Complainants by filing this complaint have alleged that complainants for travelling to London from Kolkata on 27.12.2010 and also for returning from London on 24.01.2011 they purchased both ways tickets from Air India’s Agent M/s. Chandni Forex-Tour Pvt. Ltd at 16, Royd Street, P.S.-Park Street, Kolkata-700016 vide Booking Ref: AMADEUS: 6V6SCE, AIRLINE: AI/J14J4 and said ticket indicated departure of Flight No.AI III on 27.12.2010 at 3:40 hours from Kolkata and accordingly they reached Kolkata Airport on 26.12.2010.  But very surprisingly counter of the Airport refused to issue boarding pass and asked them to wait and they waited for the whole night and Flight was made available on the afternoon on 27.12.2010 and during their stay at the lounge at the Airport no arrangements were by the op for boarding and lodging of the passengers and they were stayed in precarious conditions and instead of reaching Heathrow Airport at London at 11:30 AM subject to schedule hours on 27.12.2010 they reached the Heathrow Airport at 21:00 hours at about delay of 10 hours and due to said delay complainant suffered much pain as they are aged about 55 and 50 years respectively and practically after reaching Heathrow Airport at London they found being surprised that their baggages were missing and thereafter they reported the matter in writing to the Air India at London, Terminal 3 at Heathrow Airport at London.  But after much endeavours, they got their baggages in the evening of 02.01.2011 after a delay of seven days and fact remains during that 7 days period they had no belongings, clothings, personal documents and also medicines etc.  So, they became ill during their stay of London and had to report twice to the hospital Emergency Service and after reaching Kolkata from London they remained sick for long period and remained on medication.

          Practically for their sickness they had been treated by the doctor and it is further submitted that for the negligent and deliberate and intentional default and lapses on the part of the op, complainants suffered much and practically for deficient manner of service, the complainants as passengers of the op suffered mental pain and agony for which the complainants have prayed for compensation to the extent of Rs.5 lakhs.

          On the other hand, the op Air India by filing written statement submitted that they had already reported the matter on 10.10.2011stating that a receipt of the complaint of the complainants they took up the matter with all the concerned papers for investigation and it reveals that AI III/27.12.2010 was cancelled by Headquarters of Kolkata Airport and complainants travelled on the same date i.e. by the Flight AI 611/27.12.2011 from Kolkata to Delhi and it was reported by the duty officer of Kolkata Airport on the day they could not facilitate them anyway since they did not contact with them during their waiting time at Kolkata Airport and it is also reported that baggage was delayed due to fog a natural phenomenon beyond control of mankind and their baggages was carried to London by next available flight from Delhi and was delivered to them on 31.12.2010 at 4 PM and they inadvertently mentioned that they got the baggage on 02.01.2011.

          It is submitted that Airline has a liability to pay them an interim relief of GBP 50.00 per passenger for delayed delivery of baggage at their destination and in case they are holder of return ticket and in this regard op requested the complainants to forward them the copies of their return tickets, copy of Property Irregularity Report filed at Healthrow Airport and copies of their Passports and on receipt of those documents only they could process payment of GBP 100.00 for themselves in equivalent Indian Rupees in full and final settlement of their claim.  But they regretted the inconvenience and look forward to a opportunity to serve them better in future.

          Further it was submitted that as per International Baggage Rules of Air Passenger is entitled to get maximum compensation of US Dollar of 50.00 for delayed delivery of baggages more than 24 hours and said amount is payable upon relief payment as required and it was further submitted that practically there was no fault on the part of the op and moreover the allegation of the complainants are false and fabricated.  It is further alleged that in the op’s website at various other conspicuous places of all the airports passengers are specifically advised  not to include medicine, valuable documents, jewelleries, money etc in the checked in baggage but to carry those articles as hand baggage along with them in the aircraft and in the checking baggage to carry as in their undertakings along with and if any inconvenience as alleged has been faced by the complainants then that is exclusively for their own negligence.  It is also stated that the reason for cancellation of flight beyond control of the cancelled of op and same did not tantamount of deficiency in service and liabilities does not tantamount to deficiency in service and accordingly the op prayed for dismissal of this case.

                                                Decision with reasons

          On careful study of the complaint and the written version and further considering the particular letters of the complainants dated 15.07.2011 address to AI by the complainants it reveals that complainants reported the matter for baggages and also the fact of their harassment caused due to non-delivery of the luggages by the Air India on the very date of their arrival at Heathrow Airport at London on 27.12.2010 at 21:00 hours and also their harassment at the night hours of 26.12.2010 at Kolkata Airport for cancellation of air Flight No.AI-III and prayed for compensation to the extent of Rs.5 lakhs against that vide letter dated 10.08.2011 Air India reported the entire matter and cause of delay and also submitted that after investigation baggage was detected and was handed over to the complainants on 31.12.2010 at 4 PM and they also expressed their regret for that sufferings and agreed to pay 100 GBP in US Dollar as per rules as laid down in view of the Warsaw Convention or the Montreal Convention which is applicable if domestic travel is in conjunction with an international sector.  So, considering the said two letter of the complainants and op’s early arguments as advanced by the Ld. Lawyers of both the parties, it is undisputed fact that AI-III/27.12.2010 was cancelled at Kolkata.

          So, complainants were reported to travel of AI-611/27.12.2010 Kolkata to Delhi and it was reported invariably by the Airport Authority for which complainants availed to that flight AI-611/27.12.2010 at Kolkata and specially reached at Heathrow Airport on 27.12.2010 at 21:00 hours.  No doubt delayed for about 10 hours was caused.  But as per Air India’s rules for that reason Air India cannot be liable for any compensation for such delay because flight is cancelled for the proper protection of the passengers and such a cancellation cannot be challenged in any Forum and after considering the rules and regulations of the Air India as per Warsaw Convention and Montreal Convention we have gathered that for such delay complainant cannot be entitled to get any compensation because it was no their negligence on the part of the op Air India.

          But regarding non-delivery of the baggage at Heathrow Airport on 27.12.2010 at 21:00 hours and it is delivered on 31.12.2010 at 4 PM is no doubt deficient manner of service because for want of baggage it would not be possible for any passenger to stay at London in any hotel also.  But fact remains that the said luggage reached at Heathrow Airport at late hours on the ground the freight delayed due to fog and no doubt it is natural phenomenon beyond the control of mankind but the baggage was not available from Kolkata and was delivered to the complainant on 31.12.2010 but not on 02.01.2011 as alleged.

          In this regard we have gone through the special condition regarding the passenger’s duty to carry the articles with their personal baggage and what articles must not be kept in the check in luggage and from that note it is clear that passengers are advised not to carry valuable articles such as jewelleries, encashable articles, negotiable papers and currency in their check in baggage and the carrier is not liable for loss or damage to air delay in the delivery of fragile or delayed schedule articles money, jewellery, silver coins, electronics, video computer, photograph camera, negotiable papers, securities, heir rooms, antique arti facts work of art business documents and other similar valuable or commercial articles.

          So, considering that caution and also provision we are convinced to hold that complainant ought not to have keep medicines etc or valuable articles of the said check luggage and if complainant kept it in the check in luggage and for non-delivery of the said check luggage in time to the complainant if complainant suffered no doubt for that reason op is not liable for loss or damage or for delay in delivery of the said luggage.

          However, a passenger can benefit for higher value by making a special declaration at the check in and by pay a supplementary fee but anyhow complainant has not pleaded such a plea in his complaint so it is proved that complainant did not make any special declaration at the check in and never paid any special fee for getting those valuable articles in the check in luggage.

          Moreover as per rules and regulations of Air India and also as per provision of Warsaw Convention and Montreal Convention compensation in any case is computed to maximum rate of USG 20 per Kg and or SDR 1,000 per passenger for loss damage or delay.   Further after studying the rules and regulations of the Air India regarding delayed delivery of baggage, it is found that on international journey if delivery of baggage is delayed beyond 24 hours when passenger is visited to foreign country and has no access to their own at foreign land ---------- then entire expenses by GBP or equivalent to his reimburse in India the amount is INR Rs.3,000/- and if the above rules are kindly considered and the said provision is applied in the present case in that case it is found that for delayed delivery of baggage beyond 24 hours of passenger is entitled to Rs.3,000/- as compensation.  So, in the present complainant is entitled to Rs.6,000/- as compensation and fact remains op reported that matter to the complainant but complainant did not accept it.

          But whatever it may be it is proved that there was laches on the part of the op on the ground their flight started at belated stage may be due to fog but it must be kept in mind of the Airport Authority that if check in luggage is/are not delivered at the destination airport to the passenger by the Air India in that case invariably the passenger must have to suffer much and that sufferance may not be compensated by any money because the present complainants went there for a tour and no doubt for want of said luggage the complainants suffered much and practically without any belongings they stayed there from 27.12.2010 to 31.12.2010 i.e. for about 5 days and during that period invariably complainant was compelled to purchase some other domestic articles that is their dresses etc to change their dress and during the stay at hotel and no doubt they suffered mental pain and as per Warsaw Convention or Montreal Convention no doubt op Air India is bound to pay a compensation of Rs.6,000/- to the complainant for delayed delivery of the check in luggage.  But there is no such provision in the Montreal Convention or Warsaw Convention that for not rendering service in time by the Air India and for which if any sufferings is caused to the passenger in that case what would be the compensation for such sufferings of the passengers.

          Practically, after study of the Warsaw Convention and Montreal Convention it is found that in said two conventions some chatters were accepted regarding publication of rules and regulations in respect of Civil Aviation and about flight.  But about passengers sufferings due to over act of Air India no such clause was included.  So, in the present case as per provision of C.P. Act 1986, the Air India must be guided in view of that fact.  The complainant sufferings was caused due to Air India’s fault because one reasonable and prudent person cannot believe that due to fog for 5 days the flight delayed and there is no such assertion in the written version by the op that 5 days delay was caused due to delayed journey of the flight due to fog but it may be one day, that means even after arrival of the check in luggage at Heathrow Airport on the next day op did not deliver the same forthwith but delayed for another 5 days.  So, it is no doubt negligent and deficient manner of the service on the part of the Air India and it is fact that complainants truly went there with hope to enjoy their tour but their all hopes were nipped in the bud due to callous administrative action on the part of the Air India and also for very dishonest activities of the staff of Air India at Heathrow Airport and practically they did not properly serve the complainants at Heathrow Airport and also at London and they did not think for a moment that it was their duty to deliver the articles forthwith after arrival at Airport but that was also not done.

          So, considering all the above facts we are convinced to hold that complainants suffered too much due to callousness, negligent and deficient manner of service on the part of the employees of the Air India including Air India Authority and in the above reason and finding we are inclined to hold that no doubt for such sufferings of the complainants op is responsible highly and for that reason further compensation other than compensation for belated delivery must be awarded in favour of the complainants against the op.

          Accordingly, the complaint succeeds in part.

          Hence, it is

                                                          ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the op Air India.

          Op is hereby directed to pay a sum of Rs.20,000/- to the complainant as compensation for causing sufferings, mental pain and agony and for not rendering proper service to the complainants and so complainants shall have to get a sum of Rs. 20,000/- + Cost Rs.10,000/- i.e. total Rs.30,000/- within one month from the date of this order failing which for non-compliance and disobeyance of the Forum’s order, op shall have to pay punitive damages @ Rs.500/- per day till full satisfaction of this decree and if same is collected it shall be deposited to the Head of State Consumer Welfare Fund of this Forum.

          Op is directed to comply the order very strictly and to satisfy and implement the order within one month from the date of this order and if it is found that op is reluctant to comply the order, in that case, penal action shall be taken against the op for which further penalty of Rs.10,000/- shall be imposed and even warrant shall be issued against them for implementation of this order for which op shall be liable.