In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 292 / 2007 1) Sri Govind Kumar Shah, Creative Exports, 17/1E, Alipore Road, Kolkata-27. ---------- Complainant ---Verses--- 1) Regional Manager, British Airways, C C U Office, A.P.J. Business Centre, 15, Park Street, Kolkata-700016. 2) Ms. Maxine Hayward, British Airways Place, P.O. Box-5619, Sudbury, Suffolk, Colo 2 P.G., London, U.K. 3) Ms. Amanda Homs, Functional Head, British Airways, D.L.F. Plaza Qutub Enclave, Phase-I, Gurgaon-122002, Haryana. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattacharya, Member Order No. 2 2 Dated 1 1 / 0 2 / 2 0 1 0 . The present case arises out of a Petition of Complaint filed by the Complainant Govind Kumar Shah on 27.08.2007 under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties, viz., O.P. 1, Regional Manager, British Airways, CCU Office, Park Street, O.P. 2 M/s. Maxine Hayward , British Airways Place London, U.K. & O.P. 3, M/s. Amanda Hmos, Functional Head, British Airways, Haryana for issuing a direction upon them to refund ticket value of Rs. 1,21,785/- and Rs. 5,00,000/- as loss of business due to non-availability of samples and Rs. 70,000/- as compensation. The case of the Complainant is that he is the proprietor of Creative Exports and he has been running business exclusively for the purpose of earning of his livelihood by way of self-employment and so he is a consumer as provided under Section 2(d)(i) of the C.P. Act, 1986. On 02.06.2007 he boarded the British Airways Flight being No. BA-147 at Vancouver, London alongwith his baggage where the business textiles samples were in the bag for showing the customers for taking order to supply and export the more profile and highly sophisticated clothes to different companies having the Bag Tag No. BA-442142. The ticket was booked on 30.04.2007 at a fare of Rs. 1,21,745/- paid on 02.06.2007. On 03.06.2007 the Complainant arrived at Calcutta Airport by British Airways Flight No. 147, but the said bag containing textiles samples was not carried in the aircraft. He immediately noticed it and brought it to the knowledge of the BA Authority, but the people kept quiet and verbally informed him that no bag was coming. On 03.06.2007 the BA Authorities informed him that the said non-arrived bag will be delivered on 06.062007, but nothing was done on the part of the British Airways Authorities due to their negligence and deficiency in service. He repeatedly requested them for the recovery of the bag and on 06.06.2007 he received a call from BA Authorities that at about 11.00 a.m. the said bag will be delivered to him at 7.00 p.m. But ultimately the said bag was delivered to him on 07.06.2007 at 1.40 a.m. and on 07.06.2007 he claimed Rs. 6,96,785/- as the cost of loss of business due to non-availability of the bag containing samples, but the O.P. did not respond to it. The O.P. failed to render proper service and as a result he suffered huge business loss. He lodged complaint against the British Airways stating the facts on 14.07.2007 and finding no other alternative he filed this case against the O.Ps. On 24.01.2008 the O.Ps filed their BNA stating therein that there was no deficiency of service on the part of the O.Ps, and they have denied all their liability except delay in delivery of the bag. It is stated that the claim of the Complainant is governed by the Warsaw Convention to which India is one of the signatories, and Article 22 of the Convention limits the liability of the Carriers for registered baggage and it also speaks of the requisite jurisdiction and relaxed the limited liability of the Carrier. The compensation claimed by the Complainant is much higher than the liability fixed by the Convention and is not liable to be paid under the Law. And, if at all, the compensation is to be paid for the delayed delivery of the baggage, and the same will have to be calculated in accordance with the Articles of the Convention. It is also stated that the Complainant ought to have made complaint within 7 days of the receipt of the baggage which the Complainant has not done. The liability of the Carrier is limited to a sum of 250 Francs per kilogram unless the passenger or the consignor has made at the time when the package was handed over to the Carrier. A special declaration of interest delivered at destination and is paid a supplementary sum if the case so requires in case of loss, damage or delay of the part of the registered package the Carrier’s liability is limited shall be only total weight of the package or packages concerned. With reference to Section 3 of the Consumer Protection Act, 1986 it is stated that Section 3 only provides alternative mode by enforcing the right for obtaining redress for the contravention of any provision of the Law and no more. It does not change the substantive Law which limits the award of damage when there is no violation of any obligation or right. They have denied all the allegations in respect of alleged deficiency of service and accordingly they have prayed for dismissal of the case. DECISION WITH REASONS :- Admittedly, the Complainant was a passenger of British Airways and he paid Rs. 1,21,785/- for the flight from London to Calcutta, Annexure-A..The flight reached in Calcutta on 03.06.2007. The main grievance of the Complainant is that the air-craft did not carry his bag bearing Bag Tag No. BA-442142 which contained business textiles samples for showing the customers for taking order to supply and export of the more profile and highly sophisticated clothes to different companies, and as a result he sustained loss of Rs. 6,96,785/-, and his business is exclusively for the purpose of his earning of livelihood by way of self-employment; and accordingly, he has prayed for refund of ticket value of Rs. 1,21,785/-. He has also lodged the Property Irregularity Report (PIR), Annexure-B. And he claims that the bag was not carried in the air-craft from London due to the negligence on the part of the O.Ps. But ultimately the bag was delivered to him on 07.06.2007 at 1.40 a.m., Annexure-C; and he has claimed their cost of ticket of Rs. 1,21,745/-, loss of business due to non-availability of samples of Rs. 5,00,000/-, compensation towards cost of important things Rs. 75,000/- making a grand total of Rs. 6,96,745/-. There is a discrepancy of his amount of claim in the Petition of Complaint. He has claimed Rs. 6,96,785/- in Annexure-C, the sum is Rs. 6,96,745/. In the prayer of the Petition of Complaint the value of ticket is Rs. 1,21,785/-, but in Annexure A, it is Rs. 1,21,745/-. We have also perused his letter dated 07.06.2007 addressed to the O.P. 1 on the subject of claim for non-arrival of bag causing harassment and loss of business profit, Annexure-D, wherein he has ventilated all his grievances for non-arrival of the bag in question. We have also perused his letter dated 18.06.2007 addressed to the O.P. 1 containing the same subject and adding therein ;his surprise that inspite of causing great inconvenience to the Complainant the O.Ps have not expressed their regret nor even they tendered apology for causing such inconveniences to the Complainant, Annexure-E. We have also noted the contents of his letter dated 25.06.2007, Anexure-F. In the Written Statement the O.Ps have mentioned the Warsaw Convention as amended in 1955 and by Protocol No. 4, 1975. It is to be noted with high seriousness that Warsaw Convention does not speak of repudiation or denial of damage, on the contrary it is the characteristic of Warsaw Convention that compensation to a limited extent in respect of registered bags is permissible to be given for the delayed delivery of the goods and the same will have to be calculated in accordance with the Articles of Convention provided the requisite criteria for payment are fulfilled. The Complainant booked the air ticket on 30.04.2007 from Vancouver, London to Calcutta in Flight No. BA-147 on payment of fare of Rs. 1,21,745/- on 02.06.2007 and the flight landed at Calcutta Airport on 03.06.2007 and according to the Complainant the air-craft did not carry his bag containing textiles samples. He made several complaints. He lodged the PIR on 03.06.2007 and the bag was delivered to him on 07.06.2007 and on 07.06.2007 he also informed it to O.P. 1 vide Annexure-D, and thereafter also on 18.06.2007 he also made similar complaint, Annexure-E etc. The Complainant has prayed for refund of his ticket value of Rs. 1,21,745/-. There is no denial of the fact that he did not complete the journey or there was any deficiency of service on the part of the O.Ps with regard to completion of his journey/flight from London to Calcutta, so the Complainant enjoyed the journey. And accordingly, there is no deficiency of service with regard to completion of the journey. So the Complainant cannot claim the refund of ticket value. It is also admitted that the bag was delivered to the Complainant, but as the bag containing the textiles samples for showing the customers for taking order to supply and export to the more profile and highly sophisticated clothes to different companies. The Complainant has claimed compensation of Rs. 5,00,000/- for non-availability of samples contained in the bag and he has also claimed Rs. 70,000/- for his mental harassment. We have already pointed out that the Warsaw Convention does not deny or repudiate the compensation but with certain limitations. We have also perused the Evidence on Affidavit dated 29.05.2008 of the Complainant wherein he has stated the fact of his journey from London to Calcutta and he found in Calcutta Airport that his bag containing textiles samples were not carried in the air-craft. And he has also stated therein that he lodged PIR immediately and thereafter also on several dates he ventilated his grievances by sending letters to O.P. 1. We have also perused the Evidence on Affidavit by O.P. No. 1 & 2 wherein they have stated that they have denied that the Complainant is a consumer and that they are the service provider. There is no denial of the fact that the Complainant is a bonafide passenger in the British Airways on payment of correct value of the ticket. So, it cannot be said that British Airways is not the service provider to the Complainant. Moreover, the Complainant has repeatedly pointed out in his Petition of Complaint that he was carrying bag containing textiles samples for showing to different customers and this is for his livelihood and this is for his self-employment. So it cannot be said that he is not a consumer and the O.Ps are not service provider. When the bag was delivered and when the Complainant had lodged PIR for the loses of the bag and ultimately when the bag was delivered to him it cannot be said that the present case is an attempt to extort money from the O.P. Nos. 1 & 2 as stated in paragraph No. 9 of the Evidence of O.P. Nos. 1 & 2. It is needless to say that the bag was not carried in the air-craft because the Complainant reached at Calcutta Airport on 03.06.2007 and the bag was delivered to him on 07.06.2007 at 1.40 a.m., vide Annexure-C. It is the bone of contention of the Complainant that for the delayed supply of bag to him he sustained loss and those textiles business is for maintaining his livelihood. We have also perused the BNA filed by the Complainant on 22.05.2009 wherein he has also stated that he is proprietor of Creative Exports and he runs that business exclusively for the purpose of his livelihood by way of self-employment. The aircraft authority took the responsibility of carrying not only the passengers but the goods alongwith the passengers. The Warsaw Convention never speaks that the passengers are not entitled to claim for compensation of the goods rather it is mentioned in the Warsaw Convention that for delayed delivery of the goods (viz., here the baggae), the passengers are entitled to get compensation with certain limits. We have also perused the judgement in 1st Appeal No. 451 of 1994 of the Hon’ble National Consumer Disputes Redressal Commission dated 20.04.2001 on the matter of delayed delivery of consignment in a case of States Consumer Disputes Redressal Commission, Tamiln adu judgement dated 29.04.1994 wherein Hon’ble National Commision has also referred to the provisions of Warsaw Convention. In the judgement referred to above the Hon’ble National Commission have considered a lot of cases and after considering the decisions of all those cases and for rendering equitable justice the Hon’ble National Commission was pleased to pass the Order as “The Respondent-Complainant would be entitled to relief of US$4,180 @ US$20 per kg.for its weight of 209 kgs of cargo.” In view of this position we are of the opinion that as the Complainant satisfactorily completed his journey from London to Calcutta he is not entitled to get the value of air ticket, but for his delayed delivery of the bag which caused loss of his business for his maintaining livelihood he is entitled to get some relief from this Forum. Hence, ordered that the Petition of Complaint is allowed on contest with cost against the O.Ps. O.Ps are directed to pay compensation of Rs. 1,00,000/- for loss of business of the Complainant for maintaining his livelihood, and Rs. 15,000/- as compensation for his mental harassment and agonyt, jointly or severally, positive ely within 45 days from the date of communication of this Order failing which it will carry interest @ 10% per annum till final realization. Fees paid are correct. Supply Certified Copy of this judgement to the Petitioners on payment of prescribed fees. _____Sd-_______ ______Sd-_________ MEMBER PRESIDENT |
