PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as the baggage of the Complainants did not arrive on time at Milan (destination) and thereby the Complainants could not get the baggage on time causing inconvenience to the Complainants.
2) The facts as mentioned by the Complainants are that they had booked two confirmed tickets of Lufthansa German Airlines (Opposite Party) to go to Milan from Mumbai via Frankfurt. The tickets were of business class each costing Rs.1,20,250/-.
3) Complainant No.1 was having baggage identification No.7056. Complainant’s visit to Milan was for discussing the business issues. The Complainants arrived at Milan on time but the baggages did not arrive on time. On enquiries it was revealed that the baggages were not transferred from Mumbai Frankfurt flight to Frankfurt Milan flight. Therefore, the baggages did not arrive on time when Complainants reached at Milan Airport. It is alleged by the Complainants that due to the negligence of the Opposite Party’s employee, the baggage did not arrive at the Milan on time, causing damage to both the Complainants.
4) When Complainants found that the baggages did not arrive at Milan alongwith them, they immediately lodged the complaint with Opposite Party. The Complainants do not state in his complaint as to when they received the delivery of the baggages but in para 9 abruptly states that “The delayed delivery of the baggage was of no use to us.” They have further stated that, after lodging the complaint of loss of baggage they were offered a shaving kit and personal hygiene kit. But the Opposite Party did not provide clothes to the Complainants. Therefore, Complainants had to attend the meeting at Milan in the clothes they were putting on, during the journey. This affected the meeting and the results from the meeting. It is submitted by the Complainants that important documents for meeting, were in the baggage which adversely affected the meeting. Therefore, the entire expenditure on the visit was a waste.
5) Finally the Complainants have prayed that the Opposite Parties be directed to pay Rs.1,20,000/- (the cost of ticket) to each Complainant. Remuneration at the rate of Rs.65,000/- to each Complainant for 3 days since no work was accomplished alongwith interest @ 15% p.a. from 15/12/08 till the payment.
6) Complainants have attached the xerox copies of the following documents in support of their complaint -
a) Invoice issued by Nishant Travels.
b) E Ticket of Complainant No.1.
c) E Ticket of Complainant No.2.
d) Baggage identification.
7) The complaint was admitted and Opposite Party was served with the notice. Opposite Party appeared through its Ld.Advocate and filed its written statement wherein it denied all the allegations of deficiency in service on its part and specifically stated that the Complainants have availed the services of the Opposite Party for commercial purpose and as such, the Complainants are not consumer. The Complainants have also concealed material facts.
8) The Opposite Party has further stated that it is the settlement principle of law that, to claim compensation under the Act, it is not only necessary for the Complainant to prove the negligent act of Opposite Party but also that such negligent act had caused a particular loss or injury to the Complainant. In the instant complaint, the Complainants have not proved any loss or injury caused to them.
9) The Opposite Party has further submitted that it is an attempt of the Complainants to gain unjust enrichment at the cost of respondent by misusing the provisions of social welfare legislation. Further it is clarified by the Opposite Party that Complainants traveled on 15/12/08 with Opposite Party’s Airlines from Mumbai to Milan via Frankfurt. It is further admitted that Complainants had one baggage each. Upon arrival at Milan on 15/12/08 at 10.20 A.M. the Complainants found out that the said checked in baggages had not arrived at Milan. So Complainants approached Opposite Party at Milan Airport and lodged a property irregularity report with the Opposite Party. The staff assured them that the baggage would be traced and delivered to them on the same day. And as per this assurance the staff delivered the baggage to the Complainants on the same day at their hotel at 14.54 GMT and the baggages were intact. The Complainants accepted the baggages without any protest or demur.
10) The Opposite Party has vehemently denied that the meeting of the Complainants was in any manner whatsoever affected and/or jeopardised, on account of the slight delay in the delivery of their baggages and it is also denied that there is a deficiency in service on its part.
11) The Opposite Party has reproduced Article 14.4.2 of the condition of the carriage of the Opposite Party as follows –
“In case of a baggage delay we are liable for damage unless we took all reasonable measures to avoid the damage or it was impossible to take such measures. The liability is limited to 1000 SDR (approximately 1.220 EUR).”
The Opposite Party has clarified that they took all the possible measures immediately, traced the baggage on the same day and delivered to the Complainants on the same day on 14.5.4 GMT. in intact condition. Therefore, they are not liable for the delay in delivering the baggages. Opposite Party has attached the true copy of the General conditions of carriage (passenger & Baggage) of the Opposite Party airlines with its written statement.
12) The Opposite Party has also reproduced Article 14.1.7 as follows -
“Our liability shall not exceed the amount of proven damage under any circumstances. We are only liable for indirect or consequential damages when such damage was caused by our gross negligence or willful misconduct, the provisions of the convention shall continue to be applicable without change.”
And it is averred by the Opposite Party that it is not negligent and as such, it is not responsible in any manner whatsoever for any indirect or consequential damages due to delay in delivery of the baggages. The Complainants are not only short of explaining any negligence but also short of proving any loss or injury to the Complainants.
13) The Opposite Party has further submitted that the Complainants have sought to claim exorbitant sum without according any reason justifiable for claiming such a huge amount. The Opposite Party has specifically denied that the Complainants arrived in Milan on 16/12/08 as alleged by the Complainants. It was also denied that they were to return by the same Lufthansa (Opposite Party flight) on 17/12/08. The contention of the Complainants in this respect (in para 3 of the complaint) is in blatant contradiction to the exhibit ‘C’ which states that the Complainants landed at in Milan on 15/12/08 and not on 16/12/08. In para 5 of the written statement however, the Opposite Party has admitted that “It is not disputed that baggages did not arrive on the same flight due to certain operational reason”.
14) It is also denied that the Complainants were returning on 17/12/08 as the E-tickets placed on the record by the Complainants it is clear that they were to return on 16/12/08 and not on 17/12/08. Finally the Opposite Party has submitted that the complaint be dismissed. The written statement of the Opposite Party is supported by the affidavit of ManjariGauba, Manager Finance and Administration, the authorized representative of the Oposite Party. Terms & conditions of the Opposite Party (General condition of carriage).
15) The Complainants and Opposite Party submitted their written arguments and additional written arguments wherein they reiterated the facts mentioned in their complaint and written statement respectively.
We heard the Complainant No.1 and the Ld.Advocate for the Opposite Party. We also perused the documents produced by both the parties and our findings are as follows -
16) The Complainants have traveled form Mumbai to Milan via Frankfurt on 15/12/2008. The Complainants arrived at Milan on 15/08/2008 at 10.20 A.M. but the baggages did not arrive with the flight. It arrived by next flight and was handed over to the Complainant’s hotel on the same day in intact condition. Only the dispute and deficiency as alleged by the Complainants are that the baggage did not arrive with them. They did not get their baggage when they arrived at Milan. Therefore, they had to attend the meeting in the same dress; they were putting on during the journey. It is also alleged that the important documents were in the baggage and in absence of those documents the meeting was adversely affected.
17) From the facts mentioned by both the parties, it is clear that there was delay of about 8½ hours in delivering the baggages to the Complainants. The Opposite Party mentioned in their written statement that they delivered the baggage on the same day at 14.5.4 GMT. These fasts establish that there was some delay in delivering the baggage to the Complainants and this must have caused inconvenience and stress to the Complainants. However, Complainants have not given any proof to establish any loss caused to them in meeting. How their business was affected? & how the meeting was a failure? It is a well settled principle of law that while awarding any compensation it is necessary to establish the actual loss caused to the Complainants. In the instant case, as stated earlier, it is the facts that there was a delay in delivery of the baggages to the Complainants. This has caused inconvenience and stress to the Complainants and this amount to deficiency in service of the Opposite Party. However, the contention of the Complainants, that it affected the meeting adversely and entire expenditure on the visit was a waste is only a bare averment and it is not supported by any documentary or any other cogent evidence. Therefore, the prayer for the cost of the ticket and for their 3 days remuneration is exorbitant and cannot be acceded to. In view of the facts and circumstances we think it just and proper to award compensation of Rs.10,000/- for the deficiency in service on the part of Opposite Party as the baggages were delivered late to the Complainants and this caused, inconvenience and stress to the Complainants and Rs.3,000/- towards the cost of this complaint. Hence, we pass the following order-
O R D E R
i. Complaint No.212/2009 is partly allowed.
ii Opposite Party is directed to pay the compensation of Rs.10,000/- (Rs.Ten Thousand Only) to the Complainants
for mental agony and inconvenience caused to them.
iii.Opposite Party is also directed to pay Rs.3,000/- (Rs. Three Thousand Only) to the Complainant towards the
cost of this complaint.
iv.Opposite Party is directed to comply with the above order within 30 days from the receipt of this order.
v.Certified copies of this order be furnished to the parties.
