BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint  Case No  : 308 of 2009

Date of Institution :  04.03.2009

Date of  Decision   :  27.04.2010

Parateek Chadha, aged 26 years, S/o Sh. Sanjiv Chadha, R/o H.No.2244, Sector 19-C, Chandigarh, through his GPA – Sh. Sanjiv Chadha.

 ……Complainant

V E R S U S

1]   City Centre Bird Wings, Authorized GSA of Lufthansa Airlines, SCO No. 55-56, Sector 17-C, Chandigarh.

2]     Lufthansa Airlines, Airport Office, Room No. 23, Terminal No. 2, Indira Gandhi International Airport, New Delhi – 37, through its Manager/GM.

3]   The Incharge Claim Section, Lufthansa Airlines Airport Office, Room No. 23, Terminal No.2, Indira Gandhi International Airport, New Delhi – 37.

4]   M/s Seherman Baggage & Parcel Service Carrier & Cargo Lufthansa Airlines Airport Office, Room No. 23, Terminal No. 2, Indira Gandhi International Airport, New Delhi – 37.

.…..Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

          MRS.MADHU MUTNEJA             MEMBER

PRESENT: Sh.R.M. Datta, Adv. for the Complainant.

         Sh.Sandeep Suri, Adv. for OPs No.2 & 3.

           OPs No.1 & 4 Ex-parte.

PER MRS. MADHU MUTNEJA, MEMBER

        The present complaint has been filed u/s 12 & 13 of the Consumer Protection Act, 1986, wherein the Complainant has asked that the OPs pay back the valued amount of articles lost by him in transit from his baggage due to delay in delivery of luggage articles.

1]      The Complainant has stated that he was traveling to New Delhi by Lufthansa Airlines from JFK-Kennedy Airport on 16.11.2008. The luggage of the Complainant was missing on his arrival. The Complainant filed a Property Irregularity Report with Lufthansa Airlines on 17.11.2008. When the baggage was delivered to the Complainant, he found the following articles missing:-

a)  Mobile Phone Set with Charger Model 1450 with active phone No.001305213058 Rs.13,100/-.

b)  2 pair of new sports shoes Reebok Rs.10,000/-.

c)  2 wrist watches Tommy Hilfiger make & Titan Rs.6800/-.

d)  2 pair of Sunglasses ESIPIRIT & Anr. Rs.7250/-.

e)  2 new shirts bought in USA for father Rs.2300/-.

f)  2 bottles of perfumes Hohn Vervatose & Versace packed for Sister Rs.6600/-.

    (Total Rs.46,050/-).

He has thus, filed the present complaint against the OPs.

2]      Summons sent to OP No.1 have been received back with the remark “refused”. In view of this, OP No. 1 has been duly served, and proceeded ex-parte. Summons were sent to OP No. 4 many times. They were finally served in November, 2009. Since, no one appeared on their behalf. OP No. 4 was proceeded ex-parte on 23.11.2009.   

3]      The OPs No. 2 & 3, in their joint reply have admitted that the Complainant had traveled via their flight on 15.11.2008 from New York, USA to New Delhi. While boarding the flight, he had checked-in two baggages with them. Upon arrival, the Complainant had found that the checked-in baggages had not arrived. The Complainant lodged a Property Irregularity Report with the OPs at New Delhi Airport. Immediately, after receiving the complaint of missing baggages, the staff of the OPs had swung into action and initiated steps to trace the missing baggage of the Complainant. Subsequently, the Complainant’s missing baggage was delivered fully packed in a perfect and sound condition at his residence on the very next day i.e. 18.11.2008, by OP No. 4. The Complainant accepted the baggage without any protest. There was no damage to the baggage and the locks were intact. The Complainant had never disclosed that he was carrying any valuable items in his checked-in baggage nor did he pay any supplementary sum for valued items. The answering OP are, therefore, unable to pay any sum for the alleged lost items. The OPs have attached General Conditions of Carriage (Passenger & Baggage) with their reply as Annexure R-2.

        They have placed reliance on Clause 14.3.2 of the General Conditions of Carriage (Passenger & Baggage), which read as under:-

“A passenger can benefit from a higher liability limit by making a special declaration at the latest at check-in and by paying a supplementary fee.”

        Further, Article 14.1.7 reads as under:-

“Our liability shall not exceed the amount of proven damages under any circumstances. We are only liable for indirect or consequential damages when such damage was caused by our gross negligence or willful misconduct; the provisions of the Convention shall continue to be applicable without change.”

        Claiming that there was no deficiency in service on their part the OPs allege that the complaint deserves to be dismissed.

4]      We have heard the learned counsels for both the parties and perused the evidence led by both parties in support of their contentions.

5]      Admittedly, the Complainant had lost certain articles from his luggage, which was delivered to him one day late. The total claim for the articles lost is Rs.46,050/-. Non-delivery of baggage on time is itself a deficiency in service by the Airline. 

6]      For the sake of arguments, even if the rebuttal by the OP that the Complainant cannot claim compensation for articles lost as the bags were delivered intact with locks in place, is admitted, that the articles mentioned in the complaint were not lost, even then deficiency in service and harassment to the Consumer on the part of OPs is there, as the luggage was not delivered to the Complainant at the time of his arrival.

        A perusal of Para 14.4 of the General Conditions of Carriage, shows “Passenger and Baggage Delays”. Para 14.4.2 reads as under:-

“In case of a baggage delay we are liable for damage unless we took all reasonable measures to avoid the damage or it was impossible to take such measures. The liability is limited to 1,000 SDRs (approximate 1.220 EUR).”

By this clause, whether there was any damage or loss to property or not, the OPs are responsible to repay upto 1,000 SDRs (approximately 1.220 EUR). This amount works out to over Rs.50,000/-. The Complainant has only asked for Rs.46,050/-.  Written arguments submitted by the learned counsel for the OP cannot rebut the contents of this clause.

7]      This complaint is hereby allowed. The OPs are directed to:-

(i) Reimburse Rs.46,050/-, as claimed by the Complainant. 

(ii) Pay Rs.10,000/- as cost for deficiency in service and cost of litigation.

8]      The aforesaid order be complied with by the OPs, within a period of 06 weeks from the receipt of its certified copy, failing which the OPs shall pay the said amount of Rs.46,050/- along with interest @12% per annum and the costs of Rs.10,000/- from the date of filing of the present complaint i.e. 4.3.2009, till the amount is actually paid to the Complainant.

9]     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

27.04.2010                                            Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                             Sd/-

(MADHU MUTNEJA)

MEMBER

‘Dutt’