Complainants in person
Advocate R. R. Ganu for the Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date -18th November 2013
This complaint is filed by consumers against Air India Co. for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainants are husband and wife. They are residents of Lohegaon, Pune. On 11/12/2011 they were traveling from Delhi to Pune by flight No. AI851. They handed over two baggage containing valuables. When they reached at Pune Airport they received only one bag out of the two. They have made inquiry with the staff of the Airport and they were assured that the second bag will be received after few days. After waiting fro the delivery of the second bag for three weeks, complainants wrote letter to the Station Manager on 3/1/2012 and demanded the delivery of the bag containing the valuables worth Rs.67,000/-. Prior to that, complainant No.1 had sent e-mail to the Opponent and informed about the inconvenience. Evenafter waiting for six months complainants have not received bag or compensation from the Opponents. That amounts to deficiency in service. Hence, complainants have filed present complaint and claimed Rs.67,000/- i.e. the value of the contents in the bag, compensation for mental pains, agony and inconvenience to the tune of Rs.1,00,000/-, litigation fee of Rs.10,000/-. The total claim of the complainants is Rs. 1,77,000/-.
[2] Opponents appeared before the Forum and resisted the claim by filing written version. It is not disputed by the Opponents that the complainants had traveled by the flight of the Opponents on the concerned day and one of he bag was missing. According to the Opponents the complainants have not filed declaration about the valuables in the bags and complainants are entitled to receive only compensation as per the provisions of the Carriage by Air Act i.e. to the tune of Rs.450/- per kg. The Opponents have denied the claim as regards compensation for mental and physical sufferings, inconvenience as well as cost of the litigation. It is the case of the Opponents that they were always ready to pay reasonable compensation as per the provisions. They have prayed for dismissal of the complaint.
[3] After considering the pleadings of both parties and scrutinizing the documentary evidence on which both parties are relying as well as hearing the argument of both parties, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainants have proved that there is deficiency in service on the part of the Opponents ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons-
As to the Point Nos. 1 and 2-
[4] The undisputed facts in the present proceeding are that both of the complainants have traveled from Delhi to Pune by the flight of the Opponents on 11/12/2011. They have booked and handed over two baggages and at Pune Airport received only one bag. The dispute between the parties is as regards the contents of the bag which was lost and as regards the compensation which is payable to the complainants. According to the complainants they were proceeding from Delhi to Pune along with their clothes and other valuable worth Rs.67,000/-. But this fact was not declared while booking the luggage as well as handing over the same at Delhi Airport. As per the rules and provisions of Carriage by Air Act if the complainants were intending to claim compensation as per the value of the articles which were kept in the luggage, they have to submit the declaration and they have to pay extra charges for the same. As per the provisions of Carriage by Air Act the complainants are entitled to claim Rs.450/- per kg only. The complainants have claimed more amount than as per the provisions. The Opponents have strongly relied upon the judgment of the Hon’ble State Commission, Delhi in First Appeal No. 156/2008 between Cathay Pacific Airways Ltd. v/s. Mrs. Ramma Sharma. In that proceeding there is reference of judgment of Hon’ble National Consumer Disputes Redressal Commission between Manager, Air India Ltd. & Ors. v/s. India Everbright Shipping & Trading Co. 1986-2002 Consumer 5306 (NS). It has been observed in the said judgment that no additional compensation can be awarded over and above the amount to which the complainant is entitled under the Carriage by Air Act, unless there is an assertion of willful misconduct and the same stands proved.
[5] According to the complainants they have not singed any agreement containing terms and conditions between the parties. Hence, the said provision is not binding upon them. But it reveals from the record that the complainants were informed by the Opponent to verify the terms and conditions on the web site as soon as complainants have purchased the tickets and travelled by the flight of the Opponent it should be presumed that the complainants were knowing the terms and conditions as regards missing of luggage etc. as they have acted upon.
[6] It is significant to note that it is not the case of the complainants that there is willful misconduct on behalf of the Opponents. There is no declaration of the articles contained in the luggage. No extra charges were paid by the complainants for the articles contained in the baggage. More over besides pleadings, there is no evidence about the articles which were kept in the bag. The pleadings themselves cannot take place the proof of the fact. Bear words of complainants are not sufficient to held that the valuable worth Rs.67,000/- were kept in the said baggage. In such circumstances, the complainants are entitled to receive the compensation as per the provisions i.e. Rs.450/-. In absence of any evidence weight of the bag is treated as 10 kg. Hence, complainant is entitled to receive Rs.4500/- [Rs.450/- per kg. x 10 kg]. The complainants were traveling by the flight. After considering the standard of living of the complainants, the bag must have been containing a wearing garments and other domestic articles worth of Rs.5,000/- in addition to the statutory compensation. Hence, complainants are entitled to receive Rs.5,000/- by way of additional compensation.
[7] The complainants had required to run from pillar to post for receiving back the luggage and ultimately they could not receive one of the bag. They had suffered lot of pains and agony as well as mental torture and inconvenience for getting back the luggage. On that count, the complainants are entitled to receive compensation of Rs.25,000/- for deficiency in service, for mental and physical sufferings as well as for inconvenience. They are also entitled to receive Rs.5,000/- by way of cost of litigation. I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service.
3. Opponent Nos. 1 and 2 are jointly and severally directed to pay Rs.4,500/- to the complainants for loss of baggage within six weeks from the date of receipt of copy of order.
4. Opponent Nos. 1 and 2 are jointly and severally directed to pay Rs.30,000/- to the complainants towards compensation for deficiency in service, for mental and physical sufferings as well as for inconvenience, and compensation in addition to the statutory compensation within six weeks from the date of receipt of copy of order.
5. Opponent Nos. 1 and 2 are jointly and severally directed to pay Rs.5,000/- by way of cost of litigation to the complainant.
6. If the amount is not paid or deposited within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
7. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 18/11/2013