Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No. 321 / 2007

1)           Sri Anil Kumar Parilia,

18A, Park Street, Kolkata-71.                                 ---------- Complainant

1)           Thai Airways International,

229, A.J.C. Bose Road, Kolkata-20.                        ---------- Opposite Party

Present :        Sri S. K. Majumdar, President.

                        Sri T.K. Bhattacharya, Member

Complainant, Mr. Anil Kumar Parolia by filing a Petition of Complainant under Section 12 of the Consumer Protection Act, 1986 on 18.09.2007 has prayed for Compensation of Rs. 16 lac for the loss of his business contract and Rs. 2 lac as loss of mesne profits and Compensation of Rs. 1,20,000.00 for the useless traveling expenses and Rs. 30,000.00 for defraying the expense of fever and flue in the cold weather of 8 Degree Celsius temperature for to want of required clothing lying in the misplaced luggage.

The fact of the case, in short, is that the Complainant purchased an Air-ticket for the journey from Kolkata to Beijing via Bangkok for the purpose of attending a meeting with their business associates for Metcoke and Iron-ore business for entering into a long-terms contract. He arrived at Beijing on 10.12.2006 and at the time of getting the luggage he came to know that his luggage was misplaced and ultimately he was in formed by the Airport Authorities that his luggage has been sent to Shanghai instead of Beijing. He reported against it to the Airport Authorities. For such careless act he had to face great trouble for want of required clothes in 8 Degree Celsius temperature at Beijing and his warm garments were in the misplaced luggage which was flown to Shanghai instead of Beijing causing lot of sufferings to the Complainant

Moreover, he could not attend meeting with proper documents/papers which were in the misplaced luggage, and as a result profit in the contract valued at Rs. 75 lac and for not getting access of required valuable documents and papers the Complainant postponed the meeting from 14.12.2006 to 16.12.2006 with the expectation that meanwhile his misplaced luggage would be recovered from the Air Authority. For such wrongful and illegal action on the part of the Thai Airways the luggage of the Complainant was sent to Shanghai instead of Beijing, and as a result the whole purpose of attending the meeting with buyers/sellers in connection with entering into the long-term contract for the purchase of Metcoke and sale of Iron-ore and as a result the Complainant could not take part in such purchase and sale transaction for want of required documents and papers which were lying in the misplaced bag sent to Shanghai instead of Beijing.

Only before his leaving from Beijing to India the bag was recovered to him , but he did not open the bag as it was in damaged condition and he returned to India with high fever for want of warm garments at Beijing running -8 Degree Celsius temperature. It is purely and surely due to the negligence and deficiency of service on the part of the Thai Airways the Complainant has sustained a great loss and accordingly, he has filed this case with the aforesaid prayers.

O.P., Thai Airways International has contested this case by filing a Written Version on 16.04.2008 alleging, inter-alia, that the Complainant is not a consumer as provided under Section 2(d)(i) of the Consumer Protection Act, 1986 as amended. The allegation of the Complainant against the O.P. is an after-thought and the Complainant has filed this case to lower down the reputation of Thai Airways.

It is their specific allegation that when any passenger purchases any ticket he is bound by the Contract of the Warsaw Convention that the Carrier’s Liability is limited regarding the Loss of Life or Baggage etc., and in India the Carrier is governed by the Carriage by Air Act, 1972, and the claim of the Complainant is illegal, false and they have also alleged that the Property Irregularity Report submitted by the Complainant as Annexure-A shows that the baggage was tagged for “Shanghai” and the Complainant informed the Authorities of Thai Airways about the return or damage of the baggage before and after his scheduled return back from Beijing to India, and he never approached the Office of the O.P. in Kolkata for registering any grievances for delayed delivery baggage and the Complainant instead of taking recourse to the facility provided by the O.P. has filed this case against the O.P. with false allegation. The Complainant has not come with clear hand before this Forum, and accordingly, the Thai Airways is not responsible on the principle “Volenti Non Fit Injuria” which shows that the valuables, documents and papers ought to have been kept by the Complainant with himself, and he was negligent in keeping all those valuables and documents in the luggage. And accordingly, the Complainant is not entitled to get any relief as prayed for and so the case is liable to be dismissed.

Decision with reasons :-  

In view of the background of the case of both the Parties it can be said with reasonable certainty that the Complainant booked air-ticket for taking journey from Kolkata to Beijing. His main grievance is that due to negligence on the part of the Thai Airways Authorities his luggage instead of going to Beijing flew to Shanghai and inside his luggage he had valuable documents and warm clothings. When he landed at Beijing he came to know of it and as a result his business meeting was postponed from 14.12.2006 to 16.12.2006 and the meeting for the transaction of Metcoke and he had an expectation of earning a profit of Rs. 75 lac which were available from the contract papers lying with the luggage.

Further allegation is that without any adequate and proper warm garments he had to suffer serious illness with 8 Degree Celsius temperature of which he was not acclimatized and for his medical treatment he had to defray a good amount of money for the negligence of the O.P.

          On the other hand, the O.P. has taken up the plea of Warsaw Convention, and according to them carrier’s liability is limited regarding loss of life or baggage and in India provisions of the Carriage by Air Act, 1972 is applicable in case of liability of the carrier. It is their further contention that in the luggage of the Complainant the tag ‘Shanghai’ was labeled and so the luggage had flown to Shanghai instead of Beijing. They have also attempted to make out a case of “Volenti Non Fit Injuria”. Said in other words it is the principle based on the norm that a person is supposed to take adequate care for his important and vcaluable things and for any such loss or damage of the same for want of due and adequate care he is not entitled to get Compensation for such injury.

          It is the specific case of the Complainant that his valuable documents relating to the meeting for business transaction with regard to Metcoke were kept with the luggage and he expected profit of about Rs. 75 lac in the contract. The Complainant has nowhere said either in his Petition of Complaint or in his evidence that those valuable documents were voluminous and could not be carried with him by any container which was not allowed to be kept with him during the flight. Common prudence suggests that a man is supposed to carry the valuable documents with him, particularly when he knew that those documents are valuable and very much required for a particular purpose, viz., here in dealing with a contract for the transaction of Metcoke. We do not find any earthly reason that inspite of knowing it why the Complainant put all those valuable documents in the luggage instead of keeping all those documents with him. But definitely at the same time we must say that he cannot be blamed for keeping warm garments inside the luggage because they are voluminous and weighty.

It is his specific grievance that for want of those warm garments he became ill at -8 Degree Celsius temperature at Beijing. And accordingly, he has claimed Compensation for defraying medical expenses for his illness at Beijing. We have perused the Property Irregularity Report, Annexure-A and the Lawyer’s letter, Annexure-B. In paragraph-5 of the Lawyer’s letter it has been stated that the Complainant took shelter in a hotel and when he started for attending the meeting for signing the contract with multi-national company for his business he could realize that it was not possible without documents/papers lying withd the mis-placed luggage. This sounds something unnatural to us because the Complainant knew it well that alongwith his other articles, viz., garments, some valuable documents for the purpose of the meeting were with him. So how could he say that when he was about to start for the meeting he realized that it was not possible for him to attend the meeting because the important documents were lying with the mis-placed luggage. It sounds to us as if this consciousness/awareness that those documents were lying with the luggage all on a sudden came to his knowledge when he was about to start for the meeting. We should not lose sight of the fact that the profit out of the contract of the transaction was valued at Rs. 75 lac by the transaction of Metcoke; so, common prudence suggests that he was very much aware of it that the valuable documents were lying with the mis-placed bag and before going to attend the meeting, common prudence further suggests that he ought to have been aware of it. In view of this position our observation is that the principle of ‘Volenti Non Fit Injuria’ is applicable in the instant case. Further, we observe that if there is negligence on the part of the O.P. for taking the luggage to Shanghai instead of Beijing, the Complainant is also liable for such negligent act committed by himself by not keeping those valuable documents with himself. So, for this contributory negligence the O.P. should not be penalized the full amount of the loss incurred by the Complainant. In the Evidence of the O.P. he has stated in paragraph-7 of the Article 21 of the Warsaw Convention which runs “If the Carrier proves that the damage so caused by or contributed by the negligence of the injured person the Court, in accordance with the provisions of its own Law exonerate the Carrier wholly or partly from his liability”. It is true that in a flight the men of the Airlines Authority put the Tag on the Luggage. So, they were required to put the tag Beijing, but out of inadvertence or negligence whatever it might be the luggage of the Complainant was tagged as Shanghai instead of Beijing. To this extent definitely the Thai Airways Authority is responsible. But as we have already said that the liability of the Complainant cannot be exonerated because for the purpose of attending the meeting at Beijing for some business purposes he was going there with some valuable documents. In that event he ought to have been more diligent and careful by way of keeping at least to the extent valuable documents with him when it is permissible during the flight by the Airways. We have also perused Evidence of the Complainant and the Brief Notes of Argument submitted by both of them.

          In support of his contention the Complainant has referred to a decision reported in IV(2008)CPJ357 of Delhi State Consumer Disputes Redressal Commission. We have also perused the decision and respectfully noted the observations wherein it has been observed that the “3 bags not only contained personal effects and warm clothings of the Complainant and his family, but also contained especially tinned/canned diabetic food, for the diabetic minor son of the Complainant, under expert medical advice and guidance.” …. To make the matters worse, it rained incessantly on Sunday night and Monday morning, making temperature freezing cold, and as a direct consequence of the lack of adequate clothings, the Complainant’s infant daughter fell seriously ill. There are subtle differences :

(a)               Number of luggage in this case referred to herein were 3. But in the instant case of the Complainant there was only one luggage which contained both warm clothes and valuable documents.

(b)               Complainant had taken flight to Beijing only for the purpose of attending the business meeting. But in the case referred to herein the purpose different.

The Complainant has cited another case reported in II(2008)CPJ202NC, and one other case reported in II(2009)VPJ101 and in both the cases referred to herein the Complainant was awarded compensation for deficiency of service for causing mental agony and inconvenience and discomfort.

          Let us now conclude by making our observation that there is no denial of the fact that there was negligence of the O.P. at the time of taking the luggage of the Complainant for proper destination to Beijing, but out of negligence it was tagged as ‘Shanghai’. But at the same time we also observe that the principle of ‘Volenti Non Fit Injuria’ is equally applicable to the Complainant because he was not so careful in keeping the valuable documents personally with him which is permissible by the Airways Authorities, particularly when he was going to Beijing to attend the business meeting for his own personal profit. So we hold that the negligence of both the sides is contributory negligence. But the Complainant is fully entitled to get refund of medical expenses which he had to defray for having fallen ill at Beijing under temperature of -8 Degree Celsius of which he was not acclimatized and for which he was not responsible because his warm clothes were with the luggage which was flown to Shanghai instead of Beijing. The Complainant is not entitled to get any traveling expenses because his flight from Kolkata to Beijing was completed and enjoyed by him.

Hence,     

that the Petition of Complaint is allowed on contest in part to the extent that O.P. is directed to give Compensation of Rs. 8,00,000.00 and Rs. 30,000.00 as medical cost as contained in paragraph-D of the Petition of Co,mplaint and Litigation Cost of Rs. 5,000.00, and the Total Cost of Rs. 8,35,000.00 is to be paid by the O.P. positively within 45 days from the date of passing this Order failing which it will carry interest @ 10% per annum till full realization.

          Fees paid are correct. Certified Copy of this Order is to be made available to the Litigant Parties on payment of prescribed fees.