STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

British Airways, HL-02, Level-5, Terminal-3, Indira Gandhi International Airport, New Delhi.

……Appellant/OP

V e r s u s

1.           Anish Setia s/o Shri R.C. Setia, r/o House No.502, Sector 8, Chandigarh

2.           Sahil Setia s/o Shri Anish Setia, aged 5 years (minor) through natural guardian Mr. Anish Setia, resident of House No.502, Sector 8, Chandigarh

              ....Respondents/complainants

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Rudrajyoti Nath Ray, Adv. for the appellant

                   Sh. Sandeep Suri, Adv. for the respondents

PER  NEENA SANDHU, MEMBER

                   This appeal is directed against the order dated 13.1.2012, rendered by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) in which it was held as under :-

                             “This case is taken up today on the written request of the complainant.

                             Sh. Anish Setia, complainant No.1 alongwith Sh. A.S. Narang, Advocate for the complainants has made the following statement, recorded separately :-

                                      “Due to technical defect, I do not press this complaint at this stage.  It be dismissed as withdrawn with permission to file fresh complaint on the same cause of action after removal of the defects.”

                             In view of the statement made by Sh. Anish Setia, complainant No.1 alongwith Sh. A.S. Narang, Advocate for the complainants, this complaint is dismissed as withdrawn with liberty to file fresh complaint.

                             Certified copy of this order be communicated to the parties free of cost.  After compliance file be consigned.”

2.                     The facts of the complaint, in brief, are that the complainants booked online tickets for themselves, as well as other members of the family, with the opposite party, for travelling from New Delhi to Los Angeles.  They travelled from New Delhi to Los Angeles, on business class tickets, and took the return flight on 4.7.2011 and checked-in with 15 pieces of baggage, including  a baby pram.  However, on arrival at the Indira Gandhi International Airport, New Delhi on 6.7.2011, they were surprised to find only 10 pieces of baggage, as against 15, and had to wait for two long hours at the Airport for filling up the baggage claim form.  On the next day, the opposite party, located three of the four missing bags and the baby pram but could not find the fourth bag.  It was stated that, in the month of August, they lodged the claim with the opposite party on its website for Rs.1,30,000/-, but the opposite party even misplaced the said claim.  Finally, the complainants sent a legal notice dated 31.8.2011, whereafter, an email dated 16.5.2011 was received from the opposite party, stating therein that the maximum compensation that could be paid was Rs.65,000/- only.   When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                     The Opposite party, in its written version, denied that the complainants were made to wait, at the airport, for two hours with reference to baggage claim form reference No.DEL BA 88427 or that it did not bother to trace the alleged missing baggage.  It was stated that the claim of the complainants was governed by the Montreal Convention, 1999.  It was further stated that there was no deficiency, in service, or negligence on its part. The remaining averments were denied, being wrong.

4.                     The parties led evidence, in support of their case. 

5.                     After hearing the Counsel for the parties, and, on going through the evidence and record, the learned District Forum, reserved the case for orders, but, thereafter, passed the impugned order, as mentioned in the opening para of this order, at the back of the Counsel for the opposite party.

6.                     Feeling aggrieved, the instant appeal has been filed by the appellant/opposite party.

7.                     We have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 

8.                     The Counsel for the appellant, submitted that the District Forum erred in passing the impugned order, at its back, particularly, when the arguments, on merits, were heard and the case was reserved for orders.  He further submitted that after the case had already been reserved for orders, the complainant moved an application on 13.1.2012, at his back, for permission to withdraw the complaint, due to some formal defects, with liberty to file a fresh one.  It was further submitted that, on the application of the complainant, the case was taken up on 13.1.2012 itself, and the order, which is now impugned, in the present appeal, was passed, which is prejudicial to its rights as it had already led evidence and also concluded the arguments.  It was further submitted that though the complainant mentioned, in the application, that he was withdrawing the complaint, due to technical defects, yet, surprisingly, the same were not mentioned in the application.  It was further submitted that earlier also the complainant had filed a complaint, in the District Forum, which came up for hearing on 12.10.2011, but the same too was withdrawn. 

9.                     The Counsel for the respondents, however, supported the order of the District Forum, being legal and valid. 

10.                  A perusal of the record shows that vide order dated 9.1.2012, the case was reserved for orders as both the parties concluded their arguments.  On 13.1.2012, the case was taken up again, on the written request of the complainant and, in view of the statement, made by Sh. Anish Setia, complainant No.1 alongwith Sh. A.S. Narang, Advocate, for the complainants, the complaint was  dismissed as withdrawn with liberty to file a fresh one, which, according to the appellant, caused it a great prejudice.  In our considered opinion, the District Forum erred in dismissing the complaint, as withdrawn, on the ground of technical defects, on 13.1.2012, at the back of the Opposite Party, especially when the arguments therein, had been heard on merits on 9.1.2012, and the order had already been reserved. Further, the complainants themselves mentioned in para 10 of the complaint, that earlier also they filed a complaint, on the same cause of action,  before the District Forum, which came up for hearing on 12.10.2011, but the same was withdrawn, with liberty to file a fresh complaint, with better particulars.  Taking these facts into consideration, we are of the opinion, that once the evidence stood concluded, and the arguments, on merits, were heard, then keeping in view the ends of justice, it was incumbent upon the District Forum, to have issued notice of the application, for withdrawal of the complaint, to the opposite party, before passing any order thereon.   However, the District Forum failed to do so and simply allowed the complainants, to withdraw the complaint, without giving an opportunity to the Opposite party of being heard, with liberty to file a fresh one, which curtailed its right to file any reply/counter to the same.  Therefore, the impugned order, passed by the District Forum, is unsustainable, in the eyes of law, and the same is liable to be set aside. 

11.                  In view of the above discussion, the appeal is accepted with no order as to costs.  The order impugned dated 13.1.2012, passed by the District Forum, is set aside, and the case is remanded back to it, for 24.05.2012, with a direction to decide the application for withdrawal of the complaint, expeditiously, after giving notice thereof, to the opposite party, as well as its Counsel, to file reply/counter and then adjudicate the case on merits as per law.  The parties are directed to appear before the District Forum on 24.5.2012 at 10:30 a.m.  The District Forum record alongwith a certified copy of the order be sent at once.

12.                  Copies of this order be sent to the parties free of charge.

Pronounced.

02.05.2012

[JUSTICE SHAM SUNDER]

PRESIDENT

[NEENA SANDHU]

MEMBER