FINAL ORDER/JUDGEMENT

Date:25.10.2019.

Briefly stated the facts relevant for the disposal of the complainant are that the complainant flied from Bagdogra to New Delhi on 17.12.2015 by the Flight of OP No.1 and handed over his suitcase “American Tourister” worth Rs. 10,000/- containing clothings valued Rs. 36,400/- to the OP No.2 at Bagdogra Airport for taking the same to the destination.  But when he reached New Delhi and went to collect his baggage from the counter there, he came to know that the baggage was missing.

The complainant reported everything to the counter of OP No.1 at New Delhi Airport and he was asked to fill up a Property Irregularity Report (PIR) and was assured that his baggage would be searched out and handed over to him.  But even after as many as 05 (five) days, the OPs could give no information about the baggage and Pankaj Verma, the grand-son of the complainant who had been in touch with the OPs for this purpose received a phone call on 28.12.2015 from the Mumbai office of the OP No.1 to receive a sum of Rs. 2,400/- and thereafter e-mail on 06.01.2016 for Rs. 3000/- as compensation which was obviously refused by the complainant’s side.

After waiting for some more days, the complainant served a lawyer’s notice on 22.01.2016 upon the OP No.1 to pay a sum of

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Rs. 2,61,500/- and the said notice was received by the OP No.1 on 27.01.2016.  The said Lawyer’s notice being remained unreplied to, the complainant filed this case on 17.05.2016.

The OPs contested the case by filing written version on 29.11.2016, wherein the material averments made in the complainant have been denied and it has been contended, in alia, that there was no deficiency on their part and hence the complaint is devoid of any merit.  There was no dispute and hence the complaint is baseless.  It is a misrepresentation of fact and should hence be dismissed. Moreover, the case is not maintainable here in Siliguri Forum because this Forum has no jurisdiction to adjudicate this case since as per existing provision all claims & disputes shall be subject to the exclusive jurisdiction of courts in Mumbai,-India, only.

In contesting the case, the OPs rely mainly on the Property Irregularity Report (PIR), existing rules & regulation. They also rely on terms & conditions printed on the e-ticket and also correspondence in between the complainant and OPs. In regard to the calculation of the amount of compensation claimed by the complainant and partly agreed to by the OPs, the later rely specially on the provision of the ‘carriage by Air Act’ 1972, on the strength of which the OPs do not deny to compensate the complainant. 

The complainant has, to prove his case, filed the following documents:-

1. Boarding Pass of GoAir in the name of L.C. Verma dated 17^th December, 2015,
2. Boarding Pass of GoAir in the name of N. Verma dtd. 17^th, December, 2015,
3. Boarding Pass of GoAir in the name of P. Verma dtd. 18^th December, 2015,
4. Confirmation Number of GoAir for flying from Bagdogra to New Delhi,
5. Property Irregularity Report,
6. emails (two sheets),
7. Notice issued by Sri Manik Chand Verma, Advocate dtd. 22.01.2016,
8. Postal Receipt bearing No. B RW268555304IN dtd. 22.01.2016,
9. Detailed track events of RW268555304IN (India Post),
10. Discharge Summary of Nikhil Verma issued by Medanta, Gurgoan.

On the basis of respective submission of the parties and on consideration of pleading & evidence, the following points come up for determination:-

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1. Whether the complainant is a “consumer” or not,
2. Whether the case is maintainable in this Forum or not,
3. Whether there is any deficiency on the part of the OPs,
4. Whether the complainant is entitled for any compensation for the lost baggage and,
5. How the liability of the OPs is to be fixed for the lost baggage.

DECISION WITH REASONS.

Point No. 1 & 2 are take up together for the sake of brevity and No. 3, 4 & 5 in seriatim for discussion.

Point No. 1 & 2.

The complainant Shri Lalchand Verma falls within the definition of ‘consumer’ as per section 2(d) of the Consumer Protection Act 1986, in as much as he purchased an air-ticket for his journey from Bagdogra to New Delhi on 17.12.2015 and for his luggage a tag No. 0-284G8161352 was allowed in acknowledgment of the receipt of luggage to be transported to the destination.  Thus the complainant payed money to the OP for the service to be provided to the complainant by the OP.  Hence the complainant is a ‘consumer’ under the Act.

The OPs argue in their written version that the case is not maintainable in Siliguri Forum.  The existing terms & conditions provides that “all claims & disputes are subject to the exclusive jurisdiction of the courts in Mumbai only” and it is printed on the e-ticket.   Availing journey by the complainant using that ticket proves that the complainant accepts the jurisdiction of Mumbai courts.

On the other hand section 11(2) of the C.P. Act 1986 provides that a complaint shall be instituted in a District Forum within the limits of whose jurisdiction the OP carries on business or has a branch or works for gain and the cause of action, wholly or partly arises. OP No. 2 in the Branch office of OP No.1 at Bagdogra Air port to run its business, where the baggage was handed over for transport to the destination. Hence part of cause of action occurred, and the OP works for gain, within the territorial jurisdiction of this Forum.

Therefore, the foregoing paras, second and 3^rd read together leaves ample scope for discretion of this Forum both to admit and reject the complaint at the filing stage. It goes without saying that this Forum applied its discretion to adjudicate the complaint as the provisions of C.P. Act, shall, as per section-3 of the said Act, be in addition to the provision of any other law for the time being in force.

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Point No.3.

Complainant alleged that he handed over his American Tourister Suitcase worth Rs. 10,000/- containing clothings valued Rs. 36,400/- to the OP No.2 at Bagdogra Airport for taking the same to the destination.  But when he reached New Delhi and went to collect his baggage from the Counter in New Delhi Airport, he found that the baggage was missing.

The OPs argued that in the PIR filled up by the complainant and submitted to their counter in New Delhi Airport, total number of 02 (two) baggages were mentioned in the relevant space but the complainant claimed 01 (one) baggage.  Thus the OPs alleged that complainant suppressed the fact of safely receiving 01 (one) bag in the complaint.  This allegation of suppression, of course, proves their indirect confession of missing 01 (one) bag.  In written version, the OPs deny any deficiency of service by stating that it took as many as 05 (five) days to search out the missing bag.  The cause of such denial is also suggestive of confession that 01 (one) bag was missing. The loss of one baggage further stands admitted by the OP through their offer of compensation to the tune of Rs. 3000/- vide their e-mail dtd. 06.01.2016 which they claim as their goodwill gesture besides telephonic offer on 28.12.2015 of Rs. 2400/- as stated by the complainant.  Though the OPs can not deny their responsibility in this regard, the complainant’s getting is zero.

Thus the point NO. 3 is answered in the affirmative against the OPs.

Point No.4.

The complainant stated in his plaint that the baggage missed worth Rs. 10,000/- and the various clothings contained in that lost baggage valued Rs. 36,400/-  thus the total loss is Rs. (10,000 + 36,400=) 46,400/- say, Rs. 46,500/- excluding, however, Rs.2,15,000/- towards other compensation claimed as relief. The OPs however argue that price of American Tourister Suitcase, as is not supported by any cash memo, as the clothings claimed to be inside the baggage are also subject to strict proof.  The purpose of journey and the cost of travel of persons accompanying the complainant is not related to the sale of ticket and hence the OPs are not concerned with the other expenses.

The OPs further contended that while filling up the PIR, the complainant noted 02 Nos. of baggages in total in the appropriate space for the purpose. But the complainant suppressed this fact in his plaint and spoke of one baggage only. Such suppression shows complainant’s intention, which is just to extract some money from the OPs. If one bag could be delivered safely, there should be no

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difficulty in handing over the another, and the possibility of any other passenger’s unintentionally/wrongly picking up of the baggage cannot be ruled out.  It deserves special mention in this context that neither in the examination-in-chief nor in the written notes on argument has the complainant refuted the alleged suppression in the written version of the OPs.

The OPs, in their written version admitted offer of compensation over telephone/e-mail but out of genuine gesture for the inconvenience of the complainant without, however, any admission of liability.  In regard to the complainant’s entitlement, they rely on the “carriage by Air Act” 1972, specially sub-clause 02 of clause 22 of Sch.-II of the Act, of Schedule II of the Act which is reproduced below:-

1.  In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the passenger’s or consignor’s actual interest in delivery at destination.
2.  In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, then the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.

The complainant however, neither made any such special declaration nor has paid any supplementary sum.  Thus the OP limits their liability to the maximum of Rs. (450/- per kg × max. 20 kg=) 9,000/- as the entitlement of the complainant.

Conversely an order dtd. 22.11.2016 passed by the District Consumer Disputes Redressal Forum, Ranga Reddy, Telangana in complaint case No. 43 of 2016, B. Praveen Kumar Vs Indigo Airlines has been cited.  By the said order, while partly allowing the complaint filed by the complainant alleging deficiency in service on the part of the OP airlines in misplacing one of his baggage out of two, the District Consumer Disputes Redressal Forum had directed the OP to pay to the complainant a total

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compensation of Rs. 90,000/- within a period of one month, failing which the said amount was to carry interest @ 12 % per annum for the period of default.

Thus the point No. 4 is answered in positive in favour of the complainant.

Point No.5.

This is the pivotal point which the entire case revolves on.  We start answering this point by saying that the consumer case referred to in the last of foregoing para could not be challenged in the higher Forum as evident from a citation of an order dtd. 17.04.2018 of the Hon’ble National Commission in a Revision Petition, Indigo Airlines Vs. B. Praveen Kumar arisen against the order dtd. 01.02.2018 passed by the Telangana S.C.D.R.C. at Hyderabad in FAIA No.40 of 2018/FASR No. 4045/18.  By the said order, the Hon’ble State Commission dismissed the appeal as barred by limitation insamuchas there was delay of 358 days in filing the same. This order has, in turn, challenged in the National Commission where the order of the State Commission was upheld by viewing that State Commission has not committed any jurisdictional error. National Commission was pleased to dismiss the Revision Petition. Naturally, the decision which would have been taken by the higher Foras, had the filing been not delayed, could not be known.

However, a citation of a decision dtd. 18.02.2015 of the Hon’ble National Commission in Revision Petition No. 2554 of 2008 in Appeal No. 991/2007 Sahara Airlines Vs Dr. Jayanta Rath has been made available to this Forum.  The OP-Airlines being aggrieved of the order of the dismissal of his first appeal by the Orissa State Commission against the order of Cuttack District Forum has preferred this Revision Petition.  On 13.03.2017, the complainant, Dr. Jayanta Rath travelled from New Delhi to Bhubaneshwar by the OP-Airlines which issued two tickets for his two bags.  On his arrival at Bhubaneswar Airport, the complainant was handed over only on bag. PIR was duly filled in and submitted. When the OP failed to deliver the second missing bag, the complainant filed a case in Cuttack District Forum claiming a total of cost of Rs. 3,00,000/- The OP Sahara Airlines admitted the alleged missing but took the plea that the complainant was not entitled to the relief sought because (a) he had not given declaration regarding the content of the bag in the prescribed format and (2) nor has he paid additional charges for the same but was entitled to Rs. 450/- per kg for his missing bag weighing 08 kg.  The Cuttack District Forum allowed the complaint and directed the OP-Airlines to pay the complainant a total amount of Rs. 1,30,000/-.

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Being aggrieved of the said order, the OP preferred an appeal and the Hon’bel Orissa State Commission which concurring with the order of the Cuttack District Forum, Dismissed the appeal and directed the OP-Airlines to comply with the order of the District Forum.  In the Hon’ble National Commission the OP-Airlines pleaded that the Hon’ble Orissa State Commission had passed the impugned order in violation of Rule 22, Scheduled II of ‘carriage by Air Act’ 1972, which limits the liability to Rs. 450/- per kg into the weight of the lost bag which was 08kg.  Thus the complainant/respondent is entitled to Rs. (450×8)=3600/- only.  In deciding the revision petition, the Hon’ble National Commission categorically and unambiguously held that both the foras below have committed grave error in granting compensation in violation of Rul-22, Section II of the ‘Air carriage Act’ 1972 and hence can not be sustained. Thus, while setting aside the impugned orders, the Hon’ble National Commission directed the petitioner/OP-Airlines to pay the respondent/complainant damages for the lost baggage calculated @Rs. 450/- per kg., if not already paid, with 9% interest thereon from the dated of loss, i.e., 13.03.2017 till realization of the amount.

On consideration of all the aspects, the instant consumer complaint no. 55/S/2016 succeeds on contest in part in the result.

And in following, as precedent, decision of the Hon’ble National Commission in disposing of the Revision Petition as aforesaid, similar to the instant Consumer Case, it is

O R D E R E D

that the instant Consumer Case being No. 55/S/2016 be and the same is, allowed in part on contest against the OPs.

The OP-No.1 & 2 shall jointly or severally pay the complainant compensation for the lost baggage calculated @ Rs. 450/- into the actual or maximum admissible weight, whichever is less, of the lost baggage, with 9% interest thereon from the date of the loss, i.e., 17.12.2015 till realization of the amount in full.

The OP is further directed to pay the complainant a sum of Rs. 50,000/- towards compensation and Rs. 2,000/- towards litigation expenses.

In case of default, the complainant will be at liberty to put this order into execution through their Forum as per law.

Let the plain copies of this judgment be supplied to the parties free of cost.