HARPAL KOUR vs JET AIRWAY INDIA LTD

-ORDER dated 19. 3. 2002 passed by the learned Divisional Consumer Protection Forum Srinagar (hereinafter to be referred to as the Forum) has been taken in appeal herein and the relevant facts in brief are that on 3. 12. 1999, the appellant travelled from Srinagar to Delhi in flight No. 606 which was a direct flight and the baggage was handed over at Srinagar Airport to the concerned staff of the OP against baggage tickets. After reaching Delhi Airport, she was delivered at the conveyor belt all the items of the luggage except one bag which contained costly items which fact had been brought into the notice of the concerned staff but their attitude was callous as instead of helping her in locating the missing bag they outrightly advised her to lodge a complaint. With utmost alacrity, she lodged the complaint with the concerned employee of the OP and thereafter daily used to visit his office for 10 days and had been spending Rs. 500 per day as taxi fare. She even extended her stay in Delhi for one month by putting up with a relation hoping against hopes to get a positive response but all efforts ended in vain. On 6. 12. 1999, the Station Officer, Jet Airways, Delhi Airport, New Delhi was also made aware of the missing item by addressing to him a formal complaint after filling the prescribed form specifying therein the description of the seven items which were contained in that lost baggage and stating their market value which totalled to Rs. 1,14,400 (copy of the application is attached with the complaint along with copy of the acknowledgement receipt ). Vide letter dated 11. 12. 1999, addressed by Mr. Sandeep Mittal/c. S. A. from the wing of baggage services Jet Airways, New Delhi, the appellant was informed that since the missing baggage weighed 4 kg as per their record, the compensation thereof was to be paid at the rate of Rs. 450 per kg. In this letter of offer, a clear admission was made that the said bag got lost during appellants'' travel by flight No. 606 on December 11, 1999 from Srinagar to Delhi and apology was made for the inconvenience caused. The said letter was followed by another letter dated 10. 1. 2000 written by Mr. R. D. Sethna, General Manager - Legal wherein the receipt of the "checked in" lost bag was again admitted with further clarification that the same had been loaded along with all other baggage at Srinagar. Surprise and concern was shown for its non-receipt. Again at second time, an offer was made to accept Rs. 1,800 at the rate of Rs. 450 per kg. for the settlement of the case according to the laid down procedure of respondent which determines the loss in such like cases. Regarding the costly items, it was stated that in their registered baggage a valuation charge can be declared on certain items carried by passengers. When such shabby treatment was given to the appellant she was left high and dry and finally on 9. 2. 2000 filed complaint (No. 38/2000) in the Forum inter alia alleging the above stated facts with further allegation that there is no single incident when the respondent had ever asked the passengers to get the valuable items insured. Relief was claimed that since it was a case of negligence, theft and breach of trust so respondent may be directed to make good the loss suffered by her along with other charges incurred by her.

THE minutes of the proceedings before the Forum disclose that on 9. 2. 2000, notice was issued to the respondent to file the written version within 30 days from the service of the notice and the case was adjourned for 14. 3. 2000. By that date, the written version was not filed and the time to file the same was extended upto 20. 3. 2000. The appellant was directed to lead her evidence on 6. 5. 2000. On 6. 5. 2000, Mr. Sami Yaqoob, Advocate appeared for the respondent and contended that the service of the notice issued on 9. 2. 2000 was effected very late and probably in April and sought time to produce copy of the notice which was never produced. However, the respondent filed the written version on 29. 4. 2000 i. e. after the expiry of extended period and it was received only for "perusal" after rejecting the plea that notice to file the same was received late. In the written version again an offer of payment of Rs. 1,800 towards settlement of the claim of missing bag was made. In support of the complaint, the complainant gave her evidence and produced the evidence of Mrs. Manmeet Kour, S. Inderjit Singh and Ghulam Qadir. The respondent had failed to produce any evidence despite opportunities being granted and finally on 9. 10. 2001 the right to lead the evidence was closed. Heard the arguments.

The learned Counsel appearing for the appellant has contended that the impugned order besides being factually and legally incorrect is also discriminatory. In order to buttress his contention of discrimination, he has placed on record copy of the order dated 16. 11. 2001 passed in Complaint No. 71/2001 titled Mr. Ghulam Mohd. Peer S/o. Ghulam Rasool Peer R/o. Parimpora, Srinagar v. Air India Ltd. and Others. In that case, the complainant had claimed cost of the lost baggage to the tune of Rs. 56,856 and Rs. 50,000 as compensation for mental agony and harassment. Rs. 1,500 were claimed as litigation charges. Unfortunately, that copy of the order on perusal is found incomplete as page No. 3 is missing from it. However, the last lines of page No. 2 of the said order are reproduced hereunder: "statements on oath deposed in their affidavits is to be given due weight as both the deponents have come from sacred pilgrimage and are supposed to speak truth and there is nothing on record to disbelieve these deponents. "

At page 4 on the top it is stated, "opposite party is directed to implement the award within six weeks from the date of this order, failing which Rs. 200 per day will be charged". From the available contents of the order, it can safely be said that the value of lost items of the booked luggage besides some compensation was awarded besides imposing a rider that costs of Rs. 200 per day shall be charged for non-implementation. On facts, he has contended that entrustment of the bag in question to the respondent has been proved by cogent evidence and that fact has also been admitted by the respondent along with its loss from its custody and offer was made to liquidate the liability by having a "recourse to Passenger Handling Manual" which provides that a valuation charge can be declared on certain items carried by passengers in their registered baggage. Such a valuation charge provides insurance in the event of any irregularities with regard to said baggage. Keeping in view this procedure, the settlement was offered at the rate of Rs. 450 per kg. and as the bag weighed 4 kilo so Rs. 1,800 were offered. On such a factual matrix, the case should have been decided by applying the ratio-decidendi of Lucknow Development Authority v. M. K. Gupta, III (1993) CPJ 7 (SC)=air 1994 SC 787, which lays down that when there is failure to provide the service it is deficiency and a consumer has to be reimbursed for the loss caused as well-compensation for mental and physical harassment. In rebuttal Mr. Sami Yaqoob, Advocate has contended that the Forum has rightly decided the case by applying law of carriage and following the principles laid down by the National Consumer Disputes Redressal Commission in the case of DHL Worldwide Express, Courier Division of Air freight Ltd. v. Bharathi Knitting Company. Concluding his arguments he stated that the lost bag contained costly items, the value thereof was not disclosed. Under these circumstances, the complainant was entitled to be compensated as per Passenger Handling Manual. Such a luggage cannot be said as "checked in" baggage and its loss has been correctly assessed and there is no factual or legal infirmity in the impugned order.

WE have considered the respective contentions of the Counsel appearing for the parties and perused the record. The complainant Smt. Harpal Kour in her evidence has fully corroborated the averments made in the complaint and has implicated the concerned staff members of the respondent for the loss of the baggage. She further stated that it was a direct flight from Srinagar to Delhi and there was no possibility of its misplacement or off-loading en route of the booked baggage. She has also stated that in the letter dated 10. 1. 2000 written by General Manager - Legal to her he had tried to sidetrack the issue when there is no allegation of "any loss of jewellery items" or "loss of items of hand bag". It is simply a case of loss of a duly "checked-in-baggage" which is intentional and could not be evaded. In cross-examination, she stated that she was not required to disclose the contents of the lost bag as it was not required to be done so. She reiterated the items of the missing bag as stand specified in the complaint and disclosed the colours of Pashmina shawls which were of three different colours. She has given a full description of the lost items in her cross-examination. Mrs. Manmeet Kour is a co-passenger and in her evidence has stated that the appellant in her presence had packed the luggage. That Pashmina shawls, suits and some hand knit sweaters were packed in a zip lock carry bag. On reaching Delhi that bag was found missing. Mr. Inderjit Singh witness is the husband of the appellant and in his evidence he has given a full description of the items which were contained in the missing bag. In cross-examination, he stated that he had not disclosed the value of the contents of the missing bag as there was no such practice as well as no body had asked to do the same. Mr. Ghulam Qadir witness has stated that he is a family friend of the appellant and had helped the complainant in packing the luggage. That in his presence and within his view, the appellant and her husband Inderjit Singh had packed four Pashmina shawls. 3 lady suits and some woollen sweaters, etc. in black imported zip lock carry bag. In cross-examination, he stated that he was with Mr. Inderjit Singh (witness) when the luggage was "checked-in" but has no knowledge whether any additional charges were paid or not. No evidence in rebuttal has been produced by the respondent. From the critical appraisal made of the evidence it is found that appellant has proved the value of the items contained in the lost bag which totalled Rs. 1,14,400. It is also proved that she visited the airport office of the respondent at Delhi for 10 days to make inquiries and on daily visit had been spending Rs. 500 as taxi fare. He had extended her stay at Delhi for a month. The defence taken by the respondent about the loss of jewellery or other costly items is like a cock and bull story in order to stave off its legal liability to make good the loss. It was a pure and simple case of entrustment of the checked-in baggage and its loss at the destination. Respondent had failed to provide safe travel facility to its consumer i. e. the appellant after getting the fare and freight charges and this amounts to deficiency in service. The offer made to accept a paltry amount of Rs. 1,800 against actual loss occurred to the extent of Rs. 1,14,400 was a cruel joke in order to hurt the feelings of the appellant who was a bona fide honest consumer. It is not understandable how the learned Forum took a divergent view by awarding Rs. 1,800 at the rate of Rs. 450 per kg. by following the passenger handling procedure as being shown by the respondent which on its face value applied to a registered luggage. Its application cannot be stretched in a case of "checked-in luggage" of a passenger who had been given a receipt for its delivery which had to be made at the conveyor belt at Delhi Airport. As per the ratio decidendi of the case of Bharati Knitting Company (supra) respondent was bound by the specific term of the luggage receipt to deliver it at Delhi which was not done and it was a case of proved deficiency. The Forum is found to have discriminated with the appellant when it gave a go-by to its earlier view which was adopted in a similarly situated case of Ghulam Mohd Mir (supra) which had been decided by it on 16. 11. 2001. It is very strange that after four months i. e. on 19. 3. 2002, when the present case which had similar facts was decided by having a recourse to "passenger Handling Manual" and adopting the procedure which is applicable to registered baggage when in fact it was not a case of purely missing of a registered baggage. Under the Jandk Consumer Protection Act, different Fora have been created and empowered to entertain complainants by the consumers for the value of the goods or services and compensation. The word "compensation" is of very wide connotation and it has not been defined in the Act. In legal sense it may constitute actual loss or accepted loss and may extend to physical, mental or even emotional suffering, insult or injury or losses. The provisions of the Act enable a consumer to claim and empower the Commission to redress any injustice done to him / her. Remedy given under Section 3 of the Act is additional remedy which is not in derogation of other Acts. On this view of the matter also any prevalent practice as per "passenger Handling Manual" cannot debar the appellant for the award of the claim.

FROM the above made discussion, we find legal substance in the appeal which is accepted. Accordingly, we set aside the impugned order and direct the respondent to make good the loss of the missing luggage of its actual value which stands proved to the tune of Rs. 1,14,400 (Rupees one lakh fourteen thousand and four hundred) along with interest @ 9% per annum from the date of loss i. e. 3. 12. 1999 till the final payment is made. She has spent Rs. 5,000 towards the payment of taxi fare to and fro the residence of her relation to the airport at Delhi for getting her claim settled and thereafter as per her showing had to remain in Delhi for one month hoping against hopes that lost luggage might be made available to her. Unfortunately, it proved that the respondent which is one of the reputed carriers of passengers and goods found lacking in discharging its legal and moral duty in a straightforward manner but a paltry amount of Rs. 1,800 was offered for the settlement of the claim - which was like applying salt to a wound caused by hurting the feelings. Instead of providing a carefree and comfortable journey to its passenger (appellant herein) she was made to suffer financial losses besides mental and physical torture. This amounts to "deficiency in service" of gross negligence as defined under head (o) of Section 2 of the Act. In these circumstances, the respondent is liable to pay exemplary compensation in order to compensate the appellant for financial, mental and physical injuries. For the financial loss of expenditure spent on transportation and extended stay at Delhi, we award her a compensation of Rs. 50,000 (Rupees fifty thousand) and for mental and emotional injuries she is compensated to get Rs. 30,000 (Rupees thirty thousand) compensation. The appellant had filed the complaint in the Forum on 9. 2. 2000 which was decided on 19. 3. 2002 but relief was denied to her. Thereafter she had been pursuing the appeal in the Commission. Time consuming proceedings which extends to over seven years made her to get justice and she might have incurred huge expenditure towards the payment of legal fee and transportation charges. Hence we award her the litigation charges in the sum of Rs. 10,000 (Rupees ten thousand ). The record of the Forum be returned and appeal be consigned to the records. Appeal allowed.