| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/9/09 Date of Institution: - 12.01.2009 Order Reserved on: - 20.05.2024 Date of Decision: - 12.09.2024 IN THE MATTER OF: Mohd. Anas Abbasi Son of Sh. Aslam Abbasi R/o 209 Nizamuddin West, New Delhi - 110013 .….. Complainant VERSUS - Air France
IGI Airport New Delhi - Chairman and Executive Officer
Air France 45 Rue De Paris 95747 Roissy CDG Paris - Air France
8th Floor Tower No. 8-C Cyber City, DLF Phase-II, National High Way 8 Gurgaon (Haryana) .…..Opposite Parties Per Dr. Harshali Kaur, Member - The Complainant booked an OP flight No.DF147 on 20.02.2008 to New York from Delhi with a stopover at Paris, from where he would continue his onward journey on Flight No.AF22 to New York for a business trip and to procure the orders of customers in February 2008. The Complainant carried two pieces of baggage on his journey, weighing 21kg each.
- On landing at JKF International Airport in New York on 20.02.2008, he discovered one of his bags containing tag No. New York, JFKAF022CDGAF147, 0057AF363087, 1/021KG DEL 20FEB08196 was missing. On inquiry from the OP staff at their counter at JKF International Airport, he was assuredthey would search for his lost bag. The Complainant filled out an Inventory Form, which the OP sent to their office in New York. He was promised the delivery of his lost luggageto his address in New York, as mentioned on the inventory form, once the OP found it. The Complainant faxed the filled Inventory Form to the New York office of the OP on 22.02.2008.
- The Complainant alleges that despite repeated enquiries from the OP staff in New York, his baggage was not found or delivered to him. He further states that the lost suitcase had warm clothes, other articles and samples that he had to show the clients/customers to take their orders, amounting to Rs.78,000/- in total. Hence, the loss of the bag led to the loss of business,financial deprivation and additional expenses for extending his stay as he kept waiting for his lost bag, hoping to recover the samples and generate business.
- The Complainant returned to India on 06.04.2008 and issued a legal notice to the OP on 13.05.2008, to which the OP replied vaguely on 22.08.2008. Dissatisfied by the OP's conduct, the Complainant filed the present complaint under section 12 of the Consumer Protection Act, 1986, alleging deficiency in service on the part of the OP. He has prayed for directions to the OP to pay Rs.6,28,800/- towards thefinancial loss incurred by him, Rs.50,000/- towards mental agony and harassment faced by him and Rs.20,000/- towards litigation expenses.
- The Complainant has annexed a copy of the tickets booked by him, a copy of the two baggage tags, a copy of the inventory form filled by him at JFK Airport, where he has itemized the articles in his lost bag, a copy of the legal notice and the reply dated 22.08.2008 sent to the Complainant from the OP.
- On notice, OP-1 and OP-3 filed a joint reply. Vide order dated 20.02.2009, this Forum allowed the Complainant to make corrections and delete OP-2, a designated officer, from the array of parties.
- OP-1 and OP-3 deny any liability in the instant complaint, stating in their reply that, admittedly, the Complainant checked in two pieces of baggage weighing 21 kgeach.On arrival in New York, the Complainant did not receive the Bag bearing tag No.AF-363087. While the staff of the OPlocated his misplaced bag, he was advised to share the address of where he was temporarily staying in New York and to buy essential items worth USD 100 and forward the bill to the Customer Services Department of the OP for refund/reimbursement.
- Later, the bag in question was traced out and delivered to the Complainant's address in Rego Park, New York, USA, on 07.03.2008. Due to security reasons, the delivery person was not allowed entry into the building. He was asked to deliver the bag to the reception. One Mr. John, Superintendent of the building, received the bag with due signature. Annexure-OP/1 is the copy of the BDO recording the details of the delivery signature of baggage recipients (Annexure OP-1/2).
- OP-1 and 3 further admit in their reply that though the luggage delivery of one Bag of the Complainant was delayed by 2 weeks, the same was delivered to the Complainant's address on 07.03.2008.
- Moreover, the claim for damages was not filed by the Complainant within the stipulated 21 days as stipulated under rule 27 (2) of the second schedule of the Carriage By Air Act 1972 governing the rights and liabilities of passengers and air carriers in India, which clarifies "…….In case of delay the complaint must be made at the latest within twenty one days from the date on which the baggage or cargo have been placed at his disposal."
Hence, the Complainant's claim is untenable in law and deserves dismissal. - The Complainant is not a 'consumer' as he has himself admitted that the travel he undertook was a 'business trip'; thus, the Complainant's case falls under the ambit of 'commercial purpose' expressly excluded in the Act. Further, the Complainant neither made a special declaration of interest towards samples carried against the general conditions of carriage nor insured his baggage with expensive items as he is duty bound to do.
- The Complainant filed his rejoinder and affidavit in evidence, denying that he had ever received the lost baggage at his address in New York and reiterating the averments as made in the complaint.The OP filed the affidavit of Mr. Pieter de Man, General Manager of the OP, to be read in evidence echoing the statements made in the reply filed by the OPs.
- Thereafter, the OPs filed an application to place additional evidence along with a supporting affidavit on record. Along with the application, the OPs annexed Exh. OP-1-7, which is the copy of the letter dated 04.04.2010 issued by the courier company 'Perfect Delivery'detailing the delivery of the relevant baggage to the Complainant on 07.03.2008 in the Complainant's presence, duly notarised by the Notary Public as below:-
"This is with reference to your letter dated April 1, 2010 enquiring about the details of a delivery made by me to Mr. Mohd. Anas Abassi on behalf of Matthew Villani Perfect Delivery at 89-11, 63rd Drive, Rego Park, New York, U.S.A on 7th March 2008. I confirm that the aforesaid delivery was made by me. As far as I recall, I had telephonically informed Mr. Abassi about the delivery at the designated address and had requested him to receive the bag at the reception. Mr. Abassi had however refused to receive the bag at the reception and had asked me to deliver it to him in his house upstairs. I could not accede to this request of Mr. Abassi as it is against our policy to enter a passenger's home. I therefore left with the bag as neither could I deliver it upstairs as requested nor could I leave it at the reception without a signature on the Baggage Delivery Order (BDO). Soon after I left, Mr. Abassi called me back and agreed to accept the bag. Hence I went back and delivered the bag in the presence of Mr. Abassi at the reception. The Baggage Delivery Order (BDO) was signed by the Building Superintendent (one Mr. John) who also clarified at that point that on account of security reasons the delivery-person was not allowed entry into the building (i.e. 63rd Drive, Rego Park) and the bag in any case had to be delivered at the reception." - The Complainant filed his written arguments categorically denying receipt of his lost baggage or that it was ever delivered to him and that the OPs fabricated the letter to divert the attention of this Forum. The OPs also filed their written arguments.We have heard the Ld. Counsel for the OPs and gave liberty to the Ld. Counsel/complainant to address arguments in the next five days. However, none has appeared for the Complainant to address oral final arguments till the time of dictating this order.
- We have carefully considered the facts and circumstances of the present case and have also perused the documents filed by the contesting parties.
- We find that the Complainant, engaged in import and export business, booked a flight with the OP Airline for his Business Trip on 20.02.2008 via AF147/AF0221 Delhi/Paris/New York. He checked in two pieces of baggage at the OP counter weighing 21kgs each and bearing Tag Nos. AF363087 and AF363088 respectively.
- On arrival in New York, the Complainant did not receive one of his bags with tag no.AF363087. The Complainant furnished the details of the articles in the lost baggage via an Inventory Form on 22.02.2008, a copy of which is annexed with the complaint and sent to the OP Airline office in New York.
- It is the Complainant's case that the said Bag was never delivered to him, and since it contained samples of leather socks, which he was to show the clients and take their orders, the loss of the bag led to the loss of business. He also claims damages for the money spent to buy warm clothes and other essential items as he extended his stay in New York in the hope that his bag would be located and he would be able to generate business.
- When the OP could notfind his bag, he returned to India on 06.04.2008 and issued a legal notice to the OP dated13.05.2008. In their reply to his Legal Notice, the OP claimed that he had received the bag, which the Complainant denies. Hence, the complaint.
- The OPs have questioned the maintainability of the complaint as the Complainant, by his own statement, has admitted to undertaking the journey for business and profiteering through the same, which is excluded in the Act.
- In our considered view, this preliminary objection by the OPs is not tenable in law as per settled law, where the Complainant had booked a flight from India to New York for his business through which he earned his livelihood. Reliance is placed upon the landmark judgment by the Hon'ble Apex Court in Laxmi Engineering Works Ltd. vs PSG Industrial Institute (1995) 3 SCC 583.
- Further, the issue regarding the baggage, which allegedly was lost or delayed as the case may have been, contained other articles besides the samples via which the Complainant was to derive or generate orders. Hence, we feel that the Complainant's case is maintainable, and the Complainant who purchased the OP airline ticket with his hard-earned money is a consumer.
- Now, coming to the merits of the case. The OPs admit that when the Complainant disembarked at JFK Airport in New York on 20.02.2008,one piece of luggage with Tag No.AF363087 was not handed over to him. Instead, the OP officials asked the Complainant to fill out anInventory Form detailing the articles in the misplaced bag. The Complainant was informed that the bag was likely delayed and would be delivered to his address. Hence, the Complainant also shared his temporary address in the form.
- The OPs have filed a copy of the letter (Exh. OP1-1)sent by the courier company to the OP written by one"Juan Plasncia", who had delivered the luggage to the Complainant, which the Complainant duly received.The OPs have also filed the copy of the Baggage Delivery Order (Exh.OP1-2),which reflects the recovery date as 03.07.2008 at 23.00 written in (mm/dd/yy) and the delivery date as 03.08.2008 (mm/dd/yy) at 09.13 duly signed by one Mr. John at Rigo Park New York which is the temporary address as mentioned in the inventory form by the Complainant. After initially refusing to come down to receive the delivery of the bag, the said bag was received by one Mr. John,superintendent of the building where the Complainant was residing at the time, under his signature on behalf of the Complainant.
- The Complainant was further asked to purchase the essential items he may require until his bag is located worth USD100 and forward the bills to the OP officials for reimbursement/refund which the Complainant did not do.
- The crux of the complaint is the OP's statement that they had delivered the Bag with TAG No.AF363087 to the Complainant at his address in New York on 07.03.2008 instead of 20.02.2008 when he landed. The Complainant, however, denies ever receiving the bag from the OPs.
- A bare perusal of the Exhibits OP-1-1 and Exh.OP-1-2 coupled with Exh.OP-1-7, which are the copies of the letters written by the courier service executive 'Juan Plasncia'who delivered the bag to the Complainant, the baggage delivery order,which reflects the delivery date, time and signature of the receiver and the additional letter dated 04.04.2010 sent by the courier service "Perfect Delivery" duly notarized to one Mr. Ashwani Kumar, Executive of the OPs confirming the delivery.
- These affidavitsare sufficient to falsify the Complainant's statement that he did not receive the bag that the OP admittedly delayed handing over. Hence, the Complainant's grievance is justified to the extent of mental harassment for the delay in receiving his bag, whichthe OPs have admitted. We, therefore, feel that the OPs are liable to compensate the Complainant.
- Thus,partly allowing the complaint, we direct the OPs to jointly or severally pay the Complainant a lumpsum amount of Rs.20,000/- towards mental agony and harassment and Rs.5,000/-towards litigation costs.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Order announced in the open court on 12.09.2024.
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