DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 164/2011
Shri Vijay Dhawan
S/o Shri M.L. Dhawan
B-149, East of Kailash
New Delhi-110065. ….Complainant
Versus
Air India Ltd.
Through
The General Manager (O) Customer Services
2nd Floor Main Reservation Building,
Safdarjung Airport
New Delhi-110003. ….Opposite Party
Date of Institution : 10.05.11 Date of Order : 07.01.19
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
ORDER
Member - Kiran Kaushal
Brief facts as pleaded in the complaint are that:-
- The complainant, Vijay Dhawan booked a ticket with Air India Ltd. hereinafter referred to as OP from Delhi to Shanghai departing on 22.09.2009 and for the return journey from Shanghai on 24.09.2009. The complainant was registered to visit the China International Sewing Machinery and Accessories show 2009 held on 22.09.2009 to 24.09.2009 at Shanghai New International EXPO Centre.
- It is alleged that OP in the most negligent manner failed to load the luggage of the complainant on the flight boarded by him. The complainant was taken aback on arrival at Shanghai Airport when he came to know about this fact. He was further harassed and suffered agony and mental tension as there was no English / Hindi speaking person available from OP’s staff to offer assistance. The complainant had to run from pillar to post and took him nearly four hours to register the complaint regarding his luggage.
- On reaching Shanghai the complainant was at loss as he had no change of clothes and his daily need items such as toothbrush, paste, shaving kit, towel etc. were all in his check in baggage missing. Besides this, the baggage also contained the samples and material for the exhibition which he had gone to attend. The Air India staff gave him only 200 CNY equivalent to Rs.1,500/- which was not enough even to buy a decent shirt.
- It is further alleged that the whole trip of the complainant was wasted. The OP instead of making urgent arrangements to have the luggage delivered to the complainant informed him that the earliest the luggage could be delivered was on 24.09.2009, the date for which the complainant was booked for his return journey.
- After following up the matter with OP on several occasions, the complainant was informed by the concerned assistant manager, baggage services vide letter dated 01.10.2009 that “as per practice in the Air India Industry all claims are settled at the station where mishandled baggage reports are made. Accordingly, we have sent papers to our Shanghai office. You will shortly hear from them.” Copy of the said letter is annexed as Annexure-C2.
- It is next averred that complainant through his counsel wrote a email to manager Air India Shanghai. The manager reverted back stating that the complainant was bound by article 9.1.3 of the general conditions of carriage passengers and baggage of the company Air India reading as :-
“The passenger shall not include in checked baggage fragile or perishable items, money, jewellery, precious metals, silverware, negotiable papers, securities or other valuable, business documents, passports and other identification documents or samples.”
- Aggrieved by circumstance above, the complainant approached this forum with the prayer to direct OP to pay sum of Rs.12,90,350/- with interest @ 12% per annum from August, 2010 onwards till payment and legal expenses on cost amounting to Rs.55,000/-.
- OP resisted the complaint inter-alia on the ground that the complainant himself admitted that the check in baggage contained the samples and other related items for the purpose of useful interaction with exhibitors only. OP further states that the complainant was bound by the Article 9.1.3 of the general conditions of carriage passenger and baggage which clearly states that among certain other items the business documents and samples should not be part of checked in baggage.
2.1 OP next states that as per Warsaw Convention the liability of the carrier is limited with respect to loss, delay or damage to baggage, unless a higher value is declared in advance and additional charges are paid. In the instant case, the complainant has neither declared about the valuable items in advance nor paid additional charges. Accordingly, in view of he complainant’s claim report regarding settlement of mishandled baggage claim, OP had already paid 200 CNY equivalent to INR 1500/- to the complainant for emergent purchases due for non-delivery of baggage on arrival. Moreover, OP was ready to consider additional compensation if the voucher/ invoices of purchase made during the said period had been submitted as per company norms. Therefore, in view of the facts and circumstances above, OP prayed for dismissal of the complaint with exemplary cost.
3. Averments made in the complaint against OP are reiterated by the complainant in the rejoinder. Evidence by way of affidavit has been filed by the complainant. Evidence of Ms. K.A. Nagamani, Senior Manager GM (GH) has been filed on behalf OP.
4. Written arguments have been filed on behalf of the parties.
5. Arguments on behalf of the complainant and OP are heard and material placed on record is perused.
6. After giving thoughtful consideration to the rival contention of the parties, this Forum hold the following views :-
It is an admitted fact that the complainant had purchased return ticket from the OP. The journey commenced on 22.09.2009 from Delhi to Shanghai and the return journey was booked for 24.09.2009 from Shanghai to Delhi. Dispute between the parties arose, as on arrival at Shanghai the complainant was shocked to know about the non-delivery of his luggage. Further to add to his agony, the OP failed to assist the complainant regarding the same. He had to run from pillar to post for four hours in a country unknown to him as there was nobody to assist him from OP’s office and the staff was not conversant with Hindi or English.
7. The complainant was at total loss as he had undertaken the journey to attend the China International Sewing Machinery and accessories show 2009 held at Shanghai, New International Expo Centre. All his personal belongings as well as documents and samples necessary for attending the said show were in the check in baggage, which was left behind in India by the OP.
8. The preliminary objection raised by OP that the complainant has availed the service with the OP for purely commercial purpose, therefore, the complainant is not duly covered under Section 2(1)(d) of the Consumer Protection Act,1986.
9. This contention of OP does not have relevance as the complainant visited China for his business but the complainant had hired services of OP, paid consideration, further the complainant has approached this Forum for deficiency of service of OP. Engaging the services of OP for travel to attend the business exhibition does not mean that the travel itself was a commercial activity. Therefore, the complainant is squarely covered within the definition as envisaged under the provision of section 2(1)(d) of the Consumer Protection Act, 1986.
10. OP has next relied on Article 9.1.3 of the general conditions of carriage passengers and baggages which is identical to Article 9.1.1.2 under Article 9 titled baggage of IATA general conditions of carriage. For ready reference the said article is reproduced herein below :-
“Carrier is not liable for damage to fragile or perishable items, money, jewellery, precious, metals, silverware, negotiable papers, securities or other valuables, business documents, passports and other identification documents, or samples, which are included in the passenger’s checked baggage.”
11. OP claims that the said notice is also published on the paper ticket with the titled items unacceptable as baggage.
12. Hon’ble Supreme Court and several other courts, in catena of judgments have held that standard form contract wherein the terms and conditions are printed in very small fonts without any discussion and negotiation cannot be accepted to be read. Further, OP has chosen not to plead or prove if warsaw connection has been ratified by India, therefore it cannot be relied upon.
13. The main purpose of the complainant to visit China was defeated when he did not receive his luggage on arrival at Shanghai. The whole trip was sheer wastage of time, money and energy as the complainant had gone to China to promote his business. In the absence of his personal belongings and presentable dress the complainant must have faced great inconvenience and embarrassment.
14. The pittance of 200 CNY which is equivalent to Rs.1500/- was certainly not sufficient for the complainant to purchase things of his personal need and decent clothes to attend the exhibition. Now at this stage, it is wrong for OP to state that OP was ready to consider additional compensation if voucher/ invoices of the purchased items made during the said period were provided to them. This offer should have been made to the complainant at Shanghai Airport.
15. Therefore, in view of the discussions above, this Forum is of the considered opinion that OP was grossly negligent in failing to carry the baggage of the complainant on the flight and was deficient in providing necessary assistance to the complainant at Shanghai Airport. Hence, the complaint is allowed and OP is directed to refund the cost of air ticket that is Rs.23,200/- and the cost of stay, the hotel expense Rs.17,150/- @ 6% per annum along with Rs.20,000/- by way of compensation towards mental agony and harassment to the complainant from filing of the complaint till realization.
16. As regards loss of business opportunity, taxi, food, water etc. and other expenses on incurred, no substantial evidence has been placed on record to prove the same.
17. OP is directed to pay the complainant within a period of 45 days from the date of receipt of the copy of this order failing which the OP shall become liable to pay interest @ 12% p.a. on Rs. 40,350/- from the filing of complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 07.01.19.
