Order No. 14 dt. 29/05/2018
The case of the complainant in brief is that on 29.6.16 the complainant was travelling to London to attend an engagement ceremony of his close friend’s daughter on 30.9.16. Since the friend of the complainant is a Non Resident Indian, they have an emotional attachment and affinity towards authentic ethnic Indian wear, which they wanted to give to the near and dear one’s on such auspicious occasion and to realize such desire the friend of the complainant requested him to bring in London some specific stuffs when he will go there to attend the wedding. Accordingly, the complainant purchased 5 Kashmiri Shawls worth of Rs.75,000/- each totaling Rs.3.75 lakhs and other articles worth of Rs.75,000/- including Darjeeling tea, Benarasi Shari and Lehenga Cholis. The complainant bought a ticket to London Heathrow Airport from o.p. no.3. The complainant availed the journey on 29.6.16 by Air India flight and journey started from Delhi to London. When the complainant reached London Heathrow Airport he found that his baggage did not arrive along with him in his flight and is lost. The complainant had to wait for two hours, but the baggage could not be located. On the next day the complainant again made enquiry regarding the missing baggage, but those could not be traced out. On the basis of the said fact since all the documents were in the said baggage, therefore the complainant had to stay seven extra days in London. Subsequently the complainant had to return to Kolkata and again made arrangement for the gift items and went to London for which he had to spend Rs.6 lakhs. On the basis of the said fact the complainant lodged a claim to o.ps. but no fruitful result was achieved for which the complainant filed this case praying for direction upon the o.ps. for refund of the amount of Rs.8 lakhs as well as compensation and litigation cost.
The o.p. nos.1 and 2 contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the case has got no territorial jurisdiction of this Forum to entertain the complaint. The complainant previously filed a complaint case being no.CC/132/2017 on the self same cause of action wherein this Forum observed that no cause of action arose within the territorial jurisdiction of this Forum and only to create territorial jurisdiction of this Forum the complainant made o.p. no.2 as a party. The case was accordingly rejected and the complainant was directed to file the case before appropriate Forum. The complainant filed this case on self same cause of action before this forum, on this ground o.ps. prayed for dismissal of the case. It was further stated that the complainant booked tour travel for Kolkata-Delhi-London-Delhi-Kolkata by Air India flight AI 763 / AI 111 of 29.6.16 and AI 112 / AI 734 of 13.7.16 respectively. The complainant checked in two pieces of baggage at Kolkata weight 42 kg upto Delhi by Air India flight AI 763 of 29.6.16 for Kolkata-Delhi sector. Air India flight AI 763 for Kolkata-Delhi sector is a domestic flight, therefore passengers travelling by domestic flight connecting onward international flights needs to collect / identify the checked in baggage at first exit point from country i.e. at Delhi for rebooking onward connecting international flight as per Custom’s regulations and also to undergo immigration formalities. On arrival at Delhi the complainant checked in AI 111 of 29.6.16 for Delhi-London sector and it was observed from the checked in history that baggage were not identified by the complainant at Delhi as checked in weight of two pieces of baggage were shown as 02/14 kg at Delhi. The two pieces of baggage of the complainant having weight of 43 kg at Kolkata Airport were not received at Heathrow Airport. The Baggage Service Cell of Air India at Heathrow Airport could not retrieve. The Baggage Service Cell of Air India sent SMS besides telephone call to contact the complainant for description of tracing baggage for the extensive tracing, but given phone number in PNR was inactive. The daughter of the complainant communicated with the Baggage Service Cell for settling the claim of missing baggage. Accordingly the complaint of the complainant was calculated on weight loss basis. The same comes to 731 SDR in total i.e. 43 kg x 17 SDR which is equivalent to GBP 820 payable in INR to the complainant. The Account Section Air India Kolkata after calculating the amount tried to contact the complainant for payment, but due to non availability of proper address and bank details of the complainant the amount could not be provided. As per rules PAN card of recipient is compulsory for payment of Rs.50,000/- and above. The daughter of the complainant was requested to provide the information including the bank details, but no reply was received from her. The o.ps. also denied that the complainant manufactured the case that for attending the wedding ceremony he purchased so many articles and kept those articles in the baggage which were allegedly found missing. The complainant in order to make out a manufactured case stated that they purchased so many articles and he went with those articles for providing the same to his friend’s daughter on the occasion of her marriage. Since the complainant was asked to be provided all the documents as sought for by o.ps. but the same was not provided by the complainant and as per the terms of the Montreal Agreement the compensation was determined by o.ps. and the same was offered to the complainant on asking some documents, but those were not provided for which the compensation could not be provided. On the basis of the said fact o.p. nos.1 and 2 stated that there was no deficiency in service on the part of them and as such, they prayed for dismissal of the case.
In spite of receipt of notice the o.p. no.3 did not contest this case by filing w/v and as such, the case has proceeded ex party against them.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant availed the flights provided by o.ps.?
- Whether the complainant carried the baggage in the flights for going to London and those were lost?
- Whether the articles lost by the complainant involving the amount more than Rs.8 lakhs?
- Whether the complainant will be entitled to get the compensation as per the rules?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that on 29.6.16 the complainant was travelling to London to attend an engagement ceremony of his close friend’s daughter on 30.9.16. Since the friend of the complainant is a Non Resident Indian, they have an emotional attachment and affinity towards authentic ethnic Indian wear, which they wanted to give to the near and dear one’s on such auspicious occasion and to realize such desire the friend of the complainant requested him to bring in London some specific stuffs when he will go there to attend the wedding. Accordingly, the complainant purchased 5 Kashmiri Shawls worth of Rs.75,000/- each totaling Rs.3.75 lakhs and other articles worth of Rs.75,000/- including Darjeeling tea, Benarasi Shari and Lehenga Cholis. The complainant bought a ticket to London Heathrow Airport from o.p. no.3. The complainant availed the journey on 29.6.16 by Air India flight and journey started from Delhi to London. When the complainant reached London Heathrow Airport he found that his baggage did not arrive along with him in his flight and is lost. The complainant had to wait for two hours, but the baggage could not be located. On the next day the complainant again made enquiry regarding the missing baggage, but those could not be traced out. On the basis of the said fact since all the documents were in the said baggage, therefore the complainant had to stay seven extra days in London. Subsequently the complainant had to return to Kolkata and again made arrangement for the gift items and went to London for which he had to spend Rs.6 lakhs. On the basis of the said fact the complainant lodged a claim to o.ps. but no fruitful result was achieved for which the complainant filed this case praying for direction upon the o.ps. for refund of the amount of Rs.8 lakhs as well as compensation and litigation cost.
Ld. lawyer for the o.p. nos.1 and 2 argued that the case has got no territorial jurisdiction of this Forum to entertain the complaint. The complainant previously filed a complaint case being no.CC/132/2017 on the self same cause of action wherein this Forum observed that no cause of action arose within the territorial jurisdiction of this Forum and only to create territorial jurisdiction of this Forum the complainant made o.p. no.2 as a party. The case was accordingly rejected and the complainant was directed to file the case before appropriate Forum. The complainant filed this case on self same cause of action before this forum, on this ground o.ps. prayed for dismissal of the case. It was further stated that the complainant booked tour travel for Kolkata-Delhi-London-Delhi-Kolkata by Air India flight AI 763 / AI 111 of 29.6.16 and AI 112 / AI 734 of 13.7.16 respectively. The complainant checked in two pieces of baggage at Kolkata weight 42 kg upto Delhi by Air India flight AI 763 of 29.6.16 for Kolkata-Delhi sector. Air India flight AI 763 for Kolkata-Delhi sector is a domestic flight, therefore passengers travelling by domestic flight connecting onward international flights needs to collect / identify the checked in baggage at first exit point from country i.e. at Delhi for rebooking onward connecting international flight as per Custom’s regulations and also to undergo immigration formalities. On arrival at Delhi the complainant checked in AI 111 of 29.6.16 for Delhi-London sector and it was observed from the checked in history that baggage were not identified by the complainant at Delhi as checked in weight of two pieces of baggage were shown as 02/14 kg at Delhi. The two pieces of baggage of the complainant having weight of 43 kg at Kolkata Airport were not received at Heathrow Airport. The Baggage Service Cell of Air India at Heathrow Airport could not retrieve. The Baggage Service Cell of Air India sent SMS besides telephone call to contact the complainant for description of tracing baggage for the extensive tracing, but given phone number in PNR was inactive. The daughter of the complainant communicated with the Baggage Service Cell for settling the claim of missing baggage. Accordingly the complaint of the complainant was calculated on weight loss basis. The same comes to 731 SDR in total i.e. 43 kg x 17 SDR which is equivalent to GBP 820 payable in INR to the complainant. The Account Section Air India Kolkata after calculating the amount tried to contact the complainant for payment, but due to non availability of proper address and bank details of the complainant the amount could not be provided. As per rules PAN card of recipient is compulsory for payment of Rs.50,000/- and above. The daughter of the complainant was requested to provide the information including the bank details, but no reply was received from her. The o.ps. also denied that the complainant manufactured the case that for attending the wedding ceremony he purchased so many articles and kept those articles in the baggage which were allegedly found missing. The complainant in order to make out a manufactured case stated that they purchased so many articles and he went with those articles for providing the same to his friend’s daughter on the occasion of her marriage. Since the complainant was asked to be provided all the documents as sought for by o.ps. but the same was not provided by the complainant and as per the terms of the Montreal Agreement the compensation was determined by o.ps. and the same was offered to the complainant on asking some documents, but those were not provided for which the compensation could not be provided. On the basis of the said fact o.p. nos.1 and 2 stated that there was no deficiency in service on the part of them and as such, they prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant in order to visit London availed the service of o.ps. The complainant has stated that for the purpose of attending the marriage ceremony of his friend’s daughter he carried some valuable articles including Kashmiri Shawls, Darjeeling tea, etc. and those articles were kept in two baggages and those baggages were lost. It appears from the materials on record that the articles were lost from the custody ofo.p. no.1. ld. lawyer for o.p. nos.1 and 2 raised objection that the case cannot be filed in this Forum since it lacks the territorial jurisdiction, but from the materials on record it appears that the ticket was purchased from o.p. no.3 which is situated within the territorial jurisdiction of this Forum, therefore it can safely be said that this Forum has territorial jurisdiction to entertain the case. It is an admitted fact that the complainant after purchasing of those articles and travelled with those articles in two baggages which has also been admitted by o.ps. that the baggage those were lost at 45 kg weight. In case of travel to any foreign country after immigration checking, customs etc. the passengers are released to attend the flight for going to abroad countries. The complainant after compliance of all the formalities availed the flight and went to London Heathrow Airport, but he could not find out those baggages. The complainant tried to contact the Air India officials and he was assured that they will try to find out the baggage, but ultimately the baggage could not be traced out. The complainant in order to fortify the claim against the o.ps. stated that the articles carried by him worth of Rs.8 lakhs. The o.ps. are all along ready and willing to make compensation on the weight loss as per Montreal Convention and the same was intimated to the complainant, but the complainant did not agree to such compensation for which he had to file this case. The complainant has also alleged that after such loss of baggage the complainant had to stay for several days in London and again he had to return to Kolkata and by availing further service of Jet Airways visited London to attend the marriage ceremony for which he had to incur huge expenses. Considering all these aspects since the complainant cold not provide the details of the expenses incurred by him and the receipts filed by him does not justify the fact that he carried the articles worth of Rs.8 lakhs with him and put those articles in those baggage for which we should not rely on the sole evidence of the complainant. In view of the facts and circumstances as stated above, we hold that there was deficiency in serviced on the part of o.p. nos.1 and 2 and it will be justified if the claim of the complainant is allowed to the tune of Rs.2 lakhs along with compensation of Rs.30,000/- and litigation cost of Rs.10,000/- which will sufficiently meet the loss sustained by the complainant. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.197/2017 is allowed on contest with cost against the o.p. nos.1 and 2 and dismissed ex parte without cost against the o.p. no.3. The o.p. nos.1 and 2 are jointly and/or severally directed to pay to the complainant the value of the lost articles assessed by us to the tune of Rs.2,00,000/- (Rupees two lakhs ) only along with compensation of Rs.30,000/- (Rupees thirty thousand) only for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
