JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that the Complainant, on 03.06.2010, booked a flight bearing No. SG-912 with the Opposite Party, for travel from Chennai to Jaipur, upon payment of a sum of Rs. 7,615/-. At the time of boarding, the Complainant duly handed over her checked-in baggage, bearing Tag No. SG-000091-3868, to the Opposite Party. Upon arrival at Jaipur Airport, the Complainant was unable to locate the aforementioned baggage at the designated collection area. Consequently, the Complainant immediately lodged a complaint with the Opposite Party vide letter No. 36340, following which the Opposite Party assured her that the baggage would be traced out, and that she would be duly informed. The Complainant registered a formal complaint with the Opposite Party, which was assigned Complaint No. CR/69425/09. The lost baggage contained several important documents and valuable articles. Despite efforts to trace the baggage, the Opposite Party, by its letter dated 09.06.2010, expressed its inability to locate the baggage and offered a sum of Rs. 1,300/- as compensation, which was tendered via cheque. However, the Complainant, deeming the offered amount to be grossly inadequate, refused to accept the same and communicated it to the Opposite Party by Email. The Opposite Party, in response, unequivocally refused to remit any further compensation. The aforementioned baggage included critical documents, including the Complainant’s project report, on which she had worked extensively over a period of three months while residing in Chennai. The loss of these documents, due to negligence of the Opposite Party, resulted in significant inconvenience and financial burden on the Complainant, who now faces the necessity of incurring additional expenses to re-prepare the said project report. The Opposite Party, in acknowledging the loss of the baggage, has admitted its negligence and deficiency in service by offering the aforementioned sum of Rs. 1,300/- as compensation. This sum, however, is wholly inadequate in light of the value of the contents lost and the resultant inconvenience suffered by the Complainant. Aggrieved with the deficiency of service on the part of the Opposite Party, the Complainant filed her complaint with the Ld. District Forum, Jaipur-I.

3. The District Forum vide its Order dated 08.01.2016 partly allowed the complaint and directed the Petitioner to pay to the Complainant Rs. 46,000/-, and Rs. 50,000/- towards mental agony and Rs. 10,000/- towards litigation costs. The Petitioner then filed Appeal before the Ld. State Commission, which was dismissed vide the impugned Order dated 05.10.2018. The relevant extracts of the impugned Order are set out as below -

“The Appellant filed their written statement and have stated that an amount of Rs. 200/- per Kg. is to be given in case of loss of baggage, maximum amounting to Rs. 3,000/- and as such, the complainant was given a sum of Rs. 1300/- as the weight of the baggage was found to be 6.5 Kg. The cheque for a sum of Rs. 1300/- had been remitted by the Appellant in favour of the complainant. In view of the aforesaid, there is neither any negligence nor any deficiency on the part of the Appellant in providing any services by them to the complainant and the complainant is not entitled to any amount on account of compensation of litigation expenses. The statement of the complainant that the said baggage contained goods worth Rs. 68,000/- and also a project report is absolutely false, frivolous and misconceived. There is neither any deficiency in services nor there is any unfair trade practice on the part of the Appellant. The complaint is liable to be dismissed. 

The complainant came to Jaipur from Chennai through flight of Spicejet and handed over her baggage to them at Chennai and when she reached Jaipur, she was not handed over the said baggage. The said baggage contained her articles and project report. The OP merely gave her Rs. 1300/- @ Rs. 200/- per kg for 6.5 Kg. weight of the baggage, whereas the said baggage contained articles and project report and three months of the complainant were wasted on account of loss of her project report.

The amount awarded by the Ld. District Forum does not suffer from any irregularity and as such, the Appeal is liable to be dismissed and the same is being dismissed.”

 

4. Ld. Counsel for Petitioner has argued that any alleged loss was due to the Respondent's own negligence in violating the terms of the Contract by placing valuables in her checked baggage. Moreover, the Respondent provided no proof of the alleged contents of the lost baggage, and therefore, no compensation should have been awarded; That during security checks, valuable items like cash or jewellery in checked baggage are usually identified and flagged, which did not happen in this case; That the Consumer Protection Act should not be misused for malafide litigation, and frivolous complaints like this should be dismissed to avoid burdening the Courts. Furthermore, the incidents of baggage theft at airports are not the responsibility of the airlines, and any such loss should be attributed to the airport security (CISF) rather than the carrier; That this Commission's Order in “Spicejet Ltd. vs. Himadri Sharma, RP/1294/2009”, held that the terms of carriage are a binding contract between the parties. The Hon'ble Supreme Court's decision in “Indigo Airlines vs. Kalpana Rani Debbarma, AIRONLINE 2020 SC 71”, affirmed that passengers cannot dispute the terms of carriage, as they constitute a binding Contract. Further, there is the case of “Indigo Airlines and Anr. Vs. Astha Pansari, RP/1004/2018”, in which  this Commission had held that the Airline's liability is limited to Rs. 3,000/- unless a special declaration is made by the passenger. Additionally, in “Spicejet Ltd. vs. Rajender Kaur, RP/3215/2014”, this Commission rejected the Complainant's claim for pilferage, theft, or loss of baggage based on the binding nature of the terms and conditions in the e-ticket; That the Hon'ble Supreme Court in “Bharathi Knitting vs. DHL Worldwide Express Courier Ltd., AIR 1996 SUPREME COURT 2508”, held that any compensation can only be awarded in accordance with the agreement between the parties. The Lower Fora failed to consider these legal precedents and wrongly decided in favour of the Respondent. Therefore, the impugned Order ought to be set aside, and the Complaint be dismissed, as it contradicts established law and contractual terms.

5. Ld. Counsel for Respondent has argued that the present Petition is not maintainable due to the restricted scope of the revisional jurisdiction of this Commission. The Hon’ble Supreme Court of India has consistently emphasized the narrow limits of revisional powers under Section 21(b) of the Consumer Protection Act, 1986. In the case of "Sunil Kumar Maity v. State Bank of India (2022 SCC Online SC 77)", the Hon'ble Supreme Court held that "the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity…” In this context, the present Petition fails to demonstrate any such jurisdictional error, material irregularity, or illegality that would warrant interference by this Commission. Therefore, the Petition should be dismissed as non-maintainable; That the Order dated 05.10.2018, passed by the Ld. State Commission, Rajasthan is well-reasoned and based on a proper appreciation of the facts and evidence. There is no substantial ground to challenge or interfere with the findings of the Ld. State Commission, which were based on concurrent findings of fact and law; That this Commission, in the case of "Air India Ltd. and Anr. v. Tushar Kothari, 2023 SCC Online NCDRC 37", had dismissed a similar Revision Petition where the State Commission's order was challenged for granting compensation for loss of baggage; That similarly, in "Spicejet Ltd. & Ors. v. Dr. Atanu Ghosh , 2015 SCC Online NCDRC 3959", this Commission had dismissed a Revision Petition on account of loss of baggage and imposed costs on the Petitioner Company for misuse of the legal process; That the present Petition is an abuse of the process of law. Therefore, it is submitted that this Commission may dismiss the petition with exemplary costs.

6. This Commission has heard the Ld. Counsel for Petitioner and Respondent, and perused the material available on record.

7. As already noted earlier, the contention of the Respondent/Complainant in opposing the present Revision Petition is that since the findings of both the Ld. Fora below were concurrent, so there is no scope for this Commission to interfere with the same in view of the decisions of the Hon’ble Supreme Court in “Sunil Kumar Maity  Vs. State Bank of India & Anr., 2022 SCC OnLine SC 77”  and “Rajiv Shukla  Vs. Gold Rush Sales and Services Limited and Anr.,(2022) 9 SCC 31”.

8. In “Sunil Kumar Maity  Vs. State Bank of India & Anr.” (supra) , the Hon’ble Apex Court had observed inter alia –

9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. In the opinion of the Court, both the State Commission as well as the Consumer Forum had elaborately appreciated the documents on record and passed the reasoned orders. The report that tries to absolve the respondent-bank of its liability is based on surmises and conjectures as it abstrusely and without evidence holds that the bank has every reason to believe that wrong account number was intentionally inserted by the appellant himself for reasons best known to the appellant or on account of negligence by the appellant by not keeping the passbook in his safe and proper custody. The suppositions are contradictory as well as incredulous and fanciful. The appellant did not know the second respondent and would not have known his account number unless given to him by a bank officer. There was no way that the appellant would have known that the second respondent, namely Sunil Maity had an account in the same branch. No sane person would  deposit cash or cheque meant to be deposited in his account in an account number belonging to another person with similar name. On the other hand, the bank should have been extra cautious given the fact that accounts of the appellant, Sunil Kumar Maity, and the second respondent, Sunil Maity, were with the same bank branch. What is rather surprising is that the National Commission for setting aside the findings and conclusion recorded by the District and State Forum, simply reproduced the report by one of the officers of the party in litigation with the appellant. The National Commission has not adverted and delved into the sound reasoning given by the State Commission as quoted above.”

 

9. Similarly, in “Rajiv Shukla  Vs. Gold Rush Sales and Services Limited and Anr.” (supra), the Hon’ble Apex Court had observed inter alia –

“13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. 

14. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”

10. It is also correct that this Commission in “Air India Ltd. And Anr.  Vs. Tushar Kothari, 2023 SCC OnLine NCDRC 37”, and “Spicejet Ltd. & Ors.  Vs. Dr. Atanu Ghosh, 2015 SCC OnLine NCDRC 3959”, had dismissed similar Revision Petitions in which the State Commission’s order for granting compensation for loss of baggage of the passengers.  To that extent, the contention raised on behalf of the Respondent/ Complainant would appear to be convincing atleast at the superficial level.

11. But the grievance raised on behalf of the Petitioner has to be considered from a slightly different perspective.  Here the Petitioner’s contention is that it is not a case where any jurisdiction not vested in law was exercised by the State Commission, or that it had failed to exercise such jurisdiction.  On the other hand, the specific contention is that the jurisdiction so vested was actually exercised “illegally or with material irregularity”, and for that reason this Commission would be within its power to exercise its revisional jurisdiction for the purpose of setting aside the orders passed by both the Ld. Fora below.

12. To substantiate the above contention, emphasis has been placed on behalf of the Petitioner on its case that it was its specific defence that the parties were bound by the terms and conditions of the constituting Contract between them, as were printed on the passengers ticket, and a specific defence in this regard had been taken in Para 2 of the preliminary objections raised by the Petitioner in its Written Statement filed before the Ld. District Forum, which can be seen on pages 45 and 46 of the Paper Book, which is re-produced as follows –

“2. That the present complaint filed by the complainant is not maintainable in as much as, by way of present complaint, the complainant is trying to take benefits of her own wrongs, misdeeds and malafide acts.  It is submitted that having booked the ticket, the Complainant, who was well aware and conversant about the terms and conditions contained in the e-ticket.  It is submitted that the relevant clauses of the terms and conditions contained in the said ticket, a copy of which is being filed herewith as Annexure A, reads as under :

Spicejet highly recommends that you remove all valuable (cameras, jewellery, money, electronics, perishables etc.) and medication from your check in baggage and place them in your carry on.

In case, the passenger decides to carry any valuables in their checked in baggage, against the above advice, they will do this at their own risk and shall not hold spicejet responsible for any pilferage/damage/etc. to such valuables.

The carrier’s liability for loss of baggage is limited to Rs. 200/- per kg. with a maximum of Rs.3,000/- only. The carrier assumes no liability for fragile or perishable articles.

        From the above said terms and conditions, it is amply clear that as per the above said terms and conditions, which is a contract between the parties, at the first instance, the passengers have been advised not to carry any valuables including money, currency, jewellery other valuables and medication etc.  in their check in baggage and in case the passengers do so, they shall be doing so on their own risk and cost without assuming any liability upon the carrier i.e. Spicejet.  As is clear from the said terms, in case of lost baggage, the liability of the Spicejet is limited to Rs. 200/- per Kg. with a maximum of Rs. 3,000/-.  Since the Complainant had intentionally and voluntarily violated the said condition by allegedly carrying valuables in the check in baggage, she is not at all entitled to any compensation on any account, whatsoever.  However, in terms of the policy and the conditions mentioned in the ticket, the weight of the baggage was found to be 6.5 Kgs, the Respondent vide a written communication dated 9th June, 2010, has already remitted a sum of Rs. 1,300/- by way of cheque bearing No. 507713 dated 07.06.2010 drawn on Axis Bank, favouring the complainant and as such, he is now estopped from espousing the said cause.  In view of the aforesaid, the present complaint filed on behalf of the Complainant is without any merits, cause of action and substance and is liable to be dismissed with heavy costs.” 

13. However, inspite of such explicit plea about the contractual obligations of the parties having been raised in the Petitioner’s Written Statement, the Ld. District Forum did not consider at all that part of the caution, and the consequent condition printed in the ticket which has been highlighted under the heading “Safety and Security” in the preceding paragraph.  On the other hand, the District Forum  only considered that part of the aforesaid defence to the extent that the Carrier’s liability for loss was limited to Rs. 200/- per kg. on account of which an amount of Rs.1,300/- had already been remitted to the Complainant as the weight of her lost baggage was 6.5 kg. only.  While the Ld. District Forum held that the amount paid to the Complainant was meagre, it did not at all attempt to test the validity or applicability of the other highlighted condition printed in the passenger’s ticket which has already been referred to.  In a way, therefore, the Ld. District Forum by not even going into a specific defence raised by the Petitioner/Opposite party, nor considering its validity or applicability to the facts and circumstances of the case, had clearly exercised the jurisdiction vested in it with “material irregularity”. This is all the more so, because the aforesaid highlighted condition had been considered by this Commission in an earlier “Revision Petition No. 3215 of 2014 in the case of Spicejet Ltd.  Vs. Rajender Kaur & 2 Ors., decided on 22.8.2016”.  In Para 11 of the final order in the said Revision Petition, the Division Bench of this Commission while hearing the matter had taken specific note of the aforesaid condition and had also reproduced the same in its Order in the following manner –

“11.   During the course of hearing, the counsel for Airlines brought to our attention clause No.14 and 19 of the Spice Jet Regulations governing terms of carriage and baggage. Clause 14 provides that “Spice Jet highly recommends that you remove all valuables (cameras, jewellery, money, electronics, perishables etc.) and medication from your check-in luggage and place them in your carry-on. Spice Jet will not accept responsibility for these items. In case, the passenger decides to carry any valuables in their checked-in baggage against the above advice, they will do this at their own risk and shall not hold Spice Jet responsible for any pilferage/damage etc. to such valuables. They shall lay no claim against Spice Jet, its employees, agents, successors etc. in this regard.” Further, Clause 19 provides that “the carrier’s liability for loss or damage to baggage is limited to Rs.200 per kg with a maximum of Rs.3,000/-. The carrier assumes no liability for fragile or perishable articles.”

14. This Commission thus found the aforesaid Clauses to be valid and binding upon the parties, on account of which the Revision Petition filed by “Spicejet Ltd.”, which incidentally happens to be the Petitioner in the present case as well, was allowed with the following observations –

14. It is true that the Consumer Protection Act, 1986 aims to provide speedy and simple disposal of consumer dispute. This however, does not mean that the consumer is always right. As a matter of fact, the Consumer Protection Act also casts an implied duty on the consumer to be an aware consumer. It is common knowledge and well known that valuables are to be carried in carry-on baggage while travelling by air. It is first and foremost the duty of any consumer himself/herself to ensure that his/her valuables are kept safely and it is expected that even in the ordinary course, one would keep valuables close to one self rather than send it as a check-in baggage which has multiple handlers in the course of its journey from check-in to the aircraft to its ultimate destination. For this departure from usual practice and common prudence, the Airlines cannot be held responsible, even if it were possible to prove that the pilferage baggage was carrying valuables. 

15. Therefore, on all counts, the case in favour of the respondent/complainants fails and they are not entitled to any compensation from the Airlines for the loss of valuables. 

16.  In view of the foregoing discussions, the revision petition succeeds. The order of the State Commission dated 26.5.2014 as also the order of the District Forum dated 19.11.2012 which had awarded a sum of Rs.75,000/- with 10% simple interest, alongwith compensation for physical and mental agony amounting to Rs.15,000/-, is set aside, and the original complaint is dismissed. Parties may bear their own costs.”

 

15. Again, in “Indigo Airlines & Anr.  Vs. Aastha Pansari, RP No. 1004 of 2018, decided on 17.1.2020”, in a similar situation by relying upon the decision of the Hon’ble High Court of Delhi in “Air India Ltd. Vs. Tej Shoe Exports P. Ltd. & Anr., ILR (2014) I Delhi 484”, the Division Bench of this Commission had observed  inter alia –

“16. Though, the aforenoted facts are with respect to cargo which was booked internationally and the terms under Warsaw convention have been made applicable, the ratio with respect to limited liability is very clear. When the Airlines Rules of Carriage limits the liability to ₹3,000/- , unless there were special declaration by the passenger, the Airlines cannot be made liable for the amounts claimed lost since the contents of each baggage is not known to the Airlines unless and until the declaration is made. Therefore, we are of the view that the Conditions of Carriage of the Airlines constitute a valid and binding contract between the passenger and the Airlines.”

 

16. In this view of the matter, and also considering the decisions in “Spicejet Ltd. vs. Rajender Kaur” (supra) and “Indigo Airlines & Anr.  Vs. Aastha Pansari” (supra), and also following the law laid down by the Hon’ble Supreme Court in “Indigo Airlines vs. Kalpana Rani Debbarma” as also in “Bharathi Knitting vs. DHL Worldwide Express Courier Ltd.”, this Commission is of the view that the aforesaid condition pertaining to “safety and security”, as noted above, was binding upon both the sides.  By not even considering the applicability of the defence raised by the Petitioner on this basis, both the Ld. Fora below had clearly exercised their jurisdiction with material irregularity, resulting in miscarriage of justice.

17. For the aforesaid reasons, the Revision Petition is allowed after setting aside the Orders passed by both the Fora below, and the Complaint filed by the Respondent consequently stands dismissed.  Parties to bear their own costs.

18. Pending application(s), if any, also stand disposed off as having been rendered infructuous.