Tripura

StateCommission

F.A 33/2014

Dr. Atanau Ghosh - Complainant(s)

Versus

Spice jet Ltd. - Opp.Party(s)

Nr. B.N Majumder , Mr. R.Saha

07 Apr 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. Sobhana Datta,

             MEMBER,

               STATE COMMISSION.

               

 

1. APPEAL CASE No.F.A-24/2014

 

2. SPICEJET LTD.

REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,

319, UDYOG VIHAR, PHASE-IV,

GURGAON, HARYANA, INDIA.

 

3. THE STATION MANAGER,

SPICEJET, KOLKATA,

HAVING HIS OFFICE AT;

NETAJI SUBHAS CHANDRA BOSE

INTERNATIONAL AIRPORT,

KOLKATA AIRPORT, KOLKATA.

 

4. THE STATION MANAGER,

SPICEJET LTD.,

AGARTALA AIRPORT, NARSINGARH,

P.S. AIRPORT, AGARTALA, WEST TRIPURA.

                             ….    ….    ….    ….    Appellants.

                             Vs

          DR. ATANU GHOSH,

          S/O SH. DHIRENDRA KUMAR GHOSH,

          R/O DIMSAGAR, AGARTALA, P.O. HEAD POST OFFICE AGARTALA,

          DISTRICT-WEST TRIPURA.

                              ….    ….    ….    ….    Respondent.

 

For the Appellant    : Mr.B.N.Majumder,Adv. & Mr.R.Saha,Adv..

          For the respondent   :       Mr.A.Paul,Adv.

                                                

 

         2. Appeal case No.F.A-33/2014.

 

          DR. ATANU GHOSH,

          S/O SH. DHIRENDRA KUMAR GHOSH,

          R/O DIMSAGAR, AGARTALA, P.O. HEAD POST OFFICE AGARTALA,

          DISTRICT-WEST TRIPURA.

                             ….     ….    ….    ….    Appellant.

 

                             Vs.

 

1. SPICEJET LTD.

REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,

319, UDYOG VIHAR, PHASE-IV,

GURGAON, HARYANA, INDIA.

 

2. THE STATION MANAGER,

SPICEJET, KOLKATA,

HAVING HIS OFFICE AT;

NETAJI SUBHAS CHANDRA BOSE

INTERNATIONAL AIRPORT,

KOLKATA AIRPORT, KOLKATA.

 

3. THE STATION MANAGER,

SPICEJET LTD.,

AGARTALA AIRPORT, NARSINGARH,

P.S. AIRPORT, AGARTALA, WEST TRIPURA.

                        ….    ….    ….    ….    Respondents.

 

 

For the Appellant      :    Mr.A.Paul,Adv.

For the respondents  :    Mr.B.N.Majumder,Adv. & Mr.R.Saha,Adv.

          Date of Hearing       :     13.03.2015.

Date of delivery of Judgment  : 07.04.2015.

             

 

J U D G M E N T

 

S.Baidya,J,

            F.A-24/14 and F.A-33/14 have arisen out of the same judgment and award dated 08.08.2014 passed by the Ld. District Consumer Disputes Redressal Forum (In short District Forum), West Tripura, Agartala in case No.C.C-72/13 whereby the Ld. District Forum allowed the complaint under Section 12 of the Consumer Protection Act, 1986 directing the O.Ps, the appellants of F.A-24/14 to pay lump sum amount of Rs.50,000/- to the complainant as compensation for causing mental agony and harassment together with a sum of Rs.5,000/- as cost of litigation with a further direction to pay the said amount within the period of eight weeks from the date of judgment, failing which the amount of compensation will carry interest @ 9% p.a. till the payment is made. It further appears that by the said judgment Ld. Forum also directed that the above amount of compensation is in addition to Rs.2,000/- offered by the O.Ps as settlement of the claim basing on the terms and conditions of The Carriage By Air Act, 1972. As both the appeals have arisen out of the same judgment and award, both the appeals are heard together and are going to be disposed of by this common judgment.

2. The case of the appellants as narrated in the memo of appeal of F.A-24/14 filed under Section 15 of the C.P.Act, 1986 on 05.09.2014 directed against the judgment and order dated 08.08.2014, in brief, is that the respondent of this appeal filed a complaint alleging inter alia that on 24.08.2011 he along with his three other family members travelled from Delhi to Kolkata by Spice jet Flight No.SG 212 and on arrival at Kolkata Airport he was shocked to find that out of five registered check-in- baggages, one was missing and immediately he lodged a complaint with the customer service officials of the Spice jet, Kolkata Airport and also lodged an FIR with the officer-in-charge of NSCBI Airport Police Station as to the loss of the said baggage. It is also alleged that the repeated complaints were made by him to the present appellants, however, they failed to locate the said baggage which contained valuable goods such as Sony Video Camera, Sony Cyber Shot Digital Camera, cosmetics and cloths as alleged and the value of the goods would be worth of Rs.90,000/- approx.                                                     
3. It has also been alleged that on the basis of the said allegations the present respondent as complainant filed the complaint seeking compensation from the present appellants alleging deficiency in service. It is also alleged that on receipt of the notice both the appellants appeared and contested the complaint by filing a joint written statement denying the allegations made in the complaint.
4. It is further alleged that the Ld. District Forum considered the pleadings of the parties and the evidences passed the impugned judgment and thereby being aggrieved and dissatisfied, the present appellants have preferred the instant appeal on the grounds that the Ld. Forum failed to appreciate the fact that the complaint filed by the respondent was barred by limitation, that the Ld. Forum failed to appreciate that the respondent was trying to take the benefits of his own wrongs, misdeeds and malafide acts knowingfully well the terms and conditions contained in the e-ticket, that the Ld. Forum failed to appreciate that as per terms and conditions the respondent as passenger is debarred from carrying valuable items including money, electronics items, currency, jewelry, other valuables and medication etc. in their checked-in-baggage and in violation thereof it shall be presumed that the passenger shall be doing so at their own risk and cost without assuming any liability upon the carrier i.e. Spicejet, that the Ld. Forum failed to appreciate that the alleged loss caused to the respondent was due to his own negligence and careless conduct and as such, the appellants could not be fastened with any liability, but the Ld. Forum failed to appreciate the same and passed the impugned judgment awarding compensation against the present appellants and therefore, the present appellants have preferred the instant appeal praying for setting aside the impugned judgment.
5. The respondent of the F.A-24/14 being the appellant filed the appeal case No.F.A-33/14 on 07.11.14 by presenting a memo of appeal under Section 15 of the C.P.Act against the impugned judgment and award dated 08.08.2014 passed by the Ld. District Forum in case No.C.C-72/13 on the grounds that the impugned judgment is absolutely unjust, inadequate and not in accordance with law and therefore, is liable to be modified, that the Ld. Forum failed to appreciate that owing to the deficiency in service on the part of the respondents, the complainant was entitled to a higher compensation to the tune of Rs.4,00,000/- and hence, the appellant-complainant has filed the instant appeal praying for enhancing the amount of compensation by way of modification of the impugned judgment.                   

Points for consideration.

6.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment and (2) whether the judgment under challenge is liable to be set aside or modified as prayed for.     

                         Decision with Reasons.

7.  Both the points are taken up together for the sake of convenience and brevity.
8. The learned counsel Mr.B.N.Majumder appearing for the appellant-Spicejet submitted that the selling of e-ticket to the passenger is subject to the terms and conditions contained in the e-ticket. He also submitted referring to the term No.23 of the Terms of Carriage (annexure-R-2) that carrying of valuable things like camera, jewelry, money, electronics items, perishable items etc and medications are not allowable in the check-in- baggage and if any passenger carries the above mentioned articles in his checked in baggage, in case of loss or damage, Spice jet will not accept responsibility for those items. He also submitted that as per case of the complainant-respondent, Sony Video Camera, Sony Cyber Shot Digital Camera, cosmetics, garments, memento items etc. were in the missing checked baggage. He also submitted that the respondent-complainant in violation of the Terms of Carriage mentioned above was carrying alleged valuable items in the said registered check-in-baggage and as such, the appellant-Spicejet in no way was responsible for loss of those items.
9. He also submitted referring to term No-28 of the Terms of Carriage that the carrier’s liability for loss or damage to baggage is limited to Rs.200/- per kilogram with a maximum of Rs.3,000/- only and the carrier assumed no liability for fragile or perishable articles. He also submitted that the Spicejet authority offered Rs.2,000/- as loss to the complainant-respondent after calculating the weight of the said missing checked baggage, but the Ld. District Forum awarded a lump sum amount of Rs.50,000/- to the complainant-respondent towards mental agony and harassment as also for deficiency in service. He further submitted that the Terms of Carriage do not provide for granting any compensation on the ground of alleged deficiency in service and also on the ground of mental agony and harassment to the complainant.
10. The learned counsel for the Spicejet also submitted that the respondent-complainant himself has violated the Terms of Carriage by carrying such electronics items and other valuable items as alleged and as such, the responsibility to carry those items in the checked baggage lies upon the complainant-respondent himself and the Spicejet cannot be fastened with any liability for the loss of those items.
11. The learned counsel for Spice jet also submitted that the complainant-respondent could not show any document for establishing that the missing checked baggage actually contained Sony Video Camera, Sony Cyber Shot Digital Camera, newly purchased garments, valuable cosmetics etc., but the Ld. Forum in the absence of any document for establishing the same awarded a compensation of Rs.50,000/- in lump sum in the name of deficiency in service and mental agony and harassment and as such, the impugned judgment awarding such an amount of compensation is not sustainable in the eye of law and should be set aside.
12. The learned counsel for the appellant-Spicejet further submitted that the appellant-Spicejet has filed the memo of appeal registered as F.A-24/14 on 05.09.2014 challenging the legality and justifiability of granting compensation by the impugned judgment, but the respondent-complainant long after the filing of the said appeal as appellant filed his appeal on 07.11.14 which is nothing, but a counter-claim to the appeal filed by the Spicejet. He also submitted that the subsequent counter appeal filed by the respondent-complainant being registered as F.A-33/14 has got no merit at all and as such, the question of enhancing the amount of compensation to the tune of Rs.4,00,000/- in modification of the impugned judgment does not arise at all and therefore, the counter appeal should be dismissed outright and the appeal being F.A-24/14 should be allowed by way of setting aside the impugned judgment by which the Spicejet has been directed to pay a lump sum compensation of Rs.50,000/- to the respondent-complainant.
13. The learned counsel Mr.A.Paul appearing for the respondent of F.A-24/14 and the appellant of F.A-33/14 submitted that the complainant Dr.A.Ghosh and his three other family members travelled from Delhi to Kolkata Airport by the Flight bearing No.SG 212. He also submitted that it is admitted position that one registered checked baggage out of five of the complainant was found missing on his arrival at Kolkata Airport. He also submitted that the said registered checked baggage contained valuable Sony Video Camera, Sony Cyber Shot Digital Camera, cosmetics and garments.
14. Mr.Paul also submitted that admitting the missing of said registered checked baggage and also the loss suffered due to that, the Spicejet offered a sum of Rs.2,000/- to the complainant, but as the said amount was so meagre in comparison with the loss sustained by him due to the missing of bag, the complainant refused to accept to the same. The Learned counsel Mr.Paul referring to Section 22(2) of the Carriage By Air Act, 1972 submitted that in the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of Rs.250 francs per kilogram. He also submitted that as mentioned in the e-ticket the complainant Dr.A.Ghosh was legally entitled to carry goods in registered luggage @ 20 kilograms for each passenger and in that case, the complainant is legally entitled to get a sum of 250 francs per kilogram for 20 kilograms of goods. He also submitted showing a rate of conversion of francs into Indian currency that one Swiss francs is equal to Rs.67.4523 INR as on 08.08.14, but the Ld. District Forum for the loss of baggage containing valuable articles only allowed a sum of Rs.2,000/-. He also submitted referring to Rule 23 of the First Schedule of the Carriage By Air Act, 1972 that the alleged Terms of Carriage referred to by the learned counsel for the Spice Jet limiting the liability of the carrier in violation of any Rule of the Carriage By Air Act, 1972 is null and void and as such, the offering of Rs.2,000/- for the loss of valuable articles made by the  SpiceJet to the complainant was not legally acceptable, but the Ld. District Forum by the impugned judgment accepted the said offering of the amount of Rs.2,000/- for the loss of the valuable articles as per Terms of Carriage. He further submitted that as the Terms of Carriage is contradictory to the Rule of Carriage By Air Act, 1972, the said Terms of Carriage shall be treated as null and void as per Rule 23 of the said Act.   
15. The learned counsel Mr.Paul further submitted referring to term No-6 and 11 of the Terms of Carriage that as per Terms of Carriage, SpiceJet allows free check-in-baggage allowance of 15 Kilograms, but the e-ticket issued to the complainant makes it clear that the complainant alone was legally entitled to carry free checked baggage allowance of 20 kilograms He also submitted that the complainant purchased the said e-ticket on 03.08.11 for travelling on 24.08.11 from Delhi to Kolkata. He also submitted that in fact, the complainant travelled on that date i.e. on 24.08.11. He also submitted that as per term No-6 of the Term of Carriage referred to by the learned counsel for the SpiceJet clearly indicates that the said Terms of Carriage (Annexure-R-2) has become effective w.e.f. 06.09.13 and as such, the Terms of Carriage marked with Annexure-R-2 not  being of the relevant period is not acceptable in the instant case and therefore, the offering of loss amount made by the   SpiceJet following the term No-28 of the Terms of Carriage is totally wrong and not acceptable, but the Ld. Forum accepting the said assessment of loss to the tune of Rs.2,000/- by the impugned judgment committed an error and as such, the findings of the Ld. District Forum regarding the loss of the valuable items contained in the said registered checked baggage is not legally acceptable and is liable to be set aside and the amount of loss sustained by the complainant should be enhanced as per Rule 22(2) of The Carriage By AIR ACTs, 1972 from Rs.2,000/- as offered by the SpiceJet and approved by the Ld. District Forum.
16. Mr.Paul in support of his appeal has relied on the decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi passed in First Appeal No-204 of 2008 in between M/S Emirates Airlines (appellant) Vs. Dr. Rakesh Chopra(Respondent) pronounced on 11.04.2013 and submitted that in addition to the loss sustained due to the missing of the registered luggage, the Hon’ble National Commission has been pleased to accept the finding of the Delhi State Commission in case No.C-85/1999 passed on 17.03.2008 holding that the State Commission rightly awarded a compensation of Rs.2,00,000/- on the ground of deficiency of service under the C.P.Act, 1986. In this regard, Mr.Paul further submitted that the Ld. District Forum rightly awarded a compensation of Rs.50,000/- for causing mental agony and harassment together with a further sum of Rs.5,000/- as cost of litigation. He also submitted that the finding of the Ld. District Forum regarding the awarding of compensation of Rs.50,000/- for causing mental agony and harassment to the complainant being found proper and justified should be accepted.     
17. We have gone through the pleadings of the parties, evidences both oral and documentary, the impugned judgment, the memo of appeals of both the appeals, Terms of Carriage (Annexure-R-2), the referred case- law and the argument advanced by the learned counsels of both sides. Going through the same, we find certain admitted facts. Admittedly, the complainant and his three other family members travelled on 24.08.11 from Delhi to Kolkata by SpiceJet Flight No.SG 212. It is also admitted fact that out of five registered baggage/luggage one was found missing on his arrival at Kolkata Airport. It is also admitted fact that immediately after noticing the said fact the complainant lodged a complaint on the same date i.e. on 24.08.11 before the SpiceJet authority regarding the missing of the said registered checked baggage. It is also admitted fact that the complainant also lodged an FIR with the officer-in-charge of NSCBI Airport Police Station on 26.08.11 vide G.D. entry No-904 dated 26.08.11. It is also admitted fact that the SpiceJet, the appellants of F.A-24/14 herein following the term No-28 of Terms of Carriage (Annexure-R-2) assessed the loss to the tune of Rs.2,000/- taking into consideration the weight of missing luggage. It is also admitted fact that the luggage ticket did not contain the weight of missing luggage. It is also admitted fact that as per term No-11 every passenger is entitled to carry free checked luggage allowance of 15 kgs, but as per e-ticket issued to the complainant by SpiceJet, it transpires that the complainant was then legally entitled to carry free checked baggage allowance of 20 kgs. It is also admitted fact that there is nothing to show that the concerned luggage ticket of the missing registered checked luggage contained articles weighing either 15 kgs. or 20 kgs. Or of any other quantity of weight. The term No-6 and 11 clearly indicates that the Annexure-R-2 (Terms of Carriage) was not of the relevant period i.e. on 24.08.11. Be that as it may, it is found that this Annexure-R-2 was not prior to the period of 2013. But the fact remains that neither the SpiceJet nor the complainant produced either before the Ld. District Forum or before us showing the Terms of Carriage prevailing on the date of travelling of the complainant and his family members i.e. on 24.08.11.
18. It is also admitted fact that the complainant at the time of handing over the registered checked luggage for carrying made no declaration regarding the value of the items as provided under Rule 22(2) of the carriage By Air Act, 1972. Again Rule 23 of the said Act also provides that any provision tending to relieve the carrier of liability or to fix a lower limit than that which laid down in these rules of the said Act,1972 shall be null and void. If we consider together the Rules 22(2) and 23 of the Carriage By Air Act, 1972, it would be evident that for fixing the limit of liability of the carrier i.e. SpiceJet, a special declaration at the time of handing over the registered baggage to the carrier is a must, but that is found wanting in this case.
19. Condition No-6 of the Rules and Regulations mentioned in the e-ticket makes it clear that the carrying of luggage is subject to the conditions of carriage laid down by the carrier as no other Terms of Carriage is before us. We have to consider the matter on the basis of the Terms of Carriage (Annexure-R-2) as regards the loss due to missing of registered checked luggage. Admittedly, the complainant produced no document for establishing as to what items were actually inside the said missing registered luggage. It is true that the complainant as P.W.1 stated before the Ld. District Forum as to the items contained in the said luggage. It is also true that the appellant-SpiceJet authority failed to counter it by examining any witness, but according to us, the documentary evidence is highly necessary for proving as to what items were inside the said luggage. The oral evidence as deposed by the complainant cannot prove it. Going through the impugned judgment we find that the Ld. District Forum did not award compensation towards the loss of alleged valuable items contained in the missing checked baggage. The Ld. Forum only accepted the offered amount of Rs.2,000/- assessed by the SpiceJet as settlement of claim as per term No.28 of the Terms of Carriage (Annexure R-2) on the basis of the weight of the missing luggage only. In that case, we are also in agreeing with finding of the Ld. District Forum inclined to accept the amount regarding the value of loss assessed by the SpiceJet on account of missing of the said registered checked baggage  and as such, the finding of the Ld. District Forum in this regard is accepted.
20. Going through the referred case law, we find that the Hon’ble State Commission, Delhi while allowing the complaint opined that the loss of baggage per se amounted to deficiency in service as provided under Section 2(1)(g) of the C.P.Act, 1986 and directed the appellants Airlines to pay a lump sum compensation of Rs.2,00,000/- in addition to the offered amount of 280 US Dollars as per settlement of claim to the respondent. The Section 2(1)(g) of the C.P.Act, 1986 read as follows :-

          “(g) “deficiency” means any fault , imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”

21. In the instant case, we find that due to the latches on the part of the SpiceJet the said registered luggage became untraced. That being the position, it can be said that the appellants SpiceJet who was entrusted with the safe custody and delivery of the passengers’ luggage admittedly failed to do so was negligent and deficient in service towards the complainant as provided under Section 2(1)(g) of the C.P.Act, 1986. From the referred case, we further find that in addition to the remedy available under the existing Rules or laws, compensation is also available from the Consumer Fora on the ground of deficiency in service. It further appears from the referred case that the Hon’ble National Commission has been pleased to uphold the decision of the Hon’ble State Commission, Delhi regarding the awarding of compensation of Rs.2,00,000/- on the ground of deficiency in service and also for causing mental agony and harassment to the complainant in addition to the settled amount as offered by the appellants SpiceJet.
22. In the instant case, we find that the Ld. District Forum by the impugned judgment awarded a compensation of Rs.50,000/- for mental agony and harassment to the complainant against the SpiceJet. It seems to us that the Ld. District Forum while awarding such compensation omitted to mention the ground of deficiency in service towards the complainant by the appellant-SpiceJet in para-14 of the impugned judgment, but mentioned it in para-13 thereof, although the referred case law has been mentioned in the impugned judgment.
23. Ld. Counsel Mr. Majumder in course of argument submitted before us that the complaint lodged under Section 12 of the C.P.Act is barred by limitation as provided under Section 24A of the C.P.Act, 1986 which provides a limitation period of two years for lodging a complaint before the Consumer Fora. We have gone through the record of C.C. 72 of 2013 wherefrom it is evident that the complaint was lodged on 08.08.2013 and the complainant travelled on 24.08.2011. It means that the cause of action arose on 24.08.2011. So, it is palpable that the complaint was filed before the Ld. District Forum within two years of the statutory period of limitation as provided under Section 24A of the C.P.Act, 1986. The submission of Mr.Majumder in this regard, therefore, is found not acceptable and tenable.
24. The Section of the Consumer Protection Act, 1986 provides for an additional remedy. The Hon’ble National Commission in para 9 of the referred case (Supra) has been pleased to hold that “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 Consumers & Citizens Forum V. Karnataka Power Corporation [1994(1) CPR 130] has laid down that the provisions of this Act give the consumer an additional remedy besides those that may be available under other existing laws”. In the instant case, the deficiency in service on the part of the SpiceJet towards the complainant has been proved. Not only so, the complainant also suffered mental agony and harassment for the missing of his registered checked luggage.  So, following the principle of law laid down by the Hon’ble National Commission in the referred case (Supra) and also considering the ground of deficiency in service, causing of mental agony and harassment towards the complainant, we are of the view that the Ld. District Forum rightly awarded a compensation of Rs.50,000/- to the complainant which being found proper, legal and justified is liable to be acceptable. It should be mentioned here that the Ld. District Forum also awarded a cost of litigation of Rs.5,000/- against the  appellant-  SpiceJet by the impugned judgment. So, considering all, we practically find nothing to defer with the decision of the Ld. District Forum arrived at by the impugned judgment and as such, the impugned judgment being found proper, legal and justified calls for no interference by this Commission and accordingly, both the appeals are liable to be dismissed.    
25. In the result, both the appeals fail. The impugned judgment dated 08.08.14 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C-72/13 is hereby affirmed. There is no order as to costs.
26. This judgment will govern both the appeals being F.A-24/2014 and F.A-33/2014. Let this judgment be kept with the record of F.A-24/2014 and a copy thereof also be kept with the record of F.A-33/2014.

 

 

      

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura