India Air(Air India) Ltd vs Arvind Pandalai

IN this revision petition filed under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act'') by the Petitioner/ Opposite Party, there is challenge to order dated 21.5.2008 passed by State Commission, Delhi (for short, ''State Commission'') in (First Appeal No. 08/450).

BRIEF facts are, that Respondent No.1/Complainant No.1 is Chairman -cum -Managing Director of State Trading Corporation of India, whereas Respondent No.2/Complainant No.2 is his wife. On 5.6.2007, respondent no.1 along with his wife left for United Kingdom on official visit. They returned to India on 16.06.2007 travelling on Air India Flight No. AII20/16th June, 2007. The flight arrived at IGI Airport at Delhi and respondents were waiting for their luggage which was to be off loaded from the plane. They were shocked to learn that their luggage did not come. Respondents immediately approached staff of the petitioner and enquired about their luggage. They were told by the petitioner''s that probably their luggage has been left behind at the airport at United Kingdom and it will reach New Delhi within a short span of time. It is stated that respondents prepared list of the articles of the luggage under the "Heading of Property Irregularity Report". The value/cost of the goods in the suit -case belonging to respondent no.1, was Rs.1,72,400/ - and goods belonging to respondent no.2 was Rs.2,07,180/ -. Respondents were made to run from pillar to post despite that, there was no clue of their luggage. Thus, respondents filed a consumer complaint before the District Forum claiming Rs.3,79,580/ - as the cost of wearing apparels and suitcases, Rs.4,00,000/ - as compensation for mental agony, torture and harassment and Rs.22,000/ - as cost of litigation.

PETITIONER in its reply has stated that respondents are not ''Consumer'' within the ambit and scope of the Act. Respondent No.1 is Chairman -Managing Director of a public sector undertaking and is taking undue advantage of his position and has claimed an exorbitant amount. Respondents in ''Customs Form for Clearance of Mishandled Baggage'', which was duly signed by respondent no.2, had declared the value of goods as Rs.50,000/ - only. It is further stated that respondents have failed to substantiate their claim with respect to apparels which claimed to be brand new, by not furnishing their invoices/bills. The valuable items like watches, jewellery, cash, documents, electronic items etc. are tariff restricted items and do not form part of checked in baggage and should remain in the custody of the passenger. Persons carrying high value baggage declare in advance, the value of such luggage and pay valuation charges and have to take proper insurance cover. Unless a higher value is declared in advance and additional valuation charges are paid, claims with regard to lost/mishandled baggage are made on the laid -down on the terms and conditions as per Warsaw Convention i.e. @USD 20/Kg. or value of the invoice, whichever is less. The respondents have not declared higher value in advance and also not paid the additional valuation charges. Therefore, they are not entitled to claim any compensation. Petitioner had issued cheque bearing no. 983298 dated 23.07.2007, in favour of respondent no.2 for Rs.32,000/ -, the then equivalent value in rupees of USD 800(40 Kg x USD 20) but she returned the aforesaid cheque. The respondent did not off load the baggage, as the same was not handed over by the connecting flight of British Midland, perhaps due to paucity of time between arrival of British Midland flight Dublin and departure of receiving airline i.e. petitioner from London. The complaint is bad for non -joinder of necessary party. There is not slightest deficiency in service on the part of the petitioner. District Consumer Disputes Redressal Forum -VII, New Delhi (for short, ''District Forum'') vide order dated 11.3.2008, allowed the complaint and passed following directions; "We, therefore, quantify the damages to an amount of Rs.50,000/ - to both the complainants for causing mental pain, torture and harassment. Besides this the OP shall also pay Rs.10,000/ - as litigation expenses. In all it is hereby directed the OP shall pay Rs.92,000/(Rupees Ninety Two Thousand only) to both the complainants."

BOTH parties challenged the order of the District Forum. Petitioner filed (Appeal No.08/450) for dismissal of the complaint, whereas respondents filed (Appeal No. 08/484) for enhancement.

THE State Commission vide impugned order, dismissed both appeals.

NOW , petitioner has come before this Commission.

NOTICE was issued to the respondents, who put in their appearance through counsel. However, on 13.1.2015 when matter was listed for final hearing, respondents were absent.

WE have heard the learned counsel for the petitioner and gone through the record

MS . Babita, learned counsel for petitioner submits that, liability of Petitioner''s Airlines under the Carriage by Air Act, 1972, is limited and uniform. It pertains to the weight of luggage and baggages, irrespectively of the fact whether the baggage and luggage contained valuable articles. The District Forum in its order at one place has held, "There is an ample evidence that OP had paid Rs.32,000/ - on the basis of Warsaw of Convention, therefore, complainant is not entitled to more amount than according to Warsaw Convention which comes to Rs.32,000/ -." Whereas at other place it held, "We therefore quantify the damages to an amount of Rs.50,000/ - to both the complainants for causing mental pain, torture and harassment. Beside this, OP shall also pay Rs.10,000/ -as litigation expenses." Thus, there are contradictions in the order of District Forum. In support, learned counsel has relied upon the decision of this Commission, The Manager Air India Ltd. and Anr. Vs. M/s India Everbright Shipping and Trading Co, (First Appeal No.451 of 1994) decided on 20th April, 2001. -

APPARENTLY , in the present case there are contradictions in the order of the District Forum. Moreover, the State Commission has not given any cogent reason as to why it upheld the above findings of the District Forum. On the other hand, State Commission while dismissing the petitioner''s appeal has made general observations in such like cases. It observed;

COMPENSATION under the Consumer Protection Act is awarded on the concept of deficiency in service which has to be independently determined on the anvil of definition of ''deficiency'' provided by section 2(1)(g) of the Consumer Protection Act, 1986 which means any fault, imperfection or 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. " 13. Failure of the Airlines not to handover the booked luggage in its intact position or without any pilferage condition amounts todeficiency in service and therefore entitles the consumer reasonable compensation for aforesaid elements of sufferings.

It is the need of the hour to compensate consumers adequately because of the increasing complaints of loss of baggages booked with the Airlines and pilferage or removal of several valuable items from the baggage as in the past we have decided large number of cases of such types.

However, taking over all view of the facts of the case, we do not find any infirmity in the impugned order and dismiss both the appeals as the complainant has been adequately compensated and the opposite party has been rightly held guilty for deficiency in service causing immense agony and sufferings.

Both the appeals are dismissed."

IT is petitioner''s case, that respondents in the ''Customs Forms for Clearance of Mishandled Baggage'' duly signed by the respondent no.2, have declared the value of goods as Rs.50,000/ - only. The complainants in response to the written statement, in their rejoinder admitted that in ''Customs Form for Clearance of Mishandled Baggage'' they have stated amount of Rs.50,000/ -. However, this amount does not reflect claim towards the loss which has been sustained by them, due to negligence and omissions on the part of the petitioner. The said amount was stated for the purpose of custom duty under the -bonafide belief, that goods stated in the Form are liable for levy of custom duty and said statement cannot be construed detrimental to the rights of the complainants.

SINCE , complainants themselves have mentioned Rs.50,000/ - as the value of the goods. Now it does not lie in their mouth, to claim any additional amount beyond Rs.50,000/ -.

THUS , both the Fora below have committed error in awarding the sum of Rs.92,000/ - as damages of goods to the complainants. Accordingly, present revision petition is partly accepted and order passed by the Fora below are modified to the extent, that instead of Rs.92,000/ -, complainants are entitled for a sum of Rs.50,000/ - only.

NO order as to cost.