Delhi

StateCommission

FA/13/292

BRITISH AIRWAYS - Complainant(s)

Versus

RAMESH C. BHARGAV - Opp.Party(s)

20 Oct 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision: 20.10.2016

1. First Appeal- 292-2013

(Arising out of the order dated 30.01.2013 passed in Complainant Case No.382/2009 by the District Consumer Disputes Redressal Forum (VI), M-Block, Vikas Bhawan, New Delhi)

M/s. British Airways,

DLF Plaza Tower,

DLF City 1,

Gurgaon 122001.

 ….Appellant

Versus

1. Mr. Ramesh C. Bhargava,

S/o Shri Girdhari Lal Bhargava,

R/o Bhargava Estate,

Tuti Kandi,

Shimla-171 004

Himachal Pradesh.

 ….Respondent

2. M/s. Le Travel World (P) Ltd.,

79, UGF, World Trade Center,

Barakhamba Avenue,

Connaught Place,

New Delhi-110 001.

 

3. M/s. American Airlines,

420A-403, 4^th Floor,

Eros Corporate Tower,

Nehru Place,

New Delhi.

•  
•  

 

 

 

 

 

 

 

2. First Appeal- 547-2014

Ramesh Chander Bhargava,

S/o Shri Girdhari Lal Bhargava,

R/o Bhargava Estate,

Tuti Kandi,

Shimla-171004.

 

                                                      ….Appellant

Versus

1. M/s British Airways,

DLF Plaza Tower,

DLF City 1,

•  

….Respondent

2. M/s Le Travel World (P) Ltd.,

79, UGF World Tradle Centre,

Barakhamba Avenue,

Connaught Place,

New Delhi-110001.

 

3. M/s American Airlines,

402A-403, 4^th Floor,

Eros Corporate Tower,

Nehru Place,

New Delhi.

•  
•  

CORAM

Justice Veena Birbal, President

Salma Noor, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. Both these appeals arise out of one order dated 30.1.13 passed by the Consumer Disputes Redressal Forum-VI, M-Block, Vikas Bhawan, New Delhi (in short, the “District Forum”).
2. Appeal No.292/2013 has been filed by British Airways i.e. OP No.1 before the District Forum and Appeal No.547/2014 has been filed by Shri Ramesh Chander Bhargava i.e. complainant before the District Forum against order dated 30.01.2013 by the Ld. District Forum in CC No.382/2009.
3. The relevant facts are reproduced as under:

The complainant had travelled by the flight of OP-1 from New Delhi to London on 7.6.08 and had checked in with two suitcases vide tag No. BA 274040, each weighing 24 kg at Indira Gandhi International Airport, New Delhi. The complainant had alleged that after reaching Heathrow Airport, he received one of the two suitcases.  Efforts were made by the staff present at the Airport to locate the missing suitcase but could not trace the same.  The officers of OP-I at Healthrow Airport gave locator No.LHR-BA 24504 tag to the complainant for missing suitcase and assured that the claim would be settled in 3 weeks.  The complainant had alleged that the missing suitcase was containing address/telephone Notebooks of friends and acquaintances including those where he had to stay at London.  It was alleged that due to loss of suitcase, he had to stay in a hotel in London and an expense of British pound of 750 was incurred by him.  It was alleged that the cost of suit case was Rs.6,000/-.  It was also containing personal belongings inclulding clothings, books etc.  It was also containing set of curtains, the details of which had been given in the complaint.  The complainant had alleged having lodged complaint at Airport and also filled the requisite form for baggage claim but no action was taken.  Accordingly for the deficiency on the part of the OP-1, the complainant had filed a complaint before the Ld. District Forum wherein the claim was made for cost of suitcase/baggage, expenses incurred for stay of Hotel at Hotel, cost of other valuables in the bag.  The complainant had also prayed for compensation for mental torture and litigation cost.  

4. The claim was opposed by the OP-1 by filing written statement.  It was alleged that no prior declaration of contents of the bag was made by the respondent/complainant, as such he was not entitled to compensation as per alleged value of its contents.  It was alleged that the respondent/complainant was entitled for USD 20 per kg.  It was denied that the missing baggage was having items as were alleged.  It was also alleged that the luggage of the complainant was insured and he was not claiming the insurance amount nor was furnishing the insurance documents.  It was alleged that the complainant had not placed on record hotel bills to substantiate that he had stayed in hotel at London as was alleged. 
5. Reply was filed by respondent-5 also i.e. American Airlines, OP-5 before the District Forum wherein it was alleged that for the alleged deficiencies on the part of OP-1, they cannot be burdened. 
6. Rejoinder was filed by the complainant wherein the complainant had controverted and denied the averment made in the written statement of OP-1 and has reiterated the contents of complaint case. The complainant had filed evidence in the form of his affidavit.
7. During pendency of the complaint, Ld. Counsel for the OP-1 had moved an application before Ld. District Forum by alleging that the OP-1 had settled the matter after some negotiations with Shri V.K. Goel, Advocate of the complainant as such complaint be disposed of in terms of settlement.  It was stated that before filing the complaint, said Counsel had sent a legal notice on behalf of complainant. It was alleged that said Advocate had sent several communications to OP-1 on behalf of complainant as such as a gesture of goodwill, the OP-1 contacted the said Advocate, under the impression that he was representing the complainant, for amicable settlement. It was submitted that the said Advocate had settled the matter for a sum of Rs.45,000/- in full and final settlement of the claim and Rs.20,000/- towards the litigation costs and a discharge deed was signed between the parties.  It was also submitted that pursuant to settlement, Rs.20,000/- was paid to the said Advocate towards litigation charges and a cheque of Rs.45,000/- in favour of complainant was also handed over to him. It was argued that since the matter had been settled as per discharge deed dated        24.11.09, the appeal be disposed of in terms of settlement.
8. The complainant had placed an additional evidence in the form of his affidavit whereby the alleged settlement was denied.  The complainant had stated that he had never engaged any lawyer for filing and arguing the case before the Ld. District Forum and was pursuing the case himself.  It was further stated that Shri V.K. Goel, Advocate was not engaged by the complainant for handling the complaint case as such said Counsel was not authorized to enter into any settlement with the OP-1 and the matter was never compromised between parties as was alleged.
9. The Ld. District Forum after hearing the parties allowed the complaint case and held that the complainant was justified in disputing the payments to Shri V.K. Goel, Advocate without his authority and rejected the plea of settlement raised by the OP-1 and ordered it to pay a sum of Rs.1 lac to the complainant.  The relevant finding of District Forum is as under:

“We award Rs.1 lakh, and the OP’s offer of Rs.65,000/- (inclusive of Rs.20,000/- wrongly paid by OP to advocate V.K. Goel) is raised to Rs.1 lakh.”

 

10. As stated above, both the parties have challenged the impugned order by filing separate appeals.
11. Ld. Counsel for the OP has contended that the District Forum failed to take note of the fact that the OP-1 Airline had no reason to believe that Advocate V.K. Goel, who had admittedly sent a legal notice on behalf of the complainant, was not authorized to settle the claim.  It is contended that the District Forum was also not justified in accepting the contention of the complainant that he had to stay in a hotel for five days as no hotel bills were produced by him.  It is contended that the compensation awarded is on very higher side.  It is contended that the complainant was only entitled to USD 20 per kg in accordance with the un-amended provisions of the Carriage by Air Act, 1972.
12. On the other hand, complainant has contended that he had never authorized Advocate who had sent a legal notice to OP-1 to settle on his behalf as such the same is rightly rejected by Ld. District Forum.  It is contended that the compensation awarded is on very lower side.  It is contended that he had spent for hotel stay at London.  It is contended that the cost of goods in the bag was not taken into consideration by the Ld. District Forum.  It is further contended that complainant has suffered harassment and mental agony at the hands of OP-1 due to loss of baggage.  It is contended that in the facts and circumstances of the case, Ld. District Forum ought to have awarded compensation on higher side.
13. We have considered the submissions made and gone through material on record.
14. The contention of the Ld. Counsel for the OP about alleged settlement has been considered. As per material on record, Sh. V.K. Goel, Advocate was engaged by the complainant for serving notice on OP-1 prior to the filing of the complaint. The said counsel was not engaged to appear before the Ld. District Forum for conducting the complaint case nor the complainant had filed the complaint case through the said Counsel. Further, no material is placed on record by the OP-1 to show that the said counsel was authorized to enter into a settlement on behalf of complainant. OP has approached the aforesaid Counsel for settlement despite the fact that his vakalatnama was not on record. The complainant has also denied his signatures on the alleged discharge deed. It is not the stand of OP-1 that complainant signed on the alleged discharge deed in their presence. There is nothing on record to show that Sh. V.K. Goel, Advocate had any authority to settle the matter on behalf of complainant. In these circumstances, if OP-1 had paid Rs. 20,000/- to the said Counsel as is alleged, the complainant can’t be held responsible for the same. The alleged discharge deed/settlement cannot be foisted upon the complainant to defeat his legal right to contest the case. The OP had approached the said Counsel of their own. In these circumstances, Ld. District Forum was justified in holding that the payment was made to the said Counsel without the authority of the complainant. The contention raised by the OP about settlement has no force and is rejected.
15. As regards the contention that the complainant was entitled to USD 20 per KG as per un-amended provisions of the Carriage by Air Act, it may be mentioned that apart from the loss of baggage, the complainant has been caused mental harassment and mental agony at the hands of the OP-1. In Emirates Vs. Dr. Rakesh Chopra, III (2013) CPJ 500 (NC) wherein there was deficiency on the part of Appellant’s Airlines therein in losing and mishandling the luggage which caused harassment, agony, mental tension and loss of professional face, the National Commission held that the consumer therein was entitled to compensation under the Act. The relevant portion of the judgment reads as under:

                “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 The Consumer & Citizens Forum v. Karnataka Power Corporation [1994 (1) CPR 130] has laid down that the provisions of this Act given in 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 national 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 cause 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.”

16. In view of settled legal position, the complainant is entitled for additional remedy of compensation under the Act from OP-1 for having caused mental agony and harassment to him.  The loss of baggage of complainant is admitted by OP-1. Loss of baggage has certainly caused mental agony and harassment to the complainant.  In these circumstances, the contention of OP-1 that respondent is entitled to compensation as per weight of baggage has no force. Simply because no hotel bills are produced is no ground to reduce the compensation. Keeping in mind the totality of facts and circumstances of the case, Ld. District Forum has awarded   the compensation of Rs.1 lac which is just and proper.  Present is not a case for lesser compensation as is alleged by OP-1.  It is not the case of complainant that he made declaration of contents of bag.  In these circumstances, complainant is not entitled for higher compensation as is alleged by him.
17. In view of above discussion, both the appeals i.e. Appeal No. 292/13, M/s British Airways Vs. Mr. Ramesh Chander Bhargava filed by OP & Appeal No. 547/14, Ramesh Chander Bhargava Vs. M/s British Airways filed by complainant stand dismissed.

A copy of this order as per statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. The record of the District Forum be also sent back forthwith. Thereafter the file be consigned to Record Room.