Punjab

Ludhiana

CC/20/129

Parveen Kumar - Complainant(s)

Versus

Lufthansa General Airlines - Opp.Party(s)

Jaswinder Singh Adv.

12 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 129 dated 10.08.2020.                                                        Date of decision: 12.10.2023.

 

Parveen Kumar aged 45 years S/o. Hans Raj, R/o. #14808, Bhagwan Nagar, main Market, Mohalla Parbhat Nagar, Dholewal, Ludhiana, Punjab.                                                                                                    ..…Complainant

                                                Versus

Lufthansa German Airlines, Room No.23, Level 04, Indira Gadhi International Airport, Terminal-III, New Delhi-110037 through its authorized signatory.                                                                                           …..Opposite party      

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Jaswinder Singh, Advocate.

For OPs                          :         Sh. Ankur Ghai, Advocate.

 

ORDER

PER JASWINDER SINGH, MEMBER

 

1.                Briefly stated, the facts of the complaint are that the complainant was a passenger in opposite party airline on 14.08.2018 and 15.08.2018 from Toronto to Delhi via Toronto to Ottawa in flight No.AC464 dated 14.08.2018 and Ottawa to Frankfurt with flight No.AC838 dated 14.08.2018 and also from Frankfurt to Delhi with flight No.LH760 dated 15.08.2018. The complainant stated that on 15.08.2018, he arrived at Delhi Airport and found his luggage missing, which was not traced despite effort. The complainant informed the opposite parties about his missing luggage but same could not be traced and opposite parties agreed to reimburse the loss of the complainant and passed a claim of Rs.91,000/- in favour of the complainant which the complainant accepted. However, the opposite party did not paid the agreed amount of Rs.91,000/- despite repeated requests made by the complainant through telephonic calls as well as emails. The complainant served a legal notice dated 20.12.2019 upon the opposite party through Sh. Jaswinder Singh Bhatti, Advocate but to no effect. The complainant claimed to have suffered great loss, mental agony, physical harassment and financial loss due to negligence and deficiency in service on the part of the opposite party for which he is entitled for compensation of Rs.1,00,000/-. In the end, the complainant requested for directing the opposite party to pay the claim amount of Rs.91,000/- along with litigation expenses of Rs.1,00,000/- and litigation expenses of Rs.20,000/-. 

2.                Upon notice, the opposite party appeared and filed written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint; lack of cause of action; lack of locus standi to file the complaint etc. The opposite party stated that upon arrival of complainant from Frankfurt at Delhi Airport via their flight No.LH-760 on 15.08.2018, the complainant informed them about missing of his luggage comprising of two bags regarding which Property Irregularity Report No.DELLH766571 was opened at Delhi Airport on 15.08.2018. The opposite party claimed to have taken immediate steps to trace luggage of the complainant and found one bag belonging to the complainant which was safely delivered to him on 17.08.2018 itself. However, in respect of the un-located bag (missing luggage) further enquiry was conducted by the opposite party and the complainant vide emails dated 05.12.2018, 11.01.2019, 18.06.2019 and 28.10.2019 was requested to provide certain information and documents i.e. picture holding valid government issued ID, copy of boarding pass, booking confirmation or evidence of payment of booking etc. but the complainant failed to supply such information and documents. As such, the complainant himself is negligent due to which the opposite party was not in a position to conduct proper enquiry into grievances of the complainant. According to the opposite party, it has not approved any alleged claim of Rs.91,000/- to the complainant regarding his missing luggage. Even the complainant failed to place any material on record to establish the purchase of material items in the luggage described in the claim form. The opposite party further stated that it cannot be held liable for grievance of the complainant.

                   On merits, the opposite party reiterated the crux of averments made in the preliminary objections. The opposite party has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                The complainant filed rejoinder reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement filed by the opposite party. The complainant stated that the report of the surveyor is procured one and is not binding upon her. All the documents were supplied to the opposite party and the surveyor well in time.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 copy of legal notice dated 20.12.2019, Ex. C2 is the postal receipt, Mark-A is the copy of Property Irregularity report, Mark-B is the copy of luggage claim, Mark-C is the copy of list of articles, Mark-D is the copy of air ticket from Toronto to Ottawa of Air Canada, Mark-E is the copy of air ticket from Ottawa to Frankfurt of Air Canada, Mark-F is the copy of air ticket from Frankfurt to Delhi of Air Canada, Mark-G is the copy of multiple visitor visa of Canada, Mark-H is the copy of the text message, Mark-I is the copy of email, Mark-J is the copy of passport of the complainant and closed the evidence.

5.                On the other hand, the opposite parties tendered affidavit Ex. RA of Ms. Sarika Gandhi, authorized representative of the opposite party and submitted documents Ex. RW1 is the copy of authority letter, Ex. RW2 is the copy of email, Ex. RW3 is the copy of general condition of carriage and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and affidavit produced on record by both the parties. We have also gone through the written arguments submitted by the opposite party.

7.                Admittedly, the complainant booked ticket from Toronto to Ottawa and then from Ottawa to Frankfurt on flight No.AC464 and Ex. AC838 respectively pertaining to Air Canada Airlines on 14.08.2018. Thereafter, the complainant was to board flight of the opposite party No.LH760 from Frankfurt to New Delhi. Obviously, the complainant is to delivered the luggage to Air Canada Airlines from the inception of his journey from Toronto to Ottawa. On reaching Delhi, the complainant found his luggage comprising of two bags missing and a Property Irregularity Report No.DELLH766571 was opened at Delhi Airport with the concerned authorities on 15.08.2018. On receipt of intimation, the opposite party took effective steps to trace out the luggage and was succeeded in tracing one of the missing bags which was delivered to the complainant.

8.                Now the grievance of the complainant is that the opposite party agreed to reimburse a sum of Rs.91,000/- and a receipt Mark-B was issued in this regard. Perusal of this very document shows that there is no undertaking on the part of the opposite party to reimburse the claim rather this document carries recital with regard to the details of the flight and particulars of loss. So the contention of the complainant that the opposite party had undertaken to reimburse the claim is devoid of any merits.

9.                The opposite party at the very outset took objection that since the first flight was originated from Toronto to Ottawa and Air Canada Airlines was the service provider and the said airline was a necessary and proper party. Despite having sufficient opportunities and even by filing rejoinder, the complainant did not take any effective steps to implead Air Canada Airlines as party. This Commission is also of the view that in Air Canada Airlines was a necessary and proper party and without its presence the matter cannot be effectively and properly adjudicated upon. Even otherwise, no deficiency is attributable on the part of the opposite party. The complainant has failed to discharge the initial onus of deficiency in service on the part of the opposite parties. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In view of the law laid down in the above cited law and as per facts and circumstances of the case, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:12.10.2023.

Gobind Ram.