ALOK TANDON vs SCANDINAVIAN AIRLINES SYSTEM

THE complainant in person, along with his family, i. e. his wife Mrs. Swapna Tandon and two minor children, namely Master Arush Tandon (age approx. eleven years) and Miss Shreya Tandon (age approx. three years) travelled by Scandinavian Airlines System flight No. SK-0968 on the 16th June, 2001 from Delhi to Zurich, via Copenhagen and also returned by the Scandinavian Airlines System flight from Zurich to Delhi via Copenhagen on 24th June, 2001.

THE complainant at the time of checking into the said flight from Delhi, also checked in three pieces of luggage, which were admittedly accepted by the duty staff of the OP, and booked all through to Zurich, Switzerland. As a result of the utter negligence of the OP, the three pieces of luggage belonging to the complainant failed to arrive at Zurich. The three bags not only contained personal effects and warm clothing 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.

The complainant was informed by his travel agent from Delhi, with whom the complainant got in touch with that the lost luggage was scheduled to leave Copenhagen on 19th June, 2001 morning, and would only subsequently arrive in Zurich.

NO immediate compensation was offered to the complainant there and then in order for him to be able to provide warm clothes and special food for his family, especially for his minor daughter (only three years old) and his minor diabetic son. To make matters worse, it rained incessantly on Sunday night and Monday morning, making the temperature freezing cold, and as a direct consequence of the inadequate clothing, the complainant''s infant daughter fell seriously ill, and the complainant not only had to urgently and frantically show her to a doctor and seek medical advice, but also put her on medication, and spent out of the already meagre resources that one normally has when on a foreign trip. Complainant''s minor son, Arush, was forced to eat alien, non-diabetic food, an act which could never be comprehended under any circumstances, as the same had the potential and must have caused tremendous and irreversible damage to his otherwise frail and vulnerable system, which in any case requires constant and vigilant monitoring and medication, on a daily basis.

THE baggage was delivered to the complainant only on Tuesday morning, i. e. more than 36 hours after having landed in Zurich. The complainant had to cut short the nightmarish experience, and return back to India, by cancelling his proposed and already booked schedule of visiting London and Paris. The complainant returned to New Delhi, India on 24th June, 2001, by the OP''s flight from Zurich to New Delhi. The OP''s representatives assured that the matter would be looked into, and in fact vide their letter dated July 30, 2001, the OP wrote back to the complainant, admitting and confirming therein the sequence of events as contended by the complainant, and expressing their deep regret and apologies for the tremendous amount of inconvenience and agony caused to the complainant as a direct result of the OP''s actions.

THE OP vide their said letter offered an interim compensation in the sum of Rs. 33,305.

IT is contended by the complainant that in this matter Exemplary damages need to be awarded, not only on the principle of nexus between the damages suffered and compensation awarded, but also by the delicate nature of duty to care on the part of the OP, and its ability to pay and compensate in case of a breach of such duty to care towards the complainant. The complainant has prayed for compensation as under: (i) Provide a free First Class air ticket on the Delhi-Copen-hagen-Zurich-Copenhagen-London-Copenhagen-Delhi Sector, for all the four affected persons amounting to Rs. 5,10,327. (ii) Refund the entire expenses on account of clothing purchased, and expenses incurred from the date of arrival in Zurich till the date when the baggage were retrieved and handed over, amounting to a sum of Rs. 25,000; (iii) Reimbursement of Rs. 10,308 towards medical expenses incurred for the treatment of the minor daughter of the complainant; and (iv) Exemplary damages with cost for mental tension and agony suffered by the complainant. The OP has been proceeded ex parte vide order dated 27. 01. 2006.

The complainant proved his allegations by way of filing affidavit evidence.

IN identical cases we have taken a view that the liability as propounded by Article 14 or any other provision under the Carriage by Air Act 1972 or International Carriage of Goods Act or the Warsaw Convention amended till date is a limited liability of a service provider like the Airlines. So far as liability under the Consumer Protection Act, 1986 is concerned, it is additional liability arising from the charge of deficiency in service as defined by Section 2 (1) (g) of the Consumer Protection Act under which we have been awarding compensation for the loss, mental agony, harassment, emotional suffering, physical discomfort, mental discomfort or any other sufferings and injustice done to the consumer, say for delayed flight, cancelled flight and particularly for the loss of baggage. There is a liability as spelt out under the aforesaid Carriage by Air Act and under the schedule and Rules 22, 25, and 31 (3) of the International Carriage which relates to compensating the consumer as per weight of the baggage. Liability under Carriage by Air Act is limited liability informally applicable as per weight of the baggage irrespective of valuables whereas the liability arising out of deficiency in service viz. non-delivery, mis-delivery or pilfered delivery is in addition to the aforesaid limited remedy and this view of ours has been confirmed by the Hon''ble Supreme Court and in several cases consumers have been awarded compensation upto rupees one lac though in actuality under the Carriage by Air Act they were only entitled to a few thousands of rupees. This compensation is awarded over and above the limited liability. Deficiency in service, in terms of Section 2 (1) (d) means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

HOWEVER, taking overall view of the matter, the conduct of the OP verging on the offence of deficiency in service as the baggage has been handed over to the complainant after 36 hours, we deem that lump sum compensation of Rs. 50,000, which shall include cost of litigation also, would meet the ends of justice. Payment shall be made within one month from the date of receipt of this order. Complaint is disposed of in aforesaid terms.

A copy of the order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room. Complaint disposed of.