State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present : Justice Arunabha Basu, President
Smti Biji Thomas, Member
Complaint No. 01 of 2008
Shri Vijay Kumar, S/o Late Sai Krishna, R/o Bamboo Flat Jetty
Ferrargunj Tehsil, South Andaman
…..…… Complainant
-Vs-
The Jet Airways (India) Limited,LITOLIER Chambers
S.M. Center Andheri (East), Mumbai
……..Opposite Party
JUDGEMENT
Dated: 19.08.2011
Consumer/Complainant has filed instant application invoking the original jurisdiction of the Commission praying for an amount of Rs. 80,00,000/- (Rupees Eighty Lakhs) as compensation from the respondents Opposite parties.
Case of the complainant in short is that, the father of the complainant P.Sai Krishna (since deceased), died on 27.05.08 at about 4.50am at Workhart Hospital at Bangalore. The complainant approached the Opposite Party No.2 for removal of the human remains of his father, as because the relatives are residing at the A&N Islands. It was agreed between the parties that the human remains of complainant’s father would be carried by Air from Bangalore to Chennai and from Chennai to Port Blair. On 28.05.2008 at about 6.30 am the flight belonging to the respondent departed from Bangalore Air Port and reached Chennai at about 7.15 am. It was agreed that the human remains of the complainant’s father would be carried in Flight No.9W 613 and shall reach Port Blair on the same date. In the meantime news item was published in the Daily telegram intimating all concerned that the funeral ceremony of the father of the complainant shall be held at Bambooflat, South Andaman at 12.00 noon on 28.05.2008. The family members and relatives of the complainant attended the airport to receive the human remains of the departed soul. The flight reached at 11.15 am to utter dismay and disappointment to the complainant and his relatives the human remains did not reach by the said flight as scheduled. The mother of the complainant was unable to bear the shock and she suffered an attack of Angina pectoris and became bedridden and still undergoing treatment.
On inquiry complainant could learn that the corpse was not despatched from Chennai and remain unattended as a cargo. Complainant was further intimated that one of his relatives after finding the body took the corpse to a mortuary.
After much persuasion the respondents sent the human remains of the father of the complainant which reached Port Blair on 29.05.2008 at about 12.55 PM. Complainant after receiving the body could perform the funeral ceremony of his father on 29.05.08. The deceased father of the complainant was a reputed business man and after hearing the news of his death many people attended. The respondents were utterly negligent and due to their gross negligence complainant suffered mental agony and pain. The respondents were negligent in performing the part of their contract and there is serious deficiency in service.
Complainant has claimed a sum of Rs.40, 00000/- (Rupees Forty Lakhs) on account of deficiency in service and further a sum a of Rs.40,00000/- (Rupees Forty Lakhs) for mental agony.
The complaint is contested by the respondents/opposite parties by filing written objection denying all the material averments as mentioned in the complaint. The respondent has raised a preliminary objection that the claim as advanced by the complainant is grossly inflated and as such the application should be dismissed. It is further stated that the complainant has not supported his application with appropriate materials in order to establish the basis for such huge amount of claim. It is further stated that the human remains of the father of the complainant was booked as cargo under Airway Bill No.58974871694 dated 28th May 2008 having gross weight of 100 Kg and total amount of Rs.9,921/- was paid by the complainant for carrying the human remains of his father. It is further stated that all precautions were taken to carry human remains as a cargo and the said corpse was to be off loaded from flight No.9W531 upon reaching Chennai and again reloaded in flight No.9W613 from Chennai to Port Blair. It is stated that in advertently the human remains was not loaded in the flight proceeding from Chennai to Port Blair and such human error do occur some times. The respondents/opposite parties immediately amended their mistake and without any persuasion from the complainant and without any other charge despatched the human remains on next day i.e on 29.05.08. The opposite parties have denied that the complainant has suffered mental agony as alleged and as the claim is inflated the application should be dismissed by the Commission with cost.
The following points require determination:-
1. Was there any deficiency in service on the part of the opposite parties in not dispatching the human remains on 28.05.08?
2. Whether the complainant is entitled to claim compensation on the amount of deficiency in service and mental agony, if so to what extent?
Decision with reasons
1. Point No.1
Before we discuss the merit of the application filed by the complainant, we like to address the preliminary objection raised by the opposite parties. It is the contention of the learned advocate that the claim being inflated, the Commission should consider the preliminary objection of the opposite parties and it would be appropriate to return the application to the complainant with direction to present the same before the District Forum. Complainant has claimed a total amount of Rs. 80,00,000/-(Rupees Eighty Lakhs only) of which Rs.40,00,000/-(Rupees Forty Lakhs only) is claimed as deficiency in service and the remaining 40,00,000/- (Rupees Forty Lakhs only) is claimed for mental agony. It may be pointed out that under Section 17 of the Consumer Protection Act 1986 (herein after called the Act) the original jurisdiction of the Commission is in respect of the complainant where the claim exceeds 20,00,000/- (Rupees Twenty Lakhs only) but does exceed Rupees one crore. This being the position the claimed amount is within the ambit of the original jurisdiction of the State Commission. While presenting an application an amount is claimed by the complainant and it is for him to establish that he is entitled to the amount claimed as compensation. Complaint when presented before the State Commission or in that matter before any Forum as permissible under the law, may be decided either by allowing the application or by rejecting the application or by allowing a portion of the claim and impliedly rejecting the remaining amount of claim. There is no legal proposition in support of the contention that Commission is required to decide first the justification of claimed amount, in order to act accordingly. On the contrary the amount that may or may not be allowed as compensation shall be decided only after the complainant is successful to establish the complaint. We are unable to agree with the submission made by the learned advocate for the opposite parties.
Similar matter came up for consideration before the Hon’ble Supreme Court in Sudha Jain –Vs- Chief Manager and Another, reported in (2007) 5 SCC 717. In this case the State Commission on the ground that claims made was exaggerated directed return of the complaint for being filed before the District forum. The Hon’ble Supreme court held at para 4 of the aforesaid decision which runs as follows “ As the amount claimed was Rs.68,51,321 (Rupees Sixty Eight Lakhs Fifty One Thousand Three Hundred and Twenty One only) which was within the jurisdiction of the State Commission and beyond the jurisdiction of the District Consumer Forum, the State Commission was not justified in returning the complaint. Accordingly, the civil appeal is allowed, impugned orders are set aside and the complaint is restored to its original file. Now, the State Commission shall dispose of the complaint in accordance with law after giving opportunity of hearing to the parties”. In view of the decision of the Hon’ble Supreme Court we find no merit in the Submission made by the learned Advocate for the opposite parties and we propose to decide the application on merit as the amount claimed is within the pecuniary jurisdiction of the Commission.
Complainant has examined all together four witnesses including himself. Complainant has also produced certain documents which are marked as Exhibit No.1 to Exhibit No.7. The opposite parties did not adduce any evidence either oral or documentary.
So far as the case is concerned there is no dispute by the opposite parties about delayed despatch of the human remains of the father of complainant. Their contention appears that due to human error the cargo was not despatched in the scheduled flight and there was no negligence on the part of the opposite parties. In his evidence as PW-1, complainant has denied the suggestion that due to inadvertence the cargo was not off loaded at Chennai Airport for its onward journey to Port Blair. In this connection if we look into exhibit-6 which is a letter issued on behalf of the opposite party No.1 wherein it is recorded, “I sincerely apologize for this eronous (sic erroneous) mistake”. So it is evident that the opposite party Jet Airways tried to brush off the entire matter as error on the part of the respondent. It may be pointed out that the respondent Jet Airways being a reputed concern was duty bound and contract bound to send the human remains of the father of the complainant in the manner and on the date as agreed. The flight from Chennai to Port Blair reached on schedule on 28.05.08 minus the human cargo. This cannot be avoided by the opposite party simply by taking the plea that the entire incident took place due to inadvertence by the men of the opposite party. The opposite party cannot avoid their responsibilities and from the document itself it is evident that there was gross negligence on the part of the respondents to send the cargo in the manner as agreed between the parties.
It is further evident that complainant came from Chennai to Port Blair in the same flight where the cargo was supposed to be despatched and complainant has categorically stated that he made repeated inquiries in order to ensure that the cargo is despatched in the flight. The purpose is clear if exhibit-4 in which condolence message of deceased P.Sai Krishna was published in Daily Telegrams dated 28.05.08. In the condolence message it is stated that the funeral ceremony will take place on 28.05.08 at 12.00 noon. So it is evident that in anticipation of the arrival of the human remains on 28.05.08, necessary arrangement was made to perform the last rites of the departed soul.
The opposite parties did not adduce any evidence in order to show as to how the cargo was dealt after the same was off loaded at Chennai. It is not disputed that the complainant along with the human remains of his father boarded the flight from Banglore to Chennai and the flight was scheduled to come to Port Blair from Chennai. At Chennai complainant repeatedly reminded the respondent authority that the cargo is to be loaded in the flight to Port Blair. Respondent has denied that complainant made any such exercise as claimed. We are unable to agree with the respondent simply in view of the fact that it was quite natural on the part of PW-1 to make necessary efforts to ensure that the human remains arrives at Port Blair so that the last rites of the departed soul could be performed on 28.05.08 as already announced in the news paper.
It has further come out from the evidence of PW-1 that he was informed by his cousin that the cargo was off loaded at Chennai by the opposite parties and was left unattended. The cousin of PW-1 made necessary arrangements to preserve the body in the mortuary. Opposite party has denied such action on the part of cousin of PW-1. But the opposite parties have not adduced any evidence in order of show as to how the cargo was dealt with after the same was off loaded at Chennai. The cargo was in the custody of the opposite parties and it is for them to ensure that the cargo was dealt properly. Opposite party cannot avoid its responsibilities in storing cargo properly as because it is human remains and should have been stored properly. But here again we find that the opposite parties took the matter very casually and it is the cousin of the PW-1 who took necessary steps to store the body in the mortuary on 28.05.08.
In our view discussion of the detailed evidence on this point may not be necessary as this part is not disputed by the opposite party by adducing any evidence from their side. When the cargo is with the opposite party they have special knowledge as to how the cargo was dealt with. In the absence of any evidence by the opposite parties, we are of the view that the opposite party not only failed and neglected to deal with the cargo as is required and the opposite parties were surely negligent in dealing with the cargo which is the human remains of the father of the complainant waiting to be shifted to Port Blair so that final rites can be performed by his relatives and other persons. This being the position we are of the view that there is serious deficiency in service on the part of the opposite parties for which the opposite parties are solely responsible and as such a complainant is successful to establish his case about deficiency in service.
Point No.1 is answered accordingly.
2. Point No.2
Coming to the question of the compensation on the ground of the deficiency of service and for mental agony, we find that the complainant has claimed a total sum of Rs.80,00,000/-(Rupees Eighty Lakhs only), 40,00,000/-(Rupees Forty Lakhs only) being the amount of deficiency in service of another 40,00000/- (Rupees Forty Lakhs only) being the amount for mental agony.
The learned advocate appearing for the opposite parties during the course of his argument drew our attention to the provisions of the Air Act 1972. The human remains of the father of the complainant were booked as a cargo. Under Section 22 (2) (a) it is provided that the liability of the carrier is limited to a sum of 250 Francs per kg. Learned advocate has also produced copy of the necessary notification being S.O.659 (E) dated 22.08.1999 wherein it has been provided that for the words “250 Francs “the words Rupees four hundred and fifty be substituted”. The learned advocate for the opposite parties contended that according to exhibit-3 the weight of the cargo was 100 kg and as such an amount of compensation for deficiency in service, will be restricted to Rs.450x100 kg= 45,000/-(Rupees Forty Five thousand only).
In this connection it may be pointed out that under Section 3 of the Act it is provided that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. It is clear that the Act under which the claim is made does supplement the other laws, and does not supplant other laws. We have already observed that there is serious deficiency in service on the part of a reputed concern like Jet Airways and the company did not take proper care and attention to despatch the human remains of the father of the complainant. They have failed to advance any reasons beyond their control which prevented them to despatch cargo on 28.05.08. After noticing the serious deficiency in service, we cannot restrict ourselves to the statutory amount which is payable by the opposite parties. We have also found that even after failing to despatch the cargo the opposite parties failed and neglected to take proper care of the cargo which is human remains and as such we are of the view that the deficiency in service is further compounded by the negligence on the part of the opposite parties. After careful consideration of the entire matter we are of the view that a sum of Rs.1,00,000/- (Rupees One lakh only), over and above Rs.45,000/- (Rupees Forty Five Thousand only) is required to be awarded as compensation in favour of the complainant on the ground of deficiency in service.
Coming to the question of awarding compensation on the ground of mental agony we shall refer to the decision of Hon’ble Supreme Court in Gaziabad Development Authority-Vs-Balbir Singh reported in (2004) 5 SCC wherein the Hon’ble Court held that the word compensation is of a very vide connotation. It may constitute accordingly cost or expected cost or may extend to compensation for physical, mental or even emotional sufferings, insult or injury or loss.
In view of the decision of the Hon’ble Appex Court we must consider the claim for compensation on the ground for mental agony. It has been stated by the complainant that when the human remains of the father of the complainant did not reach on the scheduled day on 28.05.08, the mother of the complainant, who went to the airport, suffered an attack of Angina Pectoris and she is still bedridden and undergoing treatment. The mother of the complainant however, is not a party in this proceeding. She has not deposed in this case. In order to establish her physical condition, complainant has relied on exhibit-7 which is a medical certificate issued by Dr. N.R. Kodhandram, who was examined in this case as PW-2. The certificate issued by PW-2 dated 25.08.08 wherein it is stated that mother of the complainant suffered from an attack of Angina Pectoris on 28.05.08. No medical papers or supporting documents is produced by PW-2 in support of his contention, even though it is stated in a certificate that patient was under his treatment till the date of issuing the certificate. The most glaring defect in the evidence of PW-2 has come out during his cross examination when he stated, “I issued this certificate on 28.05.08 and the patient was examined on 28.08.08”. This statement practically demolishes the value of the certificate. The learned advocate for the complainant tried to argue that due to mistake the date was given. The evidence was recorded on 24.11.09 and during this long period nothing prevented the witness or the complainant to approach the Commission for rectification of the mistake. But, without doing so they remained silent and tried to avoid the issue by way of argument we are unable to place any reliance either on exhibit-7 or on the evidence of PW-2.
Having said so we cannot avoid the pain of the complainant who made the arrangement to despatch the human remains of his deceased father by the opposite parties on 28.05.08. The witnesses have stated that they attended the airport at Port Blair on 28.05.08 to receive the cargo, as the last rites of the deceased was fixed on 28.05.08. We cannot ignore the recital in exhibit-4 in which the date of death as well as date of funeral ceremony of the deceased is recorded. We cannot ignore that performance of last rites irrespective of the religion is one of the essential ceremony in our society. It is not an idle formality on the part of the relatives. It is also not uncommon for the relatives and other friends and associates to attend the funeral ceremony. We cannot brush aside the contention of the complainant that he suffered humiliation due to non appearance of the human remains on 28.05.08. The complainant was no doubt in shock and also suffered mental agony just because we have not accepted the certificate of illness of mother of complainant, we cannot ignore the complainant’s mental agony. Loss of father was certainly painful to the complainant. He made arrangements only to perform last rites of the departed soul but he failed to perform it on the given date solely due to latches and gross negligence on the part of the opposite parties. His emotional suffering is certainly a ground for awarding compensation for mental agony. Following the decision of the Supreme Court in Gaziabad Development Authority(supra) we have decided to award a sum of Rs.1,00,000/- (Rupees One Lakh only) as compensation in favour of the complainant for mental agony.
On consideration of the entire matter we have awarded a sum of Rs.2,45,000/-(Rupees Two Lakhs Forty Five Thousand only) in favour of the complainant as compensation. We are also awarding a sum of Rs.10,000/-(Rupees Ten thousand only) as cost of the proceeding in favour of the complainant. The amount of compensation of Rs.2,45,000/-(Rupees Two Lakhs Forty Five Thousand only) shall carry an interest of 12% per annum from the date of filing the application i.e on end from 18.09.08 till recovery of the amount. Complaint is disposed accordingly.
Hence
ORDERED
The complaint is allowed on contest with cost of Rs.10,000/- (Rupees Ten thousand only) payable to the complainant. Complainant is entitled to an amount of Rs.2,45,000/-( Rupees Two Lakhs Forty Five Thousand only) as compensation from the opposite parties. The amount shall carry an interest of 12% from the date of filing the application till recovery of the amount. Respondents are directed to deposit the entire amount as directed above within a month from the date of the order by issuing an Account Payee Cheque in the name of the complainant.
A copy of the judgment duly countersigned by the Court Officer he hand over to the respective parties free of cost.
