Haryana

Karnal

584/2011

Komal Sharma D/p Satpal Sharma - Complainant(s)

Versus

Jatiana Tours & Travells. - Opp.Party(s)

Sh. Surinder Punia

30 Sep 2015

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.584 of 2011

                                                               Date of instt. 15.09.2011

                                                               Date of decision: 21.10.2015.

 

1.Komal Sharma daughter of Sh.Sat Pal Sharma resident of House no.113, Sector – 5, Urban Estate, Kurukshetra.

2.Dharambir son of Karm Singh V & P .O.Kalsora tehsin Indri district Karnal.

                                                   ……….Complainant.

                             Versus

 

1.Jatiana Tours and Travels (Regd) 89, Ground Floor, Mugal Canal Market, Karnal.

2. Jet Airways, G11, 12, Outer Circle, G- Block, Connaught Circus Connaught Place, New Delhi 110001.

                                                           ……… Opposite parties.

 

                     Complaint U/s  12  of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Sh.Anil Sharma ………Member.

                   Smt.Shashi Sharma…..Member.     

 

 Present:       Sh.J.P.Duhan Advocate for the complainant.

                   Sh.Deepak Sachdeva Advocate for OP No.1.

                   Sh.Nitin Guptal Advocate for OP No.2.

 

ORDER:

 

                        The facts giving rise to the present complaint u/s 12 of the Consumer Protection Act are that the complainants Komal Sharma and Dharambir had booked tickets from  Jatiana Tours and Travels Karnal.  The  Opposite Party ( in short OP) no.1. vide letter  dated 21.5.2011 informed the complainants regarding booking of the tickets on 21.5.2011.   The complainants started their journey from Delhi Airport   and officials of the Airport authority issued boarding passes to them. They carried the luggage with them as mentioned in para no.3 of the complaint.  At the time of departure, the Airport authorities assured that  luggage would be handed over to them at the Airport of  Kuala Lumpur. They completed  their journey in two ways  i.e.  from Delhi to Chennai and  from Chennai to Kaula Lumpur. They reached at  Kaula Lumpur and waited for their luggage but their luggage, was not available. After waiting for sufficient time, they made complaint to Airport authority. They had arranged their programme from 2.5.2011 to 15.6.2011 but due to loss of their luggage they had to return within one week and purchased tickets by spending an amount of Rs.20,000/-. They made repeated requests to Delhi Airport Authority  to trace out their luggage, but to no response.  The luggage was lost due to negligence on the part of officials of Airport Authorities and as such there was deficiency in service and unfair trade practice on the part of OPs and Airport Authority, due to which they suffered mental agony apart from financial loss. They claimed a sum of Rs.1,62,500/- as cost of the luggage, Rs.20000- spent by them for purchasing another tickets alongwith interest , Rs.one lac as compensation for mental agony and Rs.5500/- for the litigation expenses.

2.                Notice of the complaint was given to the OP. OP no.1 filed written statement controverting the claim of the complainants. Objections have been raised that complaint is not maintainable in the present form; that the complainants have concealed true and material facts from this Forum; that the  complaint is bad for non joinder and mis joinder of the parties and that complainants have concocted false  story in order to grab false compensation from the Ops.

                   On merits, it has been submitted that OP no.1 is an authorized agent of OP no.2, purchased tickets from Op no.2 and handed over the same to the complainants. Therefore, OP no.1 is not liable for deficiency in services. It has also been pleaded that this Forum has got no jurisdiction to entertain and try the present complaint as the luggage of the complainant was lost at Kaula Lampur.

3.                The OP No.2 filed separate written statement disputing the claim of the complainants. Objections have been raised that complaint is an abuse of the process of law; that the complaint is not maintainable; that the complainants have not approached this Forum with clean hands  and  that the  complainants have made  misconceived and baseless allegations of deficiency in services.

                   On merits, it has been submitted that complainants travelled  on Jet Airways code share flight 9W 4201  which was operated by Malaysian Airlines as MH 181. Therefore, liability of luggage was of Malaysian Airlines as they were final carriers. The complainants travelled on Jet Airways from Delhi to Chennai and the bags were through checked in  from Delhi. It has further been averred  that liability of  carrier is limited to a sum of 250/- Francs per kilogram or 20 USD/Kg upto a maximum of 20 Kgs  as per Warsaw Convention, unless  the consignor  has at the time of handing over the packets to the carrier made a special declaration of value  and delivery and has paid a supplementary sum  especially leviable in case required. The complainants did not make such  declaration, therefore, in view of the principle laid down in  Warsaw Convention and  IATA Regulation, the loss incurred  by the complainant may be compensated on the basis of weight of bags.  The other allegations have not been admitted.

3.                In evidence of the complainants, affidavits of complainants Dharambir and Komal Sharma Ex.C1 and Ex.C2 respectively have been tendered.

4.                In evidence of Ops, affidavit of Rakesh Jatiana Ex.O1/A and affidavit of Kirti Sarin Ex.OP2 have been tendered.

5.                We have heard the learned counsel for the parties and have gone through the case file very carefully.      

6.                The complainants took tickets from OP no.1 for their journey from Delhi to Kuala Lumpur.  They started their journey from Delhi airport, which was completed in two ways i.e. from Delhi to Chennai and Chennai to Kuala Lumpur .At Kuala Lumpur their luggage was found missing. The OP no.1 has admitted that it being an authorized agent of OP no.2 handed over tickets to the complainants. The OP No.2 has submitted that complainant travelled on  Jet Airways  code share flight 9W  4201, which was operated by Malaysia  Airlines as MH 181, therefore, liability of luggage was of Malaysian Airlines as they were final carriers. Thus, the loss of luggage of the complainants is not disputed by the OPs.

7.                The learned counsel for the OP no.2 put a great thrust upon the contention that complainants started their journey from Delhi. Their luggage was  off loaded by the Jet Airways at Chennai and there after they travelled from Malaysian Airlines from Chennai to Kuala Lumpur. The luggage was lost at Kuala Lumpur, Therefore, cause of action to the complainants had accrued  either at Delhi or at Kuala Lumpur and as such this Forum has no jurisdiction to entertain and decide the matter  in dispute.

 It has also been argued that  the liability was of Malaysian Airways and as such Malaysian Airways was the necessary party  but has not been impleaded.

8.                The complainants had booked tickets  of Jet Airways and they  had no direct  dealing with Malaysian Airlines They travelled  on Malaysian Airlines from Chennai to Kuala Lumpur on account of some understanding /contract between Jet Airways and Malaysian Airlines. Thus, they are not consumer of Malaysian Airlines and as such Malaysian Airlines cannot be considered as necessary party in the present complaint. Consequently, the argument of the learned counsel for the OP in this regard cannot be accepted being not tenable.

9.                The complainants booked their tickets through OPNo.1, who is authorized agent of OP no.2.The office of OP no.1 is situated at Karnal. The payment of the tickets was made by the complainants at Karnal and tickets were also handed over to them at Karnal Thus, the cause of action, in fact, arose to the complainants at Karnal and not at Delhi or Kuala Lumpur.  Accordingly, this Forum has jurisdiction to entertain and adjudicate upon the matter in dispute and as such argument of the learned counsel for the OP regarding jurisdiction of this Forum  is devoid of any force

10.               As per the case of the complainants, the bag of the complainant  Dharambir contained thirteen items and bag of complainant  Komal Sharma contained 17 items as mentioned in para no.3 of the complaint. Costs of the items have also been  mentioned in the said paragraph. Neither it has been alleged in the complaint nor there is any material on record, which may show   that complainants had disclosed the details  alongwith costs of the items contained in  their bags, therefore, in such situation the liability of the OP nol.2 is to be considered as per Carriage by Air Act 1972, according to which there is limit placed on liability  of the carrier  where damage can be awarded @ US$ 20 per Kg of weight of lost baggage. In this context a reference with advantage may be made to the decision of Hon’ble National Commission  in Helen Wallia Vs.Cathay Pacific  Airways Ltd. decided on 11.12.2001. Maximum weight of baggage as per Warsaw Convention is 20 Kg.  Therefore, each of the complainants is entitled to get compensation by considering the   weight of each bag as 20 Kg. and the amount comes to 400 US Dollar  to each of the complainants.

 

11.               The complainants have also alleged that they had to purchase return tickets after spending Rs.20000/-, but  no such receipt has been produced. The allegations of the complainant take  the place  of proof, therefore, their allegations that the spent Rs.20000/- on return tickets cannot be accepted.

 

12.     As a sequel to the foregoing discussion, we accept the present complaint and direct the Ops to  make the payment of  400 US Dollar to each of the complainant for loss of their luggage. The complainants shall also be entitled for a   sum of Rs.20,000/- each as compensation for the mental harassment and agony faced by them and a sum of Rs.2200/- as litigation expenses. The Ops shall make the compliance of this order within a period of thirty days from the date of  receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:21.10.2015                                                                            

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.

 

 

 

 

Present:        Sh.Surender Punia Advocate for the complainant.

                   Sh.Deepak Sachdeva Advocate for OP No.1.

                   Sh.Nitin Aggarwal Advocate for OP No.2.

 

                   Arguments heard. For orders, the case is adjourned to 21.10.2015.

 

Announced
dated:20.10.2015                                                                            

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                           Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.

 

Present:        Sh.Surender Punia Advocate for the complainant.

                   Sh.Deepak Sachdeva Advocate for OP No.1.

                   Sh.Nitin Aggarwal Advocate for OP No.2.

 

                    Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:21.10.2015                                                                            

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.