Delhi

North East

CC/7/2015

Vibhor Gupta - Complainant(s)

Versus

M/s Air India - Opp.Party(s)

16 Oct 2018

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 07/15

 

In the matter of:

 

	Vibhor Gupta S/o Shri Ajay Gupta Thru Shri Ajay Gupta (POA) S/o late OP Gupta R/o 9/341, Sector-3 Rajendar Nagar, Sahibabad, Ghaziabad.	Complainant
	Versus
	M/s Air India Safdarjung Airport, Aurobindo Marg Safdarjung Enclave, Delhi-110029.	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

06.01.2015 15.10.2018 16.10.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The grievance of the complainant as made out in the present complaint is that on 26.10.2014 the complainant had travelled from return flight AI-849 from Delhi to Pune through OP Airlines which was supposed to depart at 04:00PM from Delhi but was delayed by 2Hours 45 Minutes (18:45 PM) and after reaching Pune, the OP did not handover the checked in luggage of the complainant. The OP could not trace or locate the same and asked the complainant to visit again and check later as they had no information regarding the same. The complainant has submitted that the said checked in bag contained woolen clothes, office attire, books, certificates, casio wrist watch and two mobiles phone of HTC and Nokia make apart from some gifts and assets the total value of the lost bag to the tune of Rs. 65,000/-. The complainant repeatedly made enquiries, calls and visits to the Airport regarding the luggage in question leading to physical and mental trauma and harassment and financial loss due to gross negligence of OP. The complainant wrote several e-mails to OP between 27.10.2014 to 13.11.2014 but the OP did not respond properly to any of the e-mails and he was made to shuttle between various departments without any resolution and the luggage continues to be missing till date. Therefore, alleging deficiency in service on the part of OP leading to extreme tension and harassment, the complainant was constrained to file the present complaint before this Forum praying for issuance of directions against the OP to pay Rs. 65,000/- to the complainant towards cost of the lost baggage, Rs. 25,000/- as compensation for harassment, mental agony and pain and Rs. 5,000/- as litigation expenses.

Complainant has attached power of attorney authorizing Ajay Gupta, father of the complainant Vibhor Gupta for conducting / pursuing the complaint on its behalf, copy of E-ticket booked by the complainant with OP flight no. AI849 Delhi – Pune PNR No. HNQXC ticket no. 0984802035439 scheduled for 26.10.2014, copy of baggage tag no. 0098838639 alongwith boarding pass for flight no. AI1853, copy of e-mails dated 27.10.2014 to 13.11.2014 by complainant to OP, reply e-mail dated 30.10.2014 by OP to the complainant.

2. Notice was issued to OP on 07.01.2015 which entered appearance on 12.02.2015 and filed its written statement on 13.04.2015 in which it took the preliminary objection of non maintainability of the complaint on grounds of territorial jurisdiction and signatory of present complaint unacceptable since the harassment compensation has been claimed by Vibhor Gupta. The OP submitted that the complainant had travelled from Delhi to Pune on its flight and on receiving the report/complaint that his luggage did not arrive at Pune Airport, the OP checked all possible areas including tagless areas and on checking the register which is maintained by GMR EBS (tagless bags), they found one bag named VERAGE which was dispatched to Chicago by international baggage service on 02.11.2014 against AHL ORD AI19823 and it was found matching with their file and as a matter of practice an unclaimed bag is always dispatched as a possible match to the concerned station where file is created. However it was disowned by passenger at ORD and was recalled to Delhi and deposited with custom ware house. The OP has further stated that since the description of the bag was matching with the report made at Pune, International Baggage Service was asked to release the bag from custom and forwarded to Pune by AI849 under rush tag. Accordingly, Pune baggage service sent the said bag to the complainant’s residence on 10.02.2015 but the complainant refused to identify the bag and accept the same and abused the staff of OP. The OP had given an option to complainant to settle the claim which he refused and the bag in question is still lying at Pune Airport. The OP specifically denied the contention of the complainant about the items contained in the lost baggage on grounds that the complainant had not supplied any receipt of cost of the items or details thereof in advance before boarding and cited Carrier’s Regulation on its website ‘the passenger shall not include in checked in baggage, fragile or perishable items, money, jewellery, precious metals, silverware, negotiable papers, securities or other valuables, business documents, passports and other identification documents or samples’. The OP further urged that the complainant has not provided any specific proof or document pertaining to Airport visit for enquiring lost luggage and has failed to establish any deficiency of service on part of OP and prayed for dismissal of complaint.
3. Rejoinder to the written statement was filed by the complainant  in reiteration of his grievance and denial of defence taken by the OP. In addition the complainant placed on record email dated 02.12.2014 by Customer Response Management, IGI Airport,  to the complainant forwarding his complaint to the concerned Airline/ OP, Email dated 05.02.2015 from Delhi office of OP to ORD, Air India regarding unclaimed bag VERAGE to forward the same to Delhi, Email dated 09.02.2015 from OP to complainant apologizing to complainant and intimating trace of baggage from its Chicago office and forwarding the same to Pune for identification   and lastly Email dated 07.04.2015 from OP at Pune to complainant requesting the complainant to submit his claim form for lost baggage in view of expiry of mandatory tracing period for location of his bag which the OP admitted its inability to trace to enable it to settle the same @ Rs. 450/- per k.g.
4. Evidence by way of affidavit was filed by the complainant exhibiting POA, baggage tag and boarding card, emails exchanges between complainant and OP and emails filed by complainant alongwith rejoinder in support / corroboration of his grievance against the OP made out in the complaint. Affidavit of evidence filed by OP in reiteration in its defence which was reproduction of its written statement.
5. Written arguments were filed by the complainant as well as the OP. The complainant placed reliance on the judgment of J&K SCDRC, Sri Nagar in the case of Harpal Kaur V/s. Jet Airways, India ltd. II (2008) CPJ 2003 in which the SCDRC had held the OP guilty of deficiency in service holding OP liable to pay value of items contained in missing baggage. The OP placed on record the Carriage By Air Act, 1972 which it is governed by in such cases.
6. We have heard the rival contentions of the counsels for the complainant and OP and thoroughly perused the documentary evidence placed on records by both parties. It is not in dispute that complainant had availed of services of OP for travel from Delhi to Pune by its flight AI849 Delhi – Pune. The dispute arose however, when on reaching Pune his checked in baggage went missing which as per the complainant was valued as Rs. 65,000/-. However, the complainant has not placed on record any documentary evidence or any bills or inventory to prove the articles in the said baggage for valuation purpose. The email dated 07.04.2016 written by the OP filed by the complainant alongwith his rejoinder is proof enough of admission on the part of OP of inability to trace the lost baggage and therefore, any other baggage viz. VERAGE which the OP was trying to coerce complainant to accepting as his own falls flat.
7. The Carriage By Air Act, 1972 provides Rules for ascertaining compensation of loss of luggage but that does not cover compensation for harassment, agony and mental tension. The Hon’ble National Commission in the judgment of Head of Ground Staff of Sahara Airlines Ltd. V/s Dr. Jayant Rath IV (2015) CPJ 623 (NC) dealt with similar dispute of loss of baggage and Airlines alleging non-disclosure of the value of baggage by the complainant. The Hon’ble National Commission was faced with the question as to how the liability of the Air Carrier is to be fixed for missing baggage. Rule 22 Schedule II of Air Carriage Act, 1972 deals with the liability of air carrier in case of loss of baggage in which the liability of the carrier is limited to sum of Rs. @250 Francs per k.g. and the total weight of the baggage is to be taken into consideration in determining the amount to which carrier liability is limited. In this light, the Hon’ble National Commission had clarified that the liability of air carrier with respect to consignee was limited to Rs. 450/- per k.g. unless at the time of booking special declaration made by the person concern. Rule 25 of Schedule II of Air Carrier Act, 1972 provides for an exception to this limited liability in case where baggage went missing due to grossly negligent and reckless act on the part of Airlines which was held not applicable in the said case and Hon’ble National Commission had assessed the damaged to the tune of Rs. 450/- per k.g. alongwith 9% interest thereon from the date of loss till realization. The Hon’ble National Commission in the landmark judgment of Air France V/s Dimple Bhambra Malhotra II (2018) CPJ 393 (NC) passed on 12.01.2018 held that even while giving widest and most liberal interpretation to provisions of Consumer Protection Act, this Commission cannot act contrary to provision contained under Section 22 of Carriage by Air Act and cannot exceed limit statutorily prescribe therein. The limit prescribed in Rule 22 of schedule 2 of the Act shall not prevent the Court/Forum from awarding in accordance with its own law, in addition the whole or part of the Court cost and of other expenses of the litigation incurred by the plaintiff but the forgoing provision shall not apply if the amount of damages awarded, excluding court cost and other expenses of litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of occurrence causing the damage or before the commencement of action, if that is later.     The issue of limit of liability and whether damages more than what is prescribed under the Carriage by Air Act could be awarded was decided by Five Member Bench of Hon’ble National Commission in The Manager, Air India Ltd Vs M/s India Everbright Shipping and Trading Co. FAO No. 451/94 decided on 20.04.2001 in which the Hon’ble National Commission upheld the contentions of the carrier and held that Section 3 of CPA shall be in addition and not in derogation of any other law in force as an alternative mode for obtaining redressal and enforcing rights. If damages are to be awarded it has to be within the four corners of law and Section 14 (1) (d) of CPA has to be read with Carriage by Air Act and therefore viewed from this angle when CA Act limits the liability of an Air Carrier that cannot be exceeded by the Forum under CPA, it cannot be disputed that CA Act is applicable in the present case specially when the allegation for loss of baggage is owing to negligence and lethargic manner of handling of cargo by OP and not  willful misconduct or act of omission with an intend to cause damage to attract Rule 25 of first Schedule or Second Schedule of the Act. The Hon’ble National Commission held that the reliance placed by the respondent on the judgment of Spice Jet Vs Atanu Ghosh decided on 03.11.2015 in Revision Petition No. 1411/2015 was per incurium being contrary to the decision of five member bench of Hon’ble National Commission in judgment of Manager Air India (supra)  which decision was also considered in the judgment of Hon’ble National Commission in Interglobe Aviation Ltd Vs Manish Nagpal in RP No. 2601/16 decided on 25.04.2017 that the decision of larger bench in Manager Air India (Supra) had not been brought to the notice of the bench rendering decision in Spice Jet Ltd (Supra). Similarly the reliance placed by the respondent on the judgment of Emirates Vs Rakesh Chopra (Supra) was also held erroneous since s the said judgment was also held per incurium by Hon’ble National Commission in interglobe Aviation Ltd (Supra) as the bench passing the said judgment did not notice the Larger Bench’s decision. The respondent further had placed reliance on the judgment of Hon’ble Supreme Court in M/s Fair Air Engineers Pvt Ltd and Anr. Vs N.K.Modi III (1996) CPJ 1 (SC)= 1996 (SLT soft) 1386= Civil Appeal No. 11459/1996 decided on 28.08.1996 in which the Hon’ble Supreme Court had held that provisions of CPA are to be construed widely since they are in addition and not in derogation of any other law in force. The Hon’ble National Commission in this regard had held that the aforesaid decision does not say that while exercising its jurisdiction under CPA, the Consumer Forum can go by or Act contrary to the provisions of some other statute as was clearly laid down by the Hon’ble National Commission in the judgment of Rajeev Malik Vs M/s K L M Royal Dutch Airlines IV (2016) CPJ 304 (NC) = CC No. 136/2016 decided on 22.04.2016 in which the Hon’ble National Commission had observed and held that provisions of CPA provides expeditious settlement of consumer disputes of all classes whereas Carriage by Air Act apply only to Air carriers which was enacted under article 253 of Constitution of India as a Special Act. The Hon’ble National Commission on the reliance placed by the respondent on the Hon’ble Supreme Court judgment of Trans Mediterranean Airways Vs Universal Exports and Anr VII (2011) SLT 339 = IV (2011) CPJ 13 (SC) = Civil Appeal No. 1909/2004 decided on 15.09.2011 in which the Hon’ble Supreme Court had reiterated that provisions contained in CPA is in addition to remedy available under any other statute, observed that there is no quarrel with the aforesaid legal proposition but, even while granting relief in terms of CPA, this commission is not competent to act in violation of statutory mandate prescribed under Section 22 of CA Act 1972.
8. In light of the elaborate discussion on the legal proposition and settled law on the point of awarding of damages in cases of loss of baggage by Airlines, we are strictly governed by Carriage by Air Act.
9. As per the e-mail from OP to complainant dated 07.04.2015 placed on record by the complainant alongwith his rejoinder, it is evident that the OP had admitted its inability to locate the missing baggage of the complainant within the mandatory tracing period and had offered the settlement @ Rs. 450/- per K.G. asking the complainant to contact the OP city office at Pune or its Pune Airport office for filing of claim. The settlement was offered by OP in writing within six months of the loss of baggage from the date of occurrence as per Sub Rule 4 of Rule 22 of scheduled 2 of Carriage By Air Act.
10.  We therefore direct the OP to pay a sum of Rs. 6,750/-  (calculated @ Rs. 450x15) since the baggage allowance for domestic flight was 15 K.G. alongwith compensation in form of interest thereon @ 9% p.a. from the date of loss of baggage i.e. 26.10.2014 till realization.
11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on  16.10.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member