Delhi

West Delhi

CC/18/173

SHARDHANJALI SINHA - Complainant(s)

Versus

INDIGO AIRLINES - Opp.Party(s)

24 Aug 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III: district WEST, C-BLOCK, COMMUNITY CENTRE, JANAK PURI, NEW DELHI

 

Complaint Case No.173/2018

 

In the matter of:

 

Shardhanjali Sinha

C/o-Sanjay Kumar

A-100 Jain Park, Street no. -7

Uttam Nagar

New Delhi 110059                                                             COMPLAINANT

VERSUS

Indigo Airlines           

Level 1, 2nd floor

Global Business Park,

Tower C. Mehrauli Gurgaon Road,

DLF City phase 3.

Gurgaon-122010                                                              .... OPPOSITE PARTY

 

	DATE OF INSTITUTION:      JUDGMENT RESERVED ON:                     DATE OF DECISION   :	03.06.2016 05.07.2022 24.08.2022

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member (Female)

Mr Anil Kumar Koushal, Member (General)

Order passed by Ms Richa Jindal, Member

 

ORDER

That the complainant had filed the present complaint wherein brief facts are that:-

1. That, the complainant travelled from Delhi to Bangaluru via Hyderabad on 13.03.2018, as the complainant had to appear in an interview, with the Opposite Party i.e., Opposite Party which operates its commercial services under the name and style as IndiGo/IndiGo Airlines, through their flight bearing Flight No. 6E679, booking for which journey was done on 16.02.2018 on the internet through the web portal of the Opposite Party by making an online payment of Rs. 2,713 (Rs Two thousand seven hundred and thirteen only). PNR No. TEJV6G was assigned on the Tax Invoice and boarding pass seat no. 30C was allotted after checking in on the day of the journey.

 

2. Since the complainant was carrying personal essential belongings in her hand baggage of the permissible size and weight, which usually passengers are allowed to carry along. The complainant was allowed by the crew/ staff of the Opposite Party at the check-in counter to carry the same along, without any demur, however, the crew/staff of the opposite party present at Gate No. 9B pulled her off the queue, when the complainant reached the gate for entering into the aircraft and conveyed to her that the compartment/ cabin of the aircraft is already full therefore she cannot carry her hand-baggage along. Further, she was forced to hand over her handbag to the said crew/ staff at the gate against her will. The crew/ staff manually tagged the said handbag and assured the complainant that she will get her luggage at Bengaluru airport. The complainant further said that she had duly informed the said crew/ staff that she was carrying her jewellery and other valuables in the said handbag on which she was convinced by them that she will get her luggage safely at Bengaluru airport.

 

3. Since the complainant was pulled over the queue and surrounded by the crew/ staff of the opposite party at gate No. 9B, the complainant felt very embarrassed as other passengers, who were also carrying their respective hand baggage, were looking at the complainant with suspicion. Further, as this being her first ever break on the journey and since the said crew/ staff was only telling her to understand the alleged situation though the complainant was fully cooperating with them, under the circumstances the complainant agreed to hand over her hand-baggage to the said crew/ staff under the assurance that she will safely receive the same at Bengaluru airport.

 

4. After reaching Hyderabad, the complainant went to the counter/ staff/ crew of the opposite party present there and confirmed thrice from the said crew/ staff of the opposite party about her hand baggage. The complainant was assured that she will be receiving her hand-baggage safely at Bengaluru airport by reiterating the same statement –“you will get your luggage directly at Bengaluru”.

 

5. After reaching Bengaluru Airport the complainant went to the assigned conveyer belt and thoroughly checked for her luggage which never arrived. Since the complainant did not receive her luggage, she reported the same to the crew/ staff of the opposite party present there. The complainant also made a complaint for loss of property and gave a description/ details of some of the goods/ belongings which were kept inside the said hand-baggage with sole intention that upon being found the same can be easily recognised. Since the complainant had her personal belongings such as documents, and an iPad. jewellery, etc. which were very dear to the complainant and with which the complainant had an emotional connection, especially since at that relevant time the complainant was undergoing the pain of separation from her marriage, having lost those belongings was akin to being robbed of an entire phase of her life. The complainant waited at the airport for over two hours anxiously only to be told that the crew/ staff of the opposite party are unable to trace her baggage.

 

6. The complainant busted into tears as she was informed by the crew/ staff of the opposite party that her luggage is not traceable. The crew/ staff member consoled the complainant by assuring her that they will find and deliver her baggage to the complainant’s given address by the next day. The complainant had no other option but to leave the airport. The next day, sometime in the 1" half, the complainant received a call from the opposite party informing her that they have successfully traced her baggage and asked the complainant to come to the airport to identify the same. the complainant rushed to the airport as she was worried a lot about her baggage as the complainant was carrying her documents for an interview, jewellery, iPad and other valuables in that bag which were lost solely due to deficient management of the same by the opposite party.

 

7. The complainant felt very harassed and humiliated by the conduct of the opposite party. Thereafter, the complainant kept on contacting the opposite party multiple times on the phone for the next few days thereby stressing many times that she need her luggage.

 

8. That, after a lapse of many days the opposite party finally accepted that they are not able to trace her luggage by forcing her to accept travel vouchers worth Rs. 2,800/- (i.e., Rupees Two thousand eight hundred only) towards compensation which the opposite party further mocked her alleged compensation is not equal to even the cost of her bag which the opposite party hopelessly failed to deliver to me at the end of the journey as was assured by them. The complainant duly conveyed to the opposite party on many occasions that the lump-sum cost of the belongings kept inside the said bag was over Rs.60,000/- (i.e., Rupees Sixty thousand only).

 

1. the complainant further objected to the opposite party as they are treating her baggage as 'check-in baggage instead of 'hand-baggage' wherein she was not carrying any check-in baggage and the hand-bag was the only luggage, she was carrying and which the complainant was refused to take along to the cabin for the reason best known to the opposite party. Further, to add more to the misery the complainant was repeatedly told by the opposite party that the complainant should have taken out her valuables before handing over the said bag. In this context, the complainant said that she was not even aware till reaching gate no. 9B and being pulled over by the crew/ staff of the opposite party that the complainant will not be allowed to take her hand-bag and will be forced to give the same to the opposite party to be manually tagged and transported as check-in baggage even though the said hand baggage was of the permissible size and weight which passengers are allowed to carry along. Moreover, the complainant was not carrying any extra bag and even otherwise being a woman, she couldn’t open my 2682 IND bag as the complainant also had her innerwear etc. in it.

 

10. That, since the complainant was being made to go in circles and not getting any resolution, the complainant made a complaint at the consumer helpline number. Her complaint got registered as complaint no. 662254 and the complainant were further given another number as 685569. the complainant was advised to address an email to the party which she did but in vain. Thereafter the complainant was advised to address another email to the Nodal Officer of the opposite party at nodalofficer@goindigo.in and in reply thereto the complainant was offered monetary compensation of Rs. 2,800/- (i.e., Rupees Two thousand eight hundred only) along with indigo travel voucher of Rs. 5,000/- (i.e., Rupees Five thousand only) the complainant was further informed that Opposite Party will not be in any position to compensate the complainant any further and that she can further send a written complaint to the DGCA on sugam.dgca@nic.in following the procedure prescribed by them.
11. That, under the circumstances, the complainant was left with no other option than to approach this Commission for the redressal of her grievance and pray thereby directing the opposite party to compensate her for the deficiency in service by paying the complainant the cost of her loss amounting to Rs. 60,000/- besides compensation amounting to Rs 25,000/- for the physical, mental and emotional harassment and trauma.

 

2. Accordingly, on 07/05/2018 after hearing arguments on admission, notice was issued returnable on 11/07/2018, but none appeared on behalf of OPs despite various opportunities given to op after service of notice. Even the tracking report of the duly receipt of Notice of the same on 24/09/2018 has been placed on record. In M/s. Madan and Co. Vs. Wazir Jaivir Chand AIR 1989 SCC 630, the Hon’ble Supreme Court has held “That if a registered letter addressed to the person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's conduct. If he is staying away for some time all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorized by him.” Further, Hon’ble Apex Court in State of M.P. Vs. Hira Lal &Ors. (1996) 7 SCC 523 has held that notices returned with postal remarks “Not available in the House”, “House Locked” and “Shop Closed", must be deemed that the notices have been served on the OPs. Accordingly, the OP proceeded to ex-parte on 11-10-2019.

 

3. The OPs were also served through court notice and after that also they didn’t turn up and ignored the court notice. This act of the OPs clearly shows that the OPs are avoiding/disrespecting the court proceedings although they have been duly served.

 

4. The complainant filed ex-parte evidence by way of an affidavit on 18-12-2019 testifying all the facts stated in the complaint along with documents exhibit Ex. PW- R1/1 to Ex. PW- R1/5 affirming the facts alleged in the complaint. The complainant has filed her evidence by way of her affidavit and she has exhibited the following documents.:

 

1. True Copy of Adhaar Card is exhibited and marked hereto as Ex. PW- R1/1.
2. True Copy of the Tax Invoice bearing No. DL1171802CW44939, dated 16.02.2018, is exhibited as Ex. PW- R1/2.
3. True Copy of the boarding pass is exhibited as Ex. PW/ R3.
4. True Copy of the Property Irregularity Report (PIR) for check-in baggage missing is exhibited as Ex. PW- R1/4
5. True Copy of the complaint bearing no. 662254 is exhibited as Ex. PW-R1/5.

 

OP suddenly appeared in April 2021 and filed its written statement and evidence in August 2021. However, in view of OP already having been proceeded ex-parte and defence struck of, the pleadings can not be considered and are accordingly struck of record.

 

5. The complainant also filed written submissions on the same day i.e., on 18-12-2019. Oral arguments were heard on 21/07/2022. We have carefully gone through the record of the case and have heard submissions from the complainant.

 

6. The testimony of Ex. PW- R1 has gone unrebutted and unchallenged. The complainant has proved on record the relevant documents in support of its case.

 

7. Although the emails, as well as What’s app chat for a refund of outstanding dues/pending towards airfare, have not been duly proved through the certificate U/s 65B of the Indian Evidence Act. However, in a decision delivered on July 14, 2020, a three-judge bench of the Hon’ble Supreme Court, in Arjun PanditraoKhotkar v. Kailash KishanraoGoratyal held that production of a certificate shall not be necessary when the original electronic record is produced. The original electronic record can be adduced directly as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned/operated by him. Further, Anvar v. Basheer ((2014) 10 SCC 473) held that – “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.” It is deemed that the emails and what’s app chat between the parties are duly admissible and duly proved on record.

 

8. It is pertinent to mention that Opposite Party has admittedly, even before the institution of the present Complaint, already provided monetary compensation Further, in addition to the compensation the OP offered further compensation in terms of a travel voucher worth INR 5,000. However, the monetary compensation in terms of travel vouchers offered by the Opposite Party was declined by the Complainant.

 

9. That the Complainant has failed to provide any evidence to corroborate the alleged loss of INR 60,000 for the lost baggage & alleged contents . Admittedly, no special declaration of interest was made by the Complainant at the time of checking in the baggage at the Delhi Airport, therefore, even otherwise, as per applicable law, no compensation except for what has already been offered by Opposite Party is liable to be paid to the Complainant.

 

10. That the Complainant was aware of the binding terms and conditions of carriage known as IndiGo Conditions of Carriage Domestic (hereinafter referred to as "Indigo. Coc) which govern the rights and duties of the Complainant.The Hon'ble Supreme Court in InterGlobe Aviation Ltd. vs. N. Satchidanand (2011) 7 SCC 463 observed that placing the conditions of carriage on the website and referring to the same in the e-ticket and making copies of conditions of carriage available at the Airport counters or inspection is a sufficient notice regarding the terms of conditions of the carriage and will bind the parties. The mere fact that a passenger may not read or may not demand a copy does not mean that he will not be bound by the terms of a contract of carriage.

 

11. We wish to bring on record the statutory regime i.e., the Carriage by Air Act, 1972 which restricts the maximum liability of airlines including InterGlobe Aviation Limited, in cases of baggage loss, at INR 20,000 (at the time of filling the present Consumer Complaint), which has been further increased to INR 25,000/- vide notification dated 22.08.2019.

 

12. Evidently, the Complainant was booked to travel from Delhi to Bengaluru connecting Hyderabad on board IndiGo Flight No.6E-679/357 scheduled to depart from Delhi at 1425 hours on 13.03.2018 and arrive at Bengaluru at 2020 hours. The said booking was made through a third-party travel agent i.e., Riya travels on 16.02.2018 and was confirmed on receipt of INR 2,713/- under PNR No. TEJV6G. At the time of checking in, the staff of Opposite Party requested the Complainant to check in baggage, if any. The Complainant, however, did not offer to check in any bag at that stage. Accordingly, the Complainant was checked -in at 1353 hours on 13.03.2018 and a boarding pass was issued to her, without any bag tag At 1402 hours, it came to the notice of staff of Opposite Party at the boarding gate, that the Complainant was intending to board the aircraft with a baggage size and weight,

 

13. The staff of Opposite Party requested the Complainant to hand over the bag for check-in at the boarding gate itself as going back to the check-in counter would have led to her missing the flight. Thus, purely with an intent to assist the Complainant and to ensure that the Complainant does not miss her flight, the staff of the Opposite Party offered to take baggage from the Complainant at the boarding gate itself for check-in and the Complainant readily agreed for the same.

 

14. That the Complainant willingly and voluntarily handed over her bag to the staff of Opposite Party for check-in at the boarding gate. Having said that, the Complainant did not make any special declaration at this point and simply landed over her bag for check-in. She then boarded the IndiGo Flight and successfully travelled to her destination -Bengaluru.On arriving at Bengaluru Airport, it was brought to the notice of the staff of Opposite Party that the Complainant's checked-in-baggage did not arrive at the baggage carousel, at Bengaluru Airport. Immediately, of Opposite Partyduly attended to all queries regarding the Complainant’s checked-in baggage and made all possible efforts to trace the said piece of baggage.

 

15. That the staff of the Opposite Party raised a Property Irregularity Report ("PIR") to record the details of the lost baggage of the Complainant and to investigate the same.The Complainant called the staff of Opposite Party several times on 19.03.2018 to know about the same status of her lost baggage. All necessary steps were taken by Opposite Party to locate the said baggage, including the issuance of urgent tracers to all stations that would have handled the baggage of the Complainant. Despite exhausting all reasonable efforts, the staff of Opposite Party was unable to trace the checked-in baggage of the Complainant.

 

16. Finally, the OP contacted the Complainant through a call dated 21.03.2018 on the Complainant's number registered number i.e., +91 9560936747, that the checked-in baggage could not be traced. The OP offered the monetary compensation of (INR 350 x 8kg), Inc. INR 2,800/ by the Opposite Party. This offer was strictly by the binding term of the contract existing between the Complainant and Opposite Party in the form of IndiGo CoC.Further on 23.03.2018, the staff of Opposite Party, offered a travel voucher worth INR 1000/- along with the monetary compensation of INR 2,800/- by the binding terms of the IndiGo CoC. This offer was declined by the Complainant on 24.03.2018, the Complainant contacted the Customer Relations team of the Opposite Party and stated that she is not satisfied with the compensation offered. Further on 25.03.2018, the Complainant again contacted the staff of Opposite Party and stated that she wants a final revert from the Customer Relations team of Opposite Party and stated that she is not happy with the resolution provided by the Customer Relations team and mentioned that she was allegedly carrying valuables in the lost baggage, such as gold chain etc, the Customer Relations of Opposite Party noted that at that of ("PIR") being issued, the Complainant for recognition of the baggage mentioned that the baggage contained a Silver Bangle, and nowhere did she mention about the gold chain. On 26.03.2018 the Customer Relations team of the Opposite Party contacted the Complainant and offered a travel voucher worth INR 2.713/- (equivalent to the cost of the ticket) along with the monetary compensation of INR 2,800/- as a final offer. This offer too was declined by the Complainant.

 

17. On 03.04.2018 at 1108 hours, after receiving the query from the Consumer Helpline, the staff of Opposite Party yet again contacted the Complainant and offered a travel voucher worth INR 5,000/- along with monetary compensation of INR 2,800. The said offer was also declined by the Complainant for reasons best known to her. That further, on the same day at 1151 hours, the Complainant wrote an email to the Nodal Officer of Opposite Party mentioning her alleged grievance.

 

18. The Complainant thereafter contacted the Directorate General of Civil Aviation ("DGCA") and Opposite Party received an email from DGCA on 02.05.2018 with regards to the present case. Given the email sent by DGCA on 02.05.2018 about the present case. Given the email sent by DGCA, the Customer Relations Team of the Opposite Party addressed an email to the Complainant on 03.05.2018, reiterating that as per the binding IndiGo CoC, Opposite Party had already offered monetary compensation of INR 2,800/- along with travel voucher worth INR 5,000/- as the final offer to the Complainant, requested for the bank account details and acceptance for the voucher. Admittedly No response was provided to the email dated 03.05.2021. by the Complainant.

 

19. Despite the Opposite Party having offered monetary compensation of INR 2,800/- and a travel voucher worth INR 5000/-, the Complainant has instead filed the present Complaint disregarding the binding terms of the contract, claiming the arbitrary amount of INR 60,000/- as a luggage value and further INR 25,000/- as compensation for alleged harassment.

 

20. That the Complainant was aware of the binding terms and conditions of IndiGo CoC which govern the rights and duties of the Complainant and Opposite Party. The IndiGo CoC which forms a binding contract between the Opposite Party and the Complainant and the same were duly made available to the Complainant and her third-party travel agent at the time of booking and further agreed to by the Complainant and her third-party travel agents before the booking was processed. It is submitted that the IndiGo CoC was also referred to in the air ticket booked by the Complainant/her third-party travel agents, is available on the official website of Opposite Party and is also available at the airport on request.

 

21. The relevant provisions of IndiGo CoC applicable on the date of booking are as follows: Damage to Baggage liability for loss, delay or damage to baggage is limited under the provisions of Carriage by Air Act, 1972 and rules framed there under with certain exceptions, adaptations, modifications etc. as notified by the Ministry of Civil Aviation Government of India, and as amended from time to time. Indigo's liability for loss or damage to Baggage is Rs. 350/-kg. However, IndiGo assumes no liability for fragile or perishable articles. IndiGo shall have no liability whatsoever for damage to articles not permitted to be contained in Checked Baggage as per the provisions of the Conditions of Carriage (including, without limitation, fragile or perishable items, items having a special value, such as money, jewellery, precious metals, computers, personal electronic devices, negotiable papers, cameras, TV, securities, or other valuables, business documents, passports and other identification documents. Limited to a maximum of Rs. 20,000/- only. Other conditions as per the Act apply.

 

22. Further relevant clause of the IndiGo CoC, as applicable on the date of booking, stipulated as under:

Valuable and fragile Goods Customers are strongly advised not to check in such items as Baggage which by their very nature is valuable and/or fragile If such items are checked in as baggage customer agree that they send for carriage of such items, at their own risk, Such an items include without limitation, money, jewellery, silverware, electronic devices, medicines, perishable goods, computers, cameras video equipment, negotiable papers, securities and/or other valuable, passports and other identification documents, title deeds, artefacts, manuscripts and the like. IndiGo shall not accept any responsibility for such items carried by the Customers in their Baggage.

 

23. Therefore, the Complainant was strongly advised not to carry any valuable items in her checked-in baggage, and if the Complainant had carried any valuable items, as alleged, in the checked-in baggage, and if Complainant had carried any valuable items, as alleged, in the checked-in baggage, the same was carried by her solely at her own risk. There is no cogent evidence submitted by the Complainant that she had been carrying any or all the valuable items as alleged to have been contained in the lost baggage. Further, no Evidence has been placed on record by the Complainant to substantiate the value of the allegedly lost items, alleged to have been carried by the Complainant in the lost Baggage.

 

24. That the statutory regime which was prevalent at the relevant time to carriage by air not being international carriage, which has been discussed in the case of InterGlobe Aviation Limited v. Manish Nagpal, Order dated 25.04.2017 in the Revision Petition No. 2601 of 2016, decided by the Hon’ble National Consumer Dispute Redressal Commission. The Hon'ble Commission has held and noted that by Rule 22(2) (a) of the Carriage by Air Act, as amended vide Notification dated 30.03.1973, S.O. 1869(E), Government of India, the limit of liability is capped for such carriage by air, in the event of loss of baggage, at Rupees one hundred and twenty-five per kilogram and that capping by InterGlobe Aviation Limited is permissible under Law. In the above case, the Hon'ble National Commission also observed that the Complainant has failed to establish any negligence on InterGlobe Aviation Limited.

 

25. Therefore, it is manifest that the Complainant was, at the time of check-in, under an obligation to disclose beforehand any alleged valuable articles/goods being carried in checked-in baggage and pay an additional charge after disclosing the value of such articles/goods. However, as per the records of the Opposite Party, the Complainant had made no such prior disclosure or payment towards the value of her baggage.

 

26. From the above-cited provisions, it is amply clear that the liability of the Opposite Party is restricted to the statutory limit prescribed by the Carriage by Air Act, 1972, and also the contractually agreed capping. IndiGo CoC limits the liability of the Opposite Party and as per the IndiGo CoC liability in case of lost baggage is fixed at INR 350/- per kilogram.

 

27. Therefore, it is no more res Integra that the maximum liability of the air carrier is limited by the Carriage by Air Act, 1972 and capping of such maximum liability can be capped by way of a contractual agreement (as per Rule 25 of the Carriage by Air, Act, 1972) between the passenger and the airline cannot be held liable to pay arbitrarily computed compensation when it did not know the contents of the baggage or its special value and importance to the passenger. Fastening the liability on the airline without the knowledge of the content of baggage will allow the passengers to claim any amount of compensation without adducing evidence regarding the content of the baggage. Thus, it is necessary for the passengers who are carrying an item of special value and importance to declare the same to the airline beforehand. Even assuming without admitting that the Complainant was allegedly having valuable belongings in the checked-in baggage, it is not in dispute that the Complainant was allegedly having valuable belongings in the checked-in baggage, it is not in dispute that the Complainant has failed to disclose that the baggage contained the alleged valuables belongings. However, by not disclosing the alleged contents of the baggage, the Complainant has deprived the Opposite Party of the opportunity to verify the claim of the Complainant.

 

28. Hon'ble National Consumer Dispute Redressal Commission (NCDRC) in the case of IndiGo Airlines &Ors. Vs. Aastha Pansari (RP/1004/2018) Vide final order and judgement dated 17.01.2020 held that "When the Airline Rules of Carriage limits liability to Rs. 300/- unless there was a special declaration by the passenger, the Airline cannot be made liable for the amounts claimed lost since the contents of each baggage are not known to the Airline unless and until the declarations are made. Therefore, we are of the view that the Conditions of Carriage of the Airline constitute a valid and binding contract between the passengers and the Airline".

 

29. In light of the failure of the Complainant in putting the Opposite Party to notice of the alleged value of contents of baggage worth 60,000/- the Complainant is entitled to any compensation over and above the maximum liability provided under the Carriage by Air Act, 1972 and capping agreed by the Complainant by the binding terms of the IndiGo CoC. which restricts the maximum liability of airlines including InterGlobe Aviation Limited, in cases of baggage loss, at INR 20,000 (at the time of filling the present Consumer Complaint), which has been further increased to INR 25,000/- vide notification dated 22.08.2019 towards loss of baggage.

 

16. Therefore, we allow the complaint of the complainant and it is directed that: -

(i)    The OPs will pay a sum of Rs. 25,000/- (Rs. Six Lakh only) to the complainant within 30 days from the date of this order.

(ii)    The OPs will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards the cost of litigation to the complainant.

(iii)   The OPs will also pay a sum of Rs.15,000/- towards harassment mental agony loss of time to the complainant.

23. Let the order be complied with by OPs within 30 days from the date of receipt of the copy of this order.

 

24. Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations.
25. File be consigned to record room.
26.  Announced on _24.08.2022. 

 

 

Richa Jindal                           Anil Kumar Koushal                   Sonica Mehrotra

(Member)                                         (Member)                        (President)