Delhi

StateCommission

A/11/104

SHAKEB KHAN ALTAMASH - Complainant(s)

Versus

THAI AIRWAYS INTERNATIONAL PUBLIC CO. LTD. - Opp.Party(s)

08 Dec 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments: 08.12.2016

Date of Decision: 15.12.2016

Appeal No. 104/2011

(Arising out of the order dated 29.12.2010 passed in Complaint Case No.131/07 by the

District Consumer Redressal Forum-South, Delhi.)

In the matter of:

Sh. Shakeb Khan Altamash,

R/o 17/131, Dakshinpuri,

DDA Flats, Near Ambedkar Nagar,

New Delhi-110062.                                                                     …..........Appellant

 

Versus

Thai Airways International Public Co. Ltd.

The American Plaza International Eros,

Nehru Place, New Delhi-110019.                                               ....Respondent

                    

Appeal No. 105/2011

(Arising out of the order dated 29.12.2010 passed in Complaint Case No.244/07 by the

District Consumer Redressal Forum-South, Delhi.)

In the matter of:

Sh. Shakeb Khan Altamash,

R/o 17/131, Dakshinpuri,

DDA Flats, Near Ambedkar Nagar,

New Delhi-110062.                                                                     …..........Appellant

 

Versus

Thai Airways International Public Co. Ltd.

The American Plaza International Eros,

Nehru Place, New Delhi-110019.                                               ....Respondent

                                            

CORAM

O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

 

 

 O.P. Gupta, Member (Judicial)

 

1. By this common order I shall be deciding two appeals as the same arise out of similar order dated 29.12.2010 passed by District Forum-South in CC No.131/07 and CC No.244/07.  The facts and questions of law involved are same in both the appeals.

 

2. The District Forum held that complaints were not maintainable before consumer forum and complainant might seek redressal from court of civil law, if so advised.

 

3. In Appeal No.104/2011, the impugned order reveals that complainant had gone from Calcutta to Bangkok  vide Flight No.TG314 of OP on 30.08.2006 and carried four bags of total weight of  82 Kg. In Appeal no.105/11 the flight No. is same but date of flight is 10.10.2006 and weight of the bags is 84 Kg.

 

4. Common facts are that on reaching Bangkok, the complainant found that his bags were missing. He had declared all the items in the bags which were carried by him, at the boarding pass counter at Kolkata Airport. He made a verbal complaint/report in the office of OP.  The OP checked bags in the Lost and Found Office but the bags of complainant were not there. The OP registered complaint.  The complainant contacted office of OP several time but there was no positive reply.  The total value of items in Appeal No. 104/11 was 19000 US dollar and in Appeal no.105/11 it was 11000 US dollar.  The visit of complainant to Thailand was business trip to meet prospective buyer for him, he was carrying sample of ladies items, design prepared by him and the purpose of visit to procure orders got frustrated. He came back to India.  He served notice to which reply was sent by OP.  The complainant filed complaint for award of value of goods alongwith compensation of Rs.92,000/- besides interest.

 

5. In WS, the OP pleaded that no declaration was made by the complainant at any point of time.  The OP is governed by international agreement according to which liability of the carrier is limited to 250 frances per kg. unless passenger had declared value at the time of handing over the luggage to the carrier. The trip of complainant was business trip and complainant had failed to show that he was having export licence or permission from appropriate authority.  The alleged declared loss filed by complainant is false  and fabricated.  Even otherwise commercial goods could be carried through cargo through clearance by custom agencies. The complainant had filed one more complaint prior to the complaint in question in which he adopted same modus operandi and filed fabricated documents. The declaration given in the present complaint and in the previous complaint are in same handwriting and without any authenticated stamp. The documents required expert evidence so that forgery could be revealed and complaint could not be decided summarily.

 

6. Both the parties filed evidence by affidavit.  The District Forum found that there were serious allegations of fraud, cheating and forgery made by OP against the complainant, complicated questions were involved which could not be decided without going through lengthy investigation, examination and cross-examination of witnesses.  So it agreed that plea raised in WS that matter could not be effectively resolved in summary proceedings.

 

7. In appeal, the grievance of the complainant is that in every case in consumer forum requires one or other evidence.  But that does not mean that only admitted cases are to be decided by District Forum or that all cases are to be returned for being filed in civil court. He submitted that previous complaint already filed by him had been allowed by the concerned District Forum vide order dated 02.01.2013 copy of which is placed in file of Appeal No. 105/11. He submitted that there is no practice of putting stamp in token of receiving the documents, in the office of OP. In order to support his plea he filed copy of receipt dated 13.09.2006 issued from the office of OP which contains endorsement of receipt but does not contain any rubber stamp.  The said copy is placed on file of Appeal No. 104/11.

 

8. On the other hand, the counsel for respondent submitted that he has already filed written arguments and copies of alleged declaration given by the appellant/complainant.  The said copies show that same are in the handwriting of illiterate person.  Moreover, the spelling of boarding is like  “BORDING” instead of “BOARDING”. He relied upon the decision in Synco Industries Vs. State Bank of Bikaner and Jaipur, AIR 2002 SCC 568 in which it was held that damages, travelling and other expenses incurred by claimant required detailed evidence and could not be entertained by National Consumer Commission. He also relied upon the decision in V. Kishan Rao Vs. Nikhil Super Speciality  Hospital & Anr.V (2010) SLT 349, I fail to understand as to what the respondent wants to make out of it. In that case the order of District Forum directing the appellant to pay certain amount was restored by the Hon’ble Supreme Court.  Thus, in a way this judgement goes against the respondent.

 

9. In CCI Chambers Coop. Housing Society Vs. Development Credit Bank, AIR 2004 SC 184 it was held that merely because service expert for proving signatures and writing is required, consumer court cannot refuse to entertain the case.

 

10. In Dr. J.K. Merchants Vs. Srinath Chaturvedi, AIR 2002 SCC 2931 it was held that where negligence of expert is alleged, it can be decided by consumer court.

 

11. If question of medical negligence which involves special knowledge of medicine system, its terminology can be decided by consumer court, there is no reason why case like the present one cannot be decided by consumer court.

 

12. Counsel for respondent relied upon the decision of National Commission in Consumer Complaint No.250/12 titled as Singhal Findstock (P) Ltd. Vs. Jaypee Infratech Ltd. decided on 01.10.2012 to support his another plea that travel/appellant/complainant was for commercial purpose and so case is not covered by Consumer Protection Act.  Though the said plea has not been dealt with by consumer court and it is not necessary to resort to the same, since matter has been raised, I proceed to decide the same.  In the cited case, complainant had purchased apartment, the complainant was company incorporated under Companies Act and it was held that company cannot reside.  It could not be for earning livelihood by self employment and the complaint was dismissed. The same has no applicability to the facts of the present case.

 

13. In the case in hand, the appellant hired service of OP for travelling and the same is covered within the definition of service under Consumer Protection Act.  What was the purpose of travel is altogether alien.

 

14. To sum up, the appeals are accepted, impugned order is set aside and matter is remanded back to the District Forum to decide the same on merits.

 

15. Copy of this order be sent to both the parties free of cost.

 

16. Files of District Forum be returned with copy of this order.

 

17. Parties are directed to appear in District Forum on 30.01.2017.

 

18. One copy of this order be placed on file of  FA-105/2011.

 

19. File be consigned to Record Room.

 

 

(O.P. Gupta)

Member (Judicial)

                         

 

 

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