25.05.2015
MRIDULA ROY, MEMBER.
The instant appeal is directed against the judgment and order dated 24.03.2014 passed by Ld. District Forum, Kolkata, Unit – II in complaint case being No. 205 of 2013 dismissing the same on contest with penal cost of Rs.5,000/- payable by the Complainant for filing vexations, false complaint which would be deposited with the Ld. District Forum giving liberty to the Complainant to get his baggage repaired by the O.P. if the O.P. is willing to repair the same and if the Complainant does not opt for the same, the O.P. will have no responsibility to do the same in future.
Being aggrieved by the order the Complainant has preferred the instant appeal on the ground, inter alia, that the Ld. District Forum has erred in arriving at the conclusion without considering the facts and circumstances of the case such as the Complainant does not have adequate knowledge of law for which he should be given chances to produce the damaged articles beore the Ld. District Forum, there is no statutory bar to carry shampoo and chocolates in suitcase, none advised the Complainant to lodge PIR at Mumbai for non-receipt of his baggage, the O.P. admitted to cause damage to the luggage of the Complainant etc. and directed the Complainant to pay a sum of Rs.5,000/- towards penal cost holding that the Complainant had filed a vexations complaint.
The case of the Complainant before the Ld. District Forum, in short, is that on returning from EWR to Bomay on 12.05.2013 by flight of the O.P. having NO. 144 which came to Bombay on 13.05.2013 the Complainant while making immigration formalities found that his two pieces of luggage having tag marked CCU, Kolkata were not traceable. On enquiry, he came to know from the O.P. official that the said luggage would be sent to Kolkata directly. Being assured by the O.P. the Complainant boarded on an Air India flight having No. AI 776 and reached Kolkata on 14.03.2013. Reaching at Kolkata the Complainant went to collect his luggage but it was informed from the end of the O.P. that the said luggage had not been reached there by that time and the same would be reached within next morning. However, the O.P. authority sent the luggage by courier on 15.05.2013. The Complainant, subsequently received the same and found that handle of his one luggage was broken and it was tied with a rope and for another luggage he found that one of its wheels was missing and both the suitcases were despatched. On the next day he opened the suitcases and found most of the glass made articles were broken, video camera was broken into two pieces, shampoo spilted on cloths inside the suitcase. The Complainant has alleged that the O.Ps did not take minimum care of his luggage. For all these reasons he filed the complaint case praying for direction upon the O.Ps to show-cause as to late arrival of the luggage, to pay Rs.10,000/- for damage of two pieces of broken suitcases, to pay Rs.1,600/- for taxi fare to and from Howrah Maidan to Airport on 14th & 15th May, 2013, to pay equivalent of rupees 500 U.S. Dollar for damaging Video camera, perfume bottles, shampoos and apparels, to pay Rs.10,000/- as compensation for mental agony and pain and also to pay cost of filling the suit and conveyance.
The O.Ps appeared and contested the case by filing W. V. denying all the material allegations stating, inter alia, that if the baggage of the Complainant was not found at Mumbai, Property Irregularity Report (PIR) would have been issued in Mumbai but the Complainant did not report the same to the O.Ps. The O.Ps further stated that the Complainant, in his letter dated 17.05.2013 stated that all the materials were intact in the suitcase but chocolates and shampoos were melted and damaged cloths. But afterward he has taken the plea that his camera was broken. It is further contended in the W. V. that the baggage of the Complainant were delivered to the Complainant’s residence by M/s. Doloi & Sons by their own vehicle on 15.05.2013 and being informed by the Complainant regarding baggage related issue the O.P. assured the Complainant that those baggage would be repaired and one of the agents of M/s. Doloi & Sons would visit Complainant’s residence for collecting the same at any time convenient to the Complainant. But the Complainant did not intimate the O.Ps about his convenient time. The O.Ps specifically stated that as per contract of carriage returning Indian Resident from abroad are not entitled for any interim relief for delay in baggage delivery. The O.Ps stated that for all those reasons the Complainant was entitled to get any relief.
In course of hearing of the appeal Ld. Advocate for the Appellant has submitted that the scheduled flight was late by four hours. The luggage was not delivered at Bombay but in Kolkata and that too in damaged shape.
Ld. Advocate for the Respondents has submitted that allegations are made regarding damage of luggage and in this respect the Respondents offered the repairing service to the Appellant, but the Appellant did not accept the same. Ld. Advocate has also submitted that no PIR in respect of the luggage was lodged at Bombay by the Appellant.
Having heard submissions and on perusal of the record it appears that the Complainant’s specific allegation is regarding damage of his two suitcases and the articles kept within those suitcases. The Complainant made the mere allegation but did not furnish any authentic document in respect of the same. Thus, the onus lies upon the Complainant has not been discharged. The Complainant has stated that he has no knowledge of law. But ignorance of law cannot be taken as a ground of shedding the burden of proof.
However, it is on record that the Complainant – Appellant by a letter dated 17.05.2013 informed the alleged damage to the Respondent authority and the said authority agreed to repair the damaged baggage, if any, by sending their agent to which the Complainant – Appellant did not respondent.
The Ld. District Forum held the petition of complaint as frivolous one. But it is evident from the record that the Complainant became aggrieved regarding maintenance of his luggage by the O.P. authorities and filed the petition of complaint before the Ld. District Forum. The relief claimed by the Complainant may not be admissible, the allegation made by the Complainant might have not been proved by cogent evidence – but all these do not mean necessarily that the complaint was frivolous one.
In such view of the matter, we are of opinion that the direction to the Complainant to pay a sum of Rs.5,000/- towards penal cost to the Ld. District Forum for filing vexatious and false complaint should be set aside.
In the result, the appeal succeeds in part.
Hence, ORDERED, that the instant appeal is allowed in part on contest without cost. The impugned order is modified to the following extent –
The direction on the Complainant to pay Rs.5,000/- as penal cost is set aside. The other directions of the impugned order remain unaltered.
Thus, the appeal is disposed of.
