BEFORE

HON'BLE MR SUBHASH CHANDRA, PRESIDING MEMBER

For the Petitioner             IN PERSON

For the Respondent          Mr Vijay Chawla & Mr Vipul Saini, Advocates

                                        ORDER

1.     This revision petition filed under Section 58 (1) (b) of the Consumer Protection Act, 2019 (in short, ‘the Act’) challenges the order dated 17.05.2023 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in FA no. 544 of 2018 dismissing the appeal. This order will also dispose of RP no. 1613 of 2023 between the same parties which arises from the same order and agitates the same issues except for some factual details of the date and payment. For the sake of convenience, RP no. 1612 of 2023 is taken as the lead case.

2.     I have heard the petitioner in person and the learned counsel for the respondent and have carefully perused the material on record.

3.     The appellant contends that he booked four bags weighing 82 kgs on Flight no.TG 314 from Kolkata to Bangkok operated by the respondent as part of a business promotion visit undertaken by the appellant on 30.08.2006. Excess baggage for 55 kgs of weight of Rs.11,860/- was paid which was acknowledged and tag numbers were issued. The baggage was found to be missing on arrival at Bangkok, whereupon a complaint was filed with the respondent. A claim of USD 19,000/- or Rs.8,74,000/- was filed which was rejected by the respondent on the ground that the claim was fraudulent as was evident from the fact that the respondent had accused the complainant of having played fraud upon the respondent by making false claims against the respondent. Further, it was clearly evident that the client followed a pre-mediated modus-operandi in order to commit an act of fraud on the Airline that was punishable under the law. The claim of the appellant on the respondent was absolutely false and unjustified.

4.     The District Forum had initially held that the petitioner was not a ‘consumer’ since he was admittedly on a commercial trip. Subsequently, on remand by the State Commission, it decided the matter on merits and rejected the complaint. Vide order dated 19.12.2018, the District Forum held that the claims were based on the letter head of “Golden Eye Design and Fashion” which indicated a list of items with value against each purportedly received by the respondent Airline, which was not acknowledged by way of any stamp or seal. Both the documents were acknowledged on different dates at exactly at the same time (11.36 pm) and were stated to have been issued by “Bording Pass Counter”. The State Commission has held that these documents were fabricated and the declaration form was held to be in-admissible. This order, dated 19.12.2018, was upheld by the State Commission vide its order dated 17.05.2023 in appeal holding that the petitioner had concocted the story of loss of commercial samples for which liability of deficiency in service was latched on the respondent and two separate claims of USD 19,000 and Rs.8,74,000/- at the then prevailing exchange rate of Rs.46/- and subsequently for a sum of USD 14,000 or Rs.6,30,000/- were filed.

5.     It was held that the complaint had been filed by the petitioner with the objective of unjustly enriching himself under the provisions of Consumer Protection Act and therefore, the complaint had been rightly dismissed by the District Forum.

6.     The petitioner has argued that since he had been admitted to be ‘consumer’, he was entitled to benefits under the Consumer Protection Act, 2019. He therefore, pressed that relief of compensation of 250 francs per kg for loss of baggage be paid to him under the Warsaw Convention and The Carriage by Air Act, 1972  as per which he was entitled to relief as a ‘consumer’. The petitioner relied upon Section 22 (2) of the Carriage by Air Act, 1972 which reads as under:

(2)     In the carriage of registered luggage and of foods, the liability of the carrier is limited to a sum of 250 francs per kilogramme, 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 he proves that the sum is greater than the actual value of the consignor at delivery.

7.     On the other hand, the respondent has contended that the revision petition did not lie since the petitioner had not raised any issues of material irregularity or jurisdictional error and therefore, as held by the Hon’ble Supreme Court in Rubi Chandra Dutta vs United India Insurance Co. Ltd., (2011) 11 SC 269 dated 18.03.2021, Lourdes Society Snehanjali Girls Hostel and Ors., vs H & R Johnson (India ) Ltd., and Ors., (2016) 8 SCC 286 and T Ramalingeswara Rao (Dead) Through LRs and Ors., vs N Madhava Rao and Ors., (2019) 4 SCC 608, the exercise of revisional jurisdiction of this Commission was not warranted. It was also argued on the basis of Commissioner of Customs (Preventive) vs M/s Aafloat Textiles (I) Pvt., Ltd., and Ors., (2009) 11 SCC 18 decided on 16.02.2009 that the petitioner was not entitled to any relief in view of the settled position of law that fraud is a vitiating factor and the petitioner cannot now be allowed to benefit from his own wrong.

8.     The grounds urged by the petitioner in the revision petition are same that were urged before the District Forum and the State Commission in the complaint and in the appeal filed before them respectively.

9.     The Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 dated 18.03.2011 has held that:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

10.    Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors., vs H & R Johnson (India) Ltd., and Ors  (2016) 8 SCC 286 dated 02.08.2016 held:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

11.   The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

12.    In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

13.   No illegality or infirmity or perversity is therefore found in the impugned order warranting interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.

14.   RP no.1613 of 2023 is also disposed of in terms of this order.    

15.    All pending IAs, if any, are also stand disposed of by this order.