Complaint filed on: 03/01/2022
Complaint disposed on : 27/03/2023
BEFORE THE DISTRCT CONSUMER DISPUTES REDRESSAL COMMISSION, SOUTH GOA AT MARGAO
Coram: Shri. Sanjay M. Chodankar , President
Ms. Nelly H. Pereira e D’Silva, Member
Complaint No. 01/2022
Mr. Pankaj Kumar Sinha,
Aged 53 years,
Shah Kamakshi Plaza, AS-10,
2nd Floor, Possrem Bhat,
Murda, Merces, Goa 403 005 ….. Complainant
V/s.
1. Interglobe Aviation Ltd. (INDIGO),
Global Business Park,
Gurgaon, Haryana 122 002.
2. Interglobe Aviation Ltd. (INDIGO),
Dabolim Airport, Dabolim Goa ….. Opposite Parties
Complainant present in person at the time of hearings, arguments and Judgment.
Adv. Devendra Bharadwaj present for the Opposite Party No. 1 at the time of hearings, arguments and Judgment.
Opposite Party No.2 absent
J U D G M E N T
(Ms. Nelly H. Pereira e D’Silva, Member)
- This Judgment and Order shall dispose of the Complaint filed under Section 35 of the Consumer Protection Act, 2019 (for short “The C.P. Act).
The brief facts of the case are as under:
2. The Complainant had booked a ticket for flight No. 6E 6359 with PNR No. TIEBQZ for travel from Patna to Goa via Hyderabad and it was booked through the agent Journey Tours and Travels, Sharma Transport, Shop No.1, Crisbasol Plaza, Near KTC Bus Stand, Panaji for journey on 12.11.2019.
3. On reaching Patna Airport, the Complainant got his baggage screened and then presented the said baggage at one of the counters of Indigo for which two boarding passes were issued to him, one for journey from Patna to Hyderabad and 2nd one from Hyderabad to Goa. After going through security checks, the Complainant boarded flight No. 6E 6359 of Indigo at about 11.35 hours. Upon reaching Hyderabad Airport the Complainant has to wait for nearly 2 hours. After which he boarded the flight No. 6E 6809 for departure from Hyderabad to Goa at about 16.30 hours.
4. Upon reaching Goa the crew members of the flight informed that baggage would be available on belt no. 1 of Indigo. Inspite of waiting for baggage at belt no.1 the Complainant’s baggage did not arrive. Accordingly, the Complainant contacted the Indigo staff who were at duty desk near the belt. The staff inquired with the Complainant as to whether the baggage contained any power bank, for which the Complainant replied in negative. The Complainant waited for 2 hours at Dabolim Airport. The Indigo staff then asked the Complainant to fill one form (Property Irregularity Report) about the non receipt of his baggage. One form alongwith baggage sticker stucked on the boarding pass was retained by the Opposite Party (OP). According to the Complainant his baggage tag no. is 0312267703. The Complainant was thereafter given a mobile no. 8929347790 to ascertain about the status of his baggage. The Complainant was informed that message regarding his baggage has been sent in all air stations.
5. After a week the Complainant was informed by the said staff that his baggage of 8ks could not be traced and is reported lost and most probably a compensation at the rate of ₹380/- per kg as per Indigo Airlines Policy would be given.
6. After about 1-2 days the Complainant got a call from the Customer Executive of OP reiterating that his luggage is reported lost and he would be given compensation at the rate of ₹380/- per kg.
7. According to the Complainant he lost the following garments/clothes
along with Aristrocrat briefcase, total worth ₹47,787/- :
Blazer (2 nos), T-Shirt (Polo half size- 2 nos), Flat Front Trousers (4 nos) and Full sleeve Shirts (2 nos), having total cost: ₹37,887/- , with bill enclosed.
And also Pyjama ( 2 nos), Kurta (3 nos), Half sweater (1no.), socks (1 pair), undergarments (3 underwears and 3 banyans), KVIOC T-shirt (1 no.), Aristrocrat luggage (EDEN NXTEPS TROLLY), Total costing ₹ 9,900/- , which bills the Complainant does not possess.
8. Some of the clothes were recently purchased at Kalyan in Shop Aditya Birla fashion and retail and these were gifted to the Complainant by his brother, Shri Neeraj Kumar Sinha. These clothes were taken to be used at Grand reunion of classmates of Batch 19833-85 of KVS, IOC Refinery Township at KDM Hotel, Begusarai, Bihar on 10.11.2019 and 11.11.2019. According to the Complainant the total price of the goods with bills and without bills was ₹47,787/-. The Complainant had written to the OP to intimate OP if the said compensation was not acceptable. Vide email dated 16.12.2019 the Customer Relations Officer replied stating that they are going to reimburse only ₹350/- per kg i.e. ₹2,800/- for the loss of the goods as per their Airlines Policy.
9. The cause of action arose as the OP did not take proper care of the Complainant’s luggage thereby resulting in its loss and offered a mere amount of ₹2,800/- as compensation while the actual amount involved was ₹47,787/-. Thus adding insult to the loss.
10. With these allegations the Complainant has approached this Commission with a prayer to pay him compensation of ₹47,787/- for the loss of luggage containing the goods mentioned above.
11. Both the OPs were duly served with notice, The OP 2, however, chose to remain absent and did not file any written version.
12. The OP 1 contested the complaint by filing its written version. OP 1 has filed preliminary objections as under:
1. The present complaint is barred by limitation as the checked-in baggage was declared lost on 20.11.2019 and the same was informed by email to the Complainant on 21.11.2019, the complaint has been filed on 30.12.2021 i.e. after expiry of 2 years. As such the present complaint ought to have been dismissed.
2. This Hon’ble Commission does not have the territory jurisdiction to hear the present complaint as the terms and conditions i.e. Indigo Conditions of Carriage-Domestic (CoC) which govern air travel with Interglobe Aviation Ltd. clearly stipulate that the courts of New Delhi shall settle all disputes arising out with the conditions of carriage.
13. It is the case of OP on merits that the Complainant was booked for travel on board flight operated by OP , he was booked for travel on 12th November 2019 from Patna to Goa i.e Patna to Hyderabad on board IndiGo Flight No. 6E-6359 and from Hyderabad to Goa on board IndiGo Flight No.6E-6809. The Complainant had checked in with a baggage weighing 8 kilos and it was assigned tag no. 0312267703. At the time of check-in the Complainant neither disclosed the contents of the checked-in baggage nor paid any additional charge(special declaration of interest) towards the contents of the baggage. His booking was made and was confirmed under PNR No. TIEBQZ on receipt of INR 6,331.
14. The Complainant successfully travelled to his destination-Goa . On arrival at the Goa Airport , it was brought to the notice of the staff of the OP that the checked-in baggage of the Complainant weighing 8 kgs did not arrive at the baggage carousel at Goa Airport. Upon receipt of the said information, the personnel of OP duly attended to the queries regarding the possible loss of the Complainant’s checked-in baggage and made all possible efforts to trace the said baggage. In accordance with the existent procedure established by the OP, the staff of the OP raised a Property Irregularity Report (PIR) in order to record the details of the missing baggage and investigate into the same. The OP exhausted all possible means to locate the said baggage including issuance of urgent tracers to all the air stations that would have handled the baggage of the Complainant. However, unfortunately the OP failed to trace the checked-in baggage of the Complainant. Only after the efforts failed an email dated 21.11.2019 was addressed to the Complainant offering monetary compensation of ₹2800/- i.e. Indian INR 350/- per kg for the bag weighing 8kgs, in accordance with the applicable law and the binding terms of Indigo CoC. In addition to the compensation the Complainant was also offered travel vouchers worth INR 3000/- which was however, declined.
15. The Complainant has failed to establish any deficiency in service by the OP thereby made the complaint liable to be dismissed on that ground alone. The Complainant has failed to provide any evidence to corroborate the alleged fact that his checked-in baggage contained the items as alleged to have been contained. The invoices annexed by the Complainant are of February, 2019, whereas the Complainant travelled in November 2019. Furthermore the invoices are not in the name of the Complainant but in the name of one Neeraj Kumar Sinha. So it is not confirmed that the invoices annexed actually belonged to the Complainant and whether they were contained in the baggage that has been lost.
16. No declaration of interest was made by the Complainant at the time of check- in the baggage at the Patna Airport. The Airlines cannot be made liable to pay arbitrarily compensation when it had no knowledge of the contents of the baggage or its special value and importance to the passenger. Fastening the liability on the Airlines without the knowledge of the contents of the baggage will allow the passengers to claim any amount of compensation without adducing any evidence about the contents of the baggage. The OP cannot be held liable for the negligence and willful defaults of the Complainant to carry alleged valuable items in the baggage in breach of the binding conditions of IndiGo CoC.
17. The real intention of the Complainant in filing the present complaint is to embroil a reputed Airline operator in frivolous and vexatious litigation and thereby stifle fair and uninterrupted operations carried out by the OP. The conditions of the Carriage by Air Act , 1972 read with the Conditions of Carriage dated 28th June 2019, the liability of the InterGlobe aviation is limited towards the Complainant and it could not exceed Rs. 350 per kg i.e Rs. 2,800/-
By virtue of Rule 22(2) of the Third Schedule of the Carriage by Air Act 1972,
(as amended by the standing order bearing no. 142 (E) dated 17-01-2014 issued by the ministry of civil aviation) the liability of the carriers , in case of baggage loss/damage/delay is limited to a maximum of INR 20,000/- and can never be as high as ₹47,787/- as prayed for. Thus it is necessary for passengers who are carrying an item of special value and importance to declare the same to the Airlines beforehand. By not disclosing the contents of the baggage the OP was deprived of the opportunity to verify the claim of the Complainant.
18. As the maximum liability of the air carrier is limited by the Carriage of Air Act , 1972. The OP cannot be made to pay arbitrarily compensation without knowledge of the baggage contents. The Complainant has miserably failed to establish that his baggage consisted of items worth Rs. 47,787/- as such he is not entitled to compensation prayed for.
The rest of the contents of the written version are mere denials with a prayer to dismiss the complaint with exemplary costs.
19. The Complainant examined himself by filing an Affidavit-in-evidence. He has produced the following documents in support of his complaint:
E-Ticket to travel from Patna to Hyderabad and Hyderabad to Goa at Exhibit ‘3’, copy of boarding passes dated 12.11.2019 at Exhibit ‘4’, copy of Property Irregularity Report at Exhibit ‘5’, copy of extract of the bill involving clothes/garments lost at Exhibit ‘6’(colly), copy of letter dated 05.12.2019 regarding compensation towards lost baggage and email from OP dated 16.12.2019 at Exhibit ‘7’ (colly).
20. The OPs have examined Mr. Anmol Sood, Legal Counsel/Authorised Representative of OPs in support of its defence. He has produced the following documents:
Letter of Authorization dated 23.2.2022 at Exhibit ‘12’, copy of the digital record of print bag tag generated for the complainant dated 12.11.2019 at Exhibit ‘13’, copy of property irregularity report at Exhibit ‘14’, copy of official Gazette of India dated 17.01.2014 where amendment to rule 22 (2) of the third schedule of the carriage by air act , 1972 at Exhibit ‘15’, conditions of Carriage of Inter globe aviation ltd. at Exhibit ‘16’ and email to the Complainant dated 21.11.2019 at Exhibit ‘17’.
21. Arguments have been heard. Complainant argued in person and Ld. Adv. Devendra Bharadwaj argued on behalf of the OP 1 .
22. Points that arise for our determination and our findings on them are as under:
POINTS FINDINGS
I. Whether there is deficiency in service
on the part of the Opposite Party? Affirmative
II. Whether the Complainant
is entitled to any Compensation? Affirmative
REASONING:
POINT NO. I.
23. It is an admitted fact that the Complainant travelled on 12th November 2019 from Patna to Goa i.e Patna to Hyderabad on board IndiGo Flight No. 6E-6359 and from Hyderabad to Goa on board IndiGo Flight No.6E 6809. It is also an admitted fact that the Complainant had checked- in with a baggage weighing 8 kilos and it was assigned tag no. 0312267703. It is also an admitted fact that the OP failed to trace the checked-in baggage of the Complainant upon his arrival at Goa Airport. Admittedly the Complainant refused the monetary compensation of ₹2800/- (₹350 x 8) and the travel voucher worth INR 3000/- ,offered by the OP for the loss of baggage.
24. According to the Complainant his lost baggage consisting of garments/clothes along with Aristrocrat bag was total worth ₹47,787/- , It consisted of the following items:
Blazer (2 nos), T-Shirt (Polo half size- 2 nos), Flat Front Trousers (4 nos) and Full sleeve Shirts (2 nos), having total cost: ₹37,887/- , with bills enclosed at Exhibit 4..
And also Pyjama ( 2 nos), Kurta (3 nos), Half sweater (1no.), socks (1 pair), undergarments (3 underwears and 3 banyans), KVIOC T-shirt (1 no.), Aristrocrat luggage (EDEN NXTEPS TROLLY), all costing ₹ 9,900/- , which bills the Complainant does not possess.
25. In defence, it is the case of the OP1 in their written version that upon receipt of information, the OP exhausted all possible means to locate the said baggage including issuance of urgent tracers to all the air stations that would have handled the baggage of the Complainant. However, the OP failed to trace the checked-in baggage of the Complainant. According to the OP there is no evidence, which proves that the said luggage contained all the items referred to in the complaint as the Complainant did not disclose the contents of checked-in baggage nor paid any additional charges towards the same. The OP has stated further that as per the conditions of the Carriage by Air Act , 1972 read with the Conditions of Carriage dated 28th June 2019, the liability of the InterGlobe aviation is limited towards the Complainant and it could not exceed Rs. 350 per kg i.e Rs. 2,800/-., Accordingly the Complainant was promptly offered monetary compensation of INR 2800/- ( i.e Rs.350/- x 8) which was in accordance with law , in addition to it the Complainant was also offered a travel voucher of Rs.3000/- However, the offer was declined by the Complainant and the present complaint was filed, therefore there is no deficiency on the part of the OP.
26. In support of the allegations the Complainant has filed his affidavit-in-evidence reiterating that some of these garments/ clothes were recently purchased in febraury 2019 when he had gone to visit his brother and the garments purchased at Kalyan in Shop Aditya Birla fashion and retail were gifted to him by his brother, Shri Neeraj Kumar Sinha as such the bills are in his brother’s name. The Complainant has further stated that Luggage was x-ray screened and then handed over at the counter of the Indigo at Patna for onward transportation to Goa, the OP did not ask to open the luggage for ascertaining its contents as it was already passed through X-ray screening first. A lay man will not know the intricacies unless asked for by the OP. Neither in the booked ticked such type of instructions have been given that the passengers have to give the list of items in the baggage which is handed over to the counter for onward transportation to the airport of destination.. At no point of time the Complainant was asked to produce special declaration of interest by the staff or authorities of the OP. The checked-in luggage did not contain any valuable goods like jewelries, except purchased formal clothes/garments for use at the get together. He declined the compensation offered by the OP of Rs. 5,800/- as it was a small amount compared to the loss he suffered.
27. We have perused the documents relied upon by the OPs. There is no clause in the CoC making it mandatory for the passengers to disclose the contents of their checked-in baggage.
28. The terms ‘service’ and ‘deficiency’ have been defined in the Consumer Protection Act 2019 under section 2(42) and 2(11) respectively , as under:
Section 2(42) “service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”
Section 2(11) "deficiency" 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 and includes- (i) any act of negligence or omission by such person which causes loss or injury the consumer; and (ii) deliberate withholding of relevant information by such person to the consumer;”
29. In the present case admittedly, the baggage of the Complainant was in the custody of the OP during transit. As the passengers are not allowed to keep their belongings in their own custody, it is the bounden duty of the Airlines to take care of the passenger’s luggage and to deliver the same to them upon reaching their destination. Admittedly, the Complainant’s checked-in baggage
weighing 8kgs was not traceable upon arrival at Goa airport. It was the bounden duty of the OP to take care of the Complainant’s baggage, failure on the part of the OP to take care of the Complainant’s baggage is definitely a serious lapse on the part of the OP. The OP thus failed in rendering proper service to the Complainant. The act of the OP in being negligent in taking care of the Complainant’s baggage and not delivering the same to the Complainant upon reaching the destination is deficiency in service on the part of the OP. By offering compensation to the Complainant, the OP have accepted that there was deficiency on their part.
30. The OP have raised preliminary objections that the present complaint is barred by law of limitation as it is filed after 2 years. According to the OP the check in baggage was declared lost on 20-11-2019 and vide email dated 21-11-2019 the Complainant was informed about the loss by Interglobe Aviation Ltd., but the present complaint has been filed on 30-12-2021 , i.e after 2 years. Here we find that the Complainant has specifically pleaded at para 3 of the complaint that on account of the Covid Pandemic scare there was delay in filing the complaint. We place reliance on the order of the Hon’ble Supreme Court in suo motu writ petition no. 3/2020, in Re: Cognizance for extension of limitation. As per this order while calculating the period of limitation the period from 15.03.2020 to 28.02.2022 has to be excluded and all persons shall have limitation period of 90 days from 01.03.2022. In view of the same the objection that the complaint being barred by limitation is rejected as without any merit.
31. Another preliminary objection raised by the OP is that this Commission has no territorial jurisdiction to entertain this complaint as terms and conditions of Carriage-domestic (“CoC”) which govern air travel with Interglobe Aviation Limited are binding on all the parties, it clearly stipulate that the Courts of New Delhi shall settle all disputes arising out of or in connection with the said conditions of carriage.
32. Here we would like to state that the new Consumer Protection Act, 2019, [section 11(2)] now gives flexibility to the consumers in filing consumer complaints where the Complainant resides or personally work for gains, this District Commission therefore has jurisdiction to decide this consumer complainant filed by the Complainant. We further add that as per Section 100 of the Consumer Protection Act, 2019, the remedy under the Consumer Protection Act is in addition to any other remedy available under any law for the time being in force. Therefore, this objection raised by the OP is also rejected as without merit.
This issue is therefore answered in the affirmative.
POINT NO. II :
33. Admittedly the checked-in baggage of the Complainant, weighing 8 kg was reported lost. According to the Complainant his lost baggage was worth a total of ₹47,787 . The list of items in the baggage are listed at paras above.
34. The Ld. Adv for the OP1 submitted that the Complainant is only entitled to value as per weight and not as per value of lost articles. He further argued that as per the provisions of the Carriage by Air Act , 1972 read with the Conditions of Carriage dated 28th June 2019, the liability of the InterGlobe aviation is limited towards the Complainant and it could not exceed ₹350 per kg i.e ₹. 2,800/-. Accordingly the OP offered the Complainant ₹2800/- and in addition to that he was also offered a travel voucher of ₹ 3000/- , but the offer was declined by the Complainant
35. The Complainant argued that he is a senior citizen, after his baggage was not traced, he had to wait for 2 hours at Dabolim Airport, thereafter the staff of the OP completed the formalities of filling the form (Property irregularity report) about the non receipt of baggage. All of this coupled with the loss of luggage caused a lot of mental agony and harassment to the him. The Complainant further submitted that the amount offered of ₹5,800/- was a small amount compared to the loss he suffered as such he declined the same.
36. Here we find it relevant to state the observation made by Hon'ble NCDRC in Emirates versus Dr. Rakesh Chopra reported in III [2013] CPJ 500 (NC) , which is as under:-
“We have carefully considered the submissions of ld. Counsel for both parties and have also gone through the evidence on record. The fact that the respondent and his wife travelled by appellant Airlines to Athens for a business conference where one of the baggage was misplaced and was not found till date is an admitted fact. It is also a fact that on the return journey, their second luggage was ripped open and some papers removed. We have also seen the terms and conditions regarding settlement of claims in case of lost luggage as also the relevant provisions of the Carriage by Air Act, 1972. There is, of course, no doubt that based on these provisions of Carriage by Air Act, 1972 the Appellant Airlines had offered to pay the loss, which has been calculated as being 280 US Dollars since these claims are settled on the basis of weight and not on the value of the goods that have been lost. The State Commission while taking note of this fact has directed the Appellant Airlines to pay compensation of Rs. 2.00/- lakhs for the deficiency in service as well as for harassment, agony and mental tension caused to the respondent, which is admittedly not taken into account for settlement of such claims under the Carriage by Air Act, 1972 as also the terms and conditions of the Appellant Airlines. We find substance in this finding of the State Commission. In the instant case, due to negligence and deficiency in service, the appellant airlines who has entrusted with the safe custody and delivery of the passengers luggage admittedly failed to do so causing the respondent, who is a well-known Oncologist to undergo mental tension, harassment, loss of professional face, apart from the monetary loss. The Consumer Protection Act 1986 has been enacted to give relief to consumers for deficiency in service, unfair trade practice etc. by service providers, traders, manufacturers etc. and the Hon'ble Supreme Court in The Consumer and Citizens Forum v. Karnataka Power Corporation [1994 (1) CPR 130] has laid down that the provisions of this Act give the consumer an additional remedy besides those that may be available under other existing laws. In the instant case, no doubt the Appellant Airlines had sought to settle the consumers grievance purely in terms of the national monetary loss suffered by him as per the relevant provisions of Carriage by Air Act, 1972. However, as discussed earlier, because there was deficiency in service on the part of Appellant Airlines in losing and mishandling the respondent's luggage, which caused him harassment, agony, mental tension and loss of professional face apart from monetary loss, he is entitled to compensation for this deficiency in service on appellants part as per the provisions of the consumer protection act, 1986. Keeping in view these facts, the State Commission has awarded a compensation of Rs. 2.00/- lakhs. We see no reason to disagree with the compensation awarded, which, we feel, is fully justified under the circumstances.
37. Recently in (REVISION PETITION NO. 1179 OF 2018) Air India Ltd. & Anr. vs Tushar Kothari, the Hon’ble National Commission vide order dated, 7th February, 2023 upheld the order of the Hon’ble State Commission, affirming the view taken by the District Forum that the there was deficiency in service on the part of the Petitioner Airline in taking proper care of the baggage of the Respondent/Complainant, which was lost during the course of travel due to which the Complainant has to suffer a loss of ₹2,03,785/-. However, keeping in view the facts and circumstances of the case, it reduced the compensation of ₹1,00,000/- and ₹10,000/- towards cost as awarded by the District Forum to ₹25,000/- and ₹5,000/- respectively.
38. More recently In (FA/791/2014 ) M/S LUFTHANSA GERMAN AIRLINES VS MR. RAJEEV VADHERA , the Hon’ble Delhi State Consumer Commission vide order dated 01.03.2023 upheld the order passed by the District Commission directing the Applicant (Airlines ) to pay for loss of goods by paying USD 5,000/- and also ₹.1.5 lakh for harassment and litigation expenses etc.
39. In the case at hand,, as a result of the deficiency of service on the part of the OP in not taking proper care of the Complainant’s luggage, the Complainant’s luggage was lost. Undisputedly, luggage is an important part of one’s travel. Not having one’s own luggage upon reaching one’s destination would definitely cause mental agony and harassment to any passenger. By paying a meagre amount the OPs cannot absolve themselves by saying limited liability.
40. We are of the considered view that the Complainant is entitled for reliefs both, under the Carriage by Air Act , 1972, which is calculated based upon the weight and also for compensation as per the provisions of the Consumer Protection Act 2019, for the mental agony, harassment and expenses suffered by the Complainant, which cannot be measured. We therefore find it fit to fix the Compensation at ₹ 15,000/- .
This Point is therefore answered in the affirmative.
Hence we pass the following order:
OR D E R
The complaint is partly allowed with cost of ₹5,000/-(Rupees Five Thousand Only).
The OPs are directed to pay to the Complainant ₹2,800/- (Rupees Two Thousand Eight Hundred Only) for loss calculated by weight as mandated by the provisions of the Carriage by Air Act,1972.
The OPs are also directed to pay to the Complainant ₹15,000/- (Rupees Fifteen Thousand Only) as compensation towards mental agony and harassment.
The above amounts are to be paid within a period of two months upon receipt of this order, failing which it will carry an interest @ 9% p.a till the date of actual payment.
Pronounced in open Court. Proceedings closed.
(Shri Sanjay M. Chodankar)
President
(Ms. Nelly H. Pereira e D’Silva)
Member
pf:
