Sh.S.S. Panesar, President
1. Smt.Madhu Gupta has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant is the resident of above said address and is law abiding citizen of the area. The complainant had gone to Bengaluru to meet his relative and to attend marriage function of one of her relative. The complainant had planned to return back to her home town in the second week of June, 2015 for this purpose, the complainant had booked her Air Ticket with Spice Jet Limited on 28th May, 2015. Spice Jet tickets were confirmed for 13th June, 2015 bearing flight No.SG414 having confirmation No.PNR:H2 FNUL from Bengaluru to Amritsar. It is worth mentioning that the complainant was spouse to change her flight on reach Mumbai, but lateron the complainant was asked by the concerned officials of Spice Jet Limited to continue her travel with the same flight till Amritsar, which was taken from Bengaluru. On reaching Amritsar, the complainant found that her luggage which was booked with the same flight was missing and was not delivered to her. Immediately, this issue regarding the missing of luggage was reported to the concerned Spice Jet officials in Amritsar. Firstly, the Spice Jet officials did not pay any heed to the complaint of the complainant and even did not take up the matter seriously. They behaved in very casual manner as if nothing serious has ever happened. The luggage of the complainant not only contained expensive clothes, but also other valuable items, accessories, medical kit containing medicines of her regular use alongwith her Makeup Kit, Slippers and Foot wears, her branded specs and antique Jewellery and other allied items incurring a total approximately loss of Rs.50,000/- to the complainant. The detail of which is mentioned as under:-
8 suits + 4 nights suit Rs.30,000/-
Makeup kit with Makeup cosmetics Rs. 3,000/-
Medical Kit including Medicines Rs. 2,000/-
Cost of luggage bag i.e. VIP Make Rs. 3,834/-
Slippers and Foot Wears Rs. 2,000/-
Specs Rs. 2,000/-
Jewellery Rs. 7,000/-
The Opposite Party and its officials did not had any regrets on their part, because of their negligence in performance of their duties and not handling the luggage properly, and the misconduct which was meted out to the complainant, from the hands of the concerned officials and staff of Airline company in Amritsar, irrespective of the fact that the complainant was an aged lady and was traveling alone from Bengaluru to Amritsar without any help and assistance. The complainant on compelled circumstances was made to wait inside Shri Guru Ram Dass International Airport, Amritsar whole of the day by giving false assurances to the complainant that the best efforts are being made to trace the lost luggage of the complainant after the happening of the incident. The said incident ultimately gave complainant a huge loss to the amount of approximately Rs.50,000/- i.e. the estimated cost of the lost luggage, alongwith inconvenience, depression, harassment and physical uneasiness, on account of which her physical health suddenly spoiled firstly because of depression on account of the lost luggage and secondly on account of the ill-treatment and service which was provided to the complainant whole of the day. Ultimately, the complainant could not take up her routine medicines regularly, because the medicine kit alongwith her medicines of her daily use were lying inside the luggage which was misplaced and lost on account of negligence on the part of the flight officials and the staff of the concerned Airline company. Several e-mail and correspondence were sent to the concerned Senior Executive Customer Experience Spice Jet Limited by and on behalf of the complainant, to which the concerned officials of Spice Jet did not respond swiftly, they were again and again reminded of the grievance of the complainant by repeatedly sending reminders e-mails, to which the concerned company executive did not give any satisfactory reply nor any assurance was given to the complainant by the concerned company executive. The act, conduct and negligence in performance of the duties of the Spice Jet Limited, have not only deprived the complaint to her legitimate right to use and consume the goods included in the lost luggage, but also given mental a gony, pain, harassment to the complainant. Ultimately, the concerned company officials could not trace the lost luggage and finding no way out, they in order to hush-up the matter in dispute finally send the complainant a compensation cheque towards the lost luggage bearing cheque No.071593 from account No.000705011602 drawn on ICICI Bank Limited, Branch Cannaught Place, New Delhi amounting to Rs.2200/- of dated 15.7.2015. This meager compensation amount was never agreed upon by the complainant nor she has ever consented to the same till date, neither the compensation amount was acceptable by the complainant at any point of time and the correspondence by the medium of e-mail regarding refusing and showing dissatisfaction over the compensation amount and requested the company concerned to repay the loss in total which has in actual occurred to the complainant as sent to the concerned company officials, but till date the company executive have neither been able to trace the luggage nor have enhanced the compensation amount and moreover, the concerned company executive finally refused to adhere to compensate the bonafide claim of the complainant in actual. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may kindly be directed to pay Rs.1,50,000/- as compensation i.e. Rs.50,000/- as actual loss and Rs.1 lac as compensation amount to the complainant and the cost of the complaint as well as litigation expenses of Rs.10,000/- may also be awarded to the complainant.
b) Any other relief to which the complainant found entitled may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice, Opposite Parties appeared and contested the complaint by filing joint written statement taking preliminary objections therein inter alia that present complaint filed on behalf of the complainant is not maintainable as the complainant has not approached this Forum with clean hands and has suppressed the material facts from this Forum. In view of the aforesaid facts, the complaint of the complainant is liable to be dismissed; that the present complaint filed by the complainant is not maintainable in as much as, by way of present complaint, the complainant is trying to take benefits of her own wrongs, misdeeds and malafide acts. It is submitted that having booked the ticket, the complainant, who was well aware and conversant about the terms and conditions contained in the e-ticket, admitted and accepted the same as correct and binding on the parties. It is submitted that the relevant clauses of the terms and conditions contained in the said ticket, a copy of which is being filed herewith reads as under:-
Safety and Security: Spicejet highly recommends that you remove all valuables (cameras, jewellery, money, electronics, perishables etc) and medication from your check in baggage and place them in your carry on. In case the passenger decides to carry any valuables in their checked in baggage, against the above advice, they will do this at their own risk and shall not hold Spicejet responsible for any pilferage/ damage/ etc. to such valuables.
Baggage: The carrier’s liability for loss of baggage is limited to Rs.200/- per Kg. with a maximum of Rs.3,000/- only. The carrier assumes no liability for fragile or perishable articles.
From the above said terms and conditions, it is amply clear that as per the above said terms and conditions, which is a contract between the parties, at the first instance, the passengers have been advised not to carry any valuables including money, currency, jewellery other valuables and medication etc. in their check in baggage and in case the passengers do so, they shall be doing so on their own risk and cost without assuming any liability upon the carrier i.e. spicejet. It is submitted that the terms of carriage as well as the stipulations contained in carriage by Air Act makes it specifically clear that the liability of the airline in case of loss of baggage is Rs.200/- per Kg, subject to maximum of Rs.3,000/-. It is submitted that in view of the aforesaid stipulations, the Opposite Party has already remitted a sum of Rs.2200/- to the complainant by way of cheque bearing No. 0715593 dated 15.7.2015 for Rs.2200/-. Said act has been accepted and encashed by the complainant and after encashment of the same, the complainant is now stopped from filing the present complaint. In view of the aforesaid, the present complaint filed on behalf of the complainant is without any merits, cause of action and substance and is liable to be dismissed with heavy costs; the present complaint filed on behalf of the complainant is not maintainable in as much as the alleged loss has been caused to the complainant due to her own negligent and careless conduct; it is submitted that the complainant with malafide intention in order to mislead this Forum has false and frivolous and misleading and contradictory allegations in his complaint claiming that the alleged baggage contained articles worth rs.50,000/- or more. On merits, the answering Opposite Parties denied that the baggage of the complainant contained expensive clothes valuing Rs.30,000/-, valuable items, accessories, medical kit with medicines valuing Rs.2,000/-, make up kit valuing Rs.3,000/-, VIP bag valuing Rs.3,834/-, slippers and foot wears valuing Rs.2,000/-, expensive specs valuing Rs.2,000/- and antique jewellery valuing Rs.7,000/- as alleged. It is also wrong and denied that the collective value of the same was Rs.50,000/- as alleged. There is nothing on record to prove the same. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In her bid to prove the case, complainant tendered into evidence affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C17 and closed her evidence.
4. On the other hand, to rebut the evidence of the complainant, the Opposite Parties tendered into evidence the affidavit of Sh.Vijay Roy, Senior Manager (Legal) Ex.OP1-5/1 alongwith copy of terms of carriage Ex.OP1-5/2 and closed the evidence on behalf of the Opposite Party.
5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record as well as written synopsis of arguments submitted by both the parties.
6. It has vehemently been contended on behalf of the Opposite Parties that the complainant had booked tickets with Opposite Party No.1 Airlines for going to attend a marriage ceremony at Bengluru from Amritsar and return for 13.6.2015. Air tickets were booked on 28.5.2015, copy of air ticket accounts for Ex.C2 while original boarding pass in the name of the complainant is Ex.C3. It is further case of the complainant that on reaching Amritsar, the complainant found her luggage missing consisting of 8 suits, 4 night suits worth Rs.3,000/-, make up kit with make up cosmetics worth Rs.3,000/-, Medical Kit including Medicines Rs. 2,000/-, Cost of luggage bag i.e. VIP Make Rs. 3,834/-, Slippers and Foot Wears Rs. 2,000/-, Specs worth Rs.2,000/- and Jewellery worth Rs. 7,000/-. Bills of the articles account for Ex.C4 to Ex.C8. Estimated cost of the lost goods was approximately Rs.50,000/-. It is the case of the complainant that she had suffered inconvenience, depression, harassment, physical uneasiness on account of loss of the luggage. Despite several requests and correspondence through e-mails, Opposite Parties did not redress the grievance of the complainant. It is further case of the complainant that ultimately the concerned authorities could not trace out the lost luggage and in order to push up the matter, the Opposite Parties sent a compensation cheque towards the lost goods bearing No.071593 drawn on ICICI Bank Limited, Branch Cannaught Place, New Delhi dated 15.7.2015 for Rs.2200/-, without concurrence of the complainant, which is Ex.C14 on record. Vide e-mail Ex.C11 the Opposite Parties apologized for the inconvenience caused and delay in responding to her concern. Ld.counel for the Opposite Parties has vehemently contended that clause 14 of the Spice Jet Regulations governing terms of carriage and baggage provides that:-“Spice jet highly recommends that you remove all valuables (cameras, jewellery, money, electronics, perishables etc.) and medication from your check-in luggage and place them in your carry-on spice jet will not accept responsibility for these items. In case, the passenger decides to carry any valuables in their checked-in baggage against the above advice, they will do this at their own risk and shall not hold spice jet responsible for any pilferage/ damage etc. to such valuables. They shall lay no claim against spice jet, its employees, agents, successors etc. in this regard.” Further, Clause 19 provides that “the carrier’s liability for loss or damage to baggage is limited to Rs.200 per Kg with a maximum of Rs.3,000/-. The carrier assumes no liability for fragile or perishable articles.” It is vehemently contended that despite the fact the complainant has floated clause No.14 ‘supra’ with impunity and kept jewellery worth Rs.7000/- there in the luggage, yet the Opposite Parties have paid a sum of Rs.2200/- as compensation on account of loss of luggage to the complainant under the rules, despite the fact that the complainant was not entitled to any compensation. Reliance in this connection has been placed upon Spicejet Limited Vs. Rajender Kaur & 2 Ors. Revision Petition No.3215 of 2014 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 22.8.2016, wherein revision was allowed and the compensation awarded by the Consumer Fora as well as State Commission was set aside on account of the fact that the consumer carried jewellery as well as cash in the luggage while on board against contravention of clause 14 of the Spicejet Regulations. On the basis of aforesaid contentions, it has vehemently been contended that the complaint is nothing, but an abuse of the process of law. Compensation permissible under law has already been disbursed to the complainant without any protest and it is contended that the complaint may be dismissed with costs.
7. But however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has been able to prove her case. The very fact that the Opposite Parties paid a sum of Rs.2200/- towards loss of goods besides tendering apology for the inconvenience caused to the complainant, amount to admission of the case of the complainant. No doubt the complainant was entitled for compensation regarding the loss of goods as per clause 19 of Spicejet Regulation, yet she was also entitled to compensation for inconvenience, mental agony and physical pain. The complainant had to wait until 15.7.2015 for settling the claim by Opposite Parties while her goods were lost on 13.6.2017. Spicejet Limited authority ‘supra’ relied upon by the counsel for the Opposite Parties has no application to the facts of the present case because in that case it was only jewellery and cash which were kept in the suitcase in contravention of Spicejet Regulation 14, but in the case in hand, there were other goods also, for which compensation amounting to Rs.2200/- has admittedly been paid by the Opposite Parties and apology was also tendered for the inconvenience caused to the complainant. As such, the Opposite Parties can not draw any support from the findings of that authority to escape their liability to pay compensation for the inconvenience, mental agony and physical pain. For compensation, the complainant has claimed Rs.50,000/- as price of lost goods besides Rs.1 lac as compensation while Rs.10,000/- has been demanded as litigation expenses. Since compensation towards price of the goods permissible under the rules and regulation has already been paid, therefore, the amount of Rs.50,000/- claimed by the complainant stands declined. As far as compensation of Rs.1 lac is concerned, the same is also on the higher side. It is settled principle of law that no exorbitant or excessive compensation is to be paid to enrich a party at the cost of the other, rather such compensation has to be paid which is just & proper under the given circumstances of the case. In our considered opinion, the compensation to the tune of Rs.10,000/- (Rupees ten thousands only) would be sufficient to salvage the mental agony, physical pain and inconvenience caused to the complainant for deficient service & we allow accordingly while costs of the litigation are assessed at Rs.2,000/- (Rupees two thousands only). Opposite Parties are directed to comply with the order within one month from the receipt of copy of the order; failing which, awarded amount shall carry interest @ 6% p.a from the date of passing of order until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
