PRESENT

                   Complainant by Advocate Dewyani Bhave present.   

                   Opponent  by Adv. Vandana Mishara present.                  

ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President

1.                The complainant is a student, who had applied for admission to 'SEAHORSEBIMS-AMC' approved by Tasmania University. Australia for acquiring diploma in Nautical Science Australia. vide letter dated 29/07/2010.  His application for admission to the said academy was  accepted  and accordingly paid. Course  fee for the first two phases amounting to Rs.6,25,000/-

2.                The complainant stated that he was recruited as  seaman  with stipend of Rs. 18000/- per month and was directed by the said academy for join the ship M.V. Lao Yakut for training as per phase ii of the training schedule of the academy on 14/07/2011.

3.                The  complainant booked ticket to fly on 19/07/2011 on the Mumbai -Bairut sector via Sharjha by air Arabia i.e Opposite party by flight No. G. 90408 and G 90383.  The Lebanese Govt had issued a 24 hour transit visa to the  complainant.  At  Chhartrapati  Shivaji  International Airport, Mumbai, opposite party. Handed over boarding pass by opposite part.                   

4.                The complainant stated he had two heavy bags containing 911 his belongings, course material, books, training material, DLP kits required to be  used during the period on ship.  He paid charges for excess baggage weight, tag numbers XH 067940 and XH 067941 were affixed on the two bags, sent for being  loaded on the flight.  He stated that, after reaching Bairut Airport from where he was to join the ship with other  trainee was informed that both his bags  were missing.  He lodged the complaint bearing No. AHLBEYG 9043339 for loss of his Luggage.

5.                The complainant stated that, authorized personnel sent by the ship M.V. Lord YAAKOUT left the Bairut  airport with the other trainees, leaving  behind him due to negligence of opposite party in transit and could not join ship, nor could the ship personnel wait indefinitely for  him.

6.                The complainant stated that officials of opposite party adopted  a very un cooperative, rude negative, unhelpful and unsympathetic attitude and did nothing to help him, in spite of the  fact that they knew that if he was unable to leave.  Bairut by flight within expiry of 24 hour transit visa,  issued by the  Lebanese Govt, he would be put behind the bars by Lebanese Govt.  He attempted to buy an air ticket to fly back to Mumbai by using the US Dollars with him but he was told very rudely that said facility was  not available at the Bairut Airport.  His father managed to book an air ticket and he had to fly back to Mumbai with great agony and disappointment for ability to join the ship.  He had to stay back in Mumbai till he got lost  luggage after many please and continuous requests and visits to Air Arabia office at Sahara, Andheri (E) Mumbai and  Air Arabia's  counter at CST International Airport.

7.                The   complainant stated that when the bags were handed over to  him a tag was of Emirates Airlines mentioning there on 'MISHANELED BAG'  was attached with the bags.  He stated that, the tag is itself confirmation from the Emirates Airlines which shows the bags were mishandled   by Air Arabia.

8.                The complainant stated that, entire episode of loss of luggage has caused irreparable loss to him, he lost the golden opportunity to join the ship which was a part I of his training for which  he had paid non-refundable fees of Rs. 6,25,000/- apart from many other expenses such as cost of air tickets, conveyance to attend fitness test, interview etc. He stated loss of luggage due to extreme negligence of opposite party,has thus meant loss of educational opportunity, loss of employment, loss of precious time, immense mental agony, emotional trauma suffered by him and family and terrible and intense fear of being put behind bars in un alien country.

9.                 The complainant claimed amount of Rupees 19,70,200/-(Nineteen lakh seventy thousand and  two hundred rupees only) under different heads.  He claimed Rs. 25,000/- as cost of litigation.  He filed affidavit in  support of claim on 18/04/2012.

10.               The opposite  party field written statement and denied each and  every paragraph of the complaint which is contrary hereto and nothing contained in complaint be considered as admitted. It is stated that present complaint is false, frivolous and filed to gain undue publicity and to extort money by misusing the process of law.

11.              The opposite party states that, complainant's contract for International  Carriage from India to Bairut and as such is  governed by Montreal convention 1999, which provides limited liability as per Article 22(2).  It is stated that, contract of Carriage is subject to AIR ARABIA's conditions of carriage as expressly referred to on complainant's ticket.  The damage claimed by complainant are indirect and opposite party is not  liable for these as per Article 14/05/03 of the conditions of  carriage.

12.            The opposite party denied that complainant is a student, was recruited as seaman with stipend of Rs. 18000/- P.M. And was directed by said academy to join ship on 19/07/2011.  It is denied that complainants two heavy bags  contained all his important things required to be used during the period on ship.

13.              The opposite party stated that as per the information available  from its records, the complainant  traveled on flight No. G.90408 from Mumbai to Sharjah on 19/07/2011 and then on flight No.090383 from  sharjah to Bairut on same day  The complainant loss of bags on 19/07/2011.  The complainant decided to travel back to Mumbai on 19/07/2011,  The opposite party located had located the bags on to Bairut airport, where they arrived on 20/07/2011.  The bags were urgently returned to complainant at Mumbai on 21/07/2011 on Emirates flight EK 500.

14.              The  opposite party stated that it tried its level best assist and help complainant by retrieving the bags and returning to  him at a different location from that provided in the complainant's tickets at the earliest possible opportunity. The opposite party stated  that purpose of putting a tag of 'MUSSHANDLED BAG' is to  segregate it from other bags of the passengers.

15.              The opposite party submits that complainant ought to have opted  to  join the ship and make arrangements with SEAHDRSE  ACADEMY  and for opposite  party for his bags to be delivered at  a later  date.  It cannot be held responsible for any alleged losses caused to complainant as a result of his decision not to join the ship and participate in the training and instead return to Mumbai. 

16.              The opposite party states that, it is the opposite party who would be subjected to grave loss, harm, prejudice and injury if such frivolous and exaggerated claim is granted in complainant's favor.  It is  prayed that complaint be dismissed with cost.

17.              We have perused  documents filed on record by both parties.  Heard learned Advocated Devayani Bhave for complainant and learned advocate Vandana Mishra  for the opposite party. Perused complaint, written statement, affidavit of evidence as well as written notes of argument.

18.              Admittedly complainant traveled on the flights of AIR ARABIA on 19/07/2011 and complainant reported the lost of two bags on  19/07/2011 The  complainant admittedly received two bags on 21/07/2011 at Mumbai.  The complainant admittedly traveled from Mumbai to Sharjah and Sharjah to Bairut on 19/07/2011.  He admittedly returned to Mumbai on 19/07/2011.

19.              The main issue is regarding the quantum of compensation which opposite party is liable to pay to complainant's.  The learned Advocate Devayani Bhave argued that complainant is entitle for compensation as claimed in para 7 of the complaint and prayer clause, totally rupees nineteen lakhs seventy thousand and two hundred and cost of twenty five thousand rupees, total amount of Rupee nineteen lakhs  ninety five thousand and two hundred rupees.

20.              The learned Advocate for opposite party Vandana Mishra argued that according to contract of carriage the conditions are mentioned on ticket which are binding on both sides, she submitted that opposite party is not liable for indirect or consequential damage  or loss, she argued that, liability is limited  as per Montreal convention 1999, particularity Article 22(2) of the convention.

21.              The learned  Advocate for complainant relied on (1) AIR India V. S.V. International 1986 (1) Ker.L.J. 34. (2) Dr. Ashok Kataria V/s Air Arabia  Airline  order dated 14.01.2015 passed by Hon’ble State Commission Maharashtra  in C.C. No. 06/65  (3) Indian AIR Lines V. Kurian Abraham order dated 27/01/2010. of Hon'ble kerla High Court.

22.              The learned Advocate for opposite parties relied on (1)  The Manager Air  India Ltd. V/s M/s India Ever-bright Shipping and Trading Co. in First Appeal No. 451/1994 before Hon’ble National Commission on 20.04.2001  (2)  Shri. Arun Kumar Chopra V/s M/s Air Forance decided by Hon’ble State Commission Delhi in Appeal No. A-1005/2002 decided on 29.01.2007  (3)  G.N. Gauhar  V/s The International of Airlines of the Emirates First Appeal No.856/2006  decided on 31.01.2007   (4)  Alok Tondon V/s Scan Linavian Air  Lines system decided by State commission, Delhi on 22.9.2008 in com. No.C.255/2002.

23.              We have studied the principles laid down in  the above said precedents.   The main issue common is pertaining  to payment of compensation for loss of baggage  as per law and international convention.   The other issue relates to scope of jurisdiction of consumer Forum for awarding the compensation considering the provision of section 3 of the Consumer Protection Act. 1986 and the provisions of carriage  by air Act.

24.              We  have considered law laid down  in the cases refered by both sides.  The main issue in the present  case is pertaining to liability of opposite party, due to missing of the bag for period of 48  hours.  It is important to consider relationship between the missing of bag and consequential loss  caused to complainant and his family.  The other issue is whether  complainant was right in taking decision to proceed Mumbai back, due to non-availability  of Visa for more than 24 hours.  It is also necessary to what extent opponent is liable to pay compensation for alleged loss.

25.              The admitted position is the bag was lost and also found later on, the same was lost on 19.07.2011 and was returned on 21.07.2011        The record shows opposite parties, immediately after report  loss of the bag  taken steps for search of the lost bag and accordingly handed over to complainant at Bombay within two days.   The complainant admittedly got his bag on 21.11.      at  Mumbai which was reported to be lost on 19.11.

26.              The main issue for determination  of this forum is to assess the loss caused to complainant, due to absence of a bag during these two fateful days.  The learned Advocate for opposite parties argued that opponent is liable as per carriage  by Air Act whereas ld. Counsel for complainant argued that Opp. is  solely liable for loss caused to complainant due negligence and failure to take care of the baggage.

27.              As per our considered view, the opposite party is liable to pay compensation as per the law laid down under section 73 of Indian contract Act 1872.

28.              We are of the view, that compensation claimed on account of loss of monthly stipend for 18 months is remote cause and is not allowed.  Secondly claiming of Rs.1,05,000/- towards expenses for an alternate study  course is remote cause hence is not granted.

29.              The complainant claimed Rs.6,25,000/- paid to academy towards non-refundable fees  paid to academy , due to missing of baggage.  This claim is also not tenable as complainant failed to prove that missing of bag is the main cause for loss of education.  The main issue is whether complainant was justified  to stop the education for missing of a bag for 48 hours.  There is no direct  nexus  between the loss  of said amount and missing of bag.

30.              The complainant’s  claim for mental agony and emotional trauma to the amount of Rs. 5,00,000/-  is excessive.  The complainant was subjected to mental trauma  due to non co-operation of opponent, while  he was not able to take  a decision regarding his future course of action, regarding his education.

31.              He has just attained majority and the duration of visa was only for 24 hours and there was  apprehension in his mind, that he shall be arrested at any time after  expiration of his stay fore more than 24 hours.  The parents of the complainant were subjected to harassment after  noting the horrible  condition of their son, who was sent for pursuing  higher studies by spending huge amount.  They were required to visit Delhi from Gujrat by plane.

32.              After careful consideration of facts of the  case, we quantify the amount of compensation for mental agony caused to complainant his parents, to the amount of Rs.2,50,000/-

33.              The complainant’s claim for expenses incurred for stay in Mumbai for  acquiring lost  baggage  from opposite party and going back to  Nainital  to the amount of Rs.10,000/- is just and reasonable.

34.              The complainant is entitle  cost from opponent to the amount of Rs. 10,000/- 

35.              In the result, we pass following order.

                                  ORDER                       

1.       RBT  Complaint No. 175/2012  is partly allowed.

2.       The opponent AIR ARABIA  is directed to pay  complainant an

          amount of  Rs. 2,50,000/-  ( Rupees two lak fifty thousand only) as

          compensation for mental agony with interest @  9 %  from the date

          i.e. 19.07.2011 till realization.

3       The opponent  AIR ARABIA  is directed to pay   Rs.10,000/- towards

          expenses incurred for  stay in Mumbai during 19 July to 21 July 2011

          to the complainant.

4        The ARABIAis directed to pay cost of Rs.10,000/- to complainant.

5.        Copy of this order be sent to the both parties.