1.      This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the “Act’) assails the order dated 26.09.2017 (as corrected on 20.12.2017) in First Appeal No. 299 of 2013 of the State Consumer Disputes Redressal Commission, Delhi (in short, the ‘State Commission’) dismissing the appeal of the petitioner against order dated 02.01.2013 of the District Consumer Disputes Redressal Forum-VI, Delhi (in short, the ‘District Forum’) in Consumer Complaint no. 688 of 2008. As per the impugned order, the appeal against order of the District Forum pertaining to claim of the respondent for Rs 9,24,000/- towards value of lost garments by the petitioner and other damages and costs, was dismissed and order of the District Forum upheld.

2.      The facts as per the petitioner are that the respondent/complainant travelled by a flight operated by the petitioner from Delhi to Bangkok (IC 853) on 03.09.2007. He checked in 100 kgs of baggage; however, its value was not declared. The ticket mentioned limited liability of USD 20 per baggage of lost baggage. The respondent was charged excess weight for 40 kg at the time of check-in, vide a valid receipt. Baggage was pooled with another co-passenger, Mohammad Salam and receipts were handed over to the respondent. On arrival in Bangkok, respondent reported non-receipt of all four pieces of checked in baggage and a Property Irregularity Report (PIR) was lodged. The baggage was not located by the petitioner despite earnest efforts. Petitioner states that the respondent had adequate information of the limited liability of baggage upto USD 20 as printed on the ticket as per the Warsaw Convention. Legal Notices dated 07.11.2007 and 21.02.2008 were received from the respondent which were duly replied. The Consumer Complaint filed before the District Forum by the respondent was contested and it was argued that the respondent complainant did not disclose that he was travelling with another co-passenger with whom luggage was pooled and that the respondent had also filed similar complaints of lost baggage with other airlines in the past. It was argued that the respondent and the said co-passenger, Mohd. Salam, changed their seats and Mohd. Salam also did not report any loss of baggage. A revised written submission was also filed detailing the discovery of previous complaints by the respondent. Replies to interrogatories were filed by the respondent though cross examination was not permitted. The District Forum allowed the complaint with compensation of Rs 3 lakhs for deficiency in service and harassment with interest @ 9% based on a receipt alleged to have been issued by “Air India”, copy of which was not filed by the respondent with the complaint but was brought on record at the time of final arguments without notice or copy to the petitioner who had no opportunity to contest it. The appeal against the order of the District Forum which was admitted and stayed on deposit of the decretal amount was dismissed on contest.

3.      This order is impugned by way of this revision petition on the ground that the order of the District Forum was illegal and based on material irregularity the District Forum’s order dated 02.01.2013 was in violation of principles of natural justice. Reliance is placed on Prem Raj Vs. DLF Housing & Construction (Pvt.) Ltd., AIR 1968 SC 1355 that conscious disregard of law amounts to acting without jurisdiction since in the instant case the statutory provisions of the Carriage By Air Act, 1972 and Section 13 of the Consumer Protection Act, 1986 have been violated. It is contended that the lower fora committed a material irregularity in relying on documents which were never led in evidence and concluded that the respondent/complainant was a regular exporter of garments earning foreign exchange based upon documents submitted by him.  

4.      I have heard the counsel for the petitioner and the respondent/complainant in person. Both argued as per their submissions on the record. The respondent contended that the orders of the lower fora be upheld as they have considered all the contentions of the petitioner in the revision petition.  I have also examined the documents on record carefully.

5.      The finding of the District Forum in its order dated 02.01.2013 upholding the Consumer Complaint no. 688 of 2008 is as under:

“The evidence produced by the complainant clearly establish that he is a regular exporter of garments, earning voluminous foreign exchange for the country, and registered with Government of India and appreciated by Department of Customs, for his clean image. He has established by placing voluminous documents of his regular numerous visits to foreign countries for export business. In terms of S 55 of the India Evidence Act 1872, the evidence of general good character and reputation is relevant for determining civil damages. Complainant has established himself as accepted exporter with reputation. He has argued that he has been maligned as criminal with criminal modus operandi.

The loss of baggage is routine phenomenon with Airlines Operators, as is evidences by number of such cases of ordinary passengers travelling for tourism or for work. As they 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 Institutional Area. The complainant ha explained that it is practice of all airlines to allow pooling of baggage, with co-passengers. Much is made of change of seats from 28A to 28 B to 15 E to 15 F. 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 and 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 5 A and 5 C of amended pleadings, which is without any evidence in support to say that complainant is making false claim. We reject the case of OP as is based on conjectures.”

 6.     The order of the State Commission in the impugned order dated 26.09.2017 reads as follows:

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 totalling 17000 US $ at the rate of 42/- per dollar at that time totalling 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.

7.      From the material on record it is seen that from the daily order sheet of the District Forum in CC no. 688 of 2008  records that on 11.05.2012 the orders were reserved after hearing the complainant in person and one Mr Ajay Tejpal, Counsel for the petitioner (Air India). Thereafter, on 09.10.2012, the order sheet records that:

“The case needs re-arguments. Notice to both the parties for 05.12.2012”.

From this order sheet it is apparent that on 23.01.2013 orders were passed. There is no record to show whether the case was re-heard/re-argued especially after notice to both the parties. Counsel for the petitioner during argument submitted that letter dated 03.09.2007 was brought on record before the District Forum which has been shown as part of the record. It was argued that this document had not been filed by any valid application or any opportunity to the petitioner to rebut the same. This document dated 03.09.2007, which is a list of items with value stated to have been handed over to the petitioner at the airport is not disputed by the respondent who states that it was submitted by him before the District Forum and that he relies upon since there is a valid seal of receipt by the petitioner. The petitioner, however, contends that the document was not brought on record through noticed to him and that he had no occasion to rebut the same and that this document has been relied upon by the District Forum erroneously to conclude that the value of the lost items was 17,000 USD.

8.     On the basis of the order sheet of the District Forum, as well as this submission of the petitioner which is not controverted by the respondent, the order of the District Forum is found to be based on material irregularity which warrants interference of this Commission. It is evident from the order of the State Commission that it relies upon the evidence and arguments produced before the District Forum and concludes that the case of the petitioner is based upon conjectures and surmises. The petitioner’s case is that the District Forum reached its conclusion based upon evidence that was brought on record without opportunity to him to reply at the stage of final orders was without notice to him. There is nothing on record whether the opposite party was put to notice with regard to this additional documents or whether it was allowed to be taken on record.     The State Commission upheld the order of the District Forum even though this issue was raised before it. It is therefore argued that the order of the District Commission suffered from a material irregularity which was perpetuated by the State Commission. It was also argued that the order suffered from a jurisdictional error in that the statutory provisions of the Carriage By Air Act, 1972 and Section 13 of the Consumer Protection Act, 1986 were not considered by the District Forum.

9.      As per principles of natural justice, the District Forum ought to have provided an opportunity to the petitioner/opposite party to file its objections to the additional document being taken on record by it. However, there is no mention about that this document being taken on record. The order sheet of 9^th October 2012, clearly states that notice to both the parties, returnable on 05.12.2012. The daily order sheet of Consumer Complaint No. 688 of 2008 for 09.10.2012 is clear in not having provided any opportunity to the petitioner/opposite party in this regard. Since this document is pivotal in the finding of the District Commission that there was a deficiency in service on part of the petitioner/opposite party, the denial of opportunity is manifestly a material irregularity that needs to be set right.

10.    This Commission, in exercise of its revisional jurisdiction, is not required to reassess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. However, it can interfere with the concurrent findings of the fora below on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is, therefore, limited to cases where some prima facie error appears in the impugned order. As laid down by the Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 decided on 18.03.2011, Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., & Ors  (2016) 8 SCC 286 decided on 02.08.2016 and T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 decided on 05.04.2019, revisional jurisdiction is not warranted to be exercised in cases of concurrent findings on facts by the lower fora only where there is either a jurisdictional error or a material irregularity resulting in miscarriage of justice. In the instant case, the conclusion of the District Forum is based on a document that could not have been considered as valid evidence unless the petitioner/opposite party was permitted to contest/controvert it which opportunity was denied. There is, therefore, a material irregularity in the order of the District Forum’s order which has been perpetuated by the State Commission in its order.

 11.   In view of the foregoing discussion and the facts and circumstances of this case, the revision petition is liable to succeed. The revision petition is accordingly allowed. The orders of the State Commission and the District Forum are set aside with the direction to the District Forum to hear the matter afresh after due opportunity to both the parties, with the further direction to hear the matter expeditiously, preferably within 3 months. Both parties are directed to appear before the District Forum on   9^th October 2023.