DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 16th day of May 2024.
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Filed on: 04/04/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No.151/2018
COMPLAINANT
Shuaib P.K, S/o Abdul Razak Haji, aged 32 years, Poovankulathil House, K. Kannapuram, Cherukunnu. P.O, Kannur (Dostrict), Kerala, Pin 670301. (Mobile No. 9946100120)
VS
OPPOSITE PARTIES
1. The C.E.O, Malindo Air, Malindo Air Corporate Office, C-5-05 Oasis Ara Damansar (2 Jalan PJU 1A/7A), 47301 Petaling Jaya, Selango, Malaysia.
(Represented by its Security Coordinator, Malindo Air, International Departure Terminal, Counter No.27, CIAL, Athani, Nedumbassery, Cochin-683111).
2. Security Coordinator, Malindo Air, International Departure Terminal, Counter No.27, Cochin International Airport Limited (CIAL), Athani, Nedumbassery, Cochin-683111.
3. Managing Director, Cochin International Airport Limited (CIAL), Athani, Nedumbassery, Cochin-683111.
(op3 rep. by Adv.Benny P.Thomas & D.Prem Kamath, Thoma & Thomas Advocates, Door No.68/1012, Valavi Road, Ernakulam, Pin-682 018)
F I N A L O R D E R
D.B. Binu, President.
- A brief statement of facts of this complaint is as stated below:
The complaint centres around a claim filed under Section 35 of the Consumer Protection Act, 2019. The complainant, a businessman in the advertisement industry, alleges that his valuables were stolen while traveling from Hong Kong to Cochin via Kuala Lumpur on a flight operated by an airline (The first opposite Party). The theft reportedly occurred when the complainant's handbag, stored in the overhead locker, was tampered with, resulting in the loss of cash, a mobile headset, and two wristwatches. The complainant reported the incident to the cabin crew and later to airline and airport staff, receiving some of his stolen items back but not all.
Despite efforts to recover the remaining items and follow up with the airline and airport authorities, the complainant contends that not enough was done to rectify the situation, and the parties’ involved denied liability. The complainant asserts that all parties involved in the operation of the airline at Cochin International Airport (The opposite Parties No. 1, 2, and 3) benefited financially from his patronage and therefore should have ensured better security and customer service.
Claiming negligence on the part of the airline and associated parties, the complainant has experienced not only the financial loss of stolen items and incurred additional expenses but also significant mental distress. Consequently, he seeks compensation totalling ₹1,50,000 for the losses and troubles endured. The case underlines issues of responsibility and liability in ensuring the safety and satisfaction of customers in the airline industry.
2) Notice
The Commission issued notices to the opposite parties, and in response, the third opposite parties provided their version.
- THE VERSION OF THE THIRD OPPOSITE PARTY
The defence in this legal dispute asserts that the complaint lacks both legal and factual basis, primarily challenging the complainant's standing as a consumer under the Consumer Protection Act and disputing the responsibilities of Opposite Party No. 3 (Cochin International Airport Limited, or CIAL).
The defence argues that the complainant is not a consumer as his relationship was primarily with Opposite Party No. 1 (the airline), not directly with Opposite Party No. 3, which merely provides airport infrastructure. It highlights jurisdictional issues, noting that the incident occurred on a flight from Hong Kong to Kuala Lumpur, outside Indian jurisdiction, thus absolving Opposite Party No. 3 of responsibility since the event did not occur on its premises or within its operational control.
It is also stated that since the complainant did not pay Opposite Party No. 3 directly for any services, and that the airport was used free of charge, there were no direct services rendered by Opposite Party No. 3 to the complainant. The defense points out that Opposite Party No. 3's role is limited to facilitating the operation of flights at the airport, without administrative control over the flights themselves. This suggests a lack of responsibility for incidents occurring on those flights, especially when operated by another party.
Furthermore, the defense emphasizes that there was no service deficiency from Opposite Party No. 3’s side as they promptly responded to the complainant's notices and provided necessary infrastructure without fault.
The defense concludes that the complaint should be dismissed due to these points, underscoring the legal untenability of holding Opposite Party No. 3 liable for the theft or any failure in service related to the incident.
4) . Evidence
The complainant did not file a proof affidavit but submitted 12 documents with the complaint to the commission:
- Receipt issued by BFC, showing exchange of Indian currency with Chinese Yuvan dated 05.01.2018
- Copy of Air Ticket issued by the 1st opposite party dated 13.01.2018
- Copy of Boarding pass issued by the 1st opposite party dated 13.01.2018
- Copy of acknowledgment of receipt of found property issued by the 1st opposite party (with regard two lost watches) dated 13.01.2018
- Copy of email sent by the complainant to the 1st opposite party dated 15.01.2018
- Copy of reminder issued by the complainant to the opposite party 1 dated 19.01.2018
- Copy of reminder issued by the complainant to the 1st opposite party dated 22.01.2018
- Copy of letter issued by the 1st opposite party to the Assistant Commissioner Customs CIAL for sending two lost and found watches dated 21.01.2018
- Copy of lawyers notice dated 05.02.2018
- Copy of reply notice by the 3rd opposite party dated on 26.02.2018
- Copy of Acknowledgment card issued by the 1st opposite party dated 26.02.2018
- Copy of Police Petition preferred by the complainant dated 19.03.2018
5) The main points to be analysed in this case are as follows:
i) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
ii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iii) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
Upon review of the records, it was noted that the complainant did not file a proof affidavit, although twelve documents were submitted along with the complaint to the commission; however, these documents were not marked as evidence. The complainant failed to appear before the commission or to present any evidence on his behalf. The hearing to present the complainant's evidence was initially scheduled for June 05, 2018, and subsequently, hearings on August 09, 2021, and October 20, 2021, were specifically designated for the presentation of the complainant's evidence. The complainant was absent on all these occasions.
Further, despite the commission's instructions for the registry to notify the complainant telephonically of the hearings, the complainant continued to be absent. On September 15, 2023, the commission again urged the complainant to appear and present evidence. Despite this, the complainant failed to attend subsequent hearings, and to date, no further evidence has been provided. In view of the complainant's inconsistent attendance and failure to submit the necessary evidence, the commission has no alternative but to proceed with a judgment based on the evidence currently available. The complainant's repeated absences and failure to submit a proof affidavit or to appear at subsequent hearings demonstrate a lack of interest in pursuing the case.
In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite party.
In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4, this court held that the burden of proving the deficiency in service is upon the person who alleges it. “
In a series of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the Commission. Mere allegations of negligence are insufficient to support the complainant's case. As stated in the case of SGS India Ltd Vs. Dolphin International Ltd (2021 AIR SC 4849), "the onus of proof of deficiency in service is on the complainant in complaints under the Consumer Protection Act." It is the complainant who approached the Commission, and without any proof of deficiency, the opposite parties cannot be held responsible for deficiency in service.
In conclusion, the Commission finds that the complainant failed to provide sufficient evidence to substantiate their claims of deficiency in service or negligence by the opposite parties. Therefore, the complaint is dismissed, and no relief is granted to the complainant.
We have decided not in favour of the complainant on all the issues mentioned above. After careful consideration, we found that the case presented by the complainant is meritless. As a result, the following orders have been issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.
Pronounced in the Open Commission this is the 16th day of May 2024.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/- Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
uk
APPENDIX
- Receipt issued by BFC, showing exchange of Indian currency with Chinese Yuvan dated 05.01.2018
- Copy of Air Ticket issued by the 1st opposite party dated 13.01.2018
- Copy of Boarding pass issued by the 1st opposite party dated 13.01.2018
- Copy of acknowledgment of receipt of found property issued by the 1st opposite party (with regard two lost watches) dated 13.01.2018
- Copy of email sent by the complainant to the 1st opposite party dated 15.01.2018
- Copy of reminder issued by the complainant to the opposite party 1 dated 19.01.2018
- Copy of reminder issued by the complainant to the 1st opposite party dated 22.01.2018
- Copy of letter issued by the 1st opposite party to the Assistant Commissioner Customs CIAL for sending two lost and found watches dated 21.01.2018
- Copy of lawyers notice dated 05.02.2018
- Copy of reply notice by the 3rd opposite party dated on 26.02.2018
- Copy of Acknowledgment card issued by the 1st opposite party dated 26.02.2018
- Copy of Police Petition preferred by the complainant dated 19.03.2018
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