Delhi

StateCommission

FA/13/199

JET LITE (INDIA) LTD. - Complainant(s)

Versus

GIRISH KR. JAIN - Opp.Party(s)

29 Apr 2016

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Decision: 29.04.2016 

First Appeal- 199/2013

(Arising out of the order dated 03.01.2013 passed in Complainant Case No. 974/2008 by the District Consumer Disputes Redressal Forum-VII, Sheikh Sarai, New Delhi)

 

Jet Lite (India) Ltd.,

Jetair House,

Delhi Office: Jet Air House,

13, Community Centre,

Yusuf Sarai,

New Delhi-110049.

 

Through

 

Shri Zakir Husain,

Authorised Representative

of the company

•  

Versus

Mr. Girish Kumar Jain,

S/o Late Shri R.K. Jain,

R/o 7-A/2, Rajpur Road,

•  

                                                ….Respondent

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

 

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

2.      To be referred to the reporter or not?

 

 

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short the “Act”) wherein challenge is made to order dated 3.1.13 passed by the Consumer Disputes Redressal Forum-VII, Sheikh Sarai, New Delhi (in short the “District Forum”) in Complaint Case No.974/2008.
2. Briefly the facts relevant for the disposal of the present appeal are as under:

The respondent herein was the complainant before the District Forum.  A complaint under Section 12 was filed by him alleging therein that he had boarded the appellant’s flight No.S-312 on 12.6.08 from Guwahti to New Delhi. On arrival at New Delhi Airport, when he received the luggage, the respondent/complainant found that his bag was open, the two locks put on the bag were not there and zip of the bag was also broken.  He had alleged that from his check-in baggage, he had lost one digital camera of Nicon company and one woolen jacket of Pringle company.  It was alleged that loss was brought to the notice of the representative of the appellant/OP present at the airport and a complaint was lodged vide “Property Irregularity Report” (in short, “the PIR”).  At the time of lodging the complaint, it was assured to him by the officials of appellant/OP that he would be informed on 13.6.08 about investigation/recovery. Despite assurance given, nothing was done.  It was alleged that at the airport, only the complaint of missing of camera was lodged.  The report about Jacket was lodged after few days through letter.  It was alleged that when no response was received from appellant/OP, respondent/complainant wrote letters for the refund of his stolen goods.  Even then there was no response from the side of appellant/OP.  Thereupon the respondent/complainant had sent a legal notice on 12.8.08 through his lawyer.  Despite that no heed was paid towards the grievance of the respondent/complainant.  Thereafter the complainant lodged a complaint with the Ld. District Forum praying for Rs.1,30,000/- i.e. Rs.1,00,000/- towards mental torture and harassment to him and Rs.30,000/- towards cost of articles.

3. Notice of the complaint was issued to the appellant/OP by the Ld. District Forum. A written statement was filed on its behalf wherein it was alleged that the ticket issued to the respondent/complainant was giving the conditions of carriage printed on the jacket of the ticket.  The said printed conditions were the prima facie evidence of contract of carriage which was applicable to electronic ticket also. It was alleged that the respondent/complainant was careless in keeping the alleged articles in the checkin baggage.  It was alleged that as per terms and conditions printed on the jacket of the ticket, the valuable articles were to be carried by the passenger in the cabin.  It was alleged that the appellant/OP was not liable to pay any amount towards compensation or any other amount as was alleged by the respondent/complainant.  It was further alleged that there was no deficiency in service on the part of the appellant/OP. 
4. The respondent/complainant had filed rejoinder to the written statement denying the allegation made therein and reiterated the averments made in the complaint.
5. Both the parties had filed affidavits in support of their respective stands before the Ld. District Forum.
6. After hearing the Counsel for the parties, the Ld. District Forum allowed the complaint and directed the appellant/OP to pay a sum of Rs.25,000/- along with 10% rate of interest p.a. from 12.6.08 till realization towards the cost of the loss articles.  Further Rs.20,000/- has been awarded towards compensation for harassment and mental torture.
7. Aggrieved with the same, present appeal is filed.

8. It is contended that there is negligence on the part of the respondent/complainant in as much as the respondent/complainant had kept the alleged articles in the checkin baggage and not in the hand baggage.  It is contended that he ought to have carried the valuable articles in the cabin.  It is contended that by allegedly keeping the same in checkin baggage, the respondent/complainant has acted in violation of the terms and conditions printed on the jacket of the ticket.  It is further contended that even assuming appellant/OP is liable the carrier’s liability for loss, delay or damage to baggage is limited to INR 450/- per kg unless higher value is declared in advance and additional charges are paid. Ld. Counsel for the appellant/OP has contended that the respondent/complainant has alleged that he was carrying a woolen jacket.  It is contended that respondent/complainant had travelled in the month of June when it is neither cold in Guwahti nor in Delhi as such there was no question of carrying woolen jacket during the peak summer season as has been alleged.  It is further contended that in the PIR dated 12.6.08, there is a mention of loss of one camera.  There is no mention of alleged loss of woolen jacket.  It is contended that addition of woolen jacket as a lost article subsequently is an afterthought.  It is contended that impugned order has not been passed on the basis of material evidence on record, as such same is liable to be set aside.

9. On the other hand, Ld. Counsel for the respondent/complainant has contended that a well reasoned order has been passed by the Ld. District Forum.  It is contended initially the PIR was lodged on 12.6.08 with the appellant/OP where only one missing article i.e. camera is mentioned.  Thereupon a subsequent complaint was lodged on 17.6.08 stating therein that a woolen jacket of Pringle company was also missing from the bag.  The said complaint was sent by registered post.  Thereafter letter dated 30.6.08 was written in this regard.  Further, on 12.8.08, a legal notice was given wherein loss of aforesaid two articles was also stated.  It is submitted that no reply to aforesaid letters/notice was given by the appellant/OP. Further it is contended that sufficient explanation was given in the letter dated 17.6.08 as to why the loss of woolen jacket was not informed earlier.  It is contended that finding has been given by the Ld. District Forum after considering the material on record.  Respondent/complainant has also relied upon the judgement of National Commission in Emirates vs Dr. Rajesh Chopra, III (2013) CPJ 500 (NC) to contend that the remedy provided under the Act is an addition to the remedies available under any other Statute and there is no illegality in the impugned order.

10.  We have heard the submissions made by the Counsel for the parties and perused the material on record.

11.  It is admitted position that the respondent/complainant had travelled with appellant/OP on 12.6.08 in Flight No.S-312 from Guwahti to Delhi.  It has also come in the evidence of respondent/complainant that on arrival at New Delhi, he found that checkin bag was unlocked and zip was opened and valuable articles were missing.  It is also admitted position that PIR was lodged on the same day with appellant/OP wherein missing of one camera is mentioned.  Vide registered letter dated 17.6.08, complainant also informed the appellant/OP that one woolen jacket of Pringle company was also missing.  It has also been stated in the aforesaid letter that he was perturbed and did not check the entire baggage at that time.  Another letter dated 30.6.08 was also sent by registered AD post to appellant/OP.  Again a letter dated 15.7.08 was sent by registered AD post to appellant/OP.  A legal notice was also sent. There is mention of missing of camera and woolen jacket of Pringle company in aforesaid letters/notice.  There is no response from the side of the appellant/OP to aforesaid letters/notice. Further respondent/complainant has also reiterated the same in his evidence by way of affidavit.  All the postal receipts and letters are exhibited in the affidavit.  The aforesaid evidence is not rebutted in any manner.  In these circumstances, it cannot be said that the addition of woolen jacket in the complaint is an afterthought, as is alleged. 

12.  We have also considered the contention of the appellant/OP that in summer season, there was no question of carrying a woolen jacket.  No such stand is taken in written statement.  The aforesaid contention is raised for the first time in grounds of appeal.  In reply, respondent/complainant has stated that he had gone to Bomdila and Tawang in the State of Arunachal Pradesh which are very cold in the month of June.  In these circumstances, the contention raised by the respondent/complainant also has no force. 

13.  The contention of appellant/OP about negligence on the part of respondent/complainant is also considered by us. We have also gone through the reasoning given by Ld. District Forum in this regard which is as under:

“O.P. has referred conditions of the ticket written on the jacket.  We have gone through the contents of the conditions and find that it is only advisory that the valuable articles are best carried with the passenger in the cabin.  It is not mandatory that the valuable articles has to be taken by passenger in the cabin and cannot be kept in the baggage duly locked.  We are not convinced with the defence taken by the O.P.  Further, once the bag is submitted by the passenger in the custody of the O.P., the O.P. is responsible for its safety and security.”

14.  We find no reason to disagree with the reasoning given by the Ld. District Forum.  In the facts and circumstances of the case, there is no violation of conditions, as is alleged.                                                     

15.  The contention of appellant/OP that its liability is limited to INR 450/- per kg is also examined. In Trans Mediterranean Airways vs M/s. Universal Exports & Anr., VII (2011) SLT 339 while referring to its earlier judgements, the Hon’ble Supreme Court has observed that Section 3 of the Act gives an additional remedy for deficiency in service and that remedy is not in derogation of any other remedy under any other law. 

16.  In Emirates vs Dr. Rakesh Chopra, III (2013) CPJ 500 (NC),  the appellant airlines therein had sought to settle the consumer’s grievances in terms of notional loss suffered by him as per the provisions of Carriage by Air Act, 1972.  The National Commission held that due to deficiency in service on the part of appellant airlines in losing and mishandling the luggage which caused harassment, agony, mental tension and loss of professional face, the consumer therein was entitled to compensation under the Act.  The relevant portion of the judgement is reproduced as under:

    “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.  Keeping in view these facts, the State Commission has awarded a compensation of Rs. 2.00 Lakhs.  We see no reason to disagree with the compensation awarded, which, we feel, is fully justified under the circumstances.”                                             

17.  In view of settled legal position, the contention of the appellant/OP that respondent/complainant is entitled for compensation as per weight of loss of baggage has no force. 

18.  As discussed above, the missing of camera was immediately reported to the appellant/OP.  The information about missing of woolen jacket of Pringle company was also given on phone as well as by registered letters and legal notice as are stated above.  The appellant/OP had remained silent and no response is given to said letters/notice.  The evidence on record establishes negligence and deficiency in service on the part of the appellant/OP in handling the baggage of respondent/complainant. Nothing has been shown by the appellant/OP as to what action was taken on the complaint of the respondent/complainant.

19.  No illegality is seen in the impugned order passed by the Ld. District Forum.  A well reasoned order has been passed after considering the material on record. 

20.  Accordingly the appeal stands dismissed. 

21.  A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum.  The record received from the District Forum be also sent back forthwith. Thereafter the file be consigned to record room.

 

(Justice Veena Birbal)

President

 

(Salma Noor)

Member