Delhi

StateCommission

A/80/2016

M/S AIR FRANCE - Complainant(s)

Versus

DIMPLE BHAMBRA MALHOTRA - Opp.Party(s)

A.R.TAKKAR

14 Feb 2017

ORDER

IN THE STATE COMMISSION: DELHI

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

          Date of Arguments: 14/02/2017

Date of Order: 28/02/2017

 

First Appeal No. 80/2016

(Arising out of the order dated 04.01.2016 passed in Complaint Case No. 507/2010 by the District Consumer Disputes Redressal ForumVII Sheikh Sarai, NewDelhi)

In the matter of:

M/s Air France

8.  

Building No. 8, DLF Cyber City

Gurgaon                                                   .........Appellant

 

Versus

 

Dimple BhambraMalhotra

B-1, South Extension Part-1

New Delhi-110049                                      ..........Respondent

 

                                                                  

CORAM

 

O P GUPTA                    -                  MEMBER (JUDICIAL)

ANIL SRIVASTAVA       -                  MEMBER

 

1.         Whether reporters of local newspaper be allowed to see the judgment? Yes

2.         To be referred to the reporter or not? Yes

 

 

O P GUPTA – MEMBER (JUDICIAL)

 

JUDGEMENT

1.         Being aggrieved by order dated 04.01.2016 passed by the Ld. District Forum VII, the OP has filed the present appeal. The case presented by respondent before the District Forum was that she had gone on a holiday to Europe on 25.06.2010. She travelled Frankfurt, Amsterdam, Brussels, Paris and London. While travelling from Paris to London she took flight of the appellant bearing no. A F 1380 on 02.07.2010. On arrival at London, she heard her name being announced to check in counter no. 4 lost baggage holding section.  Officials at the counter informed her that her baggage was not on the said flight but was coming in the next flight, she was told to collect the same next morning. Next morning she was told to come in the evening as the bag had not reached till then. She was told that Air France i.e. the appellant will deliver the bag at her hotel Reddison Edwardian Heathrow next day. She waited the whole day without any response. She had to buy a sim card to be in touch with the appellant’s office. She had overstayed in London for 2-3 days, still bag was not traced. She was to return back to Paris by Air France flight in the afternoon on 05.07.2010 and appellant was aware of the same. She could not return because her flight ticket from Franfurt to Delhi were in the hand baggage which she was made to check-in by the airline staff at the Paris airport. She paid 55 Euros extra for baggage which did not reach her till two weeks after her return to Delhi. Though bag was not a check in bag but a hand baggage, still the staff of the appellant forced her to check in her hand baggage and she adjusted her other hand baggage. She sought refund of costs of baggage payment of 55 Euros paid for bag which did not reach her till three weeks later. She was left with no option but to buy new business class tickets of her return to Delhi by Oman Air for Rs. 1,35,850/- because her return business class tickets were in the same bag.
2.         She found two business suits of her husband worth Rs. 32,000/- missing from the bag after the bag was received by her. One sari worth Rs. 6200, one ladies silk kurti worth Rs. 5,000/-, two pairs of sports shoes worth Rs. 12,000/-, one pearl necklace set worth Rs. 8,000/-. One gents shirt worth Rs. 4,500/-, four Marlboro Lights Cigarette packets worth 40 US dollars, cosmetics broken and lost worth 300 US Dollars were also found missing.
3.         She also claimed expenses for additional stay at the Radisson Edwardian Heathrow Hotel due to missing bag. She had to travel to and from the airport and back for checking about the bag. She bought sim card to call the office of the appellant by spending 50 pounds. She also claimed compensation for great mental and emotional torture,stressful and accusing expenses. In all she demanded compensation of Rs. 4,02,860/-.
4.         The appellant/OP filed written statement raising preliminary objections stating that baggage of the complainant were delivered to her on 18.07.2010 inwhich few articles were missing from it. The weight of three pieces of baggage booked by the complainant on 02.07.2010 was 22kg. On arrival she was informed that baggage had not arrived and the appellant consequently recorded the non-delivery of the baggage report vide file reference no. LHRAF47111. At the time of delivery the baggage weighed 16 kg. In other words there was shortage of 6 kg. The list of contents of bag do not match with the details of lost contents mentioned in communication by the complainant vide mail dated 18.07.2010. There was contradiction in description of contents declared by the complainant and in customs form for clearance of mishandled baggage. Under the general condition of carriage, valuable such as claimed by the complainant to have been lost were not meant to be included in check in baggage. Liability of the appellant is limited as per Carriage by Air Act to US Dollars 20 per kg of the lost weight. The same has been contractually increased under Air France General Conditions of Carriage as 17 SDR (about US $25.16) per kg. which could have resulted in a maximum liability of US $150.96 equivalent to 6,747/-. Claim of the complainant with respect to two nights additional stay at Radisson Edwardian Hotel, transportation and sim card is in substantiate as the OP is liable to compensate only the first necessity purchases, which includes ready-made clothing, toiletries, et cetera. Non-bodily injuries i.e. harassment etc. are excluded by the Warsaw, Hague and Montreal Conventions and these conventions have force of law in India under the Carriage by Air Act, compensation for non-bodily injuries cannot be awarded in the absence of any physical injury. Complainant did not suffer any physical injury to her person. As per Clause 8(a) of Article VIII of the General Conditions of Carriage, complainant should have insured all her baggage prior to the journey or made special declaration of interest limited to a certain amount before handing over the baggage to the carrier. On merits the OP took same defence.
5.         Complainant filed rejoinder and her evidence by affidavit. OP filed affidavit of Mr. Peter General Manager in evidence. Both the parties filed written arguments.
6.         After going through the material on record and hearing the arguments, Ld. District Forum found that according to complainant she was on journey with three baggageout of which one was hand bag but the complainant was forced to check in the hand bag by charging 55 Euros by the appellant. The said handbag was found missing which led to forced stay of complainant and her husband at London for additional non-scheduled three days from 05.07.2010 to 07.07.2010. The return tickets from Amsterdam to Frankfurt and Frankfurt to Delhi of complainant and her husband were in the same bag which was lost. On 07.07.2010 she had to buy fresh tickets on additional charges from money airlines by making payment of Rs. 1,35,850/-, besides incurring hotel charges at London amounting to Rs. 36,640/-and food charges for the sum of Rs. 15,000/-. As per Section 3 of the Consumer Protection Act, remedy under Consumer Protection Act was additional remedy for deficiency in service. Carriage by Air Act is not applicable as the baggage was rightly booked with additional charges. The limited liability has no applicability as complainant is asking for incidental expenses which she had to incur as stated in the complaint.
7.         Ld. District Forum returned findings that since only 12 kg weight was permissible inside the cabin of aeroplane, baggage in question had weighted 22 kg was rightly checked in as luggage by charging an additional amount of 55 Euros. Hence the same was not refundable to the complainant.
8.         Ld. District Forum did not give any weightage to contradiction in description of contents as declared by the complainant in the “Custom Form for Clearance of Mishandled Baggage” and “Baggage Declaration” column because undisputedly there was shortage in weight of missing baggage. Hence OP was found liable to compensate for air ticket purchased afresh besides loss of 6 kg articles and mental agony on account of further stay in London. The Ld. District Forum allowed lump sum Rs. 3,00,000/- to the complainant with simple interest @ 9% from the date of filing the complaint till realization.
9.         We have gone through the material on record and heard the arguments.
10. Ld. Counsel for the Appellant relied upon the decision of five member Bench of Hon’ble National Commission in First Appeal No. 451/1994 titled as The Manager Air India Ltd. v. M/s India Everbright Shipping & Trading Co.decided on 20.04.2001 to make out that compensation is to be limited by provisions of the Carriage by Air Act, 1972. The said decision does not take notice of the decision of the Hon’ble Supreme Court in The Consumers and Citizens Forum v. Karnataka Power Corporation, 1994 (1) CPR 130 which laid down that provisions of Consumer Protection Act gives the consumer an additional remedy besides those that may be available under other existing laws.
11. The above decision of the Hon’ble Supreme Court was followed by the Hon’ble National Commission in the case of Airlines itself in Emirates v. Rakesh Chopra III (2013) CPJ 500. It was observed in the said decision that deficiency in service on the part of the airlines in losing and mishandling the luggage ofcomplainant, which caused harassment, agony, mental tension and loss of professional face apart from monetary loss, complainant is entitled to compensation for deficiency in service by airlines. In that case order of the State Commission awarding Rs. 2,00,000/- as compensation was upheld.
12. In Revision Petition No. 1411/2015 titled as Spicejet Ltd. &Ors.v. AtanuGhoshdecided on 23.11.2015 the Hon’ble National Commission upheld the orders of the State Commission granting Rs. 50,000/- as compensation. The Revision Petition of the Airlines was dismissed. The contention that the liability of the airlines was limited to one prescribed in Carriage by Air Act was turned down. Decision of the Hon’ble National Commission cited by appellant and reported as Egypt Air v. Saillavathi II (2006) CPJ 43 was noticed and still it was observed that consumer court is bound to take ‘down to earth’ view. It was further observed that in baggage/attachiwithout any contents itself costs about Rs. 9000/- to Rs. 10,000/-.
13. In Air India v. Madan Mohan III (2014) CPJ 109 this Commission granted compensation of Rs. 80,000/- for loss of baggage.
14. It may be add that there is not much discrepancy in the list of goods mentioned by the complainant in custom form and list of stolen articles. Substantially they are same.  At this juncture it may be mentioned that a person is not expected to remember the article kept in any baggage at the time of check in and consequently the short fall. One can mention the same by memory which may differ to some extent. Declaration in custom form was not meant for furnishing evidence of the contents or valuation of the same but was meant for limited purpose of findings out that there was no item chargeable to custom duty.
15. As regards plea of appellant that valuables were not supposed to be kept in check in baggage, it may be observed that respondent did not voluntarily kept the same in check in baggage. She kept the same in bag supposed to be carried as hand baggage. It was appellant which forced her to put the said bag in check in baggage on the pretext that weight of same was more than permissible for hand baggage. Thus appellant cannot take advantage of said fact.
16. Reference with advantage can be made to observations in decision of Andhra Pradesh State Consumer Disputes Redressal Commission in First Appeal No. 1071/2006 titled as SaritaJhavar v. East Cost Railway decided on 19.06.2009. In para 10 it was mentioned that the complainant was travelling in a reserved compartment and she was secure and she was not afraid of any theft. In para 12 it was mentioned that she had no occasion or time to frost a false case against railway station for claiming the amount. It was held that yardstick provided under evidence cannot be applied while resolving case under Consumer Protection Act. It is principles of natural justice that governs. Section 134 Evidence Act lays down that no particular number of witness is necessary for proving of any fact. It is quality of evidence and not quantity of evidence which matters. Evidence of solitary witness if reliable is sufficient. In para 14 it was held that proving a fact depends upon several circumstances. Prepondness of probabilities have to be considered. The facts need not be proved like a criminal case viz beyond all reasonable doubt as to be value of article in order to claim compensation. Proving the fact does not mean that complainant has to file documents in order to prove the value of article it is impossible for anybody to keep the bills for everything purchased, more so, when she was travelling. At any rate, nobody keeps the bills when an article is purchased.
17. The complainant has claimed Rs. 1,35,850/- for buying tickets from London to Delhi,Rs. 36,640/- for hotel charges and Rs. 15,000/- foradditional stay in London. That alone comes to Rs. 1,87,490/-. These heads have not been disputed. For making out permissiblity of the same, on analogical grounds reliance can be placed on decision of the Hon’ble National Commission in recent case titled as Station Manager Air India v. Dr. KoneLalZami IV (2016) CPJ 56 in which it was held that if due to rescheduling of flight, bording is denied and passenger has to incur extra expenditure for stay, hardship, stress and inconvenience, compensation is to be awarded for deficiency on the part of the airlines.
18. Reverting back to the facts of the case the complainant received her baggage after 15 days on 17.07.2010. It is human psychology that if a person finds his luggage missing, he feels disturbed mentally and psychologically. After every few hour he gets a glimpse of the loss. This is more so when he is away to foreign country where there is none known to him. Plight of such person cannot be lost sight of. No amount of monetary compensation can recoupthat loss. It is only an attempt to mitigate that by awarding some monetary compensation.
19. Viewed in the above light, if we assess compensation for mental harassment, agony on the parameters of decision of the Dr. Rakesh Chopra (supra) the complainant must get Rs. 2,00,000/- as compensation. Besides that she must get Rs. 1,87,490/- on account of additional burden incurred by him. The total goes beyond the amount of Rs. 3,00,000/- awarded by the District Forum in lump sum.
20. For the forgoing reasons we do not find any merit in the appeal. The appeal is dismissed. Appellant is directed to pay Rs. 3,00,000/- alongwith interest @ 9% p.a. from the date of loss till the date of payment.
21. The FDR deposited by the appellant at the time of grant of stay of execution,alongwith interest accrued thereupon be released in favour of the respondent. For the balance respondent may seek execution in District Forum.
22. Copy of the order be sent to both the parties free of costs.
23. One copy of the order be sent to the District Forum.

(O P GUPTA)

MEMBER (JUDICIAL)

 

 

(ANIL SRIVASTAVA)

MEMBER