Date of Filing:17.03.2014

    Date of Order:29.07.2016

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 29^th DAY OF JULY 2016

PRESENT

SRI.SYED ANSER KHALEEM, B.SC., B.Ed.,LL.B.,PRESIDENT

SRI.H.JANARDHAN,B.A.L, LL.B., MEMBER

SMT.BHARATI.B.VIBHUTE, B.E(I.P.) LL.B., MEMBER

COMPLAINT NO.510/2014

Sri Gopinath,

S/o Sreerama Setty,

Aged about 59 years,

No.1273, Saimandiram Road,

1^st F Main, Girinagar 2^nd Phase,

Bangalore-560 085.                                 Complainant

V/s

AIR ARABIA – BANGALORE

No.91, 1^st Floor, Richmond Road,

Adj. Baldwin Girl’s College,

Bangalore-560 025.                             Opposite Party

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     This is the complaint filed U/S 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter referred in short as O.P) alleging deficiency in service on the part of the O.P and prays for direction to the O.P to pay an amount of INR 26,000/- for  delayed baggage in line with international/Europeans standards to compensate on the inconvenience caused, loss of rest and recreation intended on a vacation and further O.P. to pay an amount of INR 35,000/- for lost items  and also pay INR 20,000/- for costs of the proceedings.  Further instruct Air Arabia to have one of their managers present at the destination airport and attend to passengers problems and pray for such other reliefs.

2.   The brief facts of the complaint is that, the complainant following details that resulted in loss of baggage after a delay of more than 24 hours travelled to Doha, State of Qatar from Bangalore on Air Arabia via Flight G9498 and connecting flight G9132 of 06.07.2013 from Bangalore to Sharjah and then to Doha. The flight was on Saturday early morning 4:45 am IST landing 8:10 a.m, Doha time, which would help in arranging flat and preparing to attend office on Sunday, the first working day in the State of Qatar.  However, loss of luggage on landing at Doha International Airport put all things in turmoil and later resulted in loss of many items.  The complainant submitted that after the baggage belt of Air Arabia started and till about 30 minutes baggage did not come and a flash about ‘last piece’ of baggage was seen on flashing screen around the baggage retrieval area. The Phillipino employees of Airport overseeing the baggage area were just clueless and repeatedly asking the complainant to wait even if they understood what the flash of last piece meant, the complainant trooped into lost baggage secant of Doha International Airport located with customs area.  Staff of Qatar Aviation services/ Airport appears to know very well about these incidents and were laughing to each other instead of taking complaint. Immediately their manner changed a lady came out of the ante-room of the section and without much questioning took passport and boarding pass. Taking passport may be due to the complainant seeking the manager and other passengers were content to sit with counter staff of the section. The missing baggage report reference No. AHLDOHG9097663 – booking ref 31060210 Gopinath, Flight G9498/G9132 of 06.07.2013, baggage tag # G9308825 was issued by the Qatar Aviation/ Airport services but under Air Arabia name and it is a computer generated unsigned report.  Flight ticket and acknowledgement of missing baggage report are as in the attachments.

3.     The complainant further submits that, he underwent a lot of frustration, pain embarrassment at the new of loss. Further exacerbated by complete stonewalling by Air Arabia as telephone numbers given in the acknowledgement of lost-misplaced baggage were not reachable.  On the next day, clearly after 24 hours of loss, airport authorities of Doha International Airport called from a different number and sent a mobile sms to contact them on misplaced baggage and refused to deliver the same. After returning to flat, certain items like watches-2, ear rings, mini/micro SD for computer etc which were in a plastic bag were not seen, food items were for consumption for few days were not in good  state in view of inadequate refrigeration which they were lost.  In view of persistent efforts and emails details attached, despite Air Arabis’s flight refusal to compensate as there is no such policy reiterated by the local authorities of the airline, the customer relations offered to compensate without accepting any liability and without referring to the loss of items.  The complainant have requested through emails to settle for QAR1979 stating that it would cover the delay distress and lost items but the customer relations rejected and also cautioned that in the event the complainant take up this case in any court, Consumer Forum in Doha, Sharjah or Bangalore the offer of QAR300 being non-cash and subject to using this amount as a part of next travel ticket will automatically withdrawn. The above following items were lost in Air Arabia.

Being aggrieved by the above said grievances the complainant left with no other option has filed the present complaint.

4.      Upon issuance of notice, O.P appeared through their counsel and filed version.  In the version of O.P contended that, the complainant filed his frivolous, vexatious and not maintainable either in the facts or in law.  Also contended that the complainant suppressed the material facts.  It is admitted that the complainant travelled to Doha State of Qatar from Bangalore on Air Arabia via Flight NO.G9498 and connecting flight No.G9132 on 6.7.2013. It is further admitted that the baggage of the complainant was found missing on arrival at Doha International Airport and the complainant filed missing baggage report.  Whereas baggage was located and returned to the complainant within 24 hours of the arrival and the O.P offered him AED 300 has noncash offer as per their internal policy due to delay in carriage of baggage.  O.P contended that when a passenger travels by any flight it is deemed that the passenger has agreed with the conditions of the carriage which are in conformity with the Conventions on International Air Carriage, therefore it is necessary to refer the conditions of carriage determine the present dispute.  O.P contended that, at the time of booking any confirm ticket passenger is deemed to agree with the terms and conditions and therefore bound by it and the policy and regulations cannot be bent according to the individual passenger interest.  Further the O.P denied all those allegations which were not admitted by the O.P and ultimately prays for dismissal of the complaint.

5.     To substantiate the above case, the complainant as well as O.Ps have filed the affidavit evidence along with documents.  We have heard the arguments.

6.     On the basis of pleadings of the parties, the following points will arise for our considerations are:-

                (A)    Whether the complainant has proved

                deficiency in service on the part of the O.Ps?

(B)    Whether the complainant is entitled to

        the relief prayed for in the complaint?

(C)    What order?

7.     Our answers to the above points are:-

POINT (A) and (B) :  In the affirmative.

POINT (C):  As per the final order

for the following:

REASONS

POINT  No (A) and (B):-

8.     On perusal of the pleading of the parties, it is not in dispute that, the complainant travelled to Doha, State of Qatar from Bangalore on Air Arabia via Flight G9498 and connecting flight G9132 on 06.07.2013 from Bangalore to Sharjah and then to Doha.

9.     It is also admitted fact that, initially the complainant baggage was lost and ultimately traced out by the O.P and handed over to the complainant.  It is the grievance of the complainant is that the some items of the baggage were missing. Complainant after returning to flat, noticed that certain items like watches-2, ear rings, mini/micro SD for computer etc which were in a plastic bag were not seen, food items which were kept for consumption for few days were not in good  state and alleged that, in view of inadequate refrigeration food items which were rotten.  Inspite of his persistent efforts and emails details attached, despite Air Arabia flight refusal to compensate as there is no such policy reiterated by the local authorities of the airlines.

10.   Per-contra, the O.P contended that, finally the baggage was handed over to the complainant and for the inconvenience caused to the complainant due to the delay in carriage of baggage the O.P. offered him AED 300 as noncash offer as per their internal policy.  But the complainant refused the said offer.  Hence O.Ps contended that when a passenger travelled in any flight is it deemed that the passengers have agreed with the conditions of the carriage which are in conformity with the Conventions on International Air carriage.  Therefore, the complainant has to refer the conditions of the carriage to determine the present dispute. 

11.   On perusal of the rival contentions of the parties it is necessary for us to go through the conditions of the carriage.  As per Article 14:4.2 it reads as the liable for damage to checked baggage is limited by the Convention in most cases convention provide for a limit of 20 USD for each kilo of the checked baggage.  Looking into the nature of dispute, it is true that Act is a protective legislation to make available in expensive and expeditious summary  remedy.  In this particular case, the O.P is fairly admitted that, the tracing of the baggage caused delay but at the same time it is duty of the O.P airlines to give proper service by taking adequate care in handling the issues.  For the reasons known to the O.P, delay was occurred in handing over the baggage in question.  It is nothing but omission of duty to take care of and it is nothing but deficiency in service on the part of O.P. and the consequence of which would be that the O.P. had incurred the liability for the delay suffered by the consumer due to deficiency in service thereof.  When the parties have contracted and limited their liabilities the question arises could give relief for damages in the excess of limits prescribed under the contract.  But when there is a specific term in the contract, the parties are bound by the terms in the contract when mutually accepted to do so. 

12.   On perusal of the clause 14.4.1 of the terms and conditions of the air carriage it reads as: we are not liable for damage through unchecked baggages and as per 14.4.2 our liability for damages to checked baggages is limited by the Convention. In most cases Convention provides for a limit of 20 USD for each kilo of your checked baggage. It is worth to note that, the complainant purchased the Airline ticket and travel and it is not wise enough to consider all the travelers will go through the terms and conditions of the Airlines and their aim is reached the destiny by availing service of the aircraft, hence it cannot gain said that the parties to the contract mutually accepted.  As an admitted fact the delay caused in handing over the baggage in question to the complainant and O.P offered him AED 300 as noncash offer as per their internal policy.  It is not the case of the O.P the complainant signed the terms and conditions and accepted the same by the complainant.  The O.P cannot be deemed itself that the passengers are agreed with the conditions of the carriage which are inconformity with the Convention. The O.P cannot exonerate its liability merely on the ground of technicalities and as per looking into the facts the agreement contended by the O.P act is unilateral one and it cannot be deemed inferred that the terms and conditions binds on the customer/complainant. As a matter of fact, deficiency is established on the part of the O.P and hence complainant entitled for the compensation.  It is worth to note that, the complainant only noticed the missing of items when he reached at his flat and hence it cannot be accepted that all that items mentioned in the complaint were not seen.  When the baggages were handed over to the complainant by the O.P. and it is the duty of the complainant to ensure at the spot that all the items are safe in the baggage.  Hence, the contention of the complainant is lame of strength and in the absence of credible evidence the allegations of missing items cannot be accepted. In the attendance circumstances of the case and when the O.P offered to pay AED 300 as noncash offer as per their internal policy. But the complainant sought for compensation towards the following description.

13.   As we discussed above, the complainant not placed the cogent evidence regarding the missing of the above items and in the absence of the credible evidence and the claim of the complainant cannot be acceptable one.   In the attendance circumstances of the case, we reached to the conclusion that the complainant entitled for Rs.15,000/- for delayed baggages towards the mental agony suffered in causing delay to hand over the missing baggages to the complainant and also entitled for the cost of proceedings to the tune of Rs.2,000/- it will meets the ends of justice.   Accordingly, we answered Point No.(A) and (B) in the affirmative.

POINT (C):

14.   On the basis of the findings given above on the point No.(A) and (B) and in the result, we proceed to pass the following:-

ORDER

1. The complaint is allowed-in-part with cost.

2. The O.P i.e. AIR ARABIA–BANGALORE  represented by its authorized signatory was liable to pay a sum of Rs.15,000/- towards compensation to the complainant.

3. The O.P is hereby directed to pay Rs.2,000/- towards the cost of the proceedings.

4. The O.P is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this Forum within 45 days from the date of receipt of this order.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 29^th Day of July 2016)

MEMBER                 MEMBER                PRESIDENT

*Rak