Date of Filing : 06.07.2009
Date of Order : 26.11.2015.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.647/2009
THURSDAY THIS 26TH DAY OF NOVEMBER 2015
Mrs. Kirti Sanghavi,
W/o. Mr.Hiren Sanghavi,
No.C-226, Swapnalok Apartments,
No.60, E.V.K. Sampath Road,
Vepery,
Chennai 600 007. ..Complainant
..Vs..
1. The Manager (Claims,
Baggage Services),
Air India Limited,
Anna International Airport,
Meenambakkam,
Chennai 600 007.
2. M/s. Air India Ltd.,
Rep. by its Manager (Finance),
No.19, Rukmani Lakshmipathi Road,
Egmore,
Chennai 600 008. ..Opposite parties.
For the Complainant : M/s. K. Ganesan
For the Opposite parties : M/s. O.R.Santhanakrishnan & other
This complaint is being filed by the complainant u/s 12 of the C.P. Act 1986 for a direction to the opposite parties to pay a sum of Rs.1,15,444/ with interest and also to pay a sum of Rs.1,50,000/- being the compensation with cost of the complaint to the complainant.
ORDER
THIRU. B. RAMALINGAM PRESIDENT
1.The case of the complainant is briefly as follows:-
The complainant has travelled New York to Chennai via Mumbai on 6.1.2009 through flight belong to the opposite parties. The complainant booked four pieces of baggage at Newyork on payment of necessary baggage charges for the same and reached Chennai Airport on 8.1.2009. But the complainant has received only two pieces of baggage out of the four pieces of the baggage at the baggage clearance spot at the Airport. Immediately the complainant has lodged a complaint about the same to Chennai Airport. However on 12.1.2009 the complainant has received one of the 3rd pieces of baggage ( one piece of baggage out of the two missed baggage) from the opposite parties after tracing out the same and the complainant was told by the opposite parties that another pieces of baggage was located in Ahmedabad will be handed over after receipt of the same to the complainant. However the opposite parties have not received the said baggage or traced out the said baggage and not handed over to the complainant. As such the complainant has issued legal notice dated 29.1.2009 through counsel to the opposite party calling upon him to restore the missing baggage and claiming value of the same and also compensation from the opposite parties. After that the opposite parties have paid Rs.19,556/- towards the loss of the baggage as per Airway rules and regulations. The complainant has issued legal notice dated 11.6.2009 for claiming with compensation. As such the act of the opposite parties is amounts to deficiency of service which caused mental agony and hardship to the complainant. Hence the complaint.
Written version of opposite party is as follows:-
2. It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. As per the baggage which was lost was valued as such as per rules and regulations or conditions for the said baggage a sum of Rs.19,556/- was paid as full and final settlement of the said loss to the complainant. Having received same on 10.2.2009 and encashed the cheque for the said amount after lapse of seven days the complainant has sent another notice dated 30.3.2009 claiming compensation and damage for the same is not sustainable. Further as per the conditions of Air India Limited “the passengers are advised not to carry valuables such as jewellery, encashable art papers and currency in their checked baggage. The carrier is not liable for loss / damage to or delay in the delivery of fragile or money, jewellery, silverware, cameras, electronics /video/computer or photograph negotiable papers, securities, heirlooms, antiques, artifacts work of art, irreplace publications, manuscripts, business documents, precious metals and other similar commercial effects”. Therefore there is no deficiency of service on the part of the opposite parties. The opposite parties are not liable either for the value of the items contained in the baggage or the balance sum of Rs.1,35,000/- or any other sum. Hence the complaint is liable to be dismissed.
3. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A8 were marked on the side of the complainant. Opposite parties have filed their proof affidavit and Ex.B1 & Ex.B2 were filed on the side of the opposite parties.
4. The points that arise for consideration are as follows:-
- Whether there is any deficiency in service on the part of the opposite parties ?
- To what relief the complainant is entitled to?
5. POINTS 1 & 2 :
Perused the complaint filed by the complainant, written version filed by the opposite parties, proof affidavit filed by the complainant and the opposite parties and the documents Ex.A1 to Ex.A8 filed on the side of the complainant and the documents Ex.B1 & Ex.B2 filed on the said of the opposite parties and considered the both side arguments
6. There is no dispute that the complainant has travelled New York to Chennai via Mumbai on 6.1.2009 through flight belong to the opposite parties. The complainant booked four pieces of baggage at New York on payment of necessary baggage charges for the same and reached Chennai Airport on 8.1.2009. But the complainant has received only two pieces of baggage out of the four pieces of the baggage at the baggage clearance spot at the Airport. Immediately the complainant has lodged a complaint about the same to Chennai Airport. However on 12.1.2009 the complainant has received one piece of baggage out of the two missed baggage from the opposite parties after tracing out the same and the complainant was told by the opposite parties that another piece of baggage was located in Ahmedabad will be handed over after receipt of the same to the complainant. However the opposite parties have not received the said baggage or traced out the said baggage and not handed over to the complainant. As such the complainant has issued legal notice dated 29.1.2009 through counsel to the opposite party calling upon him to restore the missing baggage and claiming value of the same and also compensation from the opposite parties. Whereas after that the opposite parties have paid Rs.19,556/- towards the loss of the baggage as per Airway rules and regulations. The covering letter sent by the opposite parties is Ex.A2. After receipt of the same amount by the complainant through cheque as mentioned in Ex.A2, the complainant has issued re-joinder of the legal notice dated 11.6.2009 for claiming with compensation for which though the opposite parties had replied for the same by reply letter Ex.A8, the complainant has filed this compliant.
7. Whereas the opposite parties has resisted the complaint by saying that as per the baggage which was lost was valued, as such as per rules and regulations or conditions for the said baggage a sum of Rs.19,556/- was paid as full and final settlement of the said loss to the complainant. Having received same on 10.2.2009 and encashed the cheque for the said amount after lapse of seven days the complainant has sent another notice dated 30.3.2009 claiming compensation and damage for the same is not sustainable. Further as per the conditions of Air India Limited Ex.B1 & Ex.B2 “ the passengers are advised not to carry valuables such as jewellery, encashable art papers and currency in their checked baggage. The carrier is not liable for loss / damage to or delay in the delivery of fragile or money, jewellery, silverware, cameras, electronics /video/computer or photograph negotiable papers, securities, heirlooms, antiques, artifacts work of art, irreplace publications, manuscripts, business documents, precious metals and other similar commercial effects”. As such the complainant ‘s claim mentioning the value of the article which was lost though it was without any proof are not liable to be compensated. Therefore the complaint filed by the complainant is liable to be dismissed.
8. However considering the facts and circumstances of the case, the baggage which was lost admittedly undeclared baggage as such as contended by the opposite parties, the opposite parties as per conditions of contract of Air India Citizen Charter for passengers and Baggage the opposite parties are liable to pay a sum of Rs.19,556/- equalent to 400 US dolar as per rules is acceptable. Accordingly the opposite parties also paid the said amount to the complainant and the same was received by the complainant on 10.2.2009. According to the opposite parties the said amount was received by the complainant as a full and final settlement of the claim of the complainant. Whereas the complainant has sent notice to the opposite parties dated 30.3.2009 stating that the said amount was received by her without prejudice to her claim made by previous notice and also demanded for the payment of Rs.1,35,000/- towards the value of lost goods in the baggage and also compensation. Therefore we are of the considered view that the complainant has received the amount sent by the opposite parties as per Air India Rules a sum of Rs.19,556/- towards the loss of the baggage without prejudice to the claim of the complainant is acceptable. Contrary to this the contention of the opposite parties that after receipt of the amount or encashment of the cheque that too after a few days, the notice sent by the complainant dated 30.3.2009 is not sustainable as stated by the complainant that the said amount was not received without prejudice to her claim made in previous notice is not acceptable.
9. In the regard the learned counsel appearing for the opposite parties have cited the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of
SRI JAYAJOTHI & CO. LTD.,
..VS..
ORIENTAL INSURNCE CO. LTD
Published in III [2002] CPJ 179 (NC)
The above citation is not applicable for the case of the opposite parties in this case. Because in the said case mentioned in the decision the amount was received by the complainant from the Insurance company / opposite party as full and final settlement of his claim after lapse of seven months receipt of the said amount. The complainant has stated that the said amount received without prejudice to her claim. Therefore on the facts and circumstances of the present case as mentioned above the said citation referred by the opposite parties is also not applicable for their case in the present facts and circumstances of the case.
10. Further the complainant has claimed the value of the lost baggage mentioned goods a sum of Rs.1,35,000/- and also claimed compensation on the ground of deficiency of service which caused mental agony and hardship to the complainant against the opposite parties. In respect of the above said claim made by the complainant in the complaint though the complainant has listed the value of the goods which were lost, in the complaint there is no valid proof of evidence for the same is produced before this forum. Further the said baggage was undeclared baggage of value of the baggage and also according to the conditions and rules and regulations of the Air India such claim made by the complainant is also not sustainable and opposite parties are not liable to any claim.
11. However with regard to the lost of the said baggage the complainant has attributed deficiency of service against the opposite parties as such the complainant was caused mental agony and hardship for which she claimed a sum of Rs.1,50,000/- as compensation in this regard. The opposite parties have raised objection stating that since the said loss was not intentional or with intent to cause damage or if and caused recklessly and with knowledge to damage would probably result of the opposite parties also there is no such pleadings on the side of the complainant in the complaint as such the complainant is not entitled for compensation as prayed for in the complaint against the opposite parties.
12. Whereas the learned counsel appearing for the complainant has submitted that as per their own admission made in the written version that the said lost baggage was located in Ahmedabad and receipt of the same it will be handed over to the complainant as stated by the opposite parties earlier subsequently stating that despite of their several steps taken for forwarding the said baggage with the said situation it has not been able to receive the same is not a valid reason and such act of the opposite parties will amount to deficiency of service. As such they are not liable for the same to the complainant as per Consumer Protection Act is not acceptable. Further even for the baggage which was found lost at the arrival of the complainant in Chennai Airport on 8.1.2009 subsequently after four days one of the baggage was traced out by the opposite parties and handed over to the complainant. There is no valid explanation for such missing of baggage on the side of opposite parties which also to be considered to deficiency of service on the part of the opposite parties. Therefore we are of the considered view that for the delay in tracing out one of the lost baggage and handing over it to the complainant and also not for the total lost but for one of the baggage for which the opposite parties had paid only Rs.19,556/- as per rules as compensation to the complainant that too after making several demands notice, communications made by the complainant are all amount to deficiency of service on the part of the opposite parties which caused mental agony and hardship to the complainant as such the opposite parties are liable to pay compensation for the same to the complainant is acceptable. The learned counsel appearing for the complainant also referred the decision of the Hon’ble National Commission rendered in the case of
Mrs. Helen Wallia
..Vs..
Cathay Pacific Airways Ltd.,
Published in 2002 (1) CPR 182 (NC)
In support of the said contention is also squarely applicable for the present case.
13. Therefore we are of the considered view that the opposite parties are jointly and severally liable to pay compensation for the loss of the goods and their value claimed by the complainant in the complaint under the ground of deficiency of service for the delay in handing over one of the baggage to the complainant and total loss of another one baggage for which compensation paid by the opposite party as per rule. However we are of the considered view that the compensation claimed by the complainant in the complaint a sum of Rs.1,50,000/- as against the opposite parties is exorbitant. Therefore the opposite parties are jointly and severally liable to pay Rs.50,000/- as just and reasonable compensation to the complainant and also to pay a sum of Rs.5,000/- as litigation charges to the complainant and as such the points 1 & 2 are answered in favour of the complainant.
In the result, the complaint is partly allowed. The opposite parties are jointly and severally directed to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation and also to pay a sum of Rs.5,000/- (Rupees five thousand only) as litigation charges to the complainant within six weeks from the date of this order failing which the compensation amount of (Rs.50,000/) shall carry interest at the rate of 9% per annum from the date of order passed till the date of realization.
Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 26h day of November 2015.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents :
Ex.A1- 29.1.2009 - Copy of notice by complainant’s advocate to 1st opposite party.
Ex.A2- 10.2.2009 - Copy of reply by the 1st opposite party to the complainant.
Ex.A3- 10.2.2009 - Copy of reply by the 2nd opposite party with cheque for Rs.19,566/-
Ex.A4- 30.3.2009 - Copy of rejoinder by the complainant counsel to the
1st opposite party.
Ex.A5- 2.4.2009 - Copy of interim reply sent by the 1st opposite party to the
Complainant’s counsel.
Ex.A6- 6.4.2009 - Copy of detailed reply by the 1st opposite party to complainant’s
Counsel.
Ex.A7- 11.4.2009 - Copy of notice issued by the complainant advocate to the
Opposite parties.
Ex.A8- 19.6.2009 - Copy of reply by the 2nd opposite party to the complainant’s
Advocate.
Opposite parties’ side documents:
Ex.B1- - - Copy of Air India Citizen Charter for Passengers and Baggage.
Ex.B2- - - Copy of Contract of Air India.
MEMBER-I MEMBER-II PRESIDENT.
