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SPICE JET AIRLINES V/S DOLON DWAN, decided on Thursday, October 27, 2016.
[ In the West Bengal State Consumer Disputes Redressal Commission Kolkata, First Appeal No. 681 of 2014. ] 27/10/2016
Judge(s) : DEBASIS BHATTACHARYA PRESIDING MEMBER & JAGANNATH BAG MEMBER
Advocate(s) : Pratima Mishra, Ashesh Kumar Bhattacharya, Apares Sinha. N.R. Mukherjee.
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    Debasish Bhattacharya MemberChallenge in this appeal is the Order dated 03-04-2014 passed in C.C. No. 348/2013 by the Ld. District Consumer Disputes Redressal Forum North 24 Parganas (in short the District Forum). By the impugned Order the Ld. District Forum allowed the complaint case in part. Aggrieved by and dissatisfied with the same OP thereof has preferred this appeal.The brief facts as set out in the petition of complaint is that the Complainant booked air tickets from the OP for her to & fro journey to Delhi on 19-05-2013 and 25-05-2013 respectively against valuable consideration. While returning home the Complainant was carrying a hand baggage and two cargo baggages and the same were duly tagged and recorded by the airlines authority. After reaching the airport in Kolkata when the Complainant went near the conveyor belt to collect such luggages to her utter shock she found one of her luggages went missing and frantic search for the same proved futile. When she reported the matter to one attendant of Spice Jet after sometime she informed the Complainant that the luggage might have got misplaced with the luggage of some other flight and asked her to lodge a formal complaint. Accordingly the Complainant lodged a complaint and also provided details of her contact address. The Complainant was given a “Baggage Irregularity Report” being no. 6001 containing the signature of the authorized signatory of OP airlines. It is stated that the said misplaced luggage contained her study materials besides other necessary and valuable belongings of her. It is further stated that on 05-06-2013 the OP admitting non-receipt of the luggage offered her a paltry sum of Rs. 2 000/- as compensation. Feeling extremely dejected at such casual approach of the OP the Complainant filed the case before the Ld. District Forum.The OP filed its written version before the Ld. District Forum stating inter alia that it was clearly mentioned in the e-ticket that “SpiceJet highly recommends that you remove all valuables (cameras jewellery money electronics perishables etc.) and medication from your check in baggage and place them in your carry on. In case the passenger decides to carry any valuable in their checked in baggage against the above advice they will do this at their own risk and shall not hold SpiceJet responsible for any pilferage/damage/etc. to such valuables. The carrier’s liability for loss of baggage is limited to Rs. 200/- per Kg. with a maximum of Rs. 3 000/- only. The carrier assumes no liability for fragile or perishable articles”. Pointing out such stipulation in the e-ticket it is stated by the OP that in case of loss of baggage the liability of the Spicejet stands limited to Rs. 200/- per Kg. with a maximum of Rs. 3 000/-. In terms of the policy and the conditions mentioned in the ticket taking the weight of the baggage to be the maximum the OP vide a written communication requested the Complainant to furnish her account details. However she has not yet intimated the particulars wherein the said payment could be deposited. Instead Complainant filed this complainant case which has got no merit cause of action and substance and as such the same is liable to be dismissed with heavy costs.In view of such rival contentions of the parties we are to consider whether the impugned Order suffers from any irregularity or not.Decision with reasonsUndisputedly the Respondent lost one of her cargo luggages while returning from Delhi by air on 25-05-2013 and the Appellant has admitted its guilt by expressing due eagerness to compensate the loss. In fact the Carriage by Air Act 1972 also holds the carrier liable for damage in the event of loss of baggage/cargo if such occurrence takes place during the carriage by air. In the instant case no material proof is put forth from the side of the Appellant to show that it offloaded the luggage of the Respondent from the airlines at Dum Dum Airport Kolkata where the Respondent got off. The bone of contention as it appears mainly revolves over the quantum of compensation.According to the Appellant it offered Rs. 2 000/- as compensation for such loss of cargo luggage in accordance with the terms and conditions stipulated in the e-ticket. On the other hand Respondent claimed a lump sum of Rs. 1 00 000/- as compensation and litigation cost.After hearing both sides the Ld. District Forum awarded a compensation of Rs. 1 00 000/- in favour of the Respondent together with litigation cost to the tune of Rs. 10 000/-.Given that the Respondent herself confined her claim to Rs. 1 00 000/- the Ld. District Forum should not have doled out charity by awarding more than what the claimant/Respondent herself demanded. Looking from this aspect in our considered opinion the impugned Order needs certain modification.Be that as it may on the face of palpable deficiency in service on the part of the Appellant let us consider what would be the appropriate compensation. It is contended by the Respondent that the lost baggage contained her study materials which has jeopardized her career. In support of her case Respondent has referred to a decision of Hon’ble National Commission in the matter of M/s Emirates vs. Dr. Rakesh Chopra (F. A. No. 204/2008).On the other hand it is contended by the Appellant that if the Respondent so desired she could have procured duplicate study materials from the concerned Institution on payment of extra payment for the same. In support of its contention the Appellant referred to a decision of Hon’ble Supreme Court reported in AIR 1996 SC 2508 another decision of Hon’ble National Commission reported in II (2006) CPJ 43 (NC) and also a decision of this Commission passed in FA/824/2013.It is settled law that the parties are governed by the terms of the contract and in the instant case it was stated in the e-ticket that carrier’s liability for loss of baggage is limited to Rs. 200/- per kg. with a maximum of Rs. 3 000/-. However in our considered opinion such stipulation on the e-ticket notwithstanding it does not mean that the service provider shall not be liable to compensate the passenger for the mental agony harassment physical discomfort that one is to endure when a luggage goes missing.The word compensation has been given very wide connotation by the Hon’ble Supreme Court in cases after cases. The observations of the Hon’ble Supreme Court in Ghaziabad Development Authority Vs Balbir Singh reported in (2004) 5 SCC 65 is quote worthy and the same is appended below:“The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical mental or even emotional suffering insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law”.Every act of omission or commission by the service provider has to be ascertained on the anvil of definition of ‘deficiency’ as provided under Section 2(1)(g) of the Act and not on any other premise. Thus from this aspect also service provider/Appellant cannot take advantage of either Rule 3 or any other Rule or Law as to its liability qua the consumer.The emotional suffering physical discomfort harassment loss of study time requires to procure duplicate study materials from outside state is not assessable in terms of money. Though compensation in terms of money cannot be taken as panacea but it does mitigate the mental agony or suffering of person. In our view the reasons given by the Appellant for such loss of luggage was hardly such a reason which was beyond its control or an act of nature. Safety and security of belongings of the passenger while in travel rests with the Airlines and it cannot take such a job lightly. It was indeed cruel on the part of the Appellant to inflict salt into the wound of the Respondent by offering her a paltry sum of Rs. 2 000/- as compensation which in all probability was not sufficient even to cover the cost of duplicate study materials.Considering all these aspects into perspective we are of view that ends of justice would be met if a sum of Rs. 50 000/- is awarded in favour of the Respondent as compensation together with litigation cost of Rs. 10 000/-.Consequently the appeal is allowed in part.Hence ORDEREDThat FA/681/2014 be and the same is allowed on contest in part. The impugned Order is modified as under:“Appellant is directed to pay Rs. 50 000/- as compensation and another sum of Rs. 10 000/- as litigation cost to the Respondent within 30 days hence i.d. the amount of compensation shall carry interest @ 9% p.a. from this date till full and final payment is made”.