KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.79/2020

JUDGEMENT DATED: 01.06.2023

(Against the order in C.C.No: 583/2015 of the CDRC, Ernakulam)

PRESENT:

APPELLANT:

(by Adv. S.R.K. Prathap)

Vs.

RESPONDENTS:

(by Adv. A. A. Jaleel)

JUDGEMENT

SRI. K.R. RADHAKRISHNAN : MEMBER

          This is an appeal filed under Section 15 of the Consumer Protection Act, 1986 against the order dated 30.01.2020 in C.C.No.583/2015 of the Consumer Disputes Redressal Commission, Ernakulam (District Commission for short).  The District Commission dismissed the complaint on the ground that the complainant failed to prove deficiency in service on the part of the opposite parties.

          2.  The brief details of the complaint is as follows:  The appellant and his wife were passengers of the opposite party airlines from Cochin to Dubai and then from Dubai to Lagos.  The journey to Dubai was on 07.01.2015 and the connecting flight from Dubai to Lagos was on 10.01.2015.  When they reached Lagos Airport on 10.01.2015, they found that one of the three baggages of theirs was missing.  When they made a complaint to the opposite parties, they assured them that the missing bag would be traced and returned to the appellant immediately in the next available flight.  On the basis of their assurance the appellant and his wife stayed in a hotel in Lagos.  However, the opposite parties failed to trace out the baggage and give it to the appellants.  They submitted a Property Irregularity Report (PIR) for the loss of the baggage.  The estimated loss was to the tune of 1414 USD which is equal to Rs.91,925/-(Rupees Ninety One Thousand Nine Hundred and Twenty Five).  The respondents offered fifty percent of the said amount as compensation to the appellant.  However, besides value of the items lost, the appellants had to suffer a lot due to the loss of baggage and also for the expenses for staying in a hotel expecting that the baggage would be traced out by the respondents.  As he was not satisfied with the compensation offered, this complaint was filed claiming a total compensation of Rs.12,91,925/-(Rupees Twelve Lakhs Ninety One Thousand Nine Hundred and Twenty Five) i.e. Rs 91,925/- for the value of the items in the baggage, Rs.2,00,000/-(Rupees Two Lakhs) for miscellaneous expenses incurred due to deficiency in service on the part of the respondents and Rs.10,00,000/-(Rupees Ten Lakhs) towards compensation for mental agony and hardship suffered.

          3.       The opposite party entered appearance and filed version.  They submitted that the complainant did not file any proof of items or its value kept in the lost baggage.  Though the complainant did not make any declaration regarding the contents in the baggage, as a matter of good gesture they offered fifty percent of the amount claimed by the complainant.  They submitted that there was no deficiency in service.

          4.       The evidence in the case consists of oral evidence of Power of Attorney Holder of the complainant as PW1 and documentary evidence marked as Exhibits A1 to A5.  The opposite parties produced Exhibits B1 to B3 which were also marked.  On the basis of the evidence adduced the District Commission dismissed the complaint.  Aggrieved by the said order the complainant has filed this appeal.

          5.       Heard both sides and perused the records.  The learned counsel for the appellant/complainant submitted that the respondent has admitted loss of the baggage.  The offer of fifty percent of the amount claimed itself is a proof that they have admitted deficiency in their service.  Despite filing the Property Irregularity Report (PIR) the respondents did not take any serious effort to trace out the baggage.  The appellants had to stay in a hotel for a few days anticipating recovery of the baggage.  The District Commission erred in finding that there was no deficiency in service on the part of the respondents.  So he prayed for setting aside the order of the District Commission and allowing the claim as per the complaint filed.

          6.       The learned counsel for the respondent submitted that the District Commission has rightly dismissed the complaint as there was no deficiency in service on their part.  As a matter of good gesture only they offered fifty percent of the amount claimed which was not accepted by the appellants/complainants.  It was not an acceptance of liability. The appellants could not substantiate their loss of various items said to be kept in the baggage.  He also could not prove the miscellaneous expenses spent by him.  The hotel expenses claimed by the appellants is also not payable as it is beyond the scope of the liability of the airlines. There is no deficiency in service and hence they are not liable to pay any compensation. Learned counsel prayed for dismissal of the appeal as the appellant has failed to prove deficiency in service.

          7.       We have considered submissions on both sides and carefully perused the records.  It is admitted that the appellant was a passenger of the respondent’s airlines and that he had lost one baggage when he reached Lagos Airport.  Exhibit A1 is the particulars of the air ticket. Property Irregularity Report (PIR) was submitted on the date of arrival (10.01.2015) itself.  Exhibit A2 is the baggage inventory form and Property Irregularity Report (PIR). Exhibit A3 is the description of the baggage lost. The lost baggage was not traced out and returned to the passenger complainant.  It is quite natural on the part of a passenger to wait for a few days to get his lost baggage. Exhibit A4 is the invoice dated 16.01.2015 of the hotel where the appellant stayed at Lagos.

8.       Exhibit A5 series are the e-mail communications between the appellant and the respondents.  E-mail dated 19.01.2015 explains the follow up action taken by the appellant at Lagos. Reply mail dated 20.1.2015 from the respondents states that “We apologise for the delay of your luggage. It is still under tracing”. Their requirements were complied with on the next day itself.  Respondents rejected the claim vide their mail dated 09.03.2015. It states that “Your baggage claim was referred to our Central baggage tracing unit for extensive tracing to be conducted. However, despite the best efforts of our staff, regrettably, the bag cannot be located”. It confirms their inability to trace out his lost baggage. They advised the appellant to approach the insurance company if he has taken household or travel insurance. Such a reply from a reputed carrier does not address the concerns of an aggrieved passenger especially when they have accepted their failure to locate the baggage.

9.       Exhibit B1 produced by the respondents is page 46 C of Carriage by Air Act, 1972 which contains the limit of liability of the carrier in case of loss of baggage. Exhibit R2 is the conditions of carriage for passengers and baggage (Pages 1 to 4 and 23) issued by the respondents which contains restrictions on carriage of baggage. Exhibit R3 is the ticket fare details which we are unable to correlate with the complaint for lack of sufficient information.

10.     No doubt, luggage is an important part of one's travel. A perfect flight can get ruined if the passenger does not get his checked-in baggage. A person who lost the baggage alone will understand the value of the items lost.  From the records we find no evidence of any serious action taken by the respondents to trace out the baggage.  The respondents failed to provide the required service to the passenger who lost the baggage. 

11.     When a passenger pays the fare, he is entitled to two things: transportation of self and baggage. This is covered, both by statutes and international conventions. The Carriage by Air Act 1972 is the relevant statute which incorporates the conventions (Warsaw, Hague and Montreal Conventions) into local law. According to the learned counsel for the respondent, their liability is limited as per the provisions of this Act, provided the alleged loss is proved by bills/receipts. The learned Counsel for the respondent relied on the decision of the National Consumer Disputes Redressal Commission (NCDRC) in K R Balasubramanian Vs the Singapore Airlines, LAWS (NCD) 2018 1 100 (NCDRC) to contend that the loss suffered by the appellant is not substantiated and hence they have no liability. He further argued that the respondents are governed by the Carriage by Air Act, 1972 only and they are not liable to pay any compensation as per the Consumer Protection Act, 1986. The respondents have already agreed to pay Rs 45,985/- being 50% of the amount claimed by the appellant. The crucial point in this case is whether this Commission can award compensation, over and above this amount, towards deficiency in service on the part of the respondents.

12.     The learned Counsel for the appellant submitted that as per section 3 of the Consumer Protection Act, 1986 (corresponding section 100 of Consumer Protection Act, 2019), the reliefs available to the Consumer are in addition to and not in derogation of any other law for the time being in force.  The complainant has exercised this right to claim compensation for deficiency in service on the part of the respondents. He has relied upon a judgement of the apex court in  Trans Mediterranean Airways vs M/s. Universal Exports & Anr., VII (2011) SLT 339 to contend that the remedy provided under the Act is in addition to the remedies available under any other Statute.  It is contended that the Act provides an additional remedy and no illegality is there in granting compensation to the respondent. In this case the apex court observed that

“32. In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other Statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy. …..”

13.     The learned counsel for the appellant  also cited the decision of  the NCDRC in Emirates vs Dr. Rakesh Chopra, III (2013) CPJ 500 (NC) to argue that the consumer is entitled for compensation for deficiency in service apart from the loss compensated under the Carriage by Air Act, 1972. Observations of the NCDRC are reproduced below:

“9. The Consumer Protection Act, 1986 has been enacted to give relief to consumers for deficiency in service, unfair trade practice etc. by service providers, traders, manufacturers etc. and the Hon'ble Supreme Court in the the Consumer & Citizens Forum v. Karnataka Power Corporation [1994 (1) CPR 130] has laid down that the provisions of this Act given the consumer an additional remedy besides those that may be available under other existing laws.  In the instant case, no doubt the Appellant Airlines had sought to settle the consumer's grievance purely in terms of the notional monetary loss suffered by him as per the relevant provisions of Carriage by Air Act, 1972.  However, as discussed earlier, because there was deficiency in service on the part of Appellant Airlines in losing and mishandling the Respondent's luggage, which caused him harassment, agony, mental tension and loss of professional face apart from monetary loss, he is entitled to compensation for this deficiency in service on Appellant's part as per the provisions of the Consumer Protection Act, 1986. ….."       

14.     There are numerous decisions in which the appellate authorities have observed that the remedy available under the Consumer Protection Act, 1986, is an additional remedy besides those that are provided under any other existing law. Thus it is settled law that airborne passengers can claim damages for loss of baggage under two heads that are under Carrier Law (Carriage by Air Act, 1972) and the , thereby making the consumer-appellant  entitled to the compensation for deficiency of services.

15.     In this case the appellant had entrusted his baggage to the appellant for safe custody and safe delivery and this was misplaced by the respondent leading to loss of baggage. Though the respondent had offered to settle half of the claim for the loss of contents of the baggage under Carriage by Air Act, the appellant is still entitled to compensation under the Consumer Protection Act.  Having regard to the law settled by the Apex Court and the NCDRC and keeping in view the statutory provisions, we are of the considered view that deficiency of service on the part of the respondent stands established. Hence, we find that there is deficiency in service on the part of the opposite parties in tracing out the baggage and handing it over to the appellant.  The District Commission erred in its finding and hence their order is liable to be set aside.  We do so.

          16.     The respondents had offered to give fifty percent of the amount Rs.91,975/-(Rupees Ninety One Thousand Nine Hundred and Seventy Five) claimed by the appellant i.e. Rs.45,985/-(Rupees Forty Five Thousand Nine Hundred and Eighty Five).  This amount is already agreed to be paid by the respondents.  Hence this amount shall be paid by the respondents.

17.     The complainant prayed for a compensation of Rs.12,00,000/-(Rupees Twelve Lakhs) towards miscellaneous expenses and for deficiency in service. However, the compensation has to be reasonable, just and proper and not to enrich the consumer. Hotel expenses as per Exhibit A4 cannot be considered as there is nothing in evidence to prove that the stay was continued, awaiting his lost baggage. We are of the view that an amount of Rs.1,00,000/-(Rupees one lakh) will be just and reasonable towards compensation for the mental agony and hardships  suffered by the appellant. We order accordingly.

          In the result, the appeal/complaint is allowed on the following terms:

1. The respondents/opposite parties are directed to pay Rs.45,985/-(Rupees Forty Five Thousand Nine Hundred and Eighty Five) towards value of the items in the lost baggage with interest @ 8% from the date of filing the complaint i.e. from 21.08.2015 till realisation.
2. The respondents/opposite parties are directed to pay a compensation of Rs.1,00,000/-(Rupees one lakh only) with interest @ 8% from the date of filing the complaint i.e. from 21.08.2015 till realisation, towards compensation for the mental agony and hardships suffered by the appellant/complainant.
3. The respondents/opposite parties shall further pay an amount of Rs.10,000/-(Rupees Ten Thousand) as costs of this litigation.
4. All the above amounts shall be paid within a period of one month from the date of receipt of a copy of the judgement, failing which all the amounts shall carry interest @ 9 % from the date of filing the complaint till realisation.

SL