Delhi

StateCommission

FA/870/2013

LUFTHANSA GERMAN AIRLINE - Complainant(s)

Versus

K.D. MARWALA - Opp.Party(s)

23 Mar 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision:23.03.2018

First Appeal No.870/2013

(Arising out of the order dated 01.07.2013 passed in Complaint Case No.170/2007 by the District Consumer Redressal Forum, Sheikh Sarai, New Delhi)

 

 

In the matter of:

 

M/s. Lufthansa German Airlines,

12^th Floor Building No.10,

Tower B, DLF Cyber City,

Phase-II, Gurgaon.

 

                        ....Appellant

 

Versus

 

 

Shri K.D. Marwaha

Deceased through his Legal heirs,

 

1. Smt. Annemarie Marwaha,

W/o Late Shri K.D. Marwaha,

R/o 8 Navjeevan Vihar,

New Delhi

 

2. Shri Vikram Dev Marwaha,(Since deceased through LR)

S/o Late Shri K.D. Marwaha,

R/o 8 Navjeevan Vihar,

New Delhi

 

3. Smt. Chitra M. Abbi,

D/o Late Shri K.D. Marwaha,

R/o 105, Hemmingford Grey Ct.,

CARY, N.C. – 27518 . USA

 

….….....Respondents

 

 

CORAM

 

Justice Veena Birbal, President.

Ms. 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 01.07.2013 passed by the District Consumer Disputes Redressal Forum, Sheikh Sarai, New Delhi (in short ‘the District Forum’) in Complaint Case No.170/2007, whereby the complaint case has been allowed and the appellant/OP has been directed as under:

 

“In view of the above mentioned discussion, we directed the OP to pay a sum of Rs.65,000/-, the cost of the missing articles to the complainant alongwith Rs.20,000/- towards the compensation for physical harassment and mental agony and also to pay a sum of Rs.5,000/- as cost of litigation.”

 

 

2. The facts relevant for disposal of the present appeal are that the respondent/complainant since deceased had filed a complaint under Section 12 of the Act alleging therein that he along with his wife had travelled from Hamburg to Frankfurt and from Frankfurt to Delhi by flight of Lufthansa German Airlines i.e. the appellant/OP on 12.10.2006. On arrival at IGI Airport, New Delhi, four bags were booked by the respondent/complainant with the appellant/OP. The said bags were to be delivered at aforesaid Airport on arrival.  However, the same were found missing.  An irregularity report was lodged with the office of the appellant/OP. Respondent/complainant had alleged that apart from his bags, the bags of 15 other passengers were also found missing. After about 2-3 days, three bags were restored to the respondent/complainant but the fourth bag could not be traced by then. On 23.10.2006 even the fourth bag was delivered at the house of the respondent/complainant. It was alleged that on receipt of the fourth bag, respondent/complainant noticed that the contents of the said bag were interfered with and jewellery worth Rs.65,000/- was found missing. A complaint was lodged by the respondent/complainant with the appellant/OP Airlines whereby the respondent/complainant had sought compensation for the loss. No favourable response was given to him and the appellant/OP took a stand that they were not liable for the loss of jewellery. Aggrieved by the rejection of his claim, the respondent/complainant filed a complaint under Section 12 of the Act against the appellant/OP for recovery of loss of Rs.65,000/- i.e. cost of missing jewellery, Rs.1,00,000/- as compensation and Rs.2,00,000/- as damages.
3. Appellant/OP had opposed the complaint by filing written statement wherein it was alleged that there was no deficiency in service on their part. It was alleged that the respondent/ complainant himself was guilty of negligence of carrying prohibited items in the bag.  It was alleged that on receipt of the complaint of missing bags, the same were got located without any wastage of time and on account of delay in delivering the bags, compensation was offered to the respondent/complainant, however, he did not avail the same. It was alleged that no remarks of damage/loss was made by the respondent/complainant while accepting the delivery of baggage. It was further alleged that a passenger is not supposed to carry valuables, cash, jewellery in check in baggage as such appellant/OP had no responsibility.
4. Both the parties filed their evidence by way of their respective affidavits. Parties also filed their written arguments. After hearing counsel for the parties, Ld. District Forum held that there was deficiency in service on the part of the appellant/OP.  Ld. District Forum did not agree with the defence of appellant/OP that respondent/complainant carried prohibited items by observing that no provision was shown that the respondent/complainant was carrying prohibited items in the baggage. Accordingly, the complaint was allowed and directions were issued to the appellant/OP to pay Rs.65,000/- towards cost of missing articles i.e. jewellery, Rs.20,000/- towards compensation and Rs.5,000/- as litigation costs.
5. Aggrieved with the aforesaid order the present appeal has been filed.
6.   Ld. Counsel for the appellant/OP has contended that Article VIII of Conditions of Carriage (Passenger and Baggage) clearly stipulates that the passenger shall not include in the checked in baggage money, jewellery, precious metal, negotiable papers and other valuable etc. It is contended that the respondent/complainant had violated the said condition and as such appellant/OP is not liable for the same. It is contended that these conditions are printed on ticket. It is contended that the District Forum has not dealt with the aforesaid contention of the appellant/OP though a specific stand was taken in the written statement. It is contended that the respondent/complainant was under the obligation not to carry any valuables as per Condition of Carriage and if any passenger intended to carry such valuable article he had to make declaration before boarding for getting benefit of higher liability limit. It is contended that no such declaration was made by respondent/complainant. It is contended that there is negligence on the part of the respondent/complainant as such Ld. District Forum ought to have dismissed the complaint case.
7. We may mention that respondent/complainant had died during the pendency of the complaint before the District Forum and his legal heirs were brought on record as is seen from the order of the District Forum dated 1.7.13.  Notice of appeal was sent to the LRs of the deceased respondent/complainant. However, a letter was received from daughter of deceased respondent/complainant i.e. respondent No.3, Ms Chitra M. Abbi wherein she has stated that she is residing in USA as such is unable to remain personally present.  She had further stated that her mother is an old lady and is unable to attend the proceedings.  It is further stated that appellant/OP are delaying the proceedings and has requested the Commission to conclude the proceedings. Accordingly, the matter has been considered.  
8. We have heard Counsel for the appellant and perused the material on record. 
9. It is admitted position that deceased, Shri K.D. Marwaha along with his wife had travelled from Hamburg to Frankfurt and from Frankfurt to Delhi by flight of Lufthansa German Airlines i.e. of appellant/OP on 12.10.06.  Four bags were booked by them which were to be delivered at IGI Airport, New Delhi.  It is also admitted position that on arrival at IGI Airport, their bags were not delivered.  It is also admitted position that bags resorted i.e. three bags on 14.10.06.  The fourth could not be located by then.   The same was located later on and was delivered at the house of respondent/complainant on 23.10.06.  The allegations are after the delivery of fourth bag, it was found that contents of bag were interfered with and jewellery worth Rs.65,000/- was missing and complaint before District Forum was filed in this regard.
10. Appellant/OP has contended that appellant/OP has no liability and has relied upon condition of Carriage (Passenger and Baggage) Article 8 of appellant/OP.  The relevant portion of the same is reproduced as under:
    1.  

 

You must not include in Checked Baggage money, jewellery, precious metals, computers (Laptops, PCs), negotiable papers, securities, business documents, passports and other identification documents or samples.

 

        8.3.5.

 

We are not liable for any items referred to in 8.3.1., 8.3.2. and 8.3.4. if these, despite being prohibited, are deliberately included in your baggage.”

 

11. The aforesaid condition of carriage clearly stipulates that a passenger shall not include in the Checked Baggage money, jewellery, precious metals, computers (Laptops, PCs), negotiable papers, securities, business documents, passports etc. In the instant case, it is own case of respondent/complainant that jewellery was kept in the Checked Baggage which was in violation of aforesaid terms and conditions of appellant/OP Airlines.  These conditions are printed on the tickets also.  In these circumstances, the District Forum was not right in allowing the cost of the necklace.  In coming to aforesaid conclusion, reliance is placed on the judgement of National Commission in Shiv Garg vs Lufthansa German Airlines & Ors., II (2012) CPJ 559 (NC) wherein it is held as under:

“Regarding Petitioner’s contention that he should be compensated for the loss of diamond necklace and other valuables also, we agree with the State Commission that since these were carried in violation of the terms and conditions of the passenger ticket as stated earlier and were not insured, the Respondents were not liable to compensate the Petitioner for this loss.”

 

12. In the present case, the respondent/complainant had carried the jewellery in Checked in Baggage in violation of conditions of carriage referred above.  The Ld. District Forum has not dealt with aforesaid aspect of matter.  In these circumstances, the District Forum was not right in allowing the cost of jewellery article.  However, it is admitted position that the four bags were delivered to the complainant late.  The respondent/complainant had returned to Delhi by the flight of appellant/OP on 12.10.06.  Three bags were delivered to him after 2-3 days of arrival and fourth was given on 23.10.06.  The late delivery of bags has caused harassment and mental agony to the respondent/complainant.
13. Accordingly we partly allow the appeal and modify the impugned order and direct the appellant/OP to pay Rs.20,000/- towards compensation and Rs.5,000/- towards cost of litigation as awarded by the Ld. District Forum to the LRs of deceased respondent/complainant i.e. Shri K.D. Marwaha.  The directions for awarding cost of missing articles of Rs.65,000/- as awarded by the Ld. District Forum stands set aside.  The directions given be complied with within 30 days of receipt of order.
14. Appeal stands partly allowed.
15. A copy of this order as per statutory requirements be sent to the parties and be also sent to the concerned District Forum for information and thereafter the file be consigned to Record Room.

 

 

(Justice Veena Birbal)

President 

 

 

(Salma Noor)

Member