DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                  .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                            ..… MEMBER-I

                 THIRU.P.MURUGAN,M.Com.,ICWA (Inter),B.L.,                                                 ....MEMBER-II

CC. No.70/2022

THIS TUESDAY, THE 13th DAY OF SEPTEMBER 2022

 

Mr.P.Sundar, S/o.Periaswamy Nadar,

Timber Tiles Merchant,

Serman Kovil Road, 

Eral, Thoothukudi District.                                                             ……Complainant.

                                                                            //Vs//

M/s.Indigo Airlines,

Rep. by its Manager,

144/145, Malavika Centre,

Kodambakkam High Road,

Nungambakkam, Chennai -600 034.                                             …..opposite party.

 

Counsel for the complainant                :   M/s.S.Agalya, Advocate.

Counsel for the opposite party            :   M/s.S.Ramasubramaniam & Associates.

 

This complaint is coming before us on various dates and finally on 23.08.2022 in the presence of  M/s.S.Agalya, Advocate counsel for the complainant and M/s.S.Ramasubramaniam & Associates counsel for the opposite party and upon perusing the documents and evidences produced by both parties this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 2019 alleging deficiency in service on the part of the opposite party in the matter of loss of baggage while traveling in the opposite party’s Airlines along with a prayer to direct the opposite party to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of the proceedings to the complainant.

Sum and substance of the complaint:-

 

The complainant and his uncle travelled on 26.05.2018 to Mumbai along with black colour bag containing cloths, Gold ring and return train tickets.  When the bag was sent to luggage room it was informed to the complainant that the said luggage would reach at Mumbai safely and the complainant could collect the luggage at Mumbai Airport. But the luggage bag had not reached Mumbai Airport on 26.05.2018.  Hence the complainant enquired the same with the General Manager, Mumbai International Airport private Limited for which they replied that the baggage would be received within three hours from Chennai Airport and asked him to wait for three hours.  But, after lapse of so many hours, the said baggage had not reached Mumbai Airport.  Hence, they gave a Property Irregularity Report (PIR) under file No.491 to the complainant. As soon as the complainant reached Chennai he enquired about his lost baggage with the Senior Manager, Airport Operations, Intergloble Aviation Limited, (Indigo), Chennai Airport, Chennai and the Public Grievance Officer, Chennai International Airport, Chennai but they have not replied in proper manner and evadingly they represented that the Mumbai Airport Authorities are liable and responsible for the lost bag.  When the complainant enquired about the lost bag with Mumbai Airport Authorities, they replied that Chennai Airport Authorities are liable and responsible for the lost bag. Thus aggrieved by the act of the opposite party the present complaint was filed to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of the proceedings to the complainant.

Defence of the opposite party:-

Contenting that there is no deficiency in service the opposite party filed version stating inter alia that the complainant was trying to mislead this commission by concealing material facts that an offer for Rs.3500/- was paid by the staff of Inter Globle Aviation Limited at the Airport to the complainant in lieu of the lost baggage in compliance with applicable law and binding condition for Carriage applicable to the journey. It was submitted that the company which undertakes scheduled commercial flights within India and to certain destinations abroad was registered under the corporate name Inter Globe Aviation Limited.  Therefore, to the extent that the complainant has been instituted against Indigo Airlines was defective. It was manifest that in cases of loss of checked-in baggage, the liability of InterGloble Aviation Limited was limited to a maximum of INR 20,000/- in the absence of a prior special declaration as to the value of baggage made by the complainant in terms of Rule 22(2) of the Third Schedule of the Carriage by Air Act, 1972. It was manifest that the complainant was, at the time of check-in, under an obligation to disclose beforehand any alleged valuable and perishable articles being carried by him in his checked in luggage and pay an additional charge after disclosing the value of such articles.  However, as per the records of InterGlobe Aviation Limited, the complainant had made no such prior disclosure or payment towards the value of his baggage. The liability of InterGloble Aviation Limited was restricted to the statutory limit prescribed by the carriage by Air Act, 1972 and also the contractually agreed capping. Indigo CoC limits the liability of InterGlobe Aviation Limited and as per the IndiGo Coc the liability in case of loss of baggage was fixed at INR 350/- per Kilograms.  InterGlobe Aviation Limited accordingly offered to pay INR 3500/- to the complainant since the baggage weighted 10kgs. The complainant was strongly advised not to carry and valuable items in his checked-in baggage and the complainant had agreed to carry any valuable items in the checked-in baggage, at his own risk.  It was further submitted that there was no cogent evidence submitted by the complainant that he has been carrying all the valuable items as alleged to have been lost. The personnel of InterGlobe Aviation Limited raised a Property Irregularity Report (PIR) in order to investigate and record the allegations of the complainant in respect of the lost baggage of the complainant.  Further, all necessary steps were taken by the staff of InterGlobe Aviation Limited to locate the said baggage, including issuance of urgent tracers to all stations that would have handled the baggage of the complainant but without any success. That despite the best efforts by the staff of InterGlobe Aviation Limited to trace the said missing baggage, the said baggage could not be found.  Accordingly, the staff members of InterGlobe Aviation Limited offered the complainant an amount of INR 3,500/- in accordance with the compensation provided statutorily and as per the contract between the complainant and InterGlobe Aviation Limited as discussed.  However, the said amount was refused by the complainant. Thus disputing all the allegations of the complainant, opposite party sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A8 were marked on their side.  On the side of opposite party proof affidavit was filed and documents Ex.B1to Ex.B6 were marked. 

 Points for consideration:

Whether the alleged deficiency in service on the part of the opposite party in not tracing out the baggage and not in paying adequate damages for the lost bag containing a Gold Ring has been proved by the complainant successfully by admissible evidence?

If so to what relief the complainant is entitled?

 

 

Point No.1

On the side of the complainant following documents were filed in support of his allegations; 

Indigo Airline ticket for P.Sundar dated 25.05.2018 was marked as Ex.A1;

PIR copy was marked as Ex.A2;

Legal notice sent by the complainant to the opposite party dated 28.10.2018 was marked as Ex.A3;

Reply notice sent by the opposite party to the complainant dated 29.10.2018 was marked as Ex.A4;

Legal notice sent by the complainant’s counsel to the opposite party’s advocate dated 12.11.2018 was marked as Ex.A5; 

Reply notice given by the opposite party to the complainant’s counsel dated 22.11.2018 was marked as Ex.A6;

Legal notice sent by the complainant’s counsel to the opposite party dated 07.12.2018 was marked as Ex.A7;

Reply notice given by the opposite party to the complainant dated 27.12.2018 was marked as Ex.A8;

On the side of opposite party the following documents were filed in support of their defence;

Letter of Authorization along with Board Resolution dated 30.08.2018 was marked as Ex.B1;

Certificate of Incorporation of Opposite party dated 11.08.2006 was marked as Ex.B2;

Notification No.S.O.142(E) dated 17.01.2014 was marked as Ex.B3;

Conditions of carriage of opposite party was marked as Ex.B4;

Property Irregularity Report dated 26.05.2018 was marked as Ex.B5;

Certificate by way of Affidavit U/S 65-B of the Indian Evidence Act, 1872 dated 04.06.2019 was marked as Ex.B6.

It is represented by the counsel for the complainant that the written arguments may be treated as oral arguments and hence we perused the pleadings and documents produced by both the parties and upon hearing the oral arguments of the opposite party we decided to adjudicate the complaint on merits.

The crux of the written arguments filed by the complainant is that on complainant and his relative travel from Chennai to Mumbai with the opposite party’s Airlines on 26.05.2018, he had lost his black colour baggage containing cloths, Gold ring and return trains tickets. The bag was sent to the luggage room at Chennai Airport but the complainant did not receive the same at Mumbai Airport in spite of waiting for long time as insisted by the General Manager, Mumbai International Airport. A Property Irregularity Report under file No.491 was also given to the complainant by the opposite party for loss of baggage.  Even when the complainant enquired on return to the Chennai the opposite party did not reply in a proper manner and both the Chennai Airport Authorities and Mumbai Airport Authorities blame each other for the lost baggage.  The opposite party offered to pay Rs.3,500/- for the lost baggage of 10kg. Whereas, the lost gold ring itself was worth of Rs.25,000/-.  Further due to the loss of baggage and loss of gold ring the complainant had lost his prestige since he was forced to attend the marriage without any gift to the groom. The opposite party had limited their liability to the extent of Rs.350 per kg.  As per the ruling by the National Consumer Disputes Redressal Commission and State Consumer Disputes Redressal Commission it has been held in many cases that the compensation has to be paid according to the hardship suffered by the complainant. Thus the complainant prayed for the complaint to be allowed.

The counsel for the opposite party argued that during travel only 7 kg was permitted in hand baggage and as per the condition of carriage by the opposite party, customers are strongly advised not to keep in such items in baggage which by their very nature is valuable or fragile.  If such items are kept in baggage, Customers send it on their own risk.  Certain items include, without limitation, money, jewellery, silverware, electronic devices, medicines, perishable goods, computers, cameras, video equipment, negotiable papers, securities and other valuables, passports and other identification documents, title deed, artefacts, manuscripts and indigo shall not accept any responsibility for such items carried by the customers in their baggage.  Thus jewellery being a valuable item should not be carried in check in baggage.  Further he should have removed it before conversion of the hand bag into check in baggage. No documents was produced for the presence of gold ring in the bag by the complainant.  It was argued that the liability for loss, delay or damage to baggage was limited under the provisions of carriage by Air Act, 1972 and the rules framed there under with certain exceptions, adaptations, modification etc., as notified by the Ministry of Civil Aviation, Government of India as amended from time to time.  Indigo’s liability for damage to baggage will be reduced by any negligence on part of the customers, which causes or contributes to the damage in accordance with the applicable law. Customers are solely responsible for carriage of their hand bag/ personal belongings and indigo will not be liable for any damage of their hand baggage and Indigo’s liability for loss or damage to check in baggage was INR 350/- per kg. He also cited the decision rendered by the Hon’ble Supreme Court of India in M/s.InterGlobe Aviation Limited Vs N.Satchidanand, (2011)7SCC463 it has been held that 

“31...Placing the conditions of carriage of the website and referring to the same in the e-ticket and making copies of conditions of carriage available at the Airport counters for inspection is sufficient notice in regard to the terms and conditions of the carriage and will bind the parties.  The mere fact that a passenger may not read or may not demand a copy does not mean that he will be bound by the terms of tract of carriage.  We cannot therefore, accept the finding of the High Court that the terms relating to exclusive jurisdiction should be ignored on the ground that the passengers would not have read it.”

Thus he argued that the valuable jewellery was carried by the complainant in violation of terms and conditions and it cannot be said that the complainant not aware of terms and conditions.  Hence argued that there is no deficiency in service on their part and he sought for the complaint to be dismissed.

On appreciation of the entire material evidences produced by both parties this commission is of the view that the defence of the opposite party seems to be acceptable for the following reasons;

Complainant is at fault in carrying the valuables (Gold ring) in check-in-baggage.  He should have carried it in hand baggage.  Hence, carrying it in check in baggage amounts to carrying the same at his own risk.

Further no proof was submitted by the complainant to show that the Gold Ring was present in the lost baggage;

Also there is no proof to show that the valuable of Gold Ring was worth more than Rs.25,000/-;

There is no basis for the claim of Rs.1,00,000/- made by the complainant;

Complainant is bound by the terms and conditions of the travel agency. 

Thus, as per the existing statutory rules the opposite party is liable only for Rs.3500/- and thus the complainant cannot claim any excess amount from the opposite party. In the facts and circumstances we hold that the complainant has failed to prove any deficiency in service on the part of the opposite party as they are liable to pay the damages only in accordance with the applicable Rules and terms and conditions.  Thus we answer the point accordingly in favour of the opposite party and as against the complainant.

Point No.2:

As we have already held above that the complainant had failed to prove any deficiency in service on the part of the opposite parties, he is not entitled to any reliefs as claimed in the complaint from the opposite parties.  Thus we answer the point accordingly.

In the result, the complaint is dismissed.  No order as to cost. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 13rd day of September 2022.

 

     -Sd-                                                       -Sd-                                                         -Sd-

 MEMBER-II                                     MEMBER-I                                          PRESIDENT

 

 

List of document filed by the complainant:-

 

 

Ex.A1 25.05.2018 Indigo Airlines Ticket for P.Sundar. Xerox

Ex.A2 26.05.2018 PIR Copy. Xerox

Ex.A3 28.09.2018 Legal notice sent by the complainant to the opposite party. Xerox

Ex.A4 29.10.2018 Reply notice given by the opposite party to the complainant. Xerox

Ex.A5 12.11.2018 Legal notice sent by the complainant’s counsel to the opposite party. Xerox

Ex.A6 22.11.2018 Reply notice issued by the opposite party to the complainant. Xerox

Ex.A7 07.12.2018 Legal notice sent by the complainant tot he opposite party. Xerox

Ex.A8 27.12.2018 Reply notice given by the opposite party to the complainant. Xerox

 

List of documents filed by the opposite party:-

 

Ex.B1 30.08.2018 Letter of authorization along with Board Resolution. Xerox

Ex.B2 11.08.2006 Certificate of Incorporation of Oppostie party. Xerox

Ex.B3 17.01.2014 Notification No.S.O.142(E). Xerox

Ex.B4 …………….. Conditions of carriage of opposite party. Xerox

Ex.B5 26.05.2018 Property Irregularity Report. Xerox

Ex.B6 04.06.2019 Certifice by was of Affidavit U/S 65-B of the Indian Evidence Act, 1872. Xerox

 

 

 

      -Sd-                                                            -Sd-                                              -Sd-

   MEMBER-II                                            MEMBER-I                                 PRESIDENT