STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(First Appeal No.248 of 2010)

Lufthansa German Airlines, 12^th Floor, DLF Building No.10, Tower B, DLF City, Phase-II, Gurgaon, Haryana 122002.

…… Appellant.

V E R S U S

1]     Sh. Prateek Chaddha, R/o H.No.2244, Sector 19-C, Chandigarh.

2]     City Centre Bird Wings, SCO No. 55-56, Sector 17-C, Chandigarh.

3]     M/s Seherman Baggage & Parcel Service Carrier & Cargo, Airport Office, Room No. 23, Terminal No. 2, Indira Gandhi International Airport, New Delhi – 37.

…… Respondents.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:      HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Sandeep Suri,  Adv. for the appellant.

                   Sh. R.M. Dutta, Adv. for respondent No.1

                   Respondent No.2 exparte.

                   Respondent No.3 (service dispensed with vide order dt.5.4.2011)

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.                           This appeal is directed against the order dated 27.4.2010, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it accepted the complaint, and directed the OPs to reimburse Rs.46,050/-, as claimed by the complainant, and Rs.10,000/- as cost for deficiency, in service, as also costs of litigation.  It was further directed that the amount be paid within a period of six weeks from the receipt of certified copy of the order, failing which the entire amount of Rs.46,050/- alongwith interest @ 12% per annum was to be paid from the date of filing the complaint i.e. 4.3.2009, till the amount was actually realized, besides the cost of litigation.

2.                           The facts, in brief, are that the complainant was traveling to New Delhi by Lufthansa Airlines from JFK-Kennedy Airport on 16.11.2008 and when he arrived at New Delhi Airport on 17.11.2008, he found his baggage missing.  The complainant filed a Property Irregularity Report with Lufthansa Airlines on 17.11.2008. When the baggage was delivered to the Complainant, he found the following articles missing therefrom, the value whereof was Rs.46,050/-.

a)    Mobile Phone Set with Charger Model 1450 with active phone No.001305213058 Rs.13,100/-.

b)    2 pair of new sports shoes Reebok Rs.10,000/-.

c)    2 wrist watches Tommy Hilfiger make & Titan Rs.6800/-.

d)    2 pair of Sunglasses ESIPIRIT & Anr. Rs.7250/-.

e)    2 new shirts bought in USA for father Rs.2300/-.

f)       2 bottles of perfumes Hohn Vervatose & Versace packed for Sister Rs.6600/-.

It was stated that the OPs were deficient, in rendering service, as also indulged into unfair trade practice, by not settling the claim of the complainant.  When the grievance of the complainant was not settled, left with no option, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed.

3.                           OP-1 refused to accept the service of summons.  It was, thus, declared to be duly served and as no one appeared on its behalf, it was, accordingly, proceeded against exparte.

4.                           Summons were sent to OP-4, a number of times.  It was duly served in November, 2009.  None appeared on behalf of OP-4 and it was proceeded against exparte on 23.11.2009.

5.                           OPs No. 2 & 3, in their joint reply, admitted that the complainant had travelled in their flight on 15.11.2008 from New York, USA to New Delhi. It was admitted that while boarding the flight, he had checked-in baggage with the airline. On arrival, the complainant had found that the checked-in baggage had not arrived. It was stated that the complainant lodged a Property Irregularity Report with the OPs at New Delhi Airport. Immediately, after receiving the complaint, of missing baggage, the staff of the OPs had swung into action and initiated steps to trace the missing baggage of the Complainant. Subsequently, the missing baggage of the complainant, was delivered to him, duly locked, and packed, in a perfect and sound condition, at his residence, on the very next day, i.e. 18.11.2008, by OP No. 4. The Complainant accepted the baggage, without any protest. It was further stated that there was no damage to the baggage, since the locks thereof were intact. It was further stated that the complainant had neither disclosed, at the time of checking-in the baggage, at New York Airport, that it contained any valuable items, nor did he pay any supplementary sum, for the alleged valued items. It was further stated that, under these circumstances, the OPs were not liable to pay any compensation, for the alleged loss of items, as per General Conditions of Carriage (Passenger & Baggage), Annexure R-2.   It was further stated that there was no deficiency, in service, on the part of the OPs, nor did they indulge into unfair trade practice.  The remaining averments, were denied, being wrong.  

6.                           After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum accepted the complaint, in the manner, referred to, in the opening para of this order.

7.                           Feeling aggrieved, the instant appeal was filed by the appellant/OP-2.

8.                           We have heard the Counsel for the appellant, respondent No.1 and have gone through the evidence, and record of the case, carefully. 

9.                           The Counsel for the appellant, submitted that there was no negligence, on the part of the appellant.  He further submitted that, no doubt, the complainant/respondent No.1 travelled in their airlines upto Delhi with baggage, which was checked in. He further submitted that when he alighted from the plane, at New Delhi, his baggage was found missing.  He further submitted that immediately on the submission of the Property Irregularity Report, by the complainant on 17.11.2008, when he alighted, from the plane, at New Delhi Airport, the officials of the appellant, swung into action and traced his lost baggage, and delivered the same to him on 18.11.2008, i.e. on the next day at Chandigarh, duly locked and in a perfect and sound condition. He further submitted that the complainant accepted the baggage, without any protest.  He further submitted that there was no damage to the baggage.  He further submitted that, at the time of checking in the baggage, when the complainant boarded the flight, he did not disclose the alleged valuable articles, which were lying in the same, which were later on found to be allegedly missing.  He further submitted that, as such, the District Forum was wrong in coming to the conclusion, that the appellant was deficient, in rendering service, or indulged into unfair trade practice.  He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 

10.                       On the other hand, the Counsel for the respondent, submitted that the baggage was not delivered, to the complainant, on 17.11.2008, when he alighted from the flight, at the airport at New Delhi.  He further submitted that the baggage contained valuable articles worth Rs.46,050/-.  He further submitted that, no doubt, the baggage was delivered on the next day, i.e. 18.11.2008, at his residence at Chandigarh.  He further submitted that the articles worth Rs.46,050/- were found to be missing from his baggage. He further submitted that a lot of harassment and mental agony was caused to the complainant on account of loss of his baggage, for one day, and late delivery thereof. 

11.                       After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in our considered opinion, the appeal deserves to be accepted, for the reasons to be recorded hereinafter.  There is, no dispute, about the factum, that the complainant travelled, in the Airlines of the appellant.  There is also, no dispute, about the factum, that he checked in baggage, without declaring the contents thereof, at the place of departure i.e. New York Airport.  Undisputedly, when he alighted from the plane, on the termination of his journey on 17.11.2008, at New Delhi airport, his baggage was found missing.  The officials of the appellant, swung into action, as soon as a report , with regard to the same, was made by the complainant on 17.11.2008.  With their best efforts, they located the baggage, and, considering that it was their responsibility, to deliver the same, to the complainant, they did so by delivering the same at his residence at Chandigarh on 18.11.2008. The baggage, when delivered to the complainant/respondent No.1, on 18.11.2008 at Chandigarh, at his residence, by OP-4 was sealed and shrink wrapped, as is evident from delivery receipts C-12 and C-13.  The complainant accepted the baggage, without any protest, demur or objection. Had the complainant been not satisfied, he would have certainly opened the baggage, in the presence of the representative of OP-4, who came to deliver the same, and after checking the articles contained therein, could certainly raise an objection/protest, that some items were missing therefrom. As stated above, he did not do so. Even the complainant did not file his affidavit, by way of evidence, regarding the alleged loss of valuable articles, from the baggage, when it was delivered to him on 18.11.2008. The affidavit of his father, by way of evidence, in this regard, is of no consequence, as he had no personal knowledge, regarding the alleged loss. His affidavit is based on hearsay, in other words, as to what was told to him, by his son. As such no reliance, on the affidavit of the father of the complainant can be placed. No other evidence, regarding the alleged loss of articles from the baggage, was produced by the complainant. In Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) I SCC 66, it was held as under:-

“If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in course and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act”

12.                       There was no damage to the baggage, as the same was sealed and shrink wrapped.  Had the officials of the appellant, not swung into action, immediately, it would not have been possible for them, to locate the baggage of the complainant, within a day.  When the baggage was sealed and shrink wrapped and was in perfect and sound condition, at the time of acceptance of the same by the complainant, without any protest, it could not be said that there was any deficiency, in rendering service, on the part of the OP.  Article 14.4.2 of the General Conditions of Carriage (Passenger and Baggage) R-2, reads as under :-

“In case of a baggage delay we are liable for damage unless we took all reasonable measures to avoid the damage or it was impossible to take such measures. The liability is limited to 1,000 SDRs (approximate 1.220 EUR).”

The plain reading of this clause, clearly goes to show, that on account of delay of baggage, the airline was liable for damage caused to it, unless it took all reasonable measures to avoid the same.  The airlines, in this case, took all possible measures, to avoid damage to the baggage.   As stated above, the officials of the airlines swung into action on 17.11.2008 itself and located the baggage on the same day, and delivered the same, in a sealed and shrink wrapped condition on 18.11.2008. The principle of law, laid down, in Ravneet Singh Bagga`s case (supra), is fully applicable to the instant case.

13.               Even, the complainant, did not furnish any declaration at the time of boarding the plane and checking in the baggage,  as to what was the description of the alleged valuable articles, contained in the same.  Since, neither the goods, contained in the baggage, nor the value thereof, was declared, at the time of checking in, by no stretch of imagination, it could be said, that the value of the goods which were allegedly lost was Rs.46,050/-.  No evidence to support the claim, that the goods, contained in the baggage, which were allegedly lost,  amounted to Rs.46,050/-, was produced by the complainant. Article 14.3.2 of the General Conditions of Carriage referred to above, reads as under:-

“A passenger can take benefit from a higher liability limit by making a special declaration at the latest at check-in and by paying a supplementary fee”

As stated above, no such declaration at check-in, was furnished by the complainant nor any supplementary fee was paid by him. Firstly, no damage was proved to have been caused, to the baggage of the complainant, and, secondly he did not furnish any declaration at check-in nor paid the supplementary fee, he could not take any benefit from Articles 14.4.2 and 14.3.2 of the General Conditions referred to above. When the baggage was delivered to the complainant on 18.11.2008, in a sealed and a perfectly safe and sound condition, on account of the diligent efforts of the staff of the Airlines, with prompt despatch, it can be held that the OPs were neither deficient in rendering service nor indulged into unfair trade practice. The District Forum was, thus, wrong in holding that the OPs were deficient, in rendering service.  The District Forum, did not properly appreciate the facts and circumstances of the case, and the evidence on record.  The order of the District Forum, being illegal, is liable to be set aside.

14.               The Counsel for the respondent/complainant, however, placed reliance on Kyrgyzstan Airlines Vs. Ramesh Behl-I(2002) CPJ 108 (Punjab State Commission), Air Decan (Decan Aviation Ltd.) & Anr. Vs. Jyoti Swaroop Sharma & Ors.-II (2009) CPJ 101(Rajasthan State Commission) and British Airways Vs. Nand Gopal Gandham-III (2006) CPJ 138 (Delhi State Commission) in support of his contention that even delivery of baggage, after one day, amounted to deficiency in service.  In Kyrgyzstan Airlines Vs. Ramesh Behl’s case (supra), the baggage was not delivered at the destination.  It was wrongly sent back to New Delhi instead of Birmingham from Bishkek. It was delivered after about 8 days in a damaged condition.  In these circumstances, it was held that the airline was grossly negligent and deficient in service. In Air Decan (Decan Aviation Ltd.) & Anr. Vs. Jyoti Swaroop Sharma’s case (supra), the baggage was delivered late.  It was held by the State Commission that hardship, discomfort and disappointment was suffered by the complainants, as they were deprived of the use of the goods and were not in a position to proceed further for want of necessary goods.  In British Airways Vs. Nand Gopal Gandham’s case (supra), the baggage, which was lost, contained important business documents, and house keys. The complainant was forced to miss the business meetings, and could also not go to his house.  It was, under these circumstances, held that since the baggage was delivered late to the complainant, as a result whereof, he was harassed, the compensation was granted.  The facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case.  In the instant case, the baggage, in safe condition, duly sealed, was delivered to the complainant/respondent on the next day.  The complainant/respondent proceeded to Chandigarh from Delhi, where he was residing, on the same day; after he alighted from the plane at New Delhi airport.  There is nothing, on record, that he missed the business meetings, or was deprived of going to his residence, at Chandigarh, on account of non-delivery of baggage to him on 17.11.2008. Even otherwise, in view of the principle of law, laid down, in Ravneet Singh Bagga`s case (supra) decided by the Apex Court, the principle of law, laid down, in the cases relied upon by the Counsel for the complainant/respondent No.1, decided by various State Commissions, shall not hold the field. In these circumstances, in the instant case, there was no deficiency, in rendering service, on the part of the appellant.  The facts and circumstances of the aforesaid cases, being distinguishable, no help can be drawn by the respondent therefrom.

15.                       The order of the District Forum, being illegal, is liable to be set aside.

16.                       For the reasons recorded above, the appeal, is accepted, with no order as to costs. The order impugned is set aside. The complaint shall stand dismissed.

17.                       Copies of this order be sent to the parties free of charge.

Pronounced.

17^th May 2011.

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

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