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2015 DIGILAW 475 (JK)

Jet Lite Airways v. Majid Wani

2015-09-04

BASHIR A.KIRMANI, D.K.KAPOOR

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JUDGMENT D.K. Kapoor, Member (J) 1. Aggrieved by judgment dated 01.5.2013 passed by Forum below the Opposite party, appellant hereinafter, has assailed the same before this Commission on the grounds that order has been passed in oblivion of the settled legal position and the award passed is arbitrary and extraordinarily exorbitant. The record has been called for from the forum below and gone into. We have heard the learned Advocates for the parties. The admitted position in the case is that the respondent herein travelled in flight No. S2-105 dated January 18, 2010 operated by appellant from Jammu to Delhi. On reaching Delhi Airport he found his baggage missing. He lodged a complaint and also an FIR at Police Station, Domestic Airport, New Delhi being report No. 29 dated 19.1.2010 but despite his best efforts the baggage could not be traced and delivered to him. He filed a consumer complaint before the Divisional Forum, Jammu, claiming damages in the sum of Rs. 5 lacs. After following due process of law and hearing parties' advocates, the D.F. Jammu awarded damages of Rs. 50,000 as cost of the belongings carried in the lost attachi case, of course, with interest @ 8% p.a.; Rs. 10,000 as compensation for mental agony and Rs. 5000 as litigation costs with an annotation clause that OP shall pay Rs. 100 per day in case needful is not done within fixed time. There is no denial to the fact that the respondent travelled in the flight operated by appellant and he registered his baggage weighing 13 Kg. at Jammu Airport, which was to be retrieved on deboarding at Delhi Airport. The same was however, found missing and the complainant left to suffer agony in absence of his belongings which include his daughter's academic (qualification) testimonials and other important documents besides apparels and other articles of daily use. Advocate appearing for appellant has submitted, inter alia, that despite best efforts the baggage of the complainant could not be located but added that confusion was created by mis-description given by the complainant himself at Delhi etc. He has argued that the complainant is not entitled to any damages as no act of deficiency is proved against appellant and, if at all, some compensation is to be given, he is entitled only under rule 22(2)(b) of the IInd Schedule of the Carriage by Air Act, 1972. He has argued that the complainant is not entitled to any damages as no act of deficiency is proved against appellant and, if at all, some compensation is to be given, he is entitled only under rule 22(2)(b) of the IInd Schedule of the Carriage by Air Act, 1972. He has also assailed the impugned judgment whereby the DF has directed the appellant to pay the awarded amount to the complainant or deposit before the Forum within one month from the date of the order "failing which Rs. 100 per day shall be chargeable". According to him charging Rs. 100 per day is arbitrarily exorbitant and is not covered under any provisions of CPA. 2. Be that as it may, the provision of the Consumer Protection Act, 'are in addition to and not in derogation of provisions of other laws for the time being in force'. There is catena of judgment on this issue. Regarding jurisdiction of consumer fora, suffice it to say that Consumer Protection Act is enacted for betterment of the protection of consumer's interest and section 3 of the Act provides "additional remedy" through consumer disputes redressal agencies, which is not be in derogation with the provisions of other laws for the time being in force, therefore there is no legal impediment for Consumer Fora to exercise jurisdiction in any complaint with respect to the deficiency in service hired by the aggrieved consumer. In view of specific provision in the Act, the plea that Consumer Fora have no jurisdiction and such complainants are to be decided only under provisions of the Carriage by Air Act, 1972, pales into insignificance. Moreover liability as propounded by Article 14 or any other provision under the Carriage by Air Act 1972 is but limited liability of a service provider and yet liability under the Consumer Protection Act is an additional liability arising from deficiency in service as defined by section 2(1)(g) of the Consumer Protection Act. Fora across the country have been awarding compensation for the loss, mental agony, harassment, emotional suffering, physical discomfort, mental discomfort or any other sufferings, injustice done to the consumer, e.g. for delayed flight, cancelled flight and particularly for the loss of baggage and there is catena of authority on this issue. Fora across the country have been awarding compensation for the loss, mental agony, harassment, emotional suffering, physical discomfort, mental discomfort or any other sufferings, injustice done to the consumer, e.g. for delayed flight, cancelled flight and particularly for the loss of baggage and there is catena of authority on this issue. Liability, as spelt out under the aforesaid Carriage by Air Act is only a limited liability and merely relates to compensating the traveller as per weight of the baggage but the Carriage by Air Act does not contain any provision with respect to valuables and other costly items. Indeed liability arising out of deficiency in service viz. non-delivery, misdelivery or pilfered delivery etc, is in addition to the aforesaid limited remedy, needless to say that this view has been confirmed by the Hon'ble Supreme Court and in several cases, consumers have been awarded compensation by Consumer Fora all over the country for loss etc. of their goods due to deficiency of service on the part of Airlines. This compensation is awarded over and above the limited liability. 'Deficiency' in service is defined in Section 2(1)(g) as 'any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service'. Therefore there is no bar for the consumer fora to compensate an aggrieved consumer for deficiency in service caused by any agency including appellants/Airlines. The loss of belongings of the respondent certainly amounts to mental agony and harassment and such agony is a continuous traumatic psyche. In this case even important academic documents of complainant's daughter are allegedly lost. In view of the settled position of law the findings of the DF that appellant's act is tantamount to deficiency of service in addition to negligence in handling the respondent's registered baggage which was in appellant's custody and could not be delivered to respondent, are unexceptional and cannot be interfered with. In view of the settled position of law the findings of the DF that appellant's act is tantamount to deficiency of service in addition to negligence in handling the respondent's registered baggage which was in appellant's custody and could not be delivered to respondent, are unexceptional and cannot be interfered with. We, therefore, uphold the impugned order and direct the appellant to pay the entire amount awarded by DF Jammu to the complainant/respondent by depositing the same before the DF Jammu, or paying directly to appellant subject to modification that appellant/opposite party (Jetlite Airways) is directed to pay additional amount of Rs. 10,000 in addition to an amount of Rs. 5000 as litigation charges incurred by the respondent in this Commission. The entire amount shall be paid within four weeks from this order, failing which appropriate proceedings may be initiated by the DF, Jammu under the provisions of CPA including coercive process. The order payment of Rs. 100 per day, in default is struck down and modified as above said. Appeal is according disposed of. DF file be sent back along with copy of this order. Office to follow up.