Tripura

West Tripura

CC/14/82

Sri Debashish Paul - Complainant(s)

Versus

Ms. Pratima Rai Nodal Officer And Others - Opp.Party(s)

Mr. S.C.Majumder

03 Jul 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC- 82 of 2014

         Sri Debashish Paul,    
S/O- Late Monoranjan Paul,
Ramkrishna Mission Road, 
Town Bardowali, Agartala,
West Tripura.            .........Complainant.

         ______VERSUS______
    
        
1.  Mrs. Pratima Rai,
Nodal Officer,
Spice Jet Ltd., 319, Udyog Vihar,
Phase- IV, Gurgaon-122016.
 

2.  The Station Manager,
Spice Jet Ltd.,
Agartala Airport, 
West Tripura.            ..…..Opposite Parties. 

                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHR. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant             : Mr. Sujit Chandra Majumdar,
                  Advocate.
                       
For the Opposite Parties         : Mr. Pankaj Deb,
                      Authorized Representative
                      of Spice Jet Ltd.
                  
                  
JUDGMENT  DELIVERED  ON : - 03.07.15
J U D G M E N T     

        This is a complaint U/S 12 of the Consumer Protection Act, 1986(herein after referred to as 'the Act') filed by the complainant, Sri Debashis Paul of Ramkrishna Mission Road, Agartala, West Tripura against the O.P., Spice Jet Ltd., over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.P.-Airlines.

2.        The fact of the case as gathered from the case record is that on 22.08.14 the complainant travelled from Kolkata to Agartala by Spicejet Ltd. flight No- SG 871. On arrival at Agartala Airport he was shocked to find that his checked-in baggage weighing 15kg with tag No. H-7V WMW was missing. Immediately he lodged a complaint with the Station Manager of Spicejet Ltd., Agartala Airport who issued a Baggage Irregularities Report. The O.P.-Airlines assured him that the lost checked-in baggage would be delivered to him very soon. But ultimately they failed to trace out the missing baggage. He made repeated contacts with the O.P.-Airlines to know about the fate of the lost baggage, but it evoked no response from them. It is asserted that the lost baggage contained 15kg of ready made garments worth Rs.50,000/-. Because of missing of the said baggage he suffered loss of his business to the tune of Rs.500/- per day. Finding no other alternative, on 08.09.14 he served an Advocate's Notice upon the O.Ps. But they did not respond to it. According to the complainant, the conduct of the O.Ps constituted negligence and deficiency in rendering service. Hence, this complaint.

3.        The complaint was contested by the O.Ps stating, interalia, that as per terms and conditions laid down in The Carriage By Air Act, 1972, the passengers can not carry valuables in their checked-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. As the complainant intentionally violated the terms and conditions stipulated in the Carriage Act, he is not entitled to compensation of  any amount. Further that, as per terms and conditions of Carriage, in case of lost baggage, the liability of the carrier is limited to Rs.200/- per kg with a maximum limit of Rs.3000/-. However, considering the weight of the lost baggage a sum of Rs.3000/- was remitted to the complainant as compensation. It is denied that the O.P.-Airlines was deficient in rendering service to the complainant in any manner what so ever.

4.        In support of the case, the complainant has examined himself as P.W. 1 and has proved and exhibited the following documents;
    Exhibit 1 Series- 6(six) number of vouchers, 
    Exhibit 2- Boarding Card,
    Exhibit 3- One Air ticket,
    Exhibit 4- Property Irregularity Report,
    Exhibit 5- Advocate's Notice.
    
5.        No evidence either primary or secondary has been adduced on behalf of the O.P.-Airlines.

        
FINDINGS:
6.        The points that would arise for consideration in this proceeding are:
        (i) Whether the complainant had lost his checked-in baggage weighing 15 kg containing valuables while travelling from Kolkata to Agartala by Spicejet  Ltd. flight no- SG 871 on 22.08.14;
        (ii) Whether the charge of negligence and deficiency in  service can be attributed to the O.P.-Airlines for loss of the registered baggage of the complainant. If so, whether the complainant is liable to compensated by the O.P.-Airlines for the lost checked-in baggage.

7.        We have already heard arguments advanced by the learned counsel for the complainant and the Authorized Representative of the O.P.-Airlines. Also perused the pleadings, documents on record and the evidence adduced by the complainant meticulously.

8.        There is no dispute on the fact that the complainant while travelling from Kolkata to Agartala by Spice Jet Ltd. flight no- SG 871 on 22.08.14, his registered baggage was lost which has received support from the Baggage Irregularities Report(Exhibit-4).  It is also an admitted fact that the O.P.-Airlines offered to pay Rs.3000/- to the complainant as compensation towards the loss of the checked-in baggage.

9.        The complainant in his pleading as well as  examination-in-chief by way of affidavit has clearly stated that the lost baggage contained valuable personal belongings and ready made garments worth Rs.50,000/-. In support of his contention, he has proved and exhibited 6 number of vouchers showing purchase of ready made garments and personal belongings in Kolkata on different dates before leaving for Agartala.

10.        It is the plea of the O.P.-Airlines  that the complaint filed by the complainant is not maintainable as the goods carried by him through his checked-in baggage were for commercial purpose which would be evident from his own admission made in the pleading that he suffered loss of income @ Rs.500/- per day due to loss of the baggage.  

11.        Admittedly, the complainant was carrying ready made garments weighing 15 kg through the lost checked-in baggage for the purpose of his business. Hiring any service for consideration is of the essential  precondition before the person to be considered to be a consumer within the meaning of the Act. It is not a dispute between the buyer and seller. Whether the complainant purchased the goods carried by him through the lost checked-in baggage for commercial purpose is not a matter in issue here. The present complaint relates to hiring of service of the O.P.-Airlines.  It is not at all relevant whether goods lost were purchased by the complainant for commercial purpose. In our view, the complainant is a consumer within the meaning of Section 2(1)(d) of the Act and hence, the case is maintainable.

12.        In support of the contention, the O.P. side has relied upon the decision of the Hon’ble Supreme Court in Bharati Knitting Co. Vrs. DHL worldwide Express Courier Division of Airfreight Ltd. II, wherein it is held that “National Commission was right in limiting the liability under taken in the contract entered into by the parties and awarding amount for deficiency in service to the extent of the liability under taken by the respondent. But in an appropriate case, the Tribunal without trenching upon acute disputed question of fact may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts.’’
13.        On verification of the luggage slip and the Property Irregularities Report it is found that the weight of the lost Baggage was recorded as 15 kg. The O.P.-Airlines offered to pay Rs.3000/- to the complainant as compensation basing on the terms and conditions laid down in The Carriage By Air Act, 1972 which clearly spells out the quantum of compensation in case of loss of checked-in baggage. Keeping the weight of the lost baggage in mind, the O.P.-Airlines paid Rs.3000/- to the complainant as compensation  since, as per rule, the liability of the carrier is limited to Rs.200/- per kg with maximum limit of Rs.3000/-. On examination of the vouchers(Exhibit-1 Series) produced by the complainant it is found that the total price of the ready made garments contained in the lost checked-in baggage is Rs.37,020/-. The complainant has failed to prove by credible evidence that all the items mentioned in the vouchers were booked through the lost checked-in baggage. It may so happen that the complainant might have carried some of the valuable items mentioned in the vouchers through his cabin baggage.
14.        The Hon'ble National Consumer Disputes Redresssal Commission in the judgment passed in MS Emirates Airlines Vrs. Dr. Rakesh Chopra decided on 11th April, 2013 held that “We have also seen the terms and conditions regarding settlement of claims in case of lost luggage as also the relevant provisions of the Carriage by Air Act, 1972. There is, of course, no doubt that based on these provisions of Carriage by Air Act, 1972 the Appellant Airlines had offered to pay the loss, which has been calculated as being 280 US Dollars since these claims are settled on the base of weight and not on the value of the goods that have been lost. The state Commission while taking note of this fact has directed the Appellant Airlines to pay compensation of Rs. 2.00 Lakhs for the deficiency in service as well as for harassment, agony and mental tension caused to the Respondent, which is admittedly not taken into account for settlement of such claims under the Carriage by Air Act,1972 as also the terms and conditions of the Appellant Airlines. We find substance in this finding of the State Commission. In the instant case, due to the negligence and deficiency in service, the Appellant Airlines who was entrusted with the safe custody and delivery of the passengers luggage admittedly failed to do so causing the Respondent, who is a well-known Oncologist, to undergo mental tension, harassment, loss of professional face, apart from the monetary loss. The consumer Protection Act, 1986 has been enacted to give relief to consumers for deficiency  in service, unfair trade practice etc. by service providers, traders, manufacturers etc. and the Hon'ble Supreme Court in The Consumer & Citizens Forum v. Karnataka Power Corporation [1994 (1) CPR 130] has   laid down that the provisions of this Act give the consumer an additional remedy besides those that may be available under other existing laws. In the instant case,  no doubt the Appellant Airlines had sought to settle the consumer's grievance purely in terms of the notional monetary loss suffered by him as per the relevant provisions of Carriage by Air Act, 1972. However, as discussed earlier, because  there was deficiency in service on the part of Appellant Airlines in losing and mishandling the Respondent's luggage, which caused him harassment, agony, mental tension and loss of professional face apart from monetary loss, he is entitled to compensation for this deficiency in service on Appellant's part as per the provisions of the Consumer Protection Act, 1986. Keeping in view these facts, the State Commission has awarded a compensation of Rs.2,00 lakhs. We see no reason to disagree with the compensation awarded, which we feel is fully justified under the circumstances. ”
15.        The Delhi State Consumer Commission in case No- CC-85/1999 held that “the circumstance of not delivering baggage at all or short delivery or late delivery itself amounts to deficiency in service for which consumer is entitled for compensation.’’
16.        In our considered opinion, the ratio of law laid down by the Hon’ble National Commission in the above cited judgment is applicable in the present case.
        From the facts and circumstances of othe case, it has been well proved that due to the negligence and deficiency in service the Spicejet Ltd. who was entrusted with the task of safe custody and delivery of the passengers' baggage admittedly failed to do so causing the complainant to undergo mental tension, harassment, apart from monetary loss, for which he is entitled to compensation.

17.        In the result therefore, the complaint U/S 12 of the Act filed by the complainant is allowed on contest. The O.P.-Airlines is directed to pay a lump sum amount of Rs.25,000/-(twenty five thousand) to the complainant as compensation for causing mental agony and harassment together with a sum of Rs.3,000/-(Three thousand) as costs of litigation. The O.P.-Airlines is directed to pay the said amount within a period of 8(eight) weeks from the date of judgment, failing which the amount payable to the complainant will carry interest @ 9% P.A. till the payment is made in full. This  is in addition to Rs.3000/- offered by the O.P.-Airlines as settlement of the claim basing on the terms and conditions laid down by The Carriage by Air Act, 1972. 

18.                 A N N O U N C E D

 

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

 
SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.    SHRI. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.