Order by:
Smt.Aparana Kundi, Member
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that complainant is unable to file the present complaint in person, so she authorized her father-in-law Sh.Hari Krishan Aggarwal to file the present complaint on her behalf. Further alleged that the complainant has traveled from Melbourne to New Delhi via Banglok on 13th April, 2022. She has to travel on Qantas Airways from Melbourne to Sydney & Sydney to Bangkok through flight no.QF410 & QF 23 respectively vide ticket no.0816957397922 and accordingly, boarded the flight of Thai Airways from Bangkok to Delhi vide flight no.TG315. Further alleged that at the time of boarding, the complainant had given all her luggage to the concerned authorities of the Opposite Parties, who issued Baggage Receipt/Tag No.QF363385 as token of security. On reaching Delhi Airport, the luggage of the complainant was missing. The complainant immediately approached to the authorities of the Thai Airways regarding the missing of her luggage. On this authorities of Thai Airways, issued Property Irregularity Report and assured the complainant to receive the luggage within two days at her place of destination. In this regard, the authorities concerned also provided two phone number i.e. 011-61238974/76 and 9818201544 to contact in case of any inquiry by the complainant. On lapse of the given time of two days, the complainant made so many calls to the Opposite Parties but even after the expiry of four days, the complainant did not receive her luggage and despite repeated calls, the complainant did not receive any response from the Opposite Parties. Further alleged that the complainant had come to India to attend the marriage of her cousin and all her dresses, footwears and cosmetics material were in the luggage and due to non receipt of the luggage from the Opposite Parties, the complainant was compelled to purchase new dresses, footwears cosmetics etc to attend the function. At last, on 18th April, 2022, the complainant received her luggage from the Opposite Parties through their courier service in a very bad condition and the said bag/luggage was found in a torn condition and all dresses of the complainant were found shuffled and two wrist watches which she had brought to gift the newly wedded couple, branding Rado valuing Rs.1,45,000/- and Armani valuing Rs.90,000/- were also missing from the luggage. The detail of goods, which the complainant was compelled to purchase again due to the lapse and missing luggage were mentioned in para no.8 of the complaint. The complainant sent so many requests and reminders and also sent lot of e-mails to the Opposite Parties to make good the loss caused to her, but to no effect. Due to the negligence and deficiency in service on the part of the Opposite Parties, complainant suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Party may be directed to pay an amount of Rs.2,88,772.04 paise being the value of the new goods purchased and being the values of lost watches and being the value of lost goods.
b) To pay an amount of R.2,00,000/- as compensation on account of mental tension and harassment.
c) To pay an amount of Rs.33,000/- as cost of the complaint.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Party No.1 filed written version taking preliminary objections therein inter alia that the complainant has invoked jurisdiction of this Commission claiming that she is a permanent resident of Moga. However, the Property Irregularity Report filed with the complaint shows that the permanent address of the complainant is 1/110 Heatherdle Rd, Mitcham, 3132 Melbourne, Australia. In the PIR the complainant has stated that her Moga address is her temporary address for a month. This clearly shows that the complainant has falsely stated in the paragraph 12 of her complaint that she is a Permanent resident of Moga. Further averred that this Commission does not have the territorial jurisdiction to entertain the present complaint. Neither of the Opposite Parties reside in Moga nor do they have an office in Moga. Further averred that the jurisdiction against an airline is required to be decided in accordance with the provisions of Carriage by Air Act, 1972 and that jurisdciton in case of carriage by air is governed by Rule 33 of Schedule III to the Carriage by Air Act, 1972. Hence, an action can be brought only at either the place of destination (in this case New Delhi) or where the Carrier is domiciled of has its principal or has it principal place of business (in this case Bangkok or New Delhi), or where the carrier has a place of business through which the contract has been made (in this case Melbourne). It is stated that neither the Thai Airways nor Opposite Party No.2 Qantas Airways is domiciled Moga nor do either of the Opposite Parties. Further the destination of the complainant was not Moga and the Opposite Parties also does not have an establishment at Moga through which the alleged contract of travel was made. On merits, it is submitted that there is no issue with the complainant authorizing her father-in-law to file the present complaint as the attorney of the complainant. The attorney of the complainant is not entitled to file any affidavit of evidence on behalf of the complainant to the facts relating to the complainant, which are known only to the complainant cannot be stated on oath by an attorney. It is further stated that the alleged facts of which only the complainant is aware would be hearsay if stated by the attorney. In an affidavit only such facts can be affirmed on oath which are in the personal knowledge of the deponent. Further stated that verification at the end of the affidavit filed by the attorney of the complainant is untrue as most of the facts stated in the affidavit are not fact which are in the personal knowledge of the attorney, but are facts which are in the knowledge of the complainant. Thus, the affidavit of the attorney of the complainant is liable to be rejected. Further submitted that the tickets were issued to the complainant by Qantas Airways, Opposite Parties no.2 & 3. As per record available with the answering Opposite Party, the complainant checked-in one piece of baggage weighing 32 kilograms at Melbourne with Qantas Airways and a baggage tag No.QF 363385 was issued by Qantas Airways to the complainant. It is not denied or disputed that upon reaching the Delhi Airport, the complainant reported that her checked-in bag was missing and lodged a PIR (Property Irregularity Report) with the answering Opposite Party at New Delhi. The PIR clearly mentioned that the complainant had checked-in one bag with weighed 32 kilograms. The PIR also records the contents of the bag as clothes, shoes and purses. Further stated that the baggage of the complainant was duly apprised of the same over the phone. Further, the complainant was informed that her bag would be sent to Moga at the address provided by her as soon as it was practically possible, after it was cleared by the customs department. The baggage delivery report dated 14.04.2022 showing the delivery of the bag in good condition to the courier company engaged by the answering Opposite Party for delivering the bag to the complainant at Moga, Punjab. Further stated that complainant was duly informed on 15.04.2022 about the arrival of her bag at New Delhi and the fact that the same was being sent by the Courier to be delivered to her at Moga. Hence, the complainant was under no compulsion to purchase new dresses, footwear, cosmetics etc. and if any purchases were indeed made by her, the same were done out of choice and not compulsion. Further stated that while copy of a wedding invitation for 20.04.2022 has been filed on record by the complainant, the complaint is silent as to what the relationship of the complainant is with either the bride or the groom whose names are mentioned on the card. It is denied that the complainant received her baggage from the answering Opposite Party on 18.04.2022 in a bad condition, as the baggage delivery report provided by the courier agency to the answering Opposite Party clearly records that the baggage was handed over by the answering Opposite Party to the courier agency in a good condition and the delivery receipt has also been signed on behalf of the complaint recording that the bags were received by the passenger in locked and proper condition. The person who has received delivery of the baggage on behalf of the complainant has not recorded on the delivery report any grievance as to the baggage being in a bad or torn condition. As to the allegation that a Rado watch valued at INR Rs.1,45,000/- and an Armani Watch valued at INR Rs.90,000/- were missing from the baggage, it is stated as follows:-
i) The PIR filed by the complainant records the contents of the bag as clothes, shoes and purses. Nowhere has it been mentioned that the baggage contained 2 watches.
ii) Article 8.3.4 of the conditions of carriage of the answering Opposite Party clearly stipulated that a passenger must no include in his checked-in baggage personal electronic devices and valuables. Reliance is further placed on Article 16.1 which clearly stipulates that acceptance of baggage without a complaint at the time of delivery is sufficient evidence that the baggage has been delivered in good condition.
iii) Reliance is also placed on Article 15.1.1(d) of the conditions of carriage of the answering Opposite Party which clearly stipulates that the answering Opposite Party is liable only for compensatory damages for proven losses. The complainant has failed to bring on record any evidence of the fact that the complainant was carrying a Rado and an Armani watch in her checked in baggage as stated in the complaint.
All other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Upon service of notice, none appeared on behalf of Opposite Parties No.2 & 3, hence Opposite Parties no.2 & 3 were proceeded exparte.
4. In order to prove the case, complainant tendered in evidence her affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C21.
5. To rebut the evidence of complainant Opposite Party No.1 tendered in evidence affidavit of Sh.Neeladri Kumar Das, Senior Supervisor (Administration), Thai Airways Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/6.
6. We have heard the counsel for the parties and gone through the written arguments submitted on behalf of Opposite Party No.1 and also gone through the documents placed on record.
7. As it come out from the complaint and written reply of the contesting parties, the facts mentioned below are not disputed
a) The complainant boarded the flight from Melbourne to Sydney through flight no.QF410and next flight from Sydney to Bangkok through flight no.QF23 both of Qantas Airways and lastly on flight from Bangkok to India, through flight no.TG315 of Thai Airways.
b) The non-delivery of the luggage at the time of de-boarding the last flight or during the journey.
c) And lastly the delayed delivery of luggage in damaged condition at the complainant’s destination at Moga.
Now, coming to the real dispute between the parties, Complainant claims that
i) Due to non-delivery of luggage at the time of de-boarding the flight she was compelled to make the purchases of Rs.53,000/-.
ii) Delayed delivery of bag in damaged condition.
iii) She lost a pair of two expensive and exotic watches namely Rado and Armani of Rs.1,45,000/- and Rs.90,000/- respectively.
iv) Lastly, on point of jurisdiction as the Opposite Party No.1 has raised the objection that this Commission has no jurisdiction to decide the present complaint as the Opposite Parties are not residing in Moga and the cause of action is either in Delhi or in Melbourne.
8. In order to substantiate her claim, the complainant has produced certain bills regarding new purchases made in India from Ex.C13 to C20, but these bills do not establish the claim of the complainant and so as to make her entitled to the relief as prayed for. The bills do no clarify of any distress purchase by the complainant on account of loss of her luggage in the flight.
9. So far, as the claim regarding the watches for Rs.1,45,000/- and Rs.90,000/- is also not sustainable in the absence of any documentary proof particularly in the shape of a bill. Moreover in PIR (Property Irregularity Report), there was no mention of watches in the luggage by the complainant at the time of lodging a report regarding the non delivery of luggage which is clear from Ex.C11.
10. As far as the jurisdiction is concerned, the luggage was delivered with delay by Thai Airlines through courier service to the complainant’s residence at Moga, thus this Commission has the jurisdiction to decide the present complaint. However, at the same time it cannot be denied that there is deficiency in service on the part of the Opposite Parties. The complainant suffered mental tension and harassment due to non delivery of the luggage at the time of de-boarding the flight and also for delayed delivery of the luggage.
11. From the discussion above, we partly allow the complaint of the complainant and direct the Opposite Parties no.1 to 3, jointly and severally, to pay Rs.15,000/-(Rupees Fifteen Thousand only) as compensation on account of harassment , agony and inconvenience suffered by her due to delayed delivery of the her luggage and to pay Rs.5,000/-(Rupees Five Thousand only) as litigation expenses. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
