Order dictated by:
Sh.S.S.Panesar,President.
- Ms.Tripta Thakur complainant has filed the present complaint under section 12 & 14 of the Consumer Protection Act on the allegations that complainant booked the Singapore Airlines vide ticket No. 618892307025403 and took the flight from Melbourne to Singapore and then Singapore to Delhi (Indira Gandhi International ), Terminal No.3, Economy class. Complainant also deposited her luggage in the Air cargo. When complainant boarded herself in the plane , she was having her personal baggage in which her articles i.e. one phone, diamond set, three gold chain weighing 3 tola, two gold karas weighing 2 tola, three ladies gold rings weighing 2.5 tola, Nosepin weighing 1 tola (in all near about 8.5 tola gold) and some clothes. Complainant was asked by the officials of the opposite party to hand over the baggage which is required to be placed over in the air cargo. When complainant reached at Indira Gandi International Airport, New Delhi, she found her luggage but the baggage was missing/mishandled. The complainant contacted the officials of the opposite party and requested them to search the same as there are various valuable things in the said baggage, but the same could not be found by the officials of the opposite party. Complainant time and again requested the officials of the opposite party but to no avail . After that one of the senior officer of the opposite party contacted the complainant and requested her to proceed to her residence and whenever the baggage shall be handed and traced out, they shall give intimation on her mobile . Believing the assurance, the complainant reached at her residence at Amritsar. On the next day complainant received a mobile call from 09312159143 of Mr.Rajinder Prashad of M/s. Shri Sai , who stated that “ your mishandled baggage reference No. DELSQ23612 has been searched and now he wants to give the delivery of the same.” On 22.8.2015 at 3.00 p.m said Rajinder Prashad reached at Amritsar and complainant was called by said Rajinder Prashad at Bus Stand, Amritsar. The baggage which was sealed by plastic by Airlines was opened in the presence of complainant and said Rajinder Prashad. When the same was opened complainant found that her valuable items i.e. jewellery and one phone of Apple were missing from the bag and there was only one jean and top, one HDFC mobile phone and Rs. 5000/- were lying in the bag. The complainant gave note on the acknowledgement form on 22.8.2015 which was duly signed by the complainant and said Rajinder Prashad . Thereafter complainant contacted opposite parties No.1 & 2 on various occasions and also contacted M/s. Aaryam Leisure and Holidays at Amritsar and told them the she has suffered a loss to the tune of more than Rs. 3.5 lacs and thus the services rendered by Singapore Airlines were ineffective and dissatisfactory. But no response was given by opposite parties No.1 & 2. Complainant also served a legal notice on 13.1.2016 but till date her genuine request has not been considered by the opposite party. The complainant has sought for following reliefs vide instant complaint:-
- Opposite parties be directed to pay Rs. 3.5 lacs to the complainant for the costs of times missing from the baggage of the complainant.
- Compensation to the tune of Rs. 1 lac alongwith litigation expenses to the tune of Rs. 15000/- may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice opposite parties No.1 & 2 appeared and contested the complaint by filing joint written version taking certain preliminary objections therein inter alia that the instant complaint is misconceived, gross abuse of the process of law, false and frivolous and the same is liable to be dismissed ; that complaint is devoid of any valid cause of action. Admittedly the dispute raised by the complainant in the present complaint is governed by the ‘Carriage by Air Act, 1972’ and in view of the provisions enumerated in the said Act, especially in Chapter III of First Schedule, this Forum has no jurisdiction to try and entertain the present complaint; that the answering opposite parties are governed by Warsaw convention of 1929, which is an International Agreement governing the liability of Air carrier in respect of International Carriage of Passenger , baggage and cargo by Air. The Warsaw Convention has been given effect to in India by the enactment of Indian Carriage by Air Act, 1934. As per carriage by Air Act, 2009, in the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless she proves that sum is greater than the actual value to the consignor at delivery ; that complainant at the time of boarding has neither registered the luggage nor had made any special declaration of the value of goods and also not paid a supplementary amount at the time of booking of the alleged bags. On merits it was admitted that complainant booked the ticket for Singapore Airlines and took the flight from Melbourne to Singapore and then Singapore to Delhi. It was denied that complainant was having items as alleged in her personal baggage. It was submitted that as per practice & procedure all the passengers are always advised by the answering opposite parties not to include any valuables or fragile items in their check in baggage and in case they are having such valuables items , they have to declare the same alongwith their value. It was further submitted that as per standard procedure, complainant was also advised to remove the valuables, if any, at the time of retrieving the bag at the boarding gate. The complainant on her own chosen to hand over the alleged baggage to the answering opposite parties. It was denied that the baggage was mishandled. It was submitted that the complainant was issued a claim tag SQ627794 when her bag was retrieved at the boarding gate. It was further submitted that on the very next day, the representative of the opposite parties reached for delivery of the baggage of the complainant in sealed condition. It was denied that anything muchless the alleged items were missing . Remaining facts mentioned in the complaint have been specifically denied and a prayer for dismissal of complaint was made.
3. Opposite party No.3 did not opt to put in appearance as such it was ordered to be proceeded against ex-parte.
4. In her bid to prove the case complainant stepped into the witness box and tendered her duly sworn affidavit Ex.C-1, copy of ticket Ex.C-2, copy of legal notice Ex.C-3, copy of postal receipts Ex.C-4 and closed her evidence.
5. To rebut the aforesaid evidence Sh.Varun Sikka,Adv.counsel for opposite parties No.1 & 2 tendere dinto evidence affidavit of Sh.Gerald Tan,Manager Ex.Op1,2/1, copy of the article Ex.OP1,2/2, copy of legal notice Ex.OP1,2/3, copy of reply to legal notice dated 2.3.2016 Ex.OP1,2/4 and closed the evidence on behalf of opposite parties No.1 & 2.
6. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by complainant as well as opposite parties No.1 & 2.
7. On the basis of the evidence , ld.counsel for the complainant has vehemently contended that complainant purchased Air ticket of opposti parties No.1 & 2 from M/s. Aaryam Leisure and Holidays, Building No. 104, Ist Floor, Lawrence Road, Opposite Nehru Shopping Complex, Amritsar on 10.2.2015 from Delhi to Singapore and then Singapore to Melbourne in the month of March 2015 and return from Melbourne to Singapore to Delhi for 20.8.2015. Copy of the Air ticket accounts for Ex.C-2 on record. The complainant booked the Singapore Airlines through her ticket No. 618892307025403 and the complainant took the flight from Melbourne to Singapore and then Singapore to Delhi in economy class on 20.8.2015 and the complainant also deposited her luggage in the Air cargo. When complainant boarded herself in the plane, complainant was having her personal baggage in which her articles i.e. one Apple phone, diamond set, three gold chain weighing 3 tola, two gold karas weighing 2 tola, three ladies gold rings weighing 2.5 tola, Nosepin weighing 1 tola (in all near about 8.5 tola gold) and some clothes. The complainant was asked by the officials of the opposite party to hand over the said baggage containing the aforesaid articles and the same will be handed over to her when she reached Indira Gandhi International Airport, New Delhi. But, however, when complainant reached Indira Gandhi International Airport, New Delhi, complainant found her luggage but the said baggage was missing and mishandled. Complainant contacted the officials of the staff of the opposite party and requested them to search the same as there were many valuable articles lying in the said baggage. But the same could not be traced by the officials of the opposite party and the Airline authorities told the complainant that she will be handed over the baggage as and when it was traced out and that they shall also intimate the complainant on her mobile phone as early as possible. Believing upon the assurance of the officials of the Airline authorities, complainant reached at her residence at Amritsar and on the next day the complainant received a mobile call from 09312159143 of Mr. Rajinder Prashad of M/s. Shri Sai, who intimated her that her mishandled baggage has been located and he now wanted to hand over the same to her. In this regard on 22.8.2015 at about 3.00 p.m said Rajinder Prashad reached at Amritsar and he called the complainant at Bus Stand, Amritsar and handed over the said bag to the complainant which was sealed with plastic by the opposite parties No.1 & 2 . When the baggage was opened in the presence of the complainant and said Rajinder Prashad , it was found that all the jewellery and Apple phone were missing from the bag and there was only one jean and top, one HDFC card and Rs. 5000/- cash lying in the said bag . As such the goods worth Rs. 3,50,000/- inclusive of jewellery were found missing. The complainant gave a notice on the acknowledgment form dated 22.8.2015 which was duly signed by the complainant and Rajinder Prashad. Thereafter complainant contacted M/s. Aaryam Leisure and Holidays at Amritsar and the complainant told them that she has suffered a loss to the tune of more than Rs. 3.5 lacs and thus the service rendered by Singapore Airlines were ineffective and dissatisfactory. But no response was given by opposite parties No.1 & 2 . Thereafter complainant got served a legal notice dated 13.1.2016 upon the opposite parties, copy whereof is Ex.C-3 on record . But,however, despite service of notice, opposite parties have failed to redress the grievance of the complainant. As such the complainant is entitled to an amount of Rs. 3,50,000/- on account of loss of jewellery and other articles besides compensation as well as litigation expenses to be assessed by this Forum on account of inconvenience and mental torture and physical pain experienced by the complainant.
8. But,however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has not been able to prove her case in accordance with law. Since the baggage in dispute was containing jewellery and other costly items, the complainant as per advice mentioned in Article 9 para 1(c ) of the tickets was directed that the passenger shall not include in checked baggage fragile or perishable items , money, jewellery, precious metals, silver ware, negotiable papers, securities or other valuables, business documents, passports and other identification documents, samples, medicines or drugs”. Moreover the governing law for Air travelling in India i.e. ‘The Carriage by Air Act’ clearly stipulates that if any passenger have any valuable item, which the passenger delivering to the carrier before the boarding, the passenger shall make a special declaration of the description and value such item, and if requires, may pay additional carriage charges and if the passenger has failed to make the such special declaration, he/she is not entitled to claim the value of the said valuable item from the carrier. In the present case complainant has not made any declaration about the alleged valuable items allegedly contained in her baggage or the value of the items, before handing over the baggage to the answering opposite parties, therefore, the alleged claim of the complainant is neither tenable nor maintainable in the eyes of law . Instant complaint appears to be an after thought to gain undue financial benefit at the cost of opposite parties No.1 & 2. Further more every ticket also contains the aforesaid clause that the declaration is the responsibility of the passenger. The terms on the ticket is attached as Ex.OPW1/1. The instant complaint is misconceived and gross abuse of the process of law, false, frivolous, baseless and has been filed with the sole purpose to extract money from the opposite parties. Actually the dispute raised by the complainant in the present complaint is governed by the ‘Carriage by Air Act, 1972’ and in view of the provisions enumerated in the said Act, especially in chapter III of First schedule, this Forum has no jurisdiction to try and entertain the present complaint. The complainant was never asked to hand over the said baggage by the answering opposite parties. The complainant on her own accord chose to hand over the alleged baggage to the answering opposite parties. Baggage was never mishandled by the opposite parties rather the complainant was issued claim tag SQ627794 when her bag was retrieved at the boarding gate. On the very next day, representative of the answering opposite parties personally went to the place of the complainant for delivery of the baggage in sealed condition. There is absolutely no deficiency in service or negligence on the part of the opposite parties. It was the complainant herself , who was negligent in handing over the baggage to the opposite parties without executing requisite declaration regarding content and value of each article. As per provisions of ‘Carriage by Air Act, 1972’ complainant is not entitled to receive any compensation from the opposite parties on account of alleged loss occurred to her costly items like gold jewellery etc. As such instant complaint fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated :5.10.2016
