Delhi

StateCommission

FA/13/299

AIR INDIA LTD. - Complainant(s)

Versus

SHAKEB KHAN ALTAMASH - Opp.Party(s)

26 Sep 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 26.09.2017

 

First Appeal-299/2013

(Arising out of the order dated 2.1.13 passed by the District Forum-VI, New Delhi District, in complaint case No. 688/08)

 

 

       In the Matter of:

 

          M/s Air India Ltd. (National Aviation Company of India Ltd.)

          Through

          The Commercial Manager,

          IGI Airport Terminal I,

          New Delhi

          And office also at

Jeevan Bharti Building

Behind Palika bazaar, Connaught Place

New Delhi

……Appellant                                         Versus   Mr. shakeb  Khan altamash R/o 17/131, Dakshin Puri DDA Flats, Ambedkar Nagar New Delhi-110062                                                                               …….Respondent

CORAM

Justice Veena Birbal, President

Ms. Salma Noor, Member

 

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

Ms. Salma Noor, Member

1.       This is an appeal under section 15 of the Consumer Protection Act (in short, the Act’) against the order dated 2.1.13 passed by the CDRF-VI, New Delhi District (in short, ‘the District Forum) in CC No. 628/08 whereby the complaint of the respondent herein i.e. complainant before the District Forum was allowed and appellant herein i.e. OP before the District Forum  is directed to pay Rs.9,24,000/- towards the value of the lost garments alongwith Rs.3,00,000/- towards compensation.

2.       Brief facts of the case are that the respondent/complainant engaged in business of export of ladies’ garments under name and style of M/s. Golden Eye Design & Fashion used to visit foreign countries quite often to get the order from foreign buyers. On 3.9.2007, respondent/complainant travelled through Indian Airlines via flight No. IC-853 vide Ticket No.3652214297  from Delhi to Bangkok.  The respondent/complainant was carrying 4 bags containing heavy embroidered ladies’ garments of total weight of 100 kg.  The respondent/complainant was allowed to carry 60 kg. with him, therefore, the appellant/OP charged Rs.15,250/- towards excess weight of 40 kg. After reaching bangkok, the respondent/complainant waited near conveyer belt to pick up the luggage but the bags were missing. Thereafter, immediately respondent/ complainant complained to airlines in writing and handed over original tags of the missing bags to the officials of the appellant/OP at the air-port inside. The officials of the appellant/OP gave assurance to the respondent/complainant that they will try to search out the baggage of the respondent/complainant and he will be informed accordingly. Thereafter, respondent/complainant continuously contacted the officials of the appellant/OP but his lost bags were not found. It was stated by the respondent/complainant that he was continuously in contact with the officials of the appellant/OP and the luggage was not claimed then the appellant/OP offered claim for the missing baggage but nothing came out. A legal notice dated 17.11.07 was also served on the appellant/OP. Although reply was filed but appellant/OP failed to compensate the loss of the respondent/ complainant. Aggrieved respondent/complainant filed a complaint before the District Forum  wherein he requested for 22,000/- US $ equivalent to Rs.9,24,000/- in Indian currency and further prayed for 17,000 US $ for loss of baggage and 5,000/- US $ for miscellaneous expenses.

3.       Notice was issued to appellant/OP  who contested the case and filed a reply admitting that respondent/complainant travelled on the flight of appellant/OP i.e. IC-853 Delhi Bangkok Sector on 3.9.2007 against ticket No.058/2652214297. It is also admitted by the appellant/OP that the respondent/complainant checked in 4 baggage weighing 100 kg. which were tagged with tag No. IC 134221, 124222,124223 and 134224 for which counter foil were handed over to the respondent/complainant for verification purpose at the time of collections of his bags on reaching Bangkok Airport. It was alleged by the appellant/OP in his written statement that the details of contents and value were not declared by the respondent/complainant at the time of check in. It was further stated that since he carried excess weight of 40 kg. he was accordingly charged with excess baggage vide EBT No.4511004238. Non tracing of baggage at Bangkok Airport was admitted by the appellant/OP. It was stated in the written statement that the respondent/complainant was issued Property Irregularity Report, but till date the baggage could not be traced for claiming compensation in accordance with the limited liability provision applicable to carriage.

4.       After filing of reply, the appellant/OP sought to amend the reply by moving an application under order 6 R.17 CPC, to incorporate additional facts which were not discovered earlier. The District forum allowed the application. Thereafter, the amended reply was filed by the appellant/OP wherein it was stated by the appellant/OP that respondent/complainant had concealed certain material facts. It was alleged that he was a habitual fraudulent claimants setting fake claims of lost baggages against various airlines from time to time to extract unlawful gain. It was stated that besides the aforesaid complaint, the respondent’s/complainant’s two more complaints were pending before CDRF, Qutub Institutional Area filed in year 2006 in respect of loss of baggage while travelling in Thai Airways on 30.8.06 and 10.10.06 bearing complaint No. 131/07 and 244/07. It was further stated by the appellant/OP that after investigations it was found that at the time of checking in of baggage he had pooled his baggage with one Mr. Mohammad Salam the total baggage weighed 100 kgs mentioned as M4/100 in the check in records. It was alleged  that initially both these passengers were allotted seats No. 28 A and 28 B, which were exchanged for 15 E and 15 F. It was alleged that Mohd. Salam did not claim to the airlines for his missing baggage though both had pooled the baggage. The allegations of the appellant/OP was that the whole baggage as pre planned move was collected by Mr. Mohd. Salam while respondent/complainant reported the baggage missing. In the written statement the respondent/OP had also taken  the plea that the matter could not be tried in a summarily way as complicated question of facts were asising. Thereafter, the appellant/OP also served interrogatories upon respondent/complainant which were replied fully by the respondent/ complainant. It was further alleged by the appellant/OP that the respondent/complainant has filed his complaint with malafide intention to extract monetary gain.

5.       Thereafter, the respondent/complainant filed his rejoinder stating that the amended paras of the written statement were based on conjectures and surmises and denied in total. It was denied that co-passenger Mr. Mohd. Salam collected the baggage in any pre-planned manner, though baggages were pooled. It was further stated by the respondent/complainant that the respondent/complainant being exporter of garments, was a regular visitor to foreign countries for orders and due to his regular visits he lost baggage only on three occasions for which he filed case against the airlines. It was stated that had he been habitual fraudulent  claimant, he would have filed numerous cases against all the airlines with which he had travelled in the past. It was further alleged that he did not know Mr. Mohd. Salam before and had met him at the Airport itself.  Since he was carring about 100 kg. weight which was much more than maximum limit, the appellant /OP suggested him to search a passenger without a baggage for pooling with him. Thereupon he found Mohd. Salam who was not carrying baggage and requested to pool luggage with him. It was alleged that the stickers of four pool bags were issued to the respondent/complainant against the four bags. No tags were issued to Mr. Mohd. Salam as he carried no baggage, and therefore he did not claim any lost baggage and other allegations were declined.

6.       Both the parties have filed their evidence. After appreciating the evidence led by the parties, the Ld. District Forum awarded an amount of Rs.9,24,100/- towards lost of garments and Rs.3,m00,000/- for deficiency in service.

7.       Aggrieved by the aforesaid order of the Ld. District Forum, present appeal is filed by the appellant/OP.

8.       Ld. counsel for the appellant has contended that the Ld. District Forum has passed the impugned order without appreciating the facts on record correctly. It is contended that the findings are contrary to material on record. It is contended that the respondent/complainant did not approach the Forum with clean hands. It is contended that the respondent/complainant did not declare about the contents of the bag. It is further contended that the findings of the Ld. District Forum about deficiency in service on the part of appellant/OP are not correct.

9.       On the other hand, counsel for the respondent/complainant has argued that the impugned order is legal and valid and findings for deficiency in service are correct and are based on material on record and the appeal is liable to be dismissed.

10.     There is no dispute between the parties about the traveling of the respondent/complainant and about loss of 4 bags weighing 100kg.

11.     It is very much clear from the facts that respondent/complainant had declared the contents of the bags with the airlines which is mentioned in para 13 of its complaint and appellant/OP has not denied the said fact as it is apparent from para 10 to 14 of its reply. Respondent/complainant has also stated in para 17 of the complaint that he had  supplied the details of missing goods and its value to the appellant/OP which is also not specifically denied by the appellant/OP in para 16 to 18 of its written statement. Further, the respondent/complainant in its evidence in Exh. CW 1/A to CW 1/F has stated on oath that at the time of booking of the said four bags  he had disclosed the said heavy embroiderer ladies garments samples as commercial goods/items the detail of which are given in para 13 and para 21 of the affidavit which is marked as Exh. CW/G and  Exh. CW/H. As against the above evidence appellant/OP has not filed any evidence on oath to counter it.

12.     In view of the above evidence produced by the respondent/complainant, it is established that he is a regular exporter of garments, earning voluminous foreign exchange for the country and registered with Govt. of India. To support its stand respondent/complainant has placed on record various documents of his regular and numerous visits to the foreign countries for export business.

13.     The Ld. District Forum after considering the evidence of respondent/complainant rightly observed as under:-

 

        “The loss of baggage is routine phenomenon with Airlines Operators, as is evidences by number of such cases of ordinary passengers traveling for tourism or for work. As the saying goes that sighting of two swallows do not make a summer or end of winter; likewise the loss of baggage reported by complainant two times by Thai Airways out of hundred of visits, or this time by Air India, when he is regular visitor for export abroad, is a normal loss, and he cannot be blamed for claiming compensation. It is entirely shocking and improper on the part of OP to describe him as a fake claimant or fraudulent claimant for monetary gain, on the basis of 2 complaints pending in court, where he has to establish all facts to claim compensation. The OP should not indulge in such reckless imputation  of criminal nature by alleging claim as criminal modus-operandi. The OP has failed to establish that co-passenger Mr. Mohd. Salman is also co-passenger in other two complaints in CDRF, Qutub Enclave Inst. Area. The complainant has explained that it is practice of all airlines to allow pooling of baggage, with co-passengers. Much is made of change of seats from 28 A & 28 B to 15E & 15F. It is natural that when two passengers pool their baggage, they may also request exchange of seats in the cabin, when they are travelling to same destination. This is usually done and allowed. OP has admitted that all the 4 identity coupons were given to complainant, who gave these to staff at Bangkok. The claim of OP that other passenger might have taken away the all baggage, without identity coupons is based on conjunction & surmises. Further, in present times, no co-passenger will even like to be associated with any baggage not knowing what it contains, as it may be having contrabands or other terronts linked material.

        We totally reject the case of OP on the lines suggested by it in para 5A, 5B & 5C of amended pleadings, which is without any evidence in support to say that complainant is making false claim. We reject case of OP as is based on conjectures.”

14.     In view of the above we also have the same view that appellant/OP were deficient in service as appellant/OP has not disputed the loss of four baggage weighing 100 kg. and the contents of which have not denied by appellant/OP in its evidence. On the other hand the respondent/complainant declared at counter on 3.9.07 (copy placed on record) showing receiving on the same date as consisting of commercial samples of Ghagra Choli, Dupatta Scarf, Ghudri Rajesthani, Ten tops skirts heavy stone embroidery work, heavy embroidery work Indo Western look skirt totaling 17000 US $ at the rate of 42/- per dollar at that time totaling Rs.9,24,000/-. The loss of business based on orders on approval of samples cannot be calculated being of speculative in nature. The harassment and mental agony due to loss of business opportunity in such cases is bit larger than the actual loss.

15.     We find that there is no illegality in the order of the District Forum and confirm the order of the District Forum.

16.     A copy of the order be sent to the parties free of costs as well as to the Ld. District Forum-VI, New Delhi District for necessary information. The record of the Ld. District Forum be also sent back forthwith.

            File be consigned to record room.           

        (Justice Veena Birbal))

President

 

 

(Salma Noor)

Member