PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding negligent and irresponsible attitude of the Opposite Party as the baggage of the Complainant was not delivered at proper destination.
2) The facts of the complaint as stated by the Complainant are that the Complainant had booked an air ticket No.1762912353 in order to travel from Mumbai to Dubai and thereafter to Madrid. He was to travel on the flight No.EK 0141 of the Opposite Party on 19/12/2010. The Complainant has further stated in his complaint that he had one check-in-baggage to be delivered at Madrid. He travelled to Madrid as per the schedule of the flight, however, his check in baggage did not arrive at the destination. On enquiry it was informed to the Complainant at Madrid that the baggage has been booked for delivery at Porto. The Complainant informed them that he had not given any instructions for the delivery of the said baggage at Porto. The Complainant needed the baggage to attend the meeting. The Complainant was then informed to wait for half an hour to get baggage at Madrid. But the baggage did not reach to Madrid Airport hence, the Complainant left the airport with instructions that the baggage be delivered to his hotel at Catalonia Gaudi Hotel Gran Via 7-9 Madrid Spain. However, the baggage was not received even at the hotel also. Therefore, the Complainant had to carryout his business with the same clothes on his person. He had one night stay at Madrid.
3) The Complainant has further stated that his flight clearly indicated his journey upto Madrid. The destination was booked for delivery of the baggage at Madrid and not at other destination. On next day i.e. on 20/12/2010, the Complainant travelled to Porto and arrived at 11.30 local time. Even at Porto, the baggage did not arrive. The Complainant was told that his baggage was misplaced. Therefore, the Complainant had to purchase basic necessity at Porto Airport for which he incurred expenses of Euro 802.60. Thereafter, the Complainant left Porto and arrived at Istanbul on 21/12/2010 by flight TP 1961Q. At this time one Miss. Jessy of Opposite Party informed the Complainant that the baggage was traced out and was dispatched to Porto. But as the Complainant had left Porto he could not get the same. Therefore, he instructed Miss. Jessy that the baggage be either delivered at Istanbul or Dubai or can be returned to Mumbai as he had no use of the said baggage. The Complainant then left Istanbul on 22/12/2010 for Dubai and then he returned to Mumbai. All the above facts were narrated by the Complainant in his letter dtd.27/12/2010. Thereafter, the Complainant received a letter dtd.31/01/2011 from the Opposite Party informing that the Opposite Party had agreed to reimburse 802.60 Euro and a credit of 20,000 points in his Skyward account. The Complainant has specifically stated that he denied to accept the generosity offered by the Opposite Party for settlement of the claim.
4) Thereafter the Complainant received a letter dtd.16/03/2011 from the Opposite Party informing that he has sent a cheque of Indian Rupees equivalent to Euro 802.60. However, the Complainant wrote a letter dtd.22/03/20111 to Opposite Party stating that credit of 20,000 points is not acceptable. However, from the record it is seen that the complainant has accepted the cheque of the amount equivalent to Euro 802.60.
Subsequently, the Complainant also refused to accept the further offer of credit of 10,000 points to his Skyward account and insisted on the settlement of his claim lodged for mental agony, harassment and business loss.
5) Finally, the Complainant has stated in his complaint that the Opposite Party be directed to pay to the Complainant a sum of Rs.5 Lacs for harassment, mental agony and loss of business, plus a sum of Rs.78,736/- towards refund of value as he could not complete the full business meeting. He has also stated in the complaint that the Opposite Party be directed to pay a sum of Rs.25,000/- to the Complainant towards cost of this complaint.
6) The Complainant has attached the xerox copies of the following documents in support of his complaint –
Letter of the Complainant dtd.27/12/2010, 20/01/2011, Letter of the Opposite Party dtd.26/03/2011, Claim settlement form dtd.09/02/2011, Letter of the Complainant dtd.22/03/2011, E-mail dtd.06/04/2011 from Opposite Party, Letter from Vivek Kantawala & Co. to the Opposite Party dtd.08/04/2011, E-mail from Saraswati to Customer affairs dtd.07/04/2011, Letter from Vikram Philip & Associates to Vivek Kantawala dtd.05/05/2011.
7) The complaint was admitted and notice was served on the Opposite Party. The Opposite Party filed its reply wherein the Opposite Party has denied the allegations made by the Complainant in his complaint and further averred that, the Complainant has suppressed the material facts from this Forum. The Complainant has suppressed the very important fact that he accepted a sum of Euro 802.60 from the Opposite Party in full & final settlement of the claim, whereby the claim was extinguished. The Complainant has signed and accepted the settlement. Hence, he is precluded from re-agitating his claim for the same cause of action. Therefore, in view of this fact the complaint be dismissed with heavy cost.
8) The Opposite Party has further admitted that there was delay in delivery of the baggage as the baggage did not arrive at Madrid on the same flight as that of the Complainant. However, the Opposite Party staff made all efforts to trace the baggage, but the same was shortlanded. However, the Opposite Party has specifically stated that the Complainant was offered full reimbursement of the amount spent by him for buying the clothes due to delay in delivery of the baggage. Therefore, it is the contention of the Opposite Party that the allegation of the Complainant that due to the lack of baggage he could not carry out his business is false. The Opposite Party has further stated that the baggage was restored to the Complainant in Mumbai. The said baggage was accepted by him without any protest or demur.
9) Both the parties have filed their affidavit of evidence. The Complainant has again filed his reply to the Opposite Party’s written statement wherein he reiterated the facts mentioned in his complaint and denied the points raised by the Opposite Party. Thereafter, the Opposite Party has filed his written argument wherein he reiterated the facts mentioned in his reply to the complaint. He has cited the judgment of Hon’ble Tamilnadu State Consumer Dispute Redressal Commission III 1993 CPJ 1439.
10) We heard the Complainant in person and the Ld.Advocate for the Opposite Party. We also perused all the papers submitted by both the parties and our findings are as follows -
The Complainant travelled by the Opposite Party’s Airlines from Mumbai to Madrid. The main issue of the complaint is that the check in baggage did not arrive at Madrid alongwith the complaint on time. He waited at Madrid Airport. He also waited for the baggage at his Hotel at Madrid but he could not get the baggage at Madrid. Then he travelled to Porto, then Istanbul but due to the absence of baggage he could not carry out his business meetings. The Complainant himself repeatedly stated in his complaint that he had undertaken the whole trip for his business purpose and because of non availability of his baggage he could not carryout the business meeting. This caused mental agony, business loss for which he has complained against the Opposite Party.
11) The Opposite Party has admitted the fact that there is a delay in delivery of the baggage. The baggage was misplaced and was not handed over to the Complainant at Madrid on time. For this flaw the Opposite Party has paid the complainant an amount of Euro 802.60 which was accepted by the Complainant without any protest/objection. On the contrary in claim settlement form dtd.09/02/2011, singed by the Complainant has declared as follows -
“I agree to accept from Emirates the sum EURO 802.60 (In equiv INR) in full and final settlement and discharge any and all claims against Emirates arising out of an incident and/or travel on or about flight No date of travel Identity 21785406 Date of issue : 11/09/2008
Place of Issue : Mumbai.
Name : MR. SUDARSHAN K. TAPURIAH
Signature
Date : 9 Feb, 2011
B1201/02 – ELDOR ADO Bldg.
Address etc.”
12) As per the above said declaration form/discharge receipt the Complainant has discharged the Opposite Party from its all/any liability and relinquish his right. He is then estopped from claiming the further compensation as claimed by him in his complaint and other letters addressed to the Opposite Party. Even in the complaint he has suppressed this fact that he has accepted the above said amount from the Opposite Party as a full and final settlement of the dispute.
13) Further more the Complainant has repeatedly harped on the fact that he has been asking for the compensation for mental torture and business loss. In this respect there is absolutely nothing on the record to suggest that there was a meeting and because of same clothes, he could not attend the meeting. On the other hand, he had purchased the necessary articles on the very day i.e. on 20/12/2010 for Euro 802.60 as mentioned in his complaint. Therefore, the contention, that because of the lack of clothes, he could not carryout out the business meeting does not hold water.
14) Even it is accepted that the Complainant had gone to Porto, Istanbul and other places for holding business meeting in connection with his business, we do not have any option but to arrive at the conclusion that the traveling/journey was undertaken by the Complainant for his business activities. The services rendered by the Opposite Party airline were for the business/commercial purpose. Therefore, in our candid view, the complaint is not a ‘Consumer’ within the meaning of term ‘Consumer’ as defined in Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 .
The amended provisions of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 are as under –
(d) “consumer” means any person who –
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the persons who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose.]
[Explanation – For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]
15) The Complainant himself in his complaint has stated as follows -
“a) The Opposite Party be ordered and directed to pay to the Complainant a sum of Rs.5 Lacs for harassment and mental agony and torture and for loss of my business”. This statement substantiates the conclusion that the services availed by the Complainant are certainly for a business purpose which denotes a commercial purpose.
16) The 2nd point of request of the Complainant is that “the Opposite Party be directed to pay a sum of Rs.78,736/- towards refund of value as I could not complete the full business meeting.” In this respect the Complainant has miserably failed to produce any evidence to show that he incurred the expenses of Rs.78,736/- for which the Complainant has used the word “Value”. Even he has failed to attach the copies of air tickets on which he travelled.
17) Therefore, in our candid view the Complainant has miserably failed to make out a case under the Consumer Protection Act, particularly he ha failed to prove that he is a consumer as per section 2(1)(d)(ii) of the Consumer Protection Act, 1986, as defined above and therefore, we do not find merits in this case and we pass the order as follows -
O R D E R
i)Complaint No.192/2011 is hereby dismissed for want of merits.
ii)There is no order as to cost.
iii)Copy of this order be furnished to both the parties.
