Chandigarh

DF-II

CC/948/2016

Gaurav Johari - Complainant(s)

Versus

KLM Royal Dutch Airlines - Opp.Party(s)

Palvinder Singh Sarna Adv.

23 Oct 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

======

Consumer Complaint  No	:	948 of 2016
Date  of  Institution	:	07.11.2016
Date   of   Decision	:	23.10.2017

 

 

 

 

Gaurav Johri s/o Sh.Vijay Johri, aged about 30 years, R/o H.No.2323, Sector 44-C, Chandigarh.     

                               …..Complainant

Versus

1]  KLM Royal Dutch Airlines, Tower 8C, DLF City, Phase-II Gurgaon, through its Country Head.

2]  Lufthansa German Airlines, 12^th Floor, DLF Building. No.10, Tower-B, Phase-II, Gurgaon through its Area Manager.

3]  Country Head, KLM Royal Dutch Airlines, Tower 8C, DLF City, Phase-II, Gurgaon.

4]  Area Manager, Lufthansa German Airlines, 12^th Floor, DLF Building, No.10, Tower-B, Phase-II, Gurgaon.

5]  Best Money and Travel Services Pvt. Ltd., SCO No.72, 1^st Floor, Sector 20-C, Chandigarh through its In-charge.

                          ….. Opposite Parties

 

[2]

Consumer Complaint  No	:	949 of 2016
Date  of  Institution	:	07.11.2016
Date   of   Decision	:	23.10.2017

 

 

 

Simran Sehgal D/o S.Kulvinder Singh Sehgal w/o Sh.Gaurav Johri, aged about 29 years, R/o H.No.306, Merigold, Mayfair Apartments, Sector 70, Mohali (presently H.No.2323, Sector 44-C, Chandigarh)    

                               …..Complainant

Versus

1]  KLM Royal Dutch Airlines, Tower 8C, DLF City, Phase-II Gurgaon, through its Country Head.

2]  Lufthansa German Airlines, 12^th Floor, DLF Building. No.10, Tower-B, Phase-II, Gurgaon through its Area Manager.

3]  Country Head, KLM Royal Dutch Airlines, Tower 8C, DLF City, Phase-II, Gurgaon.

4]  Area Manager, Lufthansa German Airlines, 12^th Floor, DLF Building, No.10, Tower-B, Phase-II, Gurgaon.

5]  Best Money and Travel Services Pvt. Ltd., SCO No.72, 1^st Floor, Sector 20-C, Chandigarh through its In-charge.

                          ….. Opposite Parties

 

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         MRS.PRITI MALHOTRA             MEMBER

                                SH.RAVINDER SINGH              MEMBER 

 

 

Argued by:  

Sh.Palvinder Singh Sarna, Adv. for complainant

Sh.Gaurav G.S.Chauhan, Adv. for OPs No.1 & 3

Sh.Siddharth Joshi, Adv. for OPs No.2 & 4

Sh.S.M.Wadhera, Adv. for OP No.5.

  

PER PRITI MALHOTRA, MEMBER

 

            By this common order, we propose to dispose of the above mentioned two consumer complaints in which similar questions of law and facts are involved. It is pertinent to mention here that the complainants in both the above titled complaint cases, are husband & wife in relation, and have filed separate complaints against OPs qua loss & damage to their baggage’s on their return journey on 21.7.2016.

2]       The facts are being taken from the present Complaint Case No.948 of 2016 – Gaurav Johri Vs. KLM Royal Dutch Airlines & Ors.”.

 

3]       Briefly stated, it is the case of the complainant, who recently got married and planned a tour to Vienna, Prague & Amsterdam, starting from 12.7.2016 to 21.7.2016 to celebrate, got the entire booking/reservation of flight from OP No.4 by making due payment (Ann.C-1).  It is averred that after completing the tour, the complainant duly boarded the return flight KL (871) on 20.7.2016 from Amsterdam on 20.7.2016 at about 1:30 PM and the said flight was scheduled to fly from there to New Delhi at 2.20 PM, but the said flight did not take off and the complainant and other passengers were made to sit in the plane and were to deboard the plane only at about 5:30 PM.  However, after waiting for long at the airport, at about 8:00 PM, it was conveyed that the flight has been cancelled; the complainant and other passengers were given 10 Euros each for meals etc. and later told to collect the coupon and come in queue for informing about the next schedule flight including night stay, next flight and for giving small care kit etc. 

         It is averred that the complainant was told by the staff of OP Airlines that their luggage would remain with them only and the same would be automatically transferred in the flight of Lufthansa German Airlines on the next day.  It is also averred that the business class passengers were offered the next day KLM Flight and the regular passenger including economy class including the complainant were not given any preference and for that the complainant and other had to argue with the OPs.  Ultimately, the complainant reached back at Hotel provided by OP No.1 late in the night. 

         It is stated that on the next day i.e. 21.7.2016, the complainant boarded the flight of OP NO.2 and reached New Delhi on 22.7.2016 at about 12:30 AM, but to the surprise of the complainant and his wife, their baggage’s did not reach at the conveyor belt even waiting upto 3:00 AM and ultimately, they had to fill-up the complaint form for the loss of luggage, whereupon the staff of Opposite Party No.1 assured that the luggage’s would be delivered at the residence of the complainant. It is submitted that the complainant had to make unnecessary wait and as such reached Chandigarh by Taxi at about 9:30 pm.  It is also submitted that after coming back, the complainant along with his wife had been continuously in touch with the officials of OPs enquiring about the lost baggage but nothing positive was done inspite providing requisite details as sought by them.  It is pleaded that the complainant just recently got married and had taken along with him/her number of pairs of clothes, inners, shoes, perfumes, toiletries, glasses, watches etc., which were of course of reputed brands, in a brand new suitcase, besides that money in the shape of U.S.Dollars etc. were also lying in the said suitcase besides the gifts items/souvenirs and all those things were not less than Rs.2.50 lacs value. It is further pleaded that ultimately, on 3.8.2016, the baggage of the complainant was received back, the said suitcase of Delsey brand, was received in a damaged condition, the cosmetics/toiletries lying in the said suit case had melted/leaked thereby spoiling the number of expensive clothes of complainant lying inside the same, especially two branded jackets of Zara and C.K., which cannot be used at all.  It is also pleaded that the complainant felt very bad because he never expected such an irresponsible, negligent and careless attitude of such reputed Airlines of OPs.  It is submitted that due to irresponsible and wrongful act and attitude of the OPs as well as gross deficiency in service and unfair trade practice, the honeymoon trip of the complainant was ruined.  The complainant sent a legal notice to the OPs (Ann.C-2 to C-6), but to no avail.  Hence, this complaint. 

 

2]       The Opposite Parties No.1 & 3 have filed joint reply and while admitting the factual matrix of the case, stated that on 21.7.2016, the complainant and his wife were rebooked to travel with Lufthansa Airlines (from Amsterdam to Frankfurt and from Frankfurt to New Delhi) at the expense of the answering Opposite Parties.  It is averred that on 21.7.2016, upon reaching New Delhi (IGI Airport), the complainant reported the incidence of missing baggage with Opposite Parties No.2 & 4, as the luggage was transferred to Lufthansa Airlines, as alleged in the complaint, thereafter, on 2.8.2016, the complainant received the missing baggage by the agent of Opposite Parties No.2 & 4.  It is also stated that answering OPs carried out its commitment by making all reasonable efforts to arrange the next available flight for the complainant to travel from Amsterdam to Delhi on 20.7.2016, but the air craft was beyond repair and on cancellation of the flight, the answering OPs also arranged Hotel Accommodation, Meal Vouchers and 2 telephone cards for all its passengers including complainant and his wife along with apology letter. It is further stated that as a gesture of goodwill, the answering OPs also offered compensation of EUR 600 REF or EUR 800 NREF to the complainant, but complainant rejected to accept it and chose to take legal action, despite the facts that the delay in flight was caused due to technical problem.  It is submitted that when a carrier takes a transfer passenger, as in the present case, the transferee i.e. OP No.2 become fully liable for his baggage and this is evident from the documents with complainant that the baggage was handed over to him by Opposite Party No.2, thus no cause of action arose against answering OPs. It is also submitted that the complainant was well aware of the fact that expensive items and currency etc. not to be carried in the checked in baggage.  Pleading no deficiency in service and denying rest of the allegations, the OPs NO.1 & 3 have prayed for dismissal of the complaint.

        The Opposite Parties NO.2 & 4 have filed joint reply and while admitting the factual matrix of the case, stated that on 23.7.2016, the answering OPs had requested the complainant for details of contents of missing bag of the complainant, as the said information was relevant for secondary procedure of tracing of the missing luggage from warehouses at various airports, but the complainant informed the answering OPs on 25.7.2016 that the detail of the contents of the said bag was private information and hence could not be divulged and instead, supplied a photographs of outer appearance of the missing bag.  It is stated that no complaint was made to the  answering OPs at the stage of delivery of the bag and/or thereafter, thereby leading to an inescapable conclusion that the luggage was delivered to the complainant in a perfect and fully packed condition, the factum of which was duly acknowledged by the complainant by signing the receipt, without any protest and/or demur (Ann.R-2). It is vehemently denied that the baggage of the complainant was delivered in a damaged conditions, with spoilt and damaged contents, as alleged, at all.  It is also stated that the complainant is not entitled to any compensation from answering OPs much less, as alleged.  It is submitted that not only was the flight No.KL 871 on 20.7.2016 from Amsterdam to Delhi cancelled by OP No.1, but further when the complainant was re-booked to travel with the answering Opposite Party, his luggage was admittedly not transferred to answering OPs Flight LH 989 on 21.7.2016. It is also submitted that the alleged grievances of the complainant are misdirected and answering OPs are not liable for any of the alleged grievances of the complainant, as sought to be alleged or at all.  It is further submitted that assuming for the sake of arguments though not admitting that the answering OPs were in fact liable for the complainant’s alleged grievance, the relief sought by the complainant could not have been granted as the maximum liability of the answering Opposite Party in such cases is 1,213 EUR, as per the Condition of Carriage. It is denied that the complainant’s bag when delivered was damaged externally as well as internally, as alleged.  It is also denied that cosmetics and toiletries lying in the complainant’s bag had melted and leaked, thereby spoiling a number of expensive clothes etc.  Rest of the allegations have been denied with a prayer to dismiss the complaint.

         Opposite Party No.5 filed short reply and while admitting the booking of air tickets as well as Hotel for the tour of the complainant, denied other allegations being not related to and prayed for dismissal of the complaint qua it. 

     

3]       Rejoinder has also been filed by the complainant thereby reiterating the assertions as made in the complaint and controverting that of the OPs made in their reply.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

6]       The cancellation of the return flight earlier booked by the complainant with OPs No.1 & 3 (KLM Royal Dutch Airlines) and rescheduling of the flight with Opposite Parties No.2 & 4 (Lufthansa German Airlines) by OPs No.1 & 3 are admitted aspects of the complaint.

 

7]       In the present complaint, the complainant in detail, mentioned about the harassment suffered by him and his wife due to cancellation of the return flight of OPs NO.1 & 3 and rebooking of the flight with Opposite Parties No.2 & 4.  It is agitated by the complainant when they reached at IGI Airport, New Delhi, they did not get their baggage’s, which were well checked-in with OPs NO.1 & 3.  It is submitted on behalf of the complainant that the complainant was assured while rebooking/rescheduling of the return flight that the baggage will be shifted to concerned airlines i.e. OPs No.2 & 4 and they will get the baggage at New Delhi Airport. 

 

8]       The main grouse of the complainant in the present complaint is that the baggage when delivered to them were in bad condition and the articles in the baggage were also in bad/broken condition, which caused them great loss. 

 

9]       From the perusal of the replies filed by the Opposite Parties NO.1 to 4 and considering the submissions made at the time of arguments by their respective counsels, it is observed that both the Airlines i.e. KLM Royal Dutch Airlines(OPs No.1 & 3) and  Lufthansa German Airlines(OPs NO.2 & 4)  tried to wriggle out from their responsibility of due care.  The Opposite Parties No.2 & 4 (Lufthansa Airlines) in their reply categorically denied that the baggage’s of the complainants were transferred to their flight on 21.7.2016 and they intervened into the present matter as were bound to take action on Property Irregularity Report (PIR) registered with them (by the complainants) and thus undertook to locate for the lost baggage’s and delivered the same to the complainants when were found after enquiring about the whereabouts of the lost baggage’s.

 

10]      It is contended that the Opposite Parties No.2 & 4 (Lufthansa Airlines) in Para No.XVIII of the preliminary objections of their reply submitted that it was the obligation of OPs No.1 & 3 to transfer the checked in luggage of the passengers of its cancelled flight to the respective flight arrangements made by Opposite Party No.1 & 3 and any liability in this regard can only be fastened upon Opposite Parties  No.1 & 3 being the contracting carrier and not upon them.  However, in Para No.XX of the preliminary objections of their reply, the OPs No.2 & 4 stated that on providing the details of the alleged contents of the missing bag were finally sent by the complainant on 30.7.2014, the said information was passed on and the missing luggage was traced and delivered at Delhi airport on 1.8.2016 and thereafter, the same was delivered to the complainant, which he received on 3.8.2016.

 

11]      In Para No.21 of preliminary objections of reply of OPs No.2 & 4, it is submitted that if even for the sake of arguments, it is presumed that OPs NO.2 & 4 are liable to grant any compensation to the complainants, then the liability of the answering OPs in such like case is 1213 EURs as per the Conditions of Carriage under Article 14.3 Destruction, Loss or Damage to Baggage.  It is specifically mentioned that OPs No.2 & 4 categorically denied that luggage of the complainant was handed over to them either by the complainant or by Opposite Parties NO.1 & 3 prior to departure of LH 989 from Amsterdam.

 

12]      The Opposite Parties No.1 & 3 (KLM Airlines) in the same manner in their reply while admitting that the complainants were scheduled to travel with flight of answering Opposite Parties, stated that the flight could not takeoff due to some technical problem and thus alternative arrangements were provided and the complainant and his wife were rebooked to travel back with Lufthansa Airlines (OP NO.2 & 4) at the instance of answering OPs and claimed that when a carrier take a transferred passenger, as in the present case, the transferee i.e. OPs No.2 & 4 become fully liable for his luggage.  Further in Para No.4 of the reply filed by OPs No.1 & 2 under preliminary objections, it is claimed by them that in case any liability is fasten upon them, then it shall be limited as per the terms & conditions of Carriage by Air Act, subject to fulfilment of certain requirements under the relevant provision. 

 

13]      In the given scenario where the contracting carrier i.e. OPs NO.1 & 3 claims to have delivered the baggage in question to the transferred carrier i.e. OPs No.2 & 4 and the transport carrier is refuting the receipt of any baggage of the complainant from the contracting carrier, it is a mystery undisclosed that vide which flight the luggage of the complainant was arrived at Delhi Airport and also from where it was recovered for its further delivery to the complainant.  However, out of the all facts, one thing is clear that baggage’s in question were delivered with delay and alleged to have been delivered in a damaged condition. Since it is not clear at whose end the baggage was damaged, we deem it appropriate to held liable both the airlines (OPs NO.1 to 4) jointly & severally for the harassment as well as loss suffered by the complainant due to their deficient act.

  

14]      It is also observed that the OPs No.1 to 4 despite admitting their limited liability in such like cases, never came forward to make good the loss of the complainant and none of them tried to enquire about the status and safety of the luggage of the complainant for its safe delivery at their destination. This in action of the OPs is not less than a deficiency in rendering proper services to its customers/consumers. 

 

15]      It is right to mention that the complainant has also not placed on record any concrete and cogent evidence to establish the loss suffered by him/her on account of damage to the baggage and to the articles lying therein.  As a result, the claim of the complainant claiming to have suffered loss in lacs, as alleged, cannot be accepted as it is. 

 

16]      In the light of above observations, we are of the concerted view that the Opposite Parties No.1 to 4 are found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua Opposite Parties No.1 to 4 and dismissed qua Opposite Party No.5. The Opposite parties NO.1 to 4 are jointly & severally directed as under:-

1. To pay a sum of Rs.10,000/- as compensation to the complainant on account of rendering deficient services, causing mental tension, agony, harassment to the complainant.
2. To pay an amount of Rs.5,000/- as litigation expenses.

 

17]     Similarly, the connected consumer Complaint No.949 of 2016 -  Simran Sehgal Vs. KLM Royal Dutch Airlines & Ors., also stands allowed against the Opposite Parties No.1 to 4 jointly & severally with following directions:-

 

1. To pay a sum of Rs.15,000/- as compensation to the complainant on account of rendering deficient services, causing mental tension, agony, harassment to the complainant. 
2. To pay an amount of Rs.5,000/- as litigation expenses.

 

         The order shall be complied with by Opposite Parties No.1 to 4 jointly & severally within 45 days from the date of receipt of its certified copy, failing which, they shall also be liable to pay interest @9% per annum, on the awarded compensation amount from the date of filing this complaint till realization, besides paying litigation expenses.

 

14]      A copy of this order be placed in connected complaint No.949 of 2016 -  Simran Sehgal Vs. KLM Royal Dutch Airlines & Ors., which shall be deemed to form a part of that order.

                                                           

            The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

23^rd October, 2017                          Sd/-

(RAJAN DEWAN)

PRESIDENT

 

 

                                                Sd/-

 (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER