another airline travelling to a different location as in this case Ms. Sakina begum was traveller of OP-2 airlines to Karachi therefore OP-1 was in no manner negligent in performing its duty towards the complainant and in fact has gone lengths to help the complainant in locating his baggage.

15. On receipt of complaint by the complainant, a detailed investigation was done by OP and it was found that the complainant has switched the boxes.

16. When the complainant came to the OP with a wrong box the same was received and the ‘courtesy claim’ was raised and the complainant was advised to report only for tracing purpose with no liability of    OP-1.

17. On 14.10.2016 the staff of OP-2 contacted OP-1 seeking information regarding the carton of Ms Sakina Begum and a mail was received from Delhi Etihad Airways along with the box picture which was sent to the complainant for identification.  When the complainant confirmed that the box belonged to him, OP-1 informed Delhi Etihad Airways for further action and a reminder mail was sent on 21.10.2016 to them but as per their report they were not in receipt of the box till 21.10.2016. Copy of the email dated 21.10.2016 is annexure R-2.

18. It is stated that after receiving the information from Delhi Etihad Airways OP-1 checked all possible areas including tagless area but the missing baggage could not be traced.  It is stated that on 03.11.2016 OP-1 handed over Sakina Begum’s baggage to Delhi Etihad Airways staff and the receiving of the same is annexure R-3.  It is stated that in view of these facts it is the only complainant who has been negligent in not ensuring to pick the right baggage and liability, if any, is that of OP-2 or JFK Airport which provided the baggage wrapping services.

19. It is also stated by OP-1 that the value of the baggage lost has been increased by the complainant in his complaint in comparison to one provided in his legal notice and no proof of how and what manner the figure has been arrived at by the complainant is provided.

20. In his rejoinder, complainant has reiterated the facts of his complainant and has stated that OP-2 no defence and simply trying to shift the blame on to other parties.  Complainant has mostly denied collecting his baggage from the baggage belt or that a pre-wrapped baggage was handed over to OP-1 by the complainant at check-in counter.

21. An application has been found on record filed by the complainant for placing on record additional documents.  Reply to which has been filed by the OP.  The application is considered and the documents filed by the complainant are taken on record.

This Commission has gone through the entire material on record. As the complainant was not the consumer of OP-2, notice was not issued to OP-2. It is the case of the complainant that complainant after wrapping  his package named ‘DELL’ at JFK Airport at New York delivered the same to the personnel of OP-1 and it is further stated by him in his complaint that after duly checking the tag on the outer wrapping he collected the same at New Delhi Airport which fact has been denied by him in his rejoinder. 

After having gone through the entire material this Commission is of the opinion that the complainant has not been able to establish deficiency on the part of OP-1 as OP-1 has tagged that very package that was handed over to them by the complainant and that very package was duly delivered to him at New Delhi Airport.  It the not the case of the complainant that this is a package which got missing.  This Commission is of the view that this is a peculiar case of mistaken identity of package which the complainant mixed up at JFK Airport with Ms. Sakina Begum of Etihad Airways who was also getting her package packed at that very time. 

Placing reliance on the judgment of the Hon’ble Supreme Court in the matter of in SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following:-

“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”

This Commission is of the view that the present complaint is dismissed being devoid of any merits.

Copy of this order be given to the parties as per rules.  File be consigned to record room.  Order be uploaded on the website.