Date of filing – 18.04.2013
Date of hearing – 10.08.2016
PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
Challenge in this appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the judgement and final order dated 15.03.2013 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in consumer complaint no. 386/2012 whereby the consumer complaint initiated by the Respondent u/s 12 of the Act was allowed on contest with cost of Rs.10,000/- with a direction upon the Appellants jointly and severally to pay an amount of Rs.50,000/- as compensation in favour of the Respondent.
The Respondent herein being Complainant lodged the complaint on the allegation that being a student of VIT University, Vellore (Tamil Nadu) he was proceeding by a Spicejet Flight being No.SG523 on 13.04.2012 from Kolkata to Bangaluru. During such return journey, she found her bag missing from the Airport. Immediately, she reported the matter and duly filled and signed the complaint. The Complainant alleged that the luggage contains some books, dress materials, one laptop charger, dry food, cash about Rs.50,000/-, jewelleries worth Rs.50,000/-, a bed sheet, project recorded on CD to be submitted to the University on 15.04.2012, Complainant’s father lodged a complaint with Police control- Bangaluru Airport about loss of luggage but till date no action has been taken. Ultimately, Complainant along with her father Shri Anil Mumar Kedia gave a demand justice though their Advocate on 30.04.2012 to the Authorities of M/s. Spicejet Ltd. demanding Rs.2,50,000/- as compensation for loss of luggage and mental agony the Complainant had to undergo without any fault on her part. Hence, the complaint with prayer for following reliefs viz.- a) to compensate as per demand justice dated 30.04.2012; b) refund the cost of Air ticket from Bangaluru to Kolkata and c) to pay litigation cost etc.
The Opposite Parties (OP) by filing a written statement disputed the claim. The OPs have contended that they have already refunded Rs.3,000/- to the Complainant by a cheque dated 23.04.2012 and the Complainant has duly received the same on 04.05.2012. The OPs have further stated that the Complainant has not approached the Ld. District Forum with clean hand and has suppressed the materials fact and as such the complaint should be dismissed.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain Awards, as indicated above, which prompted the OPs to approach this Commission with this present appeal.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
Upon hearing the Ld. Advocates for the parties and on having a look to the materials on record, it has come to surface that the Complainant Miss Parinita Kedia (Respondent) was pursuing her studies as a student of 4th year (Biotechnology) at Vellore Institute of Technology at Vellore (Tamil Nadu). Being a resident of Kolkata, the Respondent availed of Spicejet flight being no. SG523 on 13.04.2012 from Kolkata to Bangaluru. The Respondent had also booked her baggage in the said flight. However, when she reached at Bagaluru and went the Conveyor belt to collect her baggage, she did not find her baggage. Immediately she complained to the Airlines Officials and had made Baggage Irregularity Report. In the said report, the Respondent has reported that the Aristocrat Red colour trolly was contained of clothes, books, bed sheets and eatables.
It remains undisputed that the said bag could not be recovered by the Appellants although there are documents to show that efforts were made to trace out the same. Be that as it may, by the letter of demand justice dated 30.04.2012 the Respondent/Complainant and her father through one Mr. Raj Kumar Gupta, Advocate has mentioned that the missing bag contains jewelleries valued Rs.50,000/- and cash about Rs.50,000/-. Here we find an apparent conflict in between the initial claim of the Respondent and the subsequent the demand justice letter issued through an Advocate on 30.04.2012. It clearly indicates that some fertile brain worked thereafter and thereby the amount of loss had been hiked to Rs.2,50,000/-.
Needless to say, being domestic Airlines, the Appellants are guided by Section 8 of the Carriage by Air Act, 1972. Section 8(2) of the said Act provides – “The Central Government may, by notification in the Official Gazette, apply the rules contained in the Second Schedule and any provision of Section 4 or Section 5 or Section 6 to such Carriage by Air, not being International Carriage by Air as defined in the Second Schedule, as may be specified in the notification, subject, however, to such exception, adoptions and modifications, if any, as may be so specified”. Chapter III of First Schedule deals with liability of the carrier. Section20(1) of the Carriage by Air Act, 1972 provides – “The carrier is not liable if he proves that he and his agents have taken all necessary measure to avoid the damage or that it was impossible for him or them to take such measures”.
Mr. Asesh Kumar Bhattacharjee, Ld. Advocate appearing for the Appellants referring the relevant provisions of the Carriage by Air Act, 1972 and the decision of the Hon’ble Supreme Court of India reported in AIR 1996 SC 2508 (Bharathi Knitting Co. – Vs. – DHL Worldwide Express Courier Division of Airfreight Ltd.) and decision of National Consumer Commission reported in II (2006) CPJ 43 (Egypt Air – Vs. – Say Leelavathi) has contended that since the liability of the carrier is only in respect of to pay compensation of Rs.3,000/- i.e. Rs.200/- per Kg. for 15 Kgs. permissible limit and the same has already been paid to the Complainant and Complainant had received the same on 04.05.2012, the Ld. District Forum had no occasion to enter into merit of the case. He has further submitted that a customer when purchase the ticket, it is assumed after knowing and accepting the terms and conditions mentioned therein, the ticket was purchased and as such it became a binding contract for both the passengers and the airlines.
Mr. Alok Mukhophdhyay, Ld. Advocate for the Respondent, on the other hand has submitted that considering the mental agony and harassment suffered by the Respondent due to deficiency on the part of Airlines, the compensation awarded by the Ld. District Forum was quite justified.
In this regard, the decision of National Consumer Commission in Egypt Air’s case (Supra) appears to be relevant. In Paragraph-6 of the said decision, it has been observed –“In our view there is specific provision under the Carriage by Air Act, 1972, Schedule-II Rule-22 which provides for the maximum limit of payment of compensation in such cases. In this view of the matter, this revision application requires to be allowed. Petitioner is directed to pay an amount equivalent to 40 US $ to the Complainant”. In the case of Bharathi Knitting Co. (Supra), the Hon’ble Supreme Court has held that when a person signs a document which contains certain contractual terms, the parties are bound by the terms of the contract though he is ignorant of their precise legal effect.
The record clearly reveals that the Respondent/Complainant did not approach the Ld. District Forum with clean hand. Initially in Baggage Irregularity Report dated 13.04.2102, Complainant did not mention anything as to loss of cash of Rs.50,000/- or ornaments of Rs.50,000/-. Subsequently, on 30.04.2012 the father of the Complainant and the Complainant jointly issued a notice of demand on 30.04.2012 wherein they have disclosed about carrying certain things in the bag like jewelleries valued about Rs.50,000/- and cash about Rs.50,000/-. It is unbelievable that a student will carry a cash of Rs.50,000/- or jewelleries about Rs.50,000/- in her bag without having any reason whatsoever. Moreover, carrying those articles in this fashion in a luggage bag in air trip is not permissible under the law. A Consumer Forum should not be considered as an instrument for gaining something beyond the provision of law. It appears to us that the Complainant had no faith in truth. In Paragaph-5 of the case of Chengalvaraya Naidu (Dead) – Vs. – Jagannath (Dead) & Ors.) reported in (1994) 1 SCC 1 the Hon’ble Apex Court has observed –
“One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property –grabbers, Tax-evaders, bank-loan-dodgers and other unscrupulous persons from all works of life find the code-process a convenient lever to retain the illegal gains indefinite. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation”.
Considering the facts and circumstances, when we find that the liability of compensation was limited with regard to terms of the contract, the Appellants was responsible for the deficiency in service, the consequence of which would be that the Appellants had incurred the liability for loss or damages suffered by the consumer due to deficiency in service thereof.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and relying upon the authorities as mentioned above as well as the proposition of law, we are of the view that the Ld. District Forum has committed an error by awarding an amount of Rs.50,000/- as compensation. However, the amount of litigation costs of Rs.10,000/- is maintained.
With the observation as indicated above, the appeal stands disposed of on contest but without any order as to costs.
The Registrar of this Commission is directed to send a copy of this order to Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.
