| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/194/13 Date of Institution:- 02.04.2013 Order Reserved on:- 21.12.2023 Date of Decision:- 07.03.2024 IN THE MATTER OF: Sh. Pradeep Kumar Sareen, Senior General Manager, Hindustan Syringes and Medical Devices Ltd. G.L.-3, Ashoka Estate, 24, Barakhamba Road, New Delhi - 110001 .….. Complainant VERSUS - Chief Executive Officer
Spicejet Ltd. Cargo Complex Terminal 1-B, IGIA (Domestic Terminal), Also At: CEO, Spicejet Ltd. Udyog Vihar, Dundahera, Gurgaon (Haryana) - Managing Director/Chief Manager
Cochin International Airport Rizing Drive, Shanmugam Road, Cochin …..Opposite Parties ORDER Per Dr. Harshali Kaur, Member - The Complainant took Flight No. 3243 of OP-1 from Chennai to Cochin on 09.01.2013. He handed over a Samsonite black colour suitcase at the OP-1 counter vide no.775344493 PNR No.YM55BG at Cochin Airport, which is managed by OP-2. The Complainant's flight reached Cochin Airport at 8:40PM. It is alleged by the Complainant that the OPs failed to deliver his bag to him when he disembarked at his destination.
- The Complainant lodged a complaint via Baggage Irregularity Report No. 50753 and contacted the OP officials to no avail. Even though he requested the OPs to check the CCTV footage, the OPs did nothing to locate his suitcase. The Complainant sent a legal notice dated 30.01.2013 to the OPs. He also lodged another complaint in Chennai dated 11.01.2013 vide No.233169.
- The Complainant alleges that his suitcase contained clothes worth Rs.30,000/-, a jacket of Rs.8,000/-, a saree worth Rs.10,000/-, a pearl set worth Rs.4,000/- and cash Rs.1.50 lakh along with Rs.18000/- as cost of the suitcase.
- Claiming negligence and deficiency in service, the Complainant filed the present complaint under section 12 of the Consumer Protection Act, 1986, praying for Rs.2,20,000/- as cost of belonging, Rs.50,000/- as damages for mental and physical torture and hardship and Rs.20,000/- as litigation cost.
- On notice, the OPs filed their reply. OP-1 stated that the present complaint is not maintainable as no cause of action has arisen or accrued within the territorial jurisdiction of this Forum, and hence, this Forum does not have the territorial jurisdiction to entertain the present complaint. The Complainant was travelling from Chennai to Cochin, and the Baggage Irregularity Report (BIR) was filed by the Complainant at Cochin, mentioning his address as Faridabad (Haryana).
- Also, the rights and liabilities of passengers and air carriers are governed by the Carriage by Air Act, 1972, which contains Schedules 1 & 2 in which the Warsaw Convention 1929 and the Hague Protocol, 1955 are incorporated. The OPs have also relied upon a catena of judgments of the Hon'ble Apex Court to substantiate their stand that the terms and conditions contained in the ticket, a copy of which the OPs filed as Anenxure-R1, clarify that the passengers were recommended to remove all valuable items and place the same in their carry on luggage rather than the check-in luggage. Further, the OPs stipulated that the liability of the carrier for loss or damage to baggage was limited to Rs.200/- per kg with a maximum of Rs.3000/- only.
- Since the weight of the bag of the Complainant was 12 kgs and admittedly the OPs could not trace out the baggage despite sincere efforts, the OPs sent a cheque bearing no.019038 dated 11.02.2013 for a sum of Rs.2400/- drawn on Yes Bank to the Complainant. Hence, after the remittance of the said amount, the OPs are under no further liability for remitting any other amount to the Complainant on any account as per the terms of carriage.
- The OPs also stated that immediately upon receipt of the BIR form filled out by the Complainant to lodge his loss of baggage claim, an internal inquiry was started to investigate the matter. A specific request was sent to all the airports in India to locate the bag, but the Complainant's bag could not be traced. The OPs claim that the Complainant has concealed the fact that he has already received the contractual amount and thus pray for dismissal of the complaint with a heavy cost.
- OP-2, in their reply, deny each and every averment as made in the complaint, stating that the entire responsibility is of the OP-1 Airline to deliver their passengers' luggage at the destination. OP-2 is not involved in any stage of the transportation or movement of the baggage from the Chennai Airport. OP-2 requests for deletion of the name from the array of parties.
- The Complainant filed his rejoinder qua OP-1, denying that he received the cheque or was compensated for his loss of baggage. He further states that the amount @Rs.200/- per kg is wrongly calculated by the OP-1. Similarly, in the rejoinder qua OP-2, the Complainant states that OP-2 cannot escape its liabilities as OP-1 gives services with the authority, permission, and supervision of OP-2. The Complainant filed their evidence by way of an affidavit proving all the documents placed on record by him. The OP-1 filed the affidavit of Mr. Vijay Roy, AR and manager Legal for OP-1.
- OP-2 filed the affidavit of Sh. Chandrakumaran Nain, Airport Director of Cochin International Airport OP-2, echoed what OP-2 has stated in their reply. The Complainant filed his WA, as did OP-2. Thereafter, the parties filed the copy of the cheque issued by OP-1 in favour of the Complainant dated 11.02.2013, along with a copy of the payment voucher. We have heard the AR of OP-1, and the Complainant was given 15 days to address the final oral arguments. OP-2 had already filed written arguments. Hence, we felt it prudent to decide the present case based on the material on record.
- We have carefully considered the facts and circumstances of the present complaint and have perused the documents filed by the contesting parties to substantiate their testimonies.
- Before deciding the case of merits, we feel it prudent to address the preliminary objection raised by the OP regarding the Territorial Jurisdiction of this Forum to entertain the present case, as no cause of action arose in New Delhi. Section 11 (2) of The Consumer Protection Act 1986 is clear regarding the local limits in whose jurisdiction a case can be filed. It is reproduced below:-
- A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction—
(a)the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or (b)any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or (c)the cause of action, wholly or in part, arises. - Now, regarding the merits of the case, we find that the Complainant travelled from Chennai to Cochin on OP-1 Airline on 09.01.2013. He checked-in his luggage, a Samsonite Black Suitcase, at the Airport Counter of OP-1 in Chennai. The Complainant landed at Cochin Airport, managed by OP-2, and found his suitcase missing. He immediately lodged the baggage irregularity report with BIR No. 50753 (page no. 8 of complaint) at the Cochin Airport and requested the officials that the CCTV footage be checked.
- The Complainant alleges that his repeated requests were ignored and no action was taken by the OPs to locate his bag, which contained clothes worth Rs.30,000/- jacket worth Rs.8,000/-, sarees worth Rs.10,000/- and the suitcase itself was worth Rs.18,000/-.
- The Complainant thereafter lodged another complaint at Chennai on 11.01.2013 vide complaint no.233169 and finally issued a legal notice dated 30.01.2013. The Complainant received several communications from OP-1 wherein he was apprised that OP-1 was working on his complaint and they would revert at the earliest vide e-mail dated 24.01.2013.
- OP-1 accepted that despite their best effort, the baggage was not traced out vide e-mail dated 28.01.2013. Since the Complainant's baggage weighed 12 kgs thus, OP-1 remitted the amount of Rs.2400/- for the loss of his luggage as per the statutory limitation of the Carriage By Air Act, 1972, which allowed Rs.200/- per kg as the liability of OP-1 for lost or damaged bag vide cheque no.019038 dated 11.02.2013. The Complainant denies ever receiving the amount claimed to have been sent to him towards damages under the terms and conditions of the aforementioned Act.
- The claim of OP-1 that an internal inquiry had been initiated on receiving the BIR of the Complainant also remains unsubstantiated in the absence of any report from the investigative officers deputed to locate the complaint's bag. Neither has OP-1 filed a copy of the e-mail sent to the airports, which they purported to have sent.
- Further, OP-1 denied responsibility for the valuable items mentioned by the Complainant in his complaint in accordance with Conditions of Carriage wherein "all valuables (cameras, jewellery, money, electronics, perishables, etc.) and medication are to be removed from the check-in luggage and should be placed the carry-on. Spicejet will not accept responsibility for these items". The Complainant has annexed the copy of the e-mail at page no. 15 of the complaint.
- Now, the question before us is whether the Complainant can claim damages for the articles allegedly present in the Complainant's suitcase. We do not find even one cogent piece of evidence that supports the contention of the Complainant regarding the valuable articles he has listed in his complaint that were present in his lost bag in the form of invoices. Further, we are unable to accept that any prudent man would place a large amount of cash and valuable jewellery in his check-in luggage. The Baggage Irregularity Report also has no mention of the Pearl Set, a copy of which is annexed with his testimony. Hence, it is difficult to ascertain the authenticity of his statement.
- It is an undisputed fact that the OP-1 lost the baggage of the Complainant, as admitted by OP-1. The copy of the cheque filed is dated 11.02.2013 for Rs.2400/- by the OP without clarifying that the Complainant received this amount or the same was credited to the Complainant's account or even received by the Complainant. In the absence of any such acceptance, we feel OP-1 is liable to compensate the Complainant for their deficient service of non-payment and delay in the payment as per the Terms and Conditions of Carriage by Air Act.
- OP-2 is the MD/Supervisory Authority of the Airport at Cochin. OP-2 is engaged in the security of the passengers and overall safety functions at the Airport. We do not feel OP-2 had any role to play in the movement of the Complainant's luggage, which was the responsibility of OP-1 as stated by the Complainant for safe-keeping and it was OP-1's duty to hand over the same safely to the Complainant. Hence, we absolve OP-2 from any liability that may arise in the present case.
- Hence, allowing the complaint, we direct the OP-1 to pay the Complainant a lump sum of Rs.25,000/- towards his lost bag inclusive of compensation for the mental agony and harassment he definitely would have suffered on losing his luggage inclusive of litigation cost.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Announced in the open court on 07.03.2024.
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