Haryana

Gurgaon

cc/113/2014

Ashutosh Sharma - Complainant(s)

Versus

M/s Spicejet Airlines - Opp.Party(s)

08 Jun 2016

ORDER

                            DISTRICT   CONSUMER   DISPUTES   REDRESSAL FORUM,GURGAON-122001

                                                                                                            Consumer Complaint No: 113 of 2014                                                                                                                        Date of Institution: 16.04.2014                                                                                                                                                    Date of Decision:  08.06.2016

Ashutosh Sharma s/o Shri Brig.(Retd.) R.M.Sharma, Resident of H.No.E-23, Greeenwoods City, Sector-46, Gurgaon.

                                                                                                ….Complainant.

                                                Versus

M/s Spicejet Airlines, 319, Udyog Vihar Industrial Area, Phase-IV, Gurgaon-122016 through its Managing Director.  

..Opposite party

                                                                                               

Complaint under Sections 12 & 14 of Consumer Protection Act,1986                                                                 

 

BEFORE:     SHRI SUBHASH GOYAL, PRESIDENT

SMT JYOTI SIWACH, MEMBER

                  

Present:        Shri R.M.Sharma, Adv for the complainant.

                    Shri Vijay Roy, Manager, Legal for the OP.

 

 

ORDER       SUBHASH GOYAL, PRESIDENT.

The case of the complainant, in brief, is that he travelled from Delhi to Mumbai on Spice Jet Flight No.SG 103 on 24th May, 2013 vide PNR No.RYG8JA and he had to go further to Rajkot (Gujrat). At Delhi Airport on 24.05.2013 he deposited his one bag with the authorities of the opposite party and he was issued a baggage tag at the Airport counter at Delhi. After arrival at Mumbai Airport on 24th May, 2013 he was shocked to find that his bag was found missing and he filed missing report No.31644 on the same day with the authorities of the OP. The complainant was assured that his bag would be located and the same would be sent to Rajkot within a day or two and he should proceed on his onward journey to Rajkot and thus, the complainant caught onward connecting flight to Rajkot and there too he also raised complaint vide Ref. No.CR/251224/2013 about his missing bag on the same day i.e. 24.05.2013 with the functionaries of the OP and he was again assured that the same would be retrieved and sent to Rajkot by next day. The said bag was containing wearing clothes, toiletries and vital and important documents and specialized projective equipments. For the wait of said bag he had to stay at Hotel at Rajkot instead of travelling directly to the ship  for his job assignment. However, after a delay of about 38 days the bag was delivered to the complainant on 30.06.2013. Due to rendering deficient services by the OP the opposite party has offered only a meager amount of Rs.3,000/- as compensation which was not acceptable to the complainant. The complainant also sent legal notice to the opposite party but of no use. The complainant prayed that the opposite party be directed to pay Rs.62,140/- as detailed in para No.8 of the complaint,  along with interest.

2                 OP in its written reply has alleged that the rights and liabilities of passengers and air carriers are governed by the Carriage by Air Act, 1972 which contains Schedules I and II which respectively incorporate the Warsaw Convention, 1929 and the Hague Protocol, 1955. India is a signatory to both these conventions and the protocol and hence the schedules of the Carriage by Air Act, 1972 are applicable to the parties to the present complaint and has relied upon The Manager, IA Ltd Vs India Everbright Shipping and Trading Co. 2001 (II) CPJ 32 NCDRC, Air Lanka Vs. S.Prasannam 1998(1) CPJ 117, Gargi Parsi Vs. KLM Royal Dutch Airlines  1996(1) CPJ 2, Mrs. Helen Walia Vs Cathey Pacific Airlines Ltd 2002(III) CPJ 190, Manager, South India, Air India Vs Smt. Visalakshi Subramaniam 2003(I) CPJ 538, Manager, Oma Air Vs K.K.Abdul Aziz and Anr 2001(III) CPJ 287 and Mohd. Amiruddin Vs Station Manager, India Airlines 1999(II) CPJ 298. The claim of compensation qua damaged caused to the baggage is limited and the same, in any case, cannot exceed the maximum limit prescribed in the Carriage by Air Act or the terms and conditions mentioned in the E-ticket. The relevant clause reads as under

          Baggage:

“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.”

In the present case the complainant handed over one baggage weighing 11 kgs as check in baggage. The said baggage was reported lost and the complainant lodged Irregularity Report (BIR) with the OP at the airport. As per the BIR, the contents of the said baggage, as per the complainant himself were electric shaver, cloths and slipper. Immediately after receipt of the said BIR, the OP and its staff started searching the said baggage. However, after a lot of efforts, the said baggage was traced and intimation in this regard was given to the complainant and the complainant received the said baggage intact on 30.06.2014 without any demur and protest. It is a case of minor damage in the baggage, for which the OP was ready and willing to pay a sum of Rs.3,000/-Thus, there was no deficiency in service on the part of the opposite party.

3                 We have heard the parties and have perused the record available on file.

4                 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the parties, it emerges that the complainant has filed the present complaint against the OPs alleging deficiency in service on their part on the ground that on 24.03.2013 the complainant deposited his baggage  at the office of the OP at Delhi Airport and when the complainant reached Mumbai his baggage was found missing and he repotted the matter vide complaint No.31644 with the OP on the same day and the complainant was assured that the baggage would be sent at Rajkot but when the complainant reached Rajkot the baggage was not handed over and he again reported the matter to the OP and the OP assured that the baggage would be sent within next day at Rajkot. The complainant has alleged that the said baggage contained clothes, toiletries and important documents and the complainant had to purchase new clothes and had to stay in hotel where he paid bills and the complainant waited for the said baggage but in vain. Thereafter the complainant proceeded his journey to ship. However, the said baggage was delivered to the complainant on 30.06.2013 after 38 days and the OP offered compensation of Rs.3,000/-only  and as such on account of missing of the baggage and delivering the same after 38 days a deficiency in service can be  said to have been accrued on the part of the opposite party.  In support of his contention learned counsel for the complainant has placed reliance on Mr. Ethelwald O. Mendes Vs M/s Jet Airways (India) Ltd, Complaint No.06/10 decided on 14.06.2012 (SCDRC, Panji-Goa), Ghaziabad Development Authority Vs Balbir Singh Case Appeal (Civil) 7173 of 2002 decided on 17.03.2004 by the Hon’ble Supreme Court, Pradeep Kumar Mathur Vs Spicejet Ltd in FA No.220 of 2013 decided on 01.08.2013 by SCDRC, Andhra Pradesh) , Emirates Vs Dr. Rakesh Gupta in First Apapeal No.204 of 2008 decided on 11.04.2013 by (NCDRC), Chairman & Managing Director Vs Shri Madan Mohan Lal Dass in First Appeal No.971 of 2012 decided on 29.05.2013 by (Delhi SCDRC).

5                 However, as per the contention of the opposite party, the rights and liabilities of passengers and air carriers are governed by the Carriage by Air Act, 1972 as per Schedules I and II as well as Warsaw Convention, 1929 and Hague Protocol 1955 to which India is signatory to both these conventions and as such there was limited liability on account of delay in delivering of baggage. It was also contended that no doubt the baggage of the complainant weighing 11 kgs was found missing and Baggage Irregularity Report (BIR) was lodged with the OP and as per BIR the baggage was containing electric shaver, clothes and slipper and the said baggage was delivered to the complainant on 30.06.2013 and the same was accepted by the complainant without any protest and in intact condition. It was also contended that since there was no deficiency in service on the part of the OP the complaint was liable to be dismissed. In support of his contention learned counsel for the OP has placed reliance on Capt Sandeep Sharma Vs M/s Spicejet Ltd in F.A.No.364 of 2011  decided by A.P.SCDRC, Hyderabad) and Spicejet Ltd Vs Ranaveer Sinha in First Appeal No.FA/824/2013 decided on 28.11.2014 (SCDRC, West Bengal)

6                 Therefore, after going through the facts and circumstances of the case and the evidence placed on file it emerges that there is no dispute that the complainant deposited his baggage with the OP at Airport Counter at Delhi on 24.05.2013 which was weighing 12 kg. After arrival at Mumbai Airport his baggage was found missing  and the opposite party assured the complainant to deliver the same at Rajkot where the complainant was to proceed for further . However, the said baggage was not traceable at Rajkot and lastly, the said baggage was delivered to the complainant on 30.06.2013 and the same was received by the complainant in intact condition. Therefore, there was delay of about 37 days in restoring the lost baggage which was booked by the complainant on 24.05.2013.

7                 The OP has taken the plea that a sum of Rs.200/- per kg has been prescribed as per the provisions of Carriage of Air Act, 1972 and consequently, a sum of Rs.3000/- were offered to the complainant which was not accepted by the complainant. After going through the above authorities it emerges that the OP was entitled to protection as covered under section 22 (2)(a) of Carriage by Air Act which reads as under :-

“In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of rupees two hundred per kilogram, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay sum not exceeding the declared sum, unless he proves that sum is greater than the passenger’s or consignor’s actual interest in delivery at destination”

8.                Therefore, in our opinion the OP was entitled to protection as per the provisions of Section 22(2) (a) of Carriage by Air Act, 1972. Consequently, we allow the present complaint and direct the opposite party to pay Rs.3,000/- (as offered by the OP) along with interest @ 9 % p.a. from the date of filing of the present complaint till realization. The complainant is also entitled to compensation for harassment and mental agony as well as litigation expenses to the tune of Rs.10,000/-. The OP shall make the compliance of the order within 30 days from the date of receipt of the copy of this order. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance.

 

Announced                                                                                                      (Subhash Goyal)

08.06.2016                                                                                                          President,

                                                                                                              District Consumer Disputes

                                                                                                             Redressal Forum, Gurgaon

 

(Jyoti Siwach)       

Member