Delhi

StateCommission

CC/12/257

CHANDER MOHAN LALL - Complainant(s)

Versus

BRITISH AIRWAYS & ORS. - Opp.Party(s)

06 Nov 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :06.11.2017

Date of Decision :05.12.2017

Complaint No.257/2012

IN THE MATTER OF:

 

Shri Chander Mohan Lall

E-10, Saket,

New Delhi-110017.                                                                                     ……Complainant

                                                                        Versus

1. British Airways Customer Relations (S%06)

PO Box 5619

Sudbury, Suffolk

CO10 2PG

United Kingdom

 

Also at:

 a.        British Airways,

DLF Building,

Sansad Marg,

New Delhi-110001.                                                            

 

b.         British Airways,

            DLF Plaza Towers,

            DLF Qutub Enclave,

Phase-I, Gurgaon-122001.

Haryana.                                                                               ….Opposite Party No.1

 

2. Aeromexico Airlines,

Centro Commercialmaleconlasamericas (Cancun)

Avenida. Bonampak SM 6 Loc. 120, Cancun, Quintana Roo

Mexico                                                                                               ….Opposite Party No.2

 

3. Air India,

Safdarjung Airport,

Aurobindo Marg,

New Delhi-110003.                                                                         ….Opposite Party No.3

 

4.G.S. Travels Pvt. Ltd.,

E-47 IInd Floor,

Connaught Place,

Delhi-110001. India                                                                        ….Opposite Party No.4

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes/No

2.      To be referred to the reporter or not?                                                                     Yes/No

 

Present:           Shri  Adab Singh Kapoor, counsel for the complainant.

                        Ms. Ritu Singh Mann, counsel for the OP-1.

                        Ms. Kritika Sachdeva, counsel for the OP-3.

                        Ms. Suchita Sharma, counsel for the OP-4.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

JUDGEMENT

          Shri Chander Mohan Lall resident of Delhi for short complainant, has filed this complaint before this Commission under Section 17 of the Consumer Protection Act 1986 (Act) against British Airways and others (hereinafter referred to as OPs), alleging deficiency on their part for mis-handling his bag, which he was carrying on his foreign tour to Cancun and praying for the relief as under:-

A)      Direct the OP 1 and 2 pay a sum of INR 47,50,000/- (as compensation for mental agony, physical  discomfort, loss of reputation and goodwill internationally, loss of business, loss of pleasure of the trip) along with interest @24% p.a. from the day of receipt of legal notice dated 06.02.2012, till realization of the said  sum.

b)      Direct the OP 1, 2 and 3 to pay a sum of INR 2,21,942.16 towards Actual purchases (200 @ INR 50 = INR 10,000) (Cancun)+ INR 78,017.16 (Miami) 1,00,000 (India) + Cost of missing items (INR 33,000) + Storage charges (INR 925) at New Delhi Airport.

c)      Direct OP 1 and 2 to pay the  cost of tickets, hotel accommodation charges and conference booking charges amounting to INR 2,82,122.50.

d)      Direct OPs 1, 2 and 3 to pay INR 50,000 as cost of litigation.

e)      Direct OPs 1,2 and 3 to pay such amount on account of deficiency in services as this Hon’ble Commission deems fit.

f)       Any other relief/ such reliefs that this Hon’ble Forum may deem fit and proper in the facts and circumstances of the present case.

          Facts of the case, necessary for the adjudication of the complaint, are these.

          The complainant intending to attend the International Trademark Association (INTA) Leadership meeting scheduled to be held from 08.11.11 to 12.11.11 at  Miami, Florida, United States of America, boarded  the British Airways flight on 05.11.2011 for London and thereafter from London to Miami as per the itinerary indicated below:-

S.NO.	DESTINATION (FROM – TO)	AIRLINES	TIME AND DATE OF DEPARTURE
1	Delhi (India) to London (United Kingdom)	British Airway BA 142	3:30 on 05.11.2011
2	London (United Kingdom to Miami (Florida, USA)	British Airways BA 207	9:40 on 05.11.2011
3	Miami (Florida, USA) to Cancun, Mexico	Aeromexico AM 415	19:40 on 05.11.2011

 

          The complainant had checked in on 05.11.2001 as per the aforementioned schedule  and handed over the charge of his baggage to the OP-1 namely British Airways containing the items as under:-

 

• Brochures of firm.
• Over 100 pen drives containing firm information.
• Diving log and diving certification.
• BI:Nautica
• Props for speaking at the conference
• Underwater camera along with charger
• Indian handicraft key chains for distribution at the conference.
• 6 Indian handicraft umbrellas to be used as pros.
• Laptop and i-paid chargers.
• Clothes (two brand new stoles worth US 100$ each)
• Clothes (two Armani exchange t-shirts worth US 80$ each)
• Clothes (two suits, 4 shirts, including shoes, ties, belts, sun glasses, cologne) for ten days.
• Permissible toiletries.

In addition to the baggage which the complainant had handed over to the Airlines he was also carrying with him a single bag which was assigned a tag bearing no BA 776068.

It is alleged in the complaint that on landing at the Miami International Airport, the complainant, concerned about the  manner in which his bag would be transferred to his next flight operated by OP-2 namely Aeromaxico Airlines,  inquired about the whereabout of his baggage. The complainant also expressed to the Airport Authority the importance of the contents of the bag including certain items required by him in the Conference scheduled to be held from 08.11.11 to 12.11.11 at Miami, Florida, USA. The complainant was assured and informed by the officials that the bag would be transferred directly from OP-1 to OP-2 safely and shall  be delivered to him in Cancun. Relying on the assurance and banking upon the reputation of the OPs the complainant felt safe that his baggage would arrive at Cancun without any hiccups. However on reaching Cancun he was informed that his bag has not arrived and the airport staff of the OP-2 requested the complainant to fill up the baggage claim form bearing no.CUNAM50134 and Folio No.34383. The airport authorities took the plea that possibly his bag may have got mixed up with some other bags but assured that his bag would be traced and delivered on the next day at the hotel where he would stay. The complainant on the assurance of the OP-1 left the Airport and checked in Hotel where he had made his arrangement for stay. Thereafter the complainant made several calls to the airport authorities of OP-2 at Cancun who kept saying that the bag has not been traced but assured that it would be traced and handed over. Since the bag was not traceable and he was not having any cloth except what he was wearing, he made purchases on emergent basis in order to  participate in the activities at Cancun as per schedule organized by him. The complainant has further alleged that  due to the non availability of the Diving Log lying in the misplaced bag his scruba diving plans at Cancun was totally frasturated. The complainant expressed his annoyance to OP-2 about their reckless action or omission in handling of his bag. The itinerary of the complainant on return from Cancun to Delhi through Miami was as indicated below:-

S.NO.	DESTINATION (FROM – TO)	AIRLINES	TIME AND DATE OF DEPARTURE
1	Cancun (Mexico) to Miami (United States of America)	Aero Mexico AM 410	9.25 on 08.11.2011
2	Miami (United States of America) to London (United Kingdom)	British Airways BA 208	20:45 on 13.11.2011
3	London (UK) to Delhi (India)	British Airways BA	11:45 on 14.11.2011

 

          The complainant on return to Miami again made query about his lost bag but no positive answer was conveyed. Due to the lost bag containing, among others, his clothes, he had to purchase a few more clothes to be able to, participate in the Conference at Miami and for this purpose he had to spend a lot of money as indicated at Annexure C-5 which amount was far short of the amount handed over to the complainant by OP-2 to manage his affairs. The complainant had accepted the meager amount more out of compulsion than choice and without prejudice to his right to initiate legal proceedings against the OPs for mishandling his bag, causing inconvenience to him and disruption in participating in the Conference.

          The gravaman of the complainant was further aggravated as the Conference material, research purpose papers, laptop and his notes lying in the bag could not be made available depriving him his effective participation in the Conference. This had resulted in a  complete flop show so far as the complainant is concerned, leading to the loss of his good will and reputation. He returned to India after the conference was concluded. He made several calls to OP-1 to find out about the lost bag but no satisfactory reply was furnished to him. 

The World Tracer Baggage Tracing Device perpetually revealed the status of the complainant’s  bag as “tracing continues”. It is only in the middle of January, 2012, the device depicted “item located  pending confirmation”. On noticing this message on the said device the complainant made all his possible efforts to contact the OP-1 and 2 but no response was evoked. Frustrated with the attitude of the OP-1 and OP-2 the complainant contacted OP-4 and requested him to clarify about the import of the message on the device depicting “item located pending confirmation” and in response thereto the OP-4 intimated that the bag has been located in Paris and was in possession of opposite party no.3. The OP-3 also confirmed the receipt of the bag when contacted by the complainant  although in the process 88 days were consumed. The complainant was further agitated when OP-3  demanded Rs.925/- as  storage charges for keeping the bag from 20^th January, 2012 to 3rd February, 2012. The complainant has further alleged deficiency of service on the part of OP-1 and OP-2 since they never informed him of the bag having been traced despite he having made several telephonic contacts. He has been subjected to further harassment when asked to pay the storage  charges as according to him these charges could not have been imposed on him for two reasons, namely, he kept making inquiries about the bag and secondly he was never responsible for the mishandling. However he paid the storage charges out of protest but on receipt of the bag he noticed that the lock in the bag was broken and following items were missing

• Laptop Charger valued at INR 2500 (approx.)
• Two brand new stoles values at INR 5000 each
• Two Armani Exchange T-Shirts valued at INR 4000 each
• Underwater camera charger valued at INR 2500 (approx.)
• 4 garlands made of semi precious stones valued at 10,000/-

          Total loss suffered by him in the process is of Rs.33,000/-. The complainant alleging deficiency of service for mis-handling his bag issued legal notice to OP-1 and OP-2 claiming damages of Rs.1 crores 25 lakhs Compensation of Rs.1,43,925/- was also sought for and secondly he claimed Rs.33,000/- for missing items and Rs.1,00,000/- for additional purchases he had to make. He has also demanded for refund of Rs.925/- claimed by the OP-3 as storage charges.

          Since no response was received from the OPs in response to the notice so sent, a complaint was filed before the National Commission claiming damages of more than Rs.1 crore. However, the National Commission returned the complaint with the direction to seek remedy before the State Commission and as a consequence thereof the complainant has filed this complaint before his Commission. On receipt of the complaint, the OPs were noticed. OP no.1, 3 and 4 have filed their written statement, evidence and written  arguments. The right of the OP-2 to file the written statement was closed vide proceedings dated 11.03.14 since it was not filed within the statutory period.

          This matter was listed before us for final hearing on 06.11.17 when Ms. Ritu Singh Mann, counsel for the OP-1, Ms. Kritika Sachdeva, counsel for the OP-3, Ms. Suchita Sharma, counsel for the OP-4 appeared and advanced their arguments. We have perused the records of the case.

          The OP-1 namely British Airways in their reply have stated that the complainant travelled from Delhi to Miami via London on their flight on 05.11.14 and checked in one bag at New Delhi without making any declaration about the items lying in the bag. They have further stated that the complainant was in their flight  from Delhi to London and from London to Miami. From Miami to Cancun (Maxico) he travelled by the flight  of the OP-2. The complainant had reported about the loss of the bag only on reaching Cancun. So far as  they are concerned the bag was handed over to the staff of the OP-2 at Miami and thereafter they have no knowledge of the movement of the bag. A PIR/ baggage claim was lodged by the complainant at Cancun with OP-2 for the Sector Miami-Cancun. Infact the ticket was issued by OP-2 and the flight was also operated by OP-2. Thus, OP-1 was neither the contracting carrier nor the operating carrier for the sector Miami-Cancun and the baggage was required to be delivered at Cancun by OP-2. The OP-1 have also stated that the bag was finally traced by the OP-3 at Paris. This goes to establish that the OP-1 is not at all responsible for the loss of the bag.

          The OP-1 have also stated that the complaint is not maintainable on the ground that the complainant had visited Cancun and Miami for attending  a conference for commercial purpose and therefore he is not a consumer and thus not entitled to raise a consumer dispute. We are not in agreement with the submission made since participating in a conference have got nothing to do with the loss of the bag.

          Their next objection is that this Commission cannot issue any direction to them since the OP-2 has no office in India and this Commission cannot issue the direction to an authority or agency based out side India. Again we are not impressed with the submission for the reason that the tickets were purchased through OP-4 in Delhi. This is sufficient to establish the place where the cause of action arose. This negates the argument of the OPs so advanced.

          Their next objection is that the complaint is not maintainable against OP-1 in view of the provisions Rule 36(1) of Schedule 3 to the carriage by Air Act, 1972, read with sub-rule 4 of the Rule 1 of Schedule 3. It is submitted that as the tickets were separately issued and OP-1 was neither the contracting carrier nor the actual carrier in respect of the sector Miami-Cancun on which the alleged deficiency/ non delivery of baggage took place, the carriage from Delhi to Cancun be said to be one undivided carriage and cannot be regarded as a single operation. It is stated that the travel upto Miami was  a separate and distinct operation for travel from Miami to Cancun; thus there is no fact or circumstance which renders OP-1 liable for the non delivery of baggage at Cancun.

          Their further allegation is that the complaint is not maintainable as against them since there exists no deficiency of service on their part. Deficiency of service if any is against OP-2 who have been found wanting in the delivery of the baggage  at Cancun.

          The OP-1 have also alleged that the compensation claimed is very much on high side and out of proportion and not according to Rule 29 of Schedule 3 to the Carriage by Air Act which governs the subject.

Rule 29 posits at under :-

Rule 29 : “In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under these rules or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in these rules without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non compensatory damages shall  not be recoverable.”

 

          The OP-1 has averred that for this condition of carriage particularly Articles 8 (f) and 15 (c) 7(o) of the Conditions of Carriage are an important component, and which are reproduced below:-

“(8f)  Fragile or perishable items must not be packed in baggage checked into the hold. You must not include in your checked baggage fragile or perishable items or items of special value such as:-

• Money
• Jewellery
• Precious metals
• Computers
• Personal electronic  devices
• Share certificates, bonds and other valuable documents
• Business documents or
• Passports and other identification documents”

15.e.7) We are not liable in any  way whatever for damage  to or loss of items which you include in your checked baggage although you are forbidden from including them under clause 8c, 8d or 8f or in the case of permitted firearms you have not complied with the conditions for including them under clause 8d, except as provided for by the Convention. These items include fragile or perishable items, items with a special value, such as money, jewellery, precious metals, computers, personal electronic devices, share certificates, bonds other  valuable documents, business documents, or passports and other identification documents. In the event of any claim for damage, delay or loss, we may avail our self of all defenses of contributory negligence specified in the Convention.

The defence of the OP-1 is also  that the act of the complainant in having kept certain items in the bag otherwise prohibited as per Articles indicated above is irregular and in these circumstances the complainant can not be permitted to take advantage. The OPs have also denied the allegation of racklessness as against them as no evidence has been led in support of this claim. Besides  the complainant have received a total of about $500 for the delay in delivery of his baggage and yet the claim for compensation has been made. The amount so paid to him was in accordance with the guidelines issued under Carriage by Air Act 1972 and thus no  further compensation  can be awarded.

Their final objection is that since there exists law to deal with the situation, regarding claim of compensation under Carriage by Air Act, claim under the provisions of the Consumer Protection Act 1986 is not maintainable, as one cannot be allowed to approach two For a for the redressal of the same grievances.

However we are not impressed with the submission made as remedy available under the Consumer Protection Act 1986 is in addition to and not in derogation of other laws in force. This is as per law laid down by the Hon’ble Supreme Court of India  in the matter of National Seeds Corporation Ltd. vs. M. Madhusudan – (2012) 2 SCC 506.

          The OP have also relied on the judgemen in I(2012) CPJ 445 (NC) –Deccan Aviation Ltd. vs. Dr. Keki Pheroze wherein the Hon’ble National Commission has held as  follows. We have analysed the ratio of the judgement referred to and we feel that the judgement is not applicable to the facts and circumstances of this case since in that case  issue is regarding rescheduling of a flight and compensation claimed therefor  but in the given case the issue is regarding quantam of compensation arising out of loss of baggage.

          They have also relied on another judgement of Hon’ble NCDRC in the matter of – The Manager, Air India Ltd. & Anr vs. India Everbright Shipping and Trading Co.  – II (2001) CPJ 32 (NC). But the facts of that case are not apposite to the facts of this case and therefore reliance of  that judgement  in the given case is misplaced.

          The OP-1 have also filed their evidence, reiterating what have been submitted by them in their written statement.

          The OP-3 namely, Air India have filed their written statement denying any responsibility as against them for the loss of baggage. Their first objection is that the complainant is not a consumer qua OP-3 as he has neither availed any service from them nor paid any consideration. They have also taken objection regarding mis-joinder of parties.

          We are in agreement with the stand taken by the OP-3 since there was no previty of contract between the complainant and the OP-3 nor any consideration involved. It is by the way they found  the lost bag at Paris and realizing it belongs to somebody in Delhi, India brought it to India and intimated to the complainant to have it collected from their office. Their evidence is also based on what they have stated in their reply. The OP-4 has also filed his reply  and written arguments stating inter-alia that the complaint is liable to be dismissed on the ground of the mis joinder of parties as in the entire process of the loss of bag, there is no allegation against the OP-4. There is no deficiency of service on their part. They are only travel agent. They have also drawn our attention to schedule II of the Carriage by Air Act 1972 stating that in the event of the negligence, the liability is of the carriage which in no case can be shifted to the 3^rd party. They could have been accountable only if they had acted fraudulently which is not the case.

          We have perused the material and documents filed in this case. We are satisfied that there has been  deficiency on the part of OP-2 in misplacing of the bag they having not properly handled the movement of the bag on its receipt from OP-I, at Miami.  There is  nothing on record to controvert this assertion. The opposite party having been found to be deficient in service is liable to pay the compensation.

          In Lakhvinder Singh Bharma vs Cholamandalam Ms General Insurance Co. Ltd. & Anr. – II (2012) CPJ 109 (Chhat) – it has been held

It cannot be alleged without attributing fault, imperfection, shortcoming a inadequacy in quality, nature and manner of performance which is required to be performed by person in pursuance of contract or otherwise in relation to any service.

The above principles if applied in the subject matter, would lead to an inescapable and inevitable conclusion that the OP-2 has been found deficient in the discharge of their duty it handling of the complainant’s bag

 

Consumer Education & Research Society to Spicejet Ltd. – I (2010) CPJ 87 (Guj)

Boarded the flight from Mumbai to Ahmadabad.  Bag entrusted to the Airlines. On reaching the destination the bag was found with cuts on  both sides. When baggage entrusted to Airlines authorities it has to be returned in same condition. Baggage since found damaged with cuts, deficiency in service proved. Compensation is entitled to.

 

Similar view was held by the Hon’ble NCDRC in the matter of Air Deccan vs. Dinesh B.V. III(2014) CPJ 410 (NC).

Dev Raj Sharma vs. KLM North West Airlines – I (2014) CPJ  85 (NC)

Damage to baggage since found, mental agony and harassment was alleged. Complaint was allowed by the Distt. Fora. Appeal filed was dismissed by the State Commission.  The Hon’ble NCDRC at the revisionary stage noted that the journey of the  complainant was not within United States. It was international journey from United States to Delhi. As per the terms and conditions of ticket, liability was limited upto US$ 20 per kg.  To put it differently every passenger was entitled to maximum 640 US$ in check baggage. Distt. Fora rightly held that limit of US$ 2500 for baggage cannot apply.

 

Air India Ltd. vs. C. Krishna Swamy - III(2009) CPJ 150 (TN)

“The  delivery of the baggage delayed. Additional amount of Rs.27,000/- collected by OP for delivery of baggage by the complainant ‘s flight. Baggage was delivered after one week. The complainant had to postpone his function. Deficiency in service on the part of OP proved. Refund of extra charge collected by OP was directed. Compensation was also ordered.

 

Emirates vs. DR Rakesh Chopra -         III(2013) CPJ 500 (NC)

“Airlines who was entrusted with safe custody and delivery of passenger’s luggage, failed to do so causing mental tension, loss of professional face apart from monetary loss. Settle consumers grievances rely in terms of notional monetary loss suffered  as per relevant provisions of Carriage by Air Act 1972. Deficiency in the matter of lost bag proved and consequently compensation awarded.”

 

          Having regard to the law settled by the Hon’ble Apex Court and Hon’ble NCDRC and keeping in view the statutory provisions we are of the considered view that deficiency of service on the part of OP-2 stands established. In these circumstances we direct the OP-2 to make the loss good by refunding the amount spent by the complainant during the process of his journey and compensation of Rs.5,00,000/- which would be in addition to what he has already got from OP-2. The complainant has however prayed for compensation of about Rs.47,50,000/-. It is a trite law that the compensation has to be reasonable, just and proper and not to enrich the consumer. Hence for the alleged deficiency of service compensation of Rs.5 lakh as ordered by us would be just and proper. We order that the compensation and the amount indicated in the proceeding paragraph be paid within two months from the date of the receipt of the order or else  interest on the total amount  @9% shall accrue. 

We order accordingly.

          Copy of the order may be forwarded to the parties to the case free of cost as statutorily required.

File be consigned to records.

 

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)