Delhi

East Delhi

CC/445/2013

SHUBHAM SACHDEVA - Complainant(s)

Versus

SPICE JET - Opp.Party(s)

06 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO.  445/13

 

Shri Shubham Sachdeva

S/o Dr. K.K. Sachdeva

81, Pratap Nagar

Mayur Vihar Phse – I

New Delhi                                                                  ….Complainant

 

Vs.

 

1. M/s. Spice Jet Ltd.

Cor. Off.: 319, Phase 4, Udyog Vihar

Gurgaon – 122 016

 

Regd. Off.: Cargo Complex

Indira Gandhi Intt. Airport Terminal 1B

Domestic Terminal, Near HP Aviation

IGI Airport, Delhi – 110 037                                              ….Opponent

 

Date of Institution: 02.07.2013

Judgment Reserved on: 06.07.2017

Judgment Passed on: 07.07.2017

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Sh. Sukhdev Singh (President)

 

 

JUDGEMENT

          This complaint has been filed by Shri Shubham Sachdeva (complainant) against M/s. Spice Jet Ltd. (OP)  under Section 12 of the Consumer Protection Act, 1986.

2. The facts in brief are that the complainant travelled from Delhi to Bangalore by Spice Jet flight SG 209 on 31.03.2013 vide PNR No. XGNWAM and seat no. 2.  He booked the luggage containing costly books, notes, official papers and other personal effects vide baggage No. SG0775590992.  Sequence 174, necessary BIR form and boarding pass and the luggage slips were issued and annexed thereto.  However, on reaching the destination at Bangalore, the complainant could not get the luggage so booked.  It was not traced out and handed over to the complainant even after making efforts and enquiries from the duty staff.  He lodged a complaint on the same day and baggage irregularity report no. 4834 was prepared, which was taken on record by the agent Id BLR 10046, which the complainant lodged and the boarding pass details contained therein.  His report of dated 31.03.2013 was acknowledged by Spice Jet Limited on 01.04.2013.  The letter of dated 01.04.2013 and 12.04.2013 to the appellate authority was also there, but no results have come.

          It has further been stated that OP accepted the fault that the suitcase has been lost, which was confirmed by their letter of dated 03.05.2013 for which complaint was registered as CR/248303/2013 and assured to respond the same.  However, the complainant has not got any fruitful result.  Thus, it has been stated that due to loss of luggage, the complainant has suffered hardship for which he has to be compensated.  Hence, the complainant have prayed for compensation on account of loss of articles, which he has valued to the tune of Rs. 1,65,965/-; loss suffered to his daily working curriculum and mental agony and harassment to the tune of Rs. 30,000/- and litigation expenses of Rs. 20,000/-.

3.       In the Written Statement, Spice Jet Ltd. have taken various pleas such as the complaint was not maintainable as the complainant have not come with clean hands and he was trying to take benefit of his own wrongs.  It has been stated that having booked the ticket, the complainant was well aware and conversant about the terms and conditions contained in the e-ticket. 

          As per Terms of Carriage, the passengers have to remove all valuables (cameras, jewellery, money, electronics, perishables etc.) and medication from check in baggage and in case, the passengers decide to carry any valuable in their checked in baggage against this advice, they will do this at their own risk and not hold Spice Jet responsible for any pilferage/damage/etc to such valuables.  Further, the carrier’s liability for loss of baggage was limited to Rs. 200/- per Kg with a maximum of Rs. 3,000/- only.  The carrier assumes no liability for fragile or perishable articles.

          Thus, it has been stated that as per terms and conditions, the maximum liability of the airline was Rs. 3,000/-.  It has further been stated that they have already remitted a sum of Rs. 3,000/- (as per the weight of the baggage, which was 17 Kg.) by way of cheque bearing no. 019501 dated 10.05.2013 favouring the complainant, which was encashed by him on 30.05.2013.  Hence, he was estopped from espousing the said cause.  The alleged loss was caused to the complainant due to his own negligent and careless conduct.  He did not follow the terms and conditions and he chose to keep the alleged valuable in the check in baggage.  Thus, they have no liability too.  They have denied that the baggage contained Samsung mobile, pan card, gold plated articles etc.  No proof has been placed.  They have further stated that the rights and liabilities of passengers and air carriers were governed by the Carriage by Air Act 1972.  Further, they have denied other facts, stated in the complaint.

4.       The complainant in her rejoinder to the Written Statement has controverted the pleas made in the written statement and has reasserted his pleas made in the complaint.

5.       In support of its case, the complainant has examined himself on affidavit.  He has narrated the facts, which have been stated in the complaint. He has further stated that they have taken the wise step by sending Rs. 3,000/- to cover up their own wrongs, though, the same was encashed by the complainant under protest and without prejudice to his rights and contentions, as written by him on the back of the said cheque/covering letter, which was in possession of respondent/bankers.  The said sum does not in any way cover up the entire loss of the baggage.  He has also got exhibited the documents such as boarding pass and attached luggage/baggage stickers (Ex.PW1/1&2), irregularity report of baggage (Ex.PW1/3), email message received from respondent dated 03.05.2013 (Ex.PW1/4), letters written by the complainant (Ex.PW1/5&6), letter of dated 12.04.2013 sent by the respondent to the complainant (Ex.PW1/7), letter sent to the appellate authority (Ex.PW1/8) and letters sent by the complainant (Ex.PW1/9 & 10).

          In defence, Spice Jet Limited have examined Shri Vijay Roy, Manager (Legal), who have deposed on affidavit.  He has narrated the facts, which they have taken in the WS. 

6.       We have heard Ld. Counsel for the complainant and have perused the material placed on record.  We have no opportunity to hear Counsel for OP as they did not appear. Though, Counsel for OP did not appear to argue, however, they have taken the stand in their written statement that their liability was limited as per the terms and conditions.  Further, it has been stated that they have already remitted the amount of Rs. 3,000/-, which the complainant have encashed. 

          However, counsel for the complainant have argued that the complainant have encashed the amount of Rs. 3,000/- without prejudice to his rights.  With regard to limited liability, he has argued that the liability of the carrier was not limited.  In support of his argument, Ld. Counsel for the complainant has placed reliance on Jet Airways India (P.) Ltd. & Ors. vs. Dipak Bhattacharya [III (2004) CPJ 607], Indian Airlines Ltd. vs. Prakrithi Shetty [IV (2007) CPJ 154 (NC)],  Egypt Air vs. Sai Leelavathi [II(2006) CPJ 43 (NC)], where it has been laid down that for loss of baggage, the liability of the airlines have been limited under the Carriage by Air Act, 1972. 

          The other two judgements of Manager, South India, Air India vs. Smt. Visalakshi Subramaniam [I 92003) CPJ 238] and Barij Baran Das vs. Customer Affairs, Emirates Group Headquarters & Ors. [IV (2009) CPJ 268], where it has been laid down that the airlines have to pay the value of articles and follow the terms and conditions, printed on the ticket. 

          To ascertain as to whether the complainant was entitled for the loss of baggage, the first plea taken by the airlines (OP) has to be taken up.  It has to be seen as to whether the complainant have encashed the amount of Rs. 3,000/-, which was sent by OP.  It has been admitted by the complainant himself in his replication that he got the cheque encashed for an amount of Rs. 3,000/-, which he received under protest without prejudice to his rights.

          Cheque no. 019501 dated 10.05.2013, sent by OP, favouring the complainant was encashed by him on 30.05.2013 as stated by OP in their WS.  For this, they have placed on record Annexure R-2, showing the amount of Rs. 3,000/- sent to the complainant through CTS clearing on 30.05.2013.  Thus, the fact remains that the complainant got encashed the cheque on 30.05.2013.  He filed his complaint on 28.05.2013, which came up for hearing on 02.07.2013.  On 02.07.2013, when the matter was taken up, the complainant did not inform the Forum with regard to having encashed the cheque for an amount of Rs. 3,000/-.  He filed the complaint on 28.05.2013.  He has not placed on record the letter, through which he has received the cheque.  When he filed the complaint and have got the amount encashed on 30.05.2013, it seems that before filing the complaint, he have received the cheque. 

          When he has received the cheque and got it encashed and has not disclosed this fact in the complaint, the complainant has not approached the court with clean hands. 

          Not only that, when he has got the cheque encashed, he does not remain a consumer.  When he is not a consumer, his complaint was not maintainable at the time of admission itself.  The judgements on which counsel for the complainant have relied upon only state about the limited liability of the carrier.  When the liability of the carrier have been limited and he has not placed on record the terms contained on the ticket, the other two judgements, where the value of the articles have to be given to the complainant, cannot be attracted to the facts of the case.

          In view of the above, we are of the opinion that when the complainant himself have got the amount encashed, he ceases to be a consumer.  Therefore, his complaint deserves its dismissal and the same is dismissed.  there is no order as to cost.

          Copy of the order be supplied to the parties as per rules.

          File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member    

 

(SUKHDEV SINGH)

                                                          President