CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.131/2007
AND
Case No.244/2007
SH. SHAKEB KHAN ALTAMASH
R/O FLAT NO. 703, BLOCK-6
SHAHJAHANABAD APARTMENTS,
PLOT NO.1, SECTOR 11, DWARKA,
NEW DELHI-110075
…………. COMPLAINANT
Vs
THAI AIRWAYS INTERNATIONAL PUBLIC CO. LTD.
THE AMERICAN PLAZA INTERNATIONAL EROS.
NEHRU PLACE, NEW DELHI-110019
…………..RESPONDENT
Date of Order:19.12.2018
O R D E R
H.C. Suri - Member
By way of Orders passed by Hon’ble State Commission on 15th December, 2016, in Appeal No.104/2011 and Appeal No.105/2011, the impugned orders dated 29.12.2010, passed by this Forum (C.D.R.F.-X), holding that these complaints were not maintainable before the Consumer Forum and might seek redressal in the Civil Court, were set aside and consequently these two complaint cases were remanded back to this Forum to be decided on merits. We shall be disposing of both these complaint cases by this common order as identical question of law and facts are involved.
For taking a fair decision on merits, the brief facts and the respective versions of the parties filed on record in the complaint, including their evidence submitted by them by way of evidence will have to be summarized herein. For the present, the facts of complaint case no.131/2007, are mentioned. The complainant, Mr. Shakeb Khan Altamash has filed this complaint against Thai Airways International Public Co.Ltd., the OP herein, submitting that the complainant had gone from Kolkata to Bangkok through the OP’s flight No.TG-314 for business purpose on 30.8.2006 vide Ticket no.WMPN-2172631783759, and was carrying four bags of total weight of 82 kgs which he had booked with the OP and had made payment of Rs.11,860/- on excess baggage of 55 kgs. It is submitted that the complainant had declared all the items contained in the four bags, and was issued Tag Nos.A1504115, A1504116, A1504117 and TG 46-59-46 on flight no.314 dated 30.8.2006 against all the four piece of baggage; but on reaching Bangkok, when the complainant went to collect his luggage, he was shocked to find that his four bags with the aforesaid tag nos. were missing; and that the complainant made a complaint to the OP’s service office and made verbal complaint, but in spite of their checking the baggage in the Lost & Found office, it could not be traced out, and thus, the OPs registered a report/complaint and copy thereof was given to the complainant, but before registering the complaint, the OP took the original tags from the complainant. The complainant further stated that he had disclosed the OP that the lost baggage contained commercial items of total value of US$ 19,000/-, which when converted into Indian rupee, with the then value of a dollar i.e. Rs.46/- would come to Rs.8,74,000/-. It is stated that finally, the complainant returned to Delhi on 9.9.2006 via Flight no.TG 315. The complainant had to send legal notice dated 30.11.2006, for claiming the lost baggage but the complainant was shocked to see the reply, which instead of accepting the responsibility, had accused the complainant of having played fraud upon the OP by making a false claim against the OP. The complainant submits that he was hurt and exposed to criminal liabilities. It is submitted that the complainant was on a business trip to meet prospective buyers for whom he was carrying samples of ladies tops, skirts, ladies purses and cushion covers, etc. which had been designed and prepared by him, and were heavily embroidered and were costly items. The complainant has prayed that a sum of Rs.9,66,000/- alongwith Rs.92,000/- might be ordered to be paid by the OP to the complainant, with interest.
In reply to the complaint, the OP submitted that the complainant is not a consumer within the definition of section 2 of the Act and hence the complainant is not entitled to any relief as there is neither any cause of action nor any merit in the complaint. It is submitted that under the provisions of Warsaw Convention, the Carriage of Air Act, 1972 was enacted, under which the liability of the carrier for registered luggage is limited to 250 Francs per kilogram only unless the passenger has declared the value at the time of handing over the package to the carrier. It is submitted that the complainant is guilty of making false statements and filing forged and fabricated documents i.e. alleged declaration dated 30.8.2006 on the record. It is submitted that the complainant had himself admitted that his trip to Bangkok was purely business trip and he had carried the goods for further sale/export in Thailand. Further the complainant had failed to show any documents that he is having any export license or permission from the appropriate authorities. It is submitted that the complainant has concealed the fact that he has also filed another complaint bearing no.244/2007 adopting the same modus operandi as done in the present complaint. The OP submits that it is not a coincidence that every time the complainant has lost his baggages, it is a clear cut case of the complainant against the OP to extort money from the OP, that needs to be investigated by way of a trial, and cannot be decided by way of summary proceedings as many intrinsic question of facts and law are involved in the present matter which requires extensive evidence. The OP submits that the commercial goods are carried through cargo only subject to clearance by the customs authorities. It is also submitted that the fakeness of the documents is apparent from the fact that the receiving on both the alleged declarations dated 30.8.2006 and 10.10.2006 is in the same handwriting without any authenticated stamp of the airlines and even the spelling of Board in the alleged receiving is also not correct, which is not possible. It is submitted that every baggage from the passenger is always received under proper receiving form, at specific format with stamps and that the alleged receiving on the alleged declaration dated 30.8.2006 and 10.10.2006 are totally bogus and false and fabricated ones.
The OP has denied all the allegations mentioned in the complaint with the prayer that the complaint might be dismissed with exemplary costs.
The complainant, however, has submitted in the rejoinder that the complainant has filed the complaint as per the Warsaw Convention but the OP has failed to follow the Warsaw Convention by not releasing the payment of compensation for the lost baggage. It is however submitted that the complainant had a license for import, export and is registered with the AEPC as a merchant exporter in readymade garments sponsored by the Government of India, Ministry of Textile. The complainant denied all the allegations of fraud etc. in the reply of the OP.
Likewise in case No.244/07 the complainant had gone from Kolkata to Bangkok vide flight No.T.G. 314 for business purpose on 10.10.2006 vide ticket no.WMPN-2172631785899. the complainant was carrying four bags of total weight of 84 kgs which he had booked with OP and had made a payment of Rs.10785/- on excess baggage of 50 kgs. The complainant had declared all the items in the four bags that he was carrying with him at the boarding pass counter Netaji Subhash Bose Airport Kolkata in India. The complainant was issued the Tag Nos. A1504184, A1504183, 1504182 and 1504181 on flight no.314 dated 10.10.06 against all the four baggages. When the complainant reached Bangkok on 10.10.06 he went to collect his luggage/baggage at the belt after clearing the immigration. The complainant was shocked to find out that his baggage/luggage of the description and tag nos. mentioned above was missing. The total value of the goods was Rs.4,95,000/-. Till complainant remained in Thailand, he kept himself in regular contact with OP but his luggage could not be found. The amount of the lost luggage was not paid. The complainant was constrained to send a legal notice but the amount not paid. It is submitted that the complainant suffered a damage worth 14000 US $ which is equivalent to Rs.6,30,000/-. The complainant also sought compensation.
Both the parties filed their respective evidence by way of affidavits in support of their respective versions. The complainant has deposed on oath more or less all the facts mentioned in the complaint. Similarly, the OP, has also fortified its version by filing the affidavit of its General Manager.
The parties have filed their written arguments and also addressed oral arguments.
We have gone through the case file carefully.
It is submitted on behalf of Ld. Counsel for OP that In fact it is the habit of the complainant to file a false complaint regarding loss of luggage and make a claim. It is submitted by him that the complainant has filed a similar case regarding loss of his baggage against Air India i.e. bearing complaint no.688/08 before CDRF-VI Vikas Bhawan, I.P. Estate. It is further submitted that similarly the complainant has filed these two false complaints against Thai Airway.
It is submitted by Ld. Counsel for the complainant that the complainant has not filed any false cases. The complaint case no.688/08 filed against Air India regarding loss of four bags containing embroidered ladies garments was allowed by the Hon’ble District Forum vide order dated 02.01.2013 and the appeal filed against the aforesaid order by the Air India was also dismissed by the Hon’ble State Commission vide order dated 26.09.17 in first appeal no.299/13.
It is submitted by OP that it is not a coincidence that every time the complainant lost his baggages. It is stated that it is clear that the complainant filed complaint against OP to extort money from OP. The complainant has himself stated that he was carrying the commercial goods and he was on business trip. It is stated that commercial goods are carried out through cargo only subject to the clearance by the custom authority.
We have carefully perused the so called declaration form in both the cases. The declaration form in respect of case no.131/07 is dated 30.08.2006. It is on the letter head of the “Golden Eye Design & Fashion” of which the complainant is a proprietor. On it, it is written “Bording Pass Counter Received at 11:30 Pm T.G.314”. It is not bearing the stamp of Thai Airways.
Likewise in C.C.No.244/07 the declaration form is dated is dated 10.10.2006. It is on the letter head of the “Golden Eye Design & Fashion” on which the complainant is a proprietor. On it, it is written “Received at 11:30 Pm T.G.314 Bording Pass Counter”. It is also not bearing the stamp of Thai Airways.
We have not an iota of doubt that these documents are forged and fabricated. It cannot be a matter of mere coincidence that same person was sitting in the counter on 30.08.2006 and 10.10.2006 and the same person receiving the goods and making the endorsement without there being any seal of Thai Airways. Both declarations are in same hand writing without any authenticated stamp of Thai Airways, even the spelling of Boarding in the alleged receiving is also not correct, which is not possible. OP has categorically stated that every baggage from the passenger is always received under proper receiving format with stamp. It cannot be matter of coincidence that every time he is carrying the excess luggage and the luggage is lost.
We failed to understand on what basis the evaluation made by OP has been accepted. That has to be on proper format. We have not an iota of doubt that both the documents are forged and fabricated.
It is submitted by Ld. Counsel for OP that the complainant himself has stated that he was on a business trip. The so called declaration form itself shows that these goods were commercial items. Hence the complainant is not a consumer.
We cannot look into that aspect as the Hon’ble State Commission while remanding back these complaint cases has dealt with this aspect and held that that the complainant is a consumer. Since the complainant has not come up before this forum with clean hands as he has placed forged and fabricated documents on record. Hence the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(H.C. SURI) (RITU GARODIA) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
