SUBODH C GUPTA vs SCANDINAVIAN AIRLINES SYSTEMS

-COMPLAINANTS are U. S. citizens. They had purchased two round trip tickets from Delhi in the business class on May 15, 1999 bearing No. 117-6894467851-54 with flight sectors as Delhi-Copenhagen-Newark-Copenhagen-Nice-Copenhagen-Delhi. On this sector-2 checked in baggages are allowed with maximum weights of 64 kgs. On May 23, 2000 the complainant boarded the SAS flight at Newark at 18. 15 hours and checked their luggage. At the time of receiving the baggage from the complainants no objection was raised by the OP and the baggage was cleared since it was found within the permissible limits. The baggage was received at Copenhagen Airport. Except for the bare minimum required by the complainants the rest of their luggage was deposited in the left luggage facility as the complainants were proceeding to Nice for few days. The complainants boarded the SAS flight from Copenhagen to Nice at 10. 45 hrs on May 24th 2000. In Nice they did not check in their baggage. They retained it as hand baggage. From Nice Lyon-Nice the complainants travelled by Air France. Complainants were instructed by the officials of Air France at Lyon to check in their hand baggage, which would accordingly be off-load at Copenhagen. The SAS flight from Nice to Copenhagen was delayed, with the result that only about an hour was left for them to board the flight to Delhi. The complainants retrieved their luggage from the left-luggage counter at Copenhagen and sought to check it in on the Copenhagen-Delhi flight and also requested the SAS officials to off-load their hand baggage which had been checked in at Lyon since the same was intended to be carried as hand-baggage in the flight from Copenhagen to Delhi. The SAS officials refused to do so for some undisclosed reasons and instead asked the complainants to pay at least $3,000 in case they wanted their luggage to be checked in and loaded on the same flight on the plea that the facility of carrying 64 kgs. in two baggage pieces per person was not available while boarding the flight from Copenhagen. The complainants having boarded the flight from Newark were entitled to the same allowance of baggage and since they were travelling on the same ticket they could not be subjected to different baggage rules en route. The officials of the OP for some ulterior motives wanted the complainants not to board their flight till the controversy was settled and they tried to intimate the complainants by threatening to hand over to the police, the baggage of the complainants consisting of 3 suitcases and 1 carton, for incineration, if the complainants board the flight without their luggage or without paying the money demanded by them.

THE complainant No. 1 was a frequent flyer (No. EBB075190-793) of SAS Airlines and was well versed with the rules and regulations applicable to him. The complainant No. 1 was a heart patient and the complainant No. 2 was suffering from Arthritis. The complainants had important and pressing engagements in India they could not afford to miss their flight to New Delhi from Copenhagen. As such, the complainants had no option but to board the flight without their baggage, (3 suitcases and one carton which contained their clothes, doctors prescribed food items medicines, laptop computer as well as gift items for friends and relatives in India and all their day-to-day belongings to be used by them during their long stay in India. Out of the four pieces of hand luggage, which were booked on the said flight, the complainant could retrieve only one. With respect to the checked in luggage lost in transit, the complainants have already lodged the claim with the OP. The complainants on arriving at Delhi immediately contacted their travelling agent M/s. Ashwa Tour and Travels Pvt. Ltd. who sought the relevant enquires with the office of the OP and confirmed and certified that the complainants were entitled to 2 number of baggage with maximum capacity of 32 kgs. each piece and this allowances was admissible irrespective of taking a stop-over in Europe en-route to their main destination from Delhi to Newark to Delhi. As a result of the deficiency in service and unfair trade practices adopted by the OP wilfully and deliberately, the complainants have been deprived of all their essential items. The complainants had endured so much strain and stress that the complainant No. 1 fell sick after their return. The complainant sent a legal notice dated 8. 6. 2000 to the OP. The OP had neither replied nor complied with the said notice. The OP failed to fulfil their under-taking and responsibility as well as their implicit commitment to the complainants to give them their luggage a safe passage to their destination. The complainants have sought following reliefs: (1) The OP to return the baggage consisting of 3 suitcases and one carton to the complainant forthwith or in the alternate pay the cost thereof as per details given in Annexure-A. (2) The OP to pay a sum of Rs. $ 10,000 to the complainants for all the agony humiliation, etc discomfort, inconvenience, stress and strain suffered by the complainants due to the OP wilful, illegal, negligent-deficient and complete failure to render proper services and indulging in an unfair trade practices. (3) Direct the OP to pay $500 per day as compensation till the complainants receive back their luggage or the value thereof and restricted to the tune of Rs. 20,00,000.

In its defence the OP averred that the complainants had purchased the following tickets- SK968/02june99/delcph sk901/02junde99/cphewr sk912/18apr99/ewrcph sk795/19apr99/cphnce sk796/25apr99/ncecph sk967/25apr00/cphdel

Admittedly the complainant has utilized the ticket in a reverse order SK912/18apr99/ewrcph sk795/19apr99/cphnce sk796/25apr99/ncecph sk967/25 APR00/cphdel sk968/02june99/delcph sk901/02 JUNE 99/cphewr

By using the tickets in reverse order, the complainants have violated the provision of 3. 6. 1 of the Conditions of Carriage, which requires a carrier to honor the flight coupons only in a sequence from the place of departure of the ticket. Under Article 14 of the Conditions of Carriage, the liability of the carrier for loss, delay or damage to baggage is limited. Further the carrier is not liable for loss of, damage to or delay in the delivery of fragile or perishable articles, money, jewellery, silverware, negotiable papers, securities or other valuables, business documents, passports and other identification documents or samples or medicines or drugs which are included in the passenger''s baggage whether with or without the knowledge of the airline. OP denied that the complainant was carrying baggage within the permissible limits. Further, that the complainants took a continental flight from Washington to Newark with 4 pieces of baggage under Tag Nos. CO. 787336/37/38/39 and had checked in 3 pieces of baggage at Copenhagen. The record maintained by the OP revealed that the complainants were carrying 4 pieces of baggage while boarding the Copenhagen-Delhi flight on 25th April, 2000 much against the conditions prescribed on the ticket. As a normal practice, passengers are allowed to deposit their luggage area, on freight AF 7832 as an additional facility. While the complainant travelled on Nice-Lyon-Nice sector on Air France, they had checked in 3 suitcases under the tag numbers AF-269912, AF269798, AF269988. the complainant had checked in 4 suitcases, they could not be allowed to carry any MDC transportation of checked in luggage in view of the conditions prescribed on the ticket which permit only two suitcases, with a maximum allowance of 64 kgs for two pieces, for passenger travelling to and from USA (32 kgs for one piece) admittedly the complainants had left their additional luggage at the left luggage area in Copenhagen, while travelling to Europe for few days. As per the baggage report of the OP the complainants'' baggage was overweight by 80 kgs, for which the complainants were required to pay additional charges which they refused to pay and thus voluntarily left the suitcases in Copenhagen, in a Public area. As matter of practice and due to security reasons all unidentified or unclaimed baggages were immediately disposed off by the security and handed over to the police. It would be evident on a bare perusal of the items stated by the complainant to be packed in the said suitcases that the baggage was overweight. Moreover, it is surprising how the complainants could have left the baggage at the Airport if it contained such expensive items as alleged. Complainants have distorted the facts to mislead and prejudice this Hon''ble Commission. Hand baggage is never booked and is always carried and hence the allegations of the complainants that they were allowed to retrieve only one of the hand luggage which were booked on the said flight is wrong and denied. The complainant suppressed the fact that they were carrying 4 suitcases much above the prescribed limits. The complainants claimed for the baggage at their arrival in Delhi, and had tried to force representative of the OPs to send the baggage by Cargo, without agreeing to pay for same in spite of the fact that the said baggage was decided to be left at Copenhagen by the complainants as they did not want to pay for the excess baggage. The OP without prejudice to their rights has tried their level best to help the complainants and made an advance of US D 400 for their stay in India. The carrier is not liable for loss of, damage to or delay in the delivery of fragile or perishable articles, money, jeweler, silverware, negotiable papers securities or other valuables, business documents, passports and other identification documents or samples or medicines or drugs which are included in the passenger''s baggage whether with or without the knowledge of the airline. The complainant is therefore not entitled to any amounts for the alleged loss of those goods as claimed or at all.

In its rejoinder the complainants denied that the manner in which the complainants have used the ticket was not open to them or that there has been any violations of the provisions of 3. 6. 1 of the Conditions of Carriage. Having accepted the flight coupons and having admitted the complainants on board, it is not open to the OP now to make such allegations in defence. In the mid-way the plea of excess baggage could not have been taken. Once the flight ticket permits a break journey, the rules relating to the baggage at the point of the start of journey would be applicable throughout. The complainants were carrying baggage within the permissible limits. Had it not been so, the baggage of the complainants would not have been allowed to be boarded on the plane in the first instance at the starting point of the journey. It is denied that the weight of the checked in luggage was contrary to the terms of the carriage or that any fact has been distorted or twisted as alleged or that the baggage of the complainants was over weight by 80 kgs. or that the complainants were liable to pay additional charge or that they had voluntarily left the suit cases in Copenhagen in a public area or that the said baggage was disposed off by the security personal. The stand of the OP that the tickets were purchased from an agent in America is denied and absolutely false.

AFORESAID highly elaborated details, claims, counter claims, allegations and counter allegations raise the following contentious questions for determination: (i) Whether the baggage cleared and checked in the place in Newark could have been held to be excess baggage at Copenhagen? (ii) Having once allowed to carry 64 kgs at Newark whether at Copenhagen OP could have raised the objection of carrying over weight luggage at the time of retrieving the luggage from the left luggage counter and made the complainant to pay the charges for extra luggage? (iii) Whether the rules relating to the baggage at the point of the start of journey would be applicable throughout the journey? (iv) Whether the OP is entitled to charge extra baggage charges if there is a break up journey and a new luggage is introduced?

We have heard the learned Counsel for the parties at length and find that the OP has taken refuge under the provision of 3. 6. 1 of the ''conditions of Carriage'' requiring a carrier to honour the flight coupons only in a sequence from the place of departure of the ticket. Apart from this the OP has also raised the plea that the instant complaint is covered by Carriage by Air Act and under Article 14 of the Conditions of the Carriage, the liability of the carrier for loss, delay or damage to baggage is limited. Further that the carrier is not liable for the loss, damage or delay in the delivery of fragile or perishable articles, money, jewellery, silverware, negotiable papers, securities or other identification documents or samples or medicines or drugs which are included in the passengers baggage whether with or without the knowledge of the airline.

AT the outset we may deal with the aforesaid legal objection whether the complainant is entitled for compensation in addition to the actual loss in spite there being liability of the carrier under Carriage by Air Act, 1972 as well as Warsaw Convention. In case after case the Supreme Court has taken a view that the remedy under the Consumer Protection Act to a consumer is in addition to and not in derogation of any other law for the time being in force which includes Carriage by Air Act, 1972. The Supreme Court has also taken a view that even if there are other Forums established for the redressal of the consumers still the consumer is entitled to file complaint under Section 12 of the Consumer Protection Act seeking compensation for the deficiency in service, for mental agony, harassment, physical discomfort, emotional and mental suffering suffered by the consumer due to the negligence of the opposite party. In this regard following judgments of the Supreme Court are quote-worthy and are as under: scope of Section 3 of Act 1986 (i) Secretary, Thirumurugan Co-Operative Agricultural Credit Society v. M. Lalitha (Dead) through L. rs. and Ors. , I (2004) CPJ 1 (SC)=i (2004) SLT 200=civil Appeal No. 92 of 1998 decided on 11. 12. 2003. 10. "in Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to an not in derogation of the provisions of any other law for the time being in force. From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide better protection of the interest of the consumer and for that purpose to provide better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial Forums, observing the principle of a specific nature and to award, whenever appropriate compensation to the consumers and to impose penalties for non-compliance of their orders.

(ii) Fair Air Engineers Pvt. Ltd. and Anr. v. N. K. Modi, III (1996) CPJ 1 (SC)=1996 (6) SCC 385. "it would, therefore be clear that the Legislature intended to provide a remedy in addition to the consequent arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. In view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these Forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the Forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act. "

(iii) Smt. Kalawati and Others v. M/s United Vaish Co-operative Thrift and Credit Society Ltd. , I (2002) CPJ 71 (NC)= (1986-2005) Con. LC 275 NC and SC=r. P. Nos. 823 to 826 of 2001. "4. Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPA shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to litigant for redressal by that remedy a litigant can go to District Forum if he is a ''consumer'' under CPA. That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction. "

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 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.

NOW the question arises whether the conduct of the OP in not allowing the complainant to retrieve the luggage which was boarded on the flight at Copenhagen and demand of extra money for the same is illegal and amounts to deficiency in service or not. In our view once having accepted the flight coupon and accepted the complainant on board it was not open to the OP for claiming extra charges for the alleged excess baggage as it had already accepted the same baggage at the start of the journey. In the midst of the journey i. e. break up journey the plea of excess baggage was not available to the OP particularly when the flight ticket permits a break up journey.

Whenever the service provider like Airlines issues the ticket permitting break up journey, the rules relating to the baggage at the point of start of the journey would be applicable throughout. There is no doubt that the complainants were carrying baggage within the permissible limit. Had it not been so the baggage of the complainants would not have been allowed to be boarded on the plane at the first instance at the start of the journey? The plea of the OP that weight of the luggage was contrary to the Act or that the baggages of the complainants were 80 kgs and therefore they were liable to pay additional charge is of no avail. So much so the plea that complainants had left suitcases voluntarily at Copenhagen and security men did not object to it does not inspire confidence at all. Nobody would leave valuable goods like bag, etc. unattended in the public area nor would the security allow it.

IT is a sad case that a person who had undertaken journey had to leave excess baggage there and has incurred huge expenses as he was not having money to pay extra charges being claimed by the OP, the conduct of the OP squarely falls within the deficiency and thereby has caused immense physical and mental harassment to the complainants who have undertaken such a journey by availing services of the OP Airlines and the baggage was left as they might have purchased some gifts for their near and dear on which emotional value is attached. They were US citizens and luggage contained clothes, medicines, laptop, etc. However, taking over all view of the matter, the conduct of the OP verging on the offence of deficiency in service, we deem that lump sum compensation of Rs. 1 lac, 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 allowed.