INDU JAIN & ANR. v. BRITISH AIRWAYS & ORS.

Complainants lodged their Claim for US$ 17,461.73 towards the loss of baggage and the damage to the two bags itself. The true copy of the said Claim has been annexed with the complaint as ANNEXURE-C/6 (Colly.).

f) although the Complainants were handicapped due to the torn bags and missing baggage articles but the attitude of the Opposite Party No. 2 was completely indifferent who merely asked the Complainants to file the baggage claim and to proceed for their sightseeing and they will inform the Complainants, if any of the missing articles were retrieved. The Opposite Party No. 2 also informed the Complainants to check their claim after a week.

g) The Complainants stayed at Toronto for about six days and on 8.6.2017 they undertook their return journey to New York, U.S.A. again by American Airlines/OP-2. On 8.6.2017, the Complainants again checked with the Opposite Party No. 2 if the missing baggage items Complainants' Claim had been processed but the Opposite Party No. 2 informed the Complainants that they will receive a reply in due course. They also declined to address and entertain the apprehensions of the Complainants with regard to their missing baggage articles. With a heavy heart, the Complainants departed from Toronto to New York U.S.A. and eventually to India on 20.06.2017.

h) While in Toronto and later on in London, the Complainants replenished the lost articles of personal use at a substantial cost. The true copies of the Cash Memos for the repurchase of the lost articles have been annexed with the complaint as ANNEXURE-C-7 (Colly.).

2. It has further been stated that:-

a) Upon returning to India, the Complainants exchanged several e-mails with the Opposite Parties with regard to the reimbursement of their claim for lost baggage.

b) The Complainants also lodged an insurance claim with the Opposite Party No. 3 for the lost baggage. The true copy of the said intimation of loss vide email dated 12.07.2017 to Opposite Party No.3 has been annexed with the complaint as Annexure-C-8. The Opposite Party No.3 registered Claim of the Complainants vide email dated 23.07.2017. The true copy of the said email dated 23.07.2017 has been annexed with the complaint as Annexure- C-9. The Opposite Party No.3, however, stated that their liability was limited to Rs.10,000/-, that too upon furnishing satisfactory proof of loss of baggage. In effect, the Opposite Party No.3 declined to entertain the claim of the Complainants for the lost baggage vide email dated 17.07.2017. The said email dated 17.07.2017 has been annexed with the complaint as Annexure- C-10.

c) The protracted e-mail correspondence with the Opposite Parties Nos. 1 and 2, did not elicit a favourable outcome and the Opposite Party No. 2, particularly kept declining the reimbursement of the claim of the Complainants. The true copies of the emails exchanged between the

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Complainants and the Opposite Parties Nos. 1 and 2 have been annexed with the complaint as Annexure-C-11 (Colly)

d) The Complainants exchanged several e-mails and also submitted proof of purchase of the articles of personal use, jewellery, electronic items, watches, gifts etc. but the Opposite Party No. 2 did not take them into account. The Opposite Party No. 2 kept denying the Complaint of the Complainants on the ground that the evidence was insufficient with regard to the lost baggage despite the Complainants having submitted the photographs of the damaged baggage which have been ripped wide open and from the hollow space from which the articles fallen out were clearly visible in both the bags.

e) Being aggrieved by the persistent disinclination of the Opposite Parties, the Complainant through their Solicitors addressed Legal Notices dated 03.11.2017. The true copies of the notices have been annexed with the complaint as Annexure-C-12(Colly). The Opposite Parties 1, 2 & 3 declined to reimburse the Claim of the Complainants. The Opposite Party No. 2 did not reply to the Legal Notice while the Legal Notice could be served only to the International Ticketing Division of the Opposite Party No. 1.

3. It has further been alleged that at the time of undertaking the foreign travel from India to U.S.A. through London, at every stage, the Opposite Parties 1 and 2 took charge of the baggage of the Complainants and thus became the custodians for the safe custody of the Complainants' baggage. By allowing the baggage to be damaged and ripped open, the Opposite Party No. 2 has demonstrated utter negligence, breach of trust and gross deficiency in services. Even after the deficiency in service was brought to the notice of Opposite Party No. 2, it kept looking for excuses, rather than settling the claim of the Complainants. On 12.07.2017 when the Complainants approached the Opposite Party No. 3 for indemnification for the loss of baggage, the Opposite Party No. 3 refused even to entertain the Claim of the Complainants. It was only upon the issue of Legal Notice that the Opposite Party No. 3 called upon the Complainants to accept an amount of Rs.10,000 in full and final payment of all their claims of reimbursement of loss of baggage. The Opposite Party No. 3 has committed Unfair Trade Practices by issuing the Baggage Insurance Policy containing a fine print that in case of baggage loss, the liability of the Opposite Party No. 3 shall be limited to Rs.10,000. While selling the policy the Opposite Party No 3 had projected as if the Policy was for reimbursement of full baggage loss in the event of loss of baggage. The Opposite Party No. 3 has made false claims and thereby induced the Complainants to purchase the Baggage Insurance Policy from it and upon the complaint for reimbursement being filed by the Complainants, the Opposite Party No. 3 has committed Unfair Trade Practices by contending that the Opposite Party No. 3 was not liable to reimburse the whole loss. The period of insurance was from 24.5.2017 to 21.6.2017 and the whole purpose of taking the Insurance Policy was to cover the risk of baggage loss during the foreign travel of the Complainants, which was defeated by the Opposite Party No. 3 by indulging Unfair Trade Practices, false

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representations, false inducement and misrepresentation etc. The Complainants are claiming damages of an amount of US$17,461.73 equivalent to Rs.12,57,244.56 at the present rate of Rs.72 for one USD along with interest @ 18% and damages of Rs.4 lakhs towards the physical and mental harassment, inconvenience and hardship suffered by the Complainants due to the wrongful acts of the Opposite Parties.

4. The Complainant has therefore, prayed before this Commission to pass the following directions to the OPs to pay:-

i. Compensation towards the reimbursement of loss of US $ 17,461.73 equivalent to Rs.10,82,627.26 (1 US $ = Rs. 62 approx.) suffered by the Complainants due to the acts of Deficiency in Service and Unfair Trade Practices, committed by the Opposite Parties; and

ii. Interest @ 18% p.a. on the Compensation awarded in favour of the Complainants and against Opposite Parties jointly and severally; and

iii. Award damages of Rs.4,00,000/- in favour of the Complainants and against Opposite Parties jointly and severally for the physical and mental harassment, inconvenience and hardship suffered by the Complainants due to deficiency in service and Unfair Trade Practices committed by the Opposite Parties; and

iv. Cost of these proceedings quantified at Rs. 2,00,000/-; and

v. Pass such other of further orders as this Court may deem just, necessary and expedient in the interest of justice.

5. The Complainants have filed copies of Air Ticket booked by the Complainants through the OP No.1 and OP-2, travel Insurance Policy Cover taken by Complainants from OP-3, Boarding pass of Complainants issued by OP-2, missing articles receipt submitted by Complainants to OP-2, Damaged Baggage Receipt submitted by Complainants to OP-2, claim toward loss of baggage submitted with OP-2, Cash Memo of purchase of lost items by Complainants, Insurance claim e- mail of Complainants to OP-3, e-mail confirmation of claim receiving by OP-3 to Complainants July 23, 2017, e-mail of OP-3 claim denial to Complainants November 23, 2017, claim emails to OP-2 by Complainants and legal notice and postal receipts along with the complaint.

6. Accordingly, notices were issued to the OPs and in response, the OPs have filed their respective replies which are discussed as under:-

I. The OP-1 has filed its reply pleading no deficiency of service and seeking dismissal of the complaint with preliminary objections which are produced below:-

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a) The complaint relates to damage to baggage while the Complainants were travelling from Miami to Toronto on flight No. AA2671 of Opposite Party No. 2, with which Opposite Party No. 1 had nothing to do.

b) The complaint (relating to articles allegedly missing from the Complainants bags) was lodged with Opposite Party No. 2 on June 02, 2017 at Toronto and no intimation whatsoever was made to Opposite Party No. 1 as to the loss/damage.

c) No complaint in terms of Rule 31 of Schedule 3 to the Carriage by Air Act, 1972 was made within 7 days from the date of receipt of the baggage by the Complainants to Opposite Party No. 1 and hence, no action lies against Opposite Party No. 1. The provision of Rule 31 of Schedule 3 to the Carriage by Air Act, 1972 is reproduced below for ready reference:

"31. (1) Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in sub-rule (2) of rule 3 and sub-rule

(2) of rule 4. (2) In the case of damage, the person entitled to delivery shall make a complaint to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint shall be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his disposal.

(3) Every complaint shall be made in writing and given or dispatched within the period specified-in sub-rule (2).

(4) If no complaint is made within the period specified in sub-rule (2), no action shall lie against the carrier, except in the case of fraud committed by the carrier."

A similar condition is also contained in Articles 16 of the Conditions of Carriage of Opposite Party No. 1, which is to the following effect:-

16. Time limits for baggage complaints

"16b). Complaints about damage to checked baggage must be made in writing within seven days of receiving the baggage If your checked baggage is damaged, you must complain in writing to us immediately you discover the damage and at the latest, within seven days from the date you received the checked baggage."

Reliance is also placed on Articles 17 of the IATA General Conditions of Carriage (Passenger and Baggage), which provide for a similar time stipulation for lodging of complaints relating to damage to checked-in baggage as under:-

Article 17- Time Limitation on Claims and Actions

17.1 Notice of Claims

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"No action shall lie in the case of damage to checked baggage unless the person entitled to delivery complains to Carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt; and in the case of delay, unless the complaint is made at the latest within twenty one (21) days horn the date on which the baggage has been placed at his disposal. Every complaint must be made in writing and dispatched within the times aforesaid."

d) the complaint of the Complainants is also not maintainable as the Complainants have sought to fabricate their claim by relying upon totally irrelevant documents and invoices, in an attempt to mislead this Forum. As can be seen from the missing articles receipt dated June 02, 2017, issued by Opposite Party No. 2, the Complainants reported that certain articles were missing from their bags on June 02, 2017. The Complainants have relied upon several receipts of purchases of items purchased after June 02, 2017 to substantiate their claim for articles which were allegedly missing from their bags. Further, it is stated that while some of the purchase receipts are not even clear as to what has been purchased by the Complainants, some of the purchase receipts relate to items which have not been entered in the list of missing items by the Complainants while lodging their complaint with Opposite Party No. 2. The claim of the Complainants was rejected by Opposite Party No. 2, for precisely this reason as can be seen from the email dated September 20, 2017 at page 110 of the complaint wherein Opposite Party No. 2 has written as under:-

"American Airlines is not in a position to honor your claim. Certain discrepancies have been revealed in the information you provided. Some of receipts are dated after claim was created and the passenger property questionnaire doesn't match with the receipts we received. When any information is deemed questionable during the processing of claim, the validity of the entire claim is compromised. We are unable to offer any compensation, and must consider your claim closed." Thus the claim of the Complainants was lodged with American Airlines, Opposite Party No. 2, who rejected the claim of the Complainants on the ground that the Complainants sought to support their claim with fabricated receipts which were dated after the loss was reported.

II. The OP-1 has filed reply on merits stating that :-

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i. there has been no deficiency in service on the part of Opposite Party No. 1. There is no complaint whatsoever, which relates to travel by the Complainants on the sectors operated by Opposite Party No. 1. The alleged loss of items from the checked-in-baggage of the Complainants was on flight No. AA2671 operated by Opposite Party No. 2, with which Opposite Party No. 1 had nothing to do. The baggage of the Complainants was handled by Opposite Party No. 2 on the said flight from Miami to Toronto. Even the baggage tags for the said sector were issued by American Airlines/Opposite Party No. 2, as can be seen from Annexure C-3 at page 30 of the complaint.

ii. it is correct that Opposite Party No. 1 is an international airline registered and headquartered in the United Kingdom. The tickets issued by Opposite Party No. 1 clearly indicated that the journey from Miami to Toronto and Toronto to New York was to be on flights which were operated by American Airlines and also marketed by American Airlines, as can be seen from Annexure C-1 at page 11 of the complaint. It is denied that any sub-contract was done by Opposite Party No. 1 as alleged and the Complainants were, at all times, aware that they would be travelling on an American Airlines flight operated by American Airlines/Opposite Party No. 2, on the sectors Miami to Toronto and from Toronto to New York.

iii. it is correct that the Complainants flew from New Delhi to London and from London to Miami on the flight of Opposite Party No. 1. The journey on the said sectors were completed by the Complainants without any untoward incident and therefore, no deficiency can be attributed to Opposite Party No. 1. With respect to the allegation that the Complainants proceeded from Miami to Toronto on a boarding pass issued by Opposite Party No. 1, it is stated that the said contention is patently untrue, as can be seen from Annexure C-3. The boarding passes for the journey from Miami to Toronto were issued by American Airlines, Opposite Party No. 2 and not Opposite Party No. 1.

iv. it is correct that the Complainants return journey from Toronto to New York was to be performed on American Airlines flight No. AA3751, operated by Opposite Party No. 2. The Complainants thereafter travelled from New York to London on the flight of Opposite Party No. 1 without any complaint of any nature whatsoever.

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v. The Complainants have clearly admitted that the Complainants travelled from Miami to Toronto on a flight operated by Opposite Party No. 2. It is also clear that the Complainants handed over their bags at Miami to Opposite Party No. 2 and therefore, Opposite Party No. 1 cannot be held liable for any damage to the Complainants bags, which were handed over to Opposite Party No. 2 at Miami and delivered to the Complainants by Opposite Party No. 2 at Toronto. No complaint whatsoever was made by the Complainants in respect of any damage to their bags to Opposite Party No.

1. The Complainants have falsely alleged that the bags of the Complainants were mishandled by Opposite Party No. I while admitting the bags were handed over to Opposite Party No. 2.

vi. The complaint was lodged by the Complainants with Opposite Party No. 2, it was for Opposite Party No. 2 to investigate and deal with the claim of the Complainants and no action was required of Opposite Party No. 1. The claim of the Complainants was, in any case, untenable as no airline is liable to compensate a passenger for loss or damage of items such as Jewelry, iPad, electronic devices, watches, etc. as the Conditions of Carriage of most airlines as well as IATA General Conditions of Carriage (Passenger and Baggage), prohibit carriage of such items in the checked-in-baggage. As per Articles 8 of the Conditions of Carriage of Opposite Party No. 1, valuable items such as Jewellery, currency, personal electronic devises etc. cannot be carried in the checked-in-bags. The provisions of Article 8 of the Conditions of Carriage of the Opposite Party No. 1 are to the following effect: -

8. Baggage

"8f) Fragile or perishable items must not be packed in baggage checked into the hold

You must not include in your checked baggage fragile or perishable items or items of special value such as:

money

jewellery

precious metals

computers

personal electronic devices

share certificates, bonds and other valuable documents business documents or

passports and other identification documents."

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The Conditions of Carriage of Opposite Party No. 1, as available on the website of Opposite Party No. 1, has been annexed as Annexure-I with the reply. Reliance is also placed on Articles 9 and 16 of the IATA General Conditions of Carriage (Passenger and Baggage), which provide for a similar restriction as to articles which may be carried in the checked-in-baggage of a passenger. The relevant provisions of IATA General Conditions of Carriage (Passenger and Baggage), being of Article 9 and Article 16, are reproduced below:

Article 9 Baggage

" 9.1.1.4 Items which in the opinion of Carrier are unsuitable for carriage by reason of their weight, size or character, such as fragile or perishable items;

9.1.3 The passenger shall not include in checked baggage, fragile or perishable items, money, jewellery, precious metals, Silverware, negotiable papers, securities or other valuables, business documents, passports and other identification documents or samples'

Article 16 Liability for Damage

"16.3.7 Carrier is not liable for damage to fragile or perishable items, money, jewellery, precious metals, silverware, negotiable papers, securities, or other valuables, business documents, passports and other identification documents, or samples, which are included in the passenger's checked baggage;"

A copy of the IATA General Conditions of Carriage (Passenger and Baggage) has been annexed with the reply as Annexure R - 2.

vii. Several of the invoices of purchases allegedly made by the Complainants do not match with the list of items stated to have been lost and entered in the list of missing articles in the claim lodged with Opposite Party No. 2. The Complainants have relied upon fabricated invoices to inflate their claim.

viii. No claim whatsoever was lodged by the Complainants with Opposite Party No. 1. However, a legal notice dated November 03, 2017 was received by Opposite Party No. 1, which was duly responded to by Opposite Party No. 1 through their counsels. A copy of the reply dated December 13, 2017 sent by the counsels of Opposite Party No. 1 to the counsels of the Complainants has been annexed with the reply as Annexure- R-3.

ix. On all sectors, the Opposite Party No. 1 was handed over the Complainants baggage and the same was returned to the Complainants with no damage or loss. The Complainants have already admitted that the Complainants handed over their bags to Opposite Party No. 2 at Miami and Opposite Party

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No. 1 had no role whatsoever to play in the Complainants flight from Miami to Toronto on which the alleged damage was caused. The allegations of deficiency are against Opposite Party No. 2 and not against Opposite Party No. 1.

x. It is denied that any cause of action arose against Opposite Party No. 1 on any date whatsoever. It is reiterated that the Complainants had an incident free journey on all the sectors that they travelled on with Opposite Party No. 1. The Complainants claim is based entirely on damage to their baggage while travelling from Miami to Toronto on the flight of Opposite Party No. 2 on boarding passes issued by Opposite Party No. 2. The Complainants were, at all times aware that the said sector would be flown on Opposite Party No. 2 and hence, no cause of action can be claimed to have arisen against Opposite Party No. 1. The Complainants claim is further untenable on account of the fact that the Complainants have patently included in their checked-in-baggage items, which are not permitted to be included in the checked-in-baggage by the Conditions of Carriage of most airlines including Opposite Party No. 1 and also by IATA Rules.

xi. for the purposes of jurisdiction, the residence of the Complainants are totally irrelevant. It is denied that the Opposite Parties have their offices in New Delhi. It is denied that the cause of action arose within the jurisdiction of this Forum and the jurisdiction of this Forum has been wrongly invoked by the Complainants.

III. The OP-1 has enclosed copies of relevant pages extracted from the conditions of Carriage of OP-1, IATA General conditions of Carriage (Passenger and Baggage) of OP-1 and reply dated 13.12.2017 sent by the counsels of the OP-1 to the counsels of the Complainants with its reply.

7. The OP-2 has also filed its reply pleading no deficiency of service and seeking dismissal of the complaint with preliminary objections which are produced below:-

A. The Complainants have filed the present complaint alleging deficiency in service and unfair trade practices on the part of the Opposite Party No. 2. The Complainants seek reimbursement of losses purportedly suffered on their travel from Miami to Toronto Canada on 02.06.2017 on a

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flight operated by the Opposite Party No. 2. As per the Complainant's version, the incident of damage to bags and loss of items therefrom took place on 02.06.2017. The Complainants submitted their claim and exchanged multiple correspondence with the Opposite Party No. 2 pursuant to which the claim stood rejected on 20.09.2017. The present Complaint has been filed in October 2018 i.e. more than one year from the closure of the claim. The Complaint is clearly an afterthought and is meant to harass the Opposite Party No. 2 by repeatedly raising frivolous and unsubstantiated claims purportedly for loss of articles from baggage. The Complainants have failed to provide any explanation for the substantial delay in filing of the complaint before this Forum.

B. The claim filed by the Complainants towards damaged bags and purported loss of items was considered and rejected by Opposite Party No. 2 after due consideration on merits in light of the inconsistencies contained in the said claim. The inconsistencies and discrepancies in the Complainants case are as follows:

a) The Complainants in the Pilferage report submitted to the Opposite Party No. 2 on 02.06.2017 (labelled as YYZAA01931217) stated that two items were missing from their baggage. The value of the missing items was quantified at USD 1000 and USD 800 each (i.e. cumulatively 1,800 USD). Copy of the Pilferage report and damage report has been annexed and marked with the reply as Annexure OP-2/1 and Annexure OP-2/2.

b) Subsequently the Complainants were requested to fill in a Passenger Property Questionnaire wherein they vide email dated 29.07.2017 submitted the Passenger Property Questionnaire and reported many more items to be missing whose cumulative value stood revised to USD

15,430.73.

c) A revised Passenger Property Questionnaire was submitted by the Complainants to the Opposite Party No. 2 which has been filed with the present complaint (i.e. over a year after the purported incident) wherein the claim stood further revised to USD 17,461.73. Copy of the Passenger Property Questionnaire sent to the Opposite Party No. 2 and the copy of the Passenger Property Questionnaire filed along with the complaint is annexed and marked herewith as Annexure OP-2/3 and Annexure OP-2/4. C. The Complaint is ill founded which is brought out from the following relevant facts:

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i. the Complainants' claim lacks merit which is borne out from the fact that they are seeking compensation and damages from the Opposite Party No. 1, the Opposite Party No. 2 i.e. British Airways as well as the Opposite Party No. 3 (which is the insurer of the Complainants). The Complainants while claiming compensation for lost baggage from both the Opposite Parties No. 2 and 3 had also simultaneously filed a claim with the Opposite Party No. 3 under the terms of the insurance policy availed by the Complainants. The Complainants are wrongfully trying to consolidate different causes in the present Complaint, which is not maintainable in law.

ii. the amounts claimed by the Complainants has no basis in fact in as much at the time of reporting the incident on 02.06.2017, the Complainants told the airport agents that only a few items were missing from the baggage. However, the Complainants kept amending the list of missing items at each interaction that they had with the Opposite Party No. 2 and kept adding items to the list.

iii. The absence of merit in the Complainants' case is also brought out from the fact that many of the receipts submitted by the Complainants in support of their claim towards the missing articles show that the articles have been purchased during their stay at Miami, whilst the Passenger Property Questionnaire states that the articles have been purchased in New Delhi.

iv. The Complainants during their stay in Toronto made purchases for items of personal use and not necessities. While the Complainants' may have been within their rights in claiming items of necessity, in the present case, the Claimants are seeking 'compensation' and 'damages' for luxury items purchased by them during their trip which appear to have no nexus with the items purported to have gone missing. The Complaints appears to be an attempt by the Complainants to unjustly enrich themselves at the cost of the Opposite Parties.

v. As per the Conditions of Carriage of the Opposite Party No. 2, in case of loss or damage to baggage, the Complainants are not entitled to reimbursements for items like jewellery, manuscript

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etc., which is the case in the complaint under reply. Further, the Complainants did not give any special declaration to the Opposite Party No. 2 prior to undertaking the flight stating that such items were being carried in their baggage.

vi. It is inconceivable that the Complainants who appear to be experienced travellers would carry expensive high-end items such as a Rolex watch, an Apple I-Pad, Jewellery etc. in their check in baggage without making any declaration to this effect particularly to the carrier when the Conditions of Carriage specifically stated that such items should be carried by the flyer on his/her person or should be left at home.

D. The Carriage by Air Act, 1972 (the "Act") was enacted in order to give effect to the convention for the unification of certain rules relating to international carriage by air signed at Warsaw on the 12th day of October 1929 and to the said Convention as amended by the Hague Protocol on 28th day of September 1995 and also to the Montreal Convention signed on 28th day of May 1999. In terms of Section 22(2) of the Act, in the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay shall be limited to one thousand Special Drawing Rights for each passenger unless the passenger has made at the time of check in, a special declaration of interest in delivery at destination and has paid a supplementary sum. Without prejudice to the stand of the Opposite Party No. 2 on the merits, even if the Opposite Party No. 2 is found liable to pay compensation to the Complainants, such amount cannot exceed the value of one thousand Special Drawing Rights as mentioned in the Act. The prayers sought by the Complainants travel beyond the ceiling provided in the Act and cannot be granted. In a decision delivered by the National Consumer Disputes Redressal Commission in the context of the Act in the case of Jet Airways Ltd and Ors. vs M.V.VS Murthi, (decided on 11.03.2015), the Commission held as under.

"...Section 3 only provides for an alternative mode by enforcing the right or obtaining redress for the contravention of any provisions of law and no more. It does not change the substantive law which law limits the award of damages when there is violation of any obligation or right. If damages are to be awarded, it has to be within the four corners of law on the subject. Section 14(1)(d) of the Consumer Protection Act has to be read with the Carriage Act, when there is a law defining the

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rights and its applications in any particular respect that has to be followed. Viewed from this angle when Carriage Act limits the liability of an air carrier to an extent that cannot be exceeded by the Forum under the Carriage Act".

8. The OP-2 has also filed para wise reply which is discussed below:-

a) The Complainants conduct is malafide which is brought out by the fact that they sought to claim amounts for lost items from the Opposite Party No. 2 while they were simultaneously pursuing their claim against the Opposite Party No. 3 which is an insurance company and had insured the travel of the Complainants. The Complainants do not have a cause of action and certainly cannot be permitted to claim from the Opposite Parties No. 1 & 2 while seeking specific performance of their insurance policy with Opposite Party No. 3. Further, the Complainants have admitted in the para under reply that the Opposite Party No. 2 was acting on behalf of the Opposite Party No. 1 i.e. British Airways with which the Complainants had initially booked their travel.

b) The Complainants booked their tickets for travel from New Delhi to U.S.A and Canada with the Opposite Party No. 1. However, the Opposite Party No. 1 subcontracted the air travel of the Complainants from Miami, U.S.A to Toronto to the Opposite Party No. 2.

c) The Complainants purchased an insurance policy for their travel from the Opposite Party No. 3 which covered the risk of lost baggage during their travel to U.S.A and Canada. The Complainants admittedly filed a claim with the Opposite party No. 3 on 12.07.2017 for lost baggage which claim was registered by the Opposite Party No. 3 on 23.07.2017. The Complainants despite extinguishing the rights available to them against their insurer have filed the present complaint citing loss of personal items, which complaint is not just vague and full of discrepancies but is highly suspicious. The Complainants have time and again sought to expand their claim by adding new items to the list of items that they claim went missing.

d) the Complainants at the time of filing the Pilferage Report made a claim of USD 1800 which eventually increased with time and subsequently when the Opposite Party No. 2 requested the Complainants to fill in the Passenger Property Questionnaire, the Complainants reported many more items to be missing which were valued by the Complainants at USD 15,430.73. Further, the Passenger Property Questionnaire submitted by the Complainants to the Opposite Party No. 2 stated the claim of the Complainants to be USD 15,430.73. This document was neither dated nor signed by the Complainants whereas the Passenger Property Questionnaire filed by the Complainants along with the present complaint (which has been filed after a period of more than one year) before this Forum mentions the claim of the Complainants to be USD 17,461.73. Thus, the Complainants have sought to assert three different claims on three dates for the same items which purportedly went missing from their baggage.

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e) The missing baggage report filed by the Complainants along with the complaint categorically states that the liability of the carrier for loss, delay or damage of checked baggage is limited as per the terms contained in the American Airlines Contract of Carriage. The Contract of Carriage provides that items such as jewellery, liquids, security or negotiable papers are not covered in case of loss of baggage during the air travel. The terms and conditions of the missing article receipt and the damaged baggage receipt further reiterate the liability limitations for any loss, delay or damage to the baggage (much like the Conditions of Carriage) and provide the liability to be limited to 1,131 Special Drawing Rights (SDR'S) per ticketed passenger.

f) The Opposite Party No. 2 upon receiving a complaint in respect to the missing baggage and damaged baggage vide email dated 05.06.2017 wrote to the Complainant No. 1 and requested the Complainant No. 1 to fill the Passenger Property Questionnaire which was available on the website of the Opposite party No. 2. The Opposite Party No. 2 vide the same communication also requested the Complainant No. I to retain all the damaged items until the completion of the processing of the claim of the Complainants. The Opposite Party No. 2 again vide email dated 10.06.2017 reiterated its request to the Complainants to complete the Passenger Property Questionnaire as the Opposite Party No. 2 was not in a position to resolve the claim of the Complainants till such time as the Passenger Property Questionnaire is received and the Complainants provide the receipts of the items price over $150. Copy of the emails dated 05.06.2017 and 10.06.2017 have been annexed with the reply as Annexure OP-2/5 and Annexure OP-2/6.

g) The Opposite Party No. 2 made sincere efforts to trace the articles alleged to have gone missing and consequently informed the Complainants that they shall receive a reply in some time. It is denied that the Complainants declined to address the apprehensions of the Complainants with regard to the missing baggage articles.

h) The Complainants during their stay in Toronto made purchases for items of personal which were not necessities but in fact were luxury items such as designed garments, luxury writing instruments, high-end shoes etc. As stated above, while passengers are entitled to maintain a claim for reimbursement for items such as clothing and toiletries in case of loss or delay in baggage, the Opposite Party No. 2 is not obligated to honour claims for luxury items whose presence in the baggage is itself highly suspicious. Further, there were discrepancies found in the claim made by the Complainants as some of the items mentioned in the Passenger Property Questionnaire were shown to be purchased in India whereas the receipts submitted by the Complainants show that these items were purchased in Miami. The claim asserted by the Complainants which initially was a small amount kept growing with time and items were added which point towards malafide on the part of the Complainants and an attempt to unjustly enrich themselves. It is reiterated that as per the Conditions of Carriage (which are

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also available on the website of the Opposite Party No. 2), the Complainants are not entitled to be reimbursed for items such as jewellery and the like which is precisely what is being claimed by the Complainants. Further, the Complainants did not submit any special declaration to the Opposite Party No. 2 prior to flying stating that such items were being carried in their baggage. Copy of the email dated 15.08.2017 issued by the Opposite Party No. 2 has been annexed with the reply as Annexure OP-2/7.

i) The Opposite Party No. 2 replied to all the correspondences issue by the Complainants and tried to assist the Complainants in the most efficient manner.

j) The Complainants filed a claim with the Opposite Party No. 3 which had insured the travel of the Complainants. When the Complainants realised that the Opposite Party No. 3 was willing to reimbursing only a small part of the claim made by the Complainants, they filed the present Complaint seeking compensation and damages on the basis of a frivolous and concocted claim.

k) The Opposite Party No. 2 declined the claim after granting due consideration to the material placed on record by the Complainants. The Complainants claimed compensation for items which were not necessities and were specifically excluded. Also, there were serious discrepancies in the claim and the itemized list of lost articles submitted by the Complainants which led the Opposite Party No. 2 to decline the claim of the Complainants, the same being without basis.

l) No photographs have been annexed to the Complaint showing the condition of the baggage.

m) the contents of the legal notice dated 03.11.2017 issued by the Complainants to the Opposite Party No. 2 are denied as being specious. The Opposite Party No. 2 acted in compliance with the Conditions of Carriage at all points in time and made all possible efforts to resolve the claim of the Complainants, which was eventually rejected on account of the discrepancies contained in it.

n) It is denied that the Complainants are entitled to damages amounting to USD 17,461 as sought to have been alleged by the Complainants

9. The OP-2 has also filed copies of Pilferage report dated 02.06.2017, damage report dated 02.06.2017 and Passenger Property Questionnaire sent to the OP-2, Passenger Property Questionnaire filed by the Complainant along with the complaint, email dated 05.06.2017 issued by the OP-2.

10. The OP-3 has also filed its reply pleading no deficiency of service and seeking dismissal of the complaint stating that :-

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i. the present complaint is wholly misconceived, groundless and unsustainable in law and is liable be dismissed as such. The present complainant is frivolous, untenable, vexatious, unjustified and contrary to provisions of law and is an abuse of the legislative intent .

ii. there is no deficiency of service on the part of the opposite party no.3 in denying the claim of the complainant. On scrutiny of the documents submitted by the complainant for alleged damage of checked in baggage of the complainant insured vide policy no. 200121728180000121 (Annexure A of reply), it was found that the claim was not admissible as per terms and conditions of the policy and hence denied the same vide letter dated 3.10.17 (Annexure B). As per Benefit 5 clauses 3 and 6, the OP-3 is not liable for any partial loss of the items contained in the checked in baggage and for any loss due to complete/partial damage of the checked in baggage. Accordingly the claim has been rightly denied and is, therefore, not maintainable under the Consumer Protection Act and is liable to be dismissed.

iii. Insurance is contract like any other general contract and terms of the contract are binding on both the parties. This has been the consistent view of the Supreme Court in a catena of judgements Viz. United India Insurance Co. Ld vs Harchand Rai Chandan Lal 2005 ACJ 570: National Insurance Co. VS Anjana Shyam 2007 ACJ 2129, etc. It is a settled law that the terms of contract have to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous. In New India Vs Kamla 2002 ACC 346, the Supreme Court has held that the insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. In Oriental Insurance VS Prithvi Raj 2008 ACJ 733, the Apex court has reiterated that however liberally the policy may be construed, such liberalism cannot be extended to permit substitution of words. Likewise in Suraj Mal Ram Niwas Oil Mills LTD VS United India Insurance Company Ltd. 2011 ACJ 418, the Supreme court has reaffirmed that the words use in the insurance policy must be given paramount importance and it is not open to the court to add, delete or substitute any words. The endeavour of the court should always be to interpret the words in which the contract is expressed by the parties. A similar view has been expressed in Industrial Promotion & Investment Corporation of Orissa Vs New India Assurance Co.Ltd 2016 ACJ 2470 SC.

iv. As per Benefit 5 clauses 3 and 6, opposite party-3 is not liable for any partial loss of the items contained in the checked in baggage and for any loss due to complete/partial damage of the checked in baggage. Accordingly, the claim was rightly denied.

v. It is denied that the opposite parry offered Rs. 10,0000/-. On the contrary the opposite party denied the claim as being not admissible within the ambit of the policy vide letter dated 3.10.17.

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11. The OP-3 has also filed copies of Insurance Policy & its terms & Conditions and Denial letter dated 3.10.17 with the reply.

12. The Complainant has filed rejoinder qua all OPs refuting the contention of the OPs & has reiterated the allegations levelled in the complaint. The Complainant and OPs have also filed their respective evidences by way of affidavit and written arguments. The OP-1 has referred and filed copies of following judgments:-

a) Southern Petrochemical Industries Corp. Ltd. & Anr. Vs. British Airways World Cargo. [NC 1 (2007) CPJ 74].

b) Pakistan International Airlines Vs. Sanjeev Wadhwa & Anr. [1(2003) CPJ 54

(NC)].

c) Air India Vs. Sushil Kumar [11(2015) CPJ 75 (NC)].

d) Air France Vs. Dimple Bhambra Malhotra [(2018) STPL 7028 NCDRC],

[II(2018)CPJ 393 (NC)],

e) Air Arabia Airline Vs. Dr. Ashok Kataria [(2017) STPL 14499 NC], [IV (2017)

CPJ 183(NC)].

f) Interglobe Aviation Limited Vs. Manish Nagpal [(2017) STPL 8034 NC],

[(2017) 2 CPR 452], [(2017)(2)CLT 523], [III(2017) CPJ 328 (NC)].

g) Rajeev Malik Vs. M/s. KLM Royal Dutch Airlines [(2016) STPL 7793 NC],

[IV(2016) CPJ 304(NC)]

13. The OP-2 has referred and filed copies of following judgments:-

a) The Manager, Air India Ltd. Vs. M.s India Everbright Shipping and Trading Co.; MANU/CF/0081/2001

b) Interglobe Aviation Limited Vs. Manish Nagpal; 2017 SCC Online NCDRC 1083

c) Rajeev Malik Vs. M/s KLM Royal Dutch Airlines; 2016 SCC Online NCDRC 1648

d) Indigo Airlines & Anr. Vs. Aastha Pansari; 2020 SCC Online NCDRC 254

e) British Airways Vs. Gems Art Factory & Ors.; 2014 SCC Online NCDRC 826

f) Bharathi Knitting Company Vs. DHL Worldwide Express Courier Ltd.; (1996) 4

SCC 704

g) Jet Airways Ltd. Vs. MVVS Murthi; 2015 SCC Online NCDRC 453

h) Captain Sandeep Sharma Vs. Spicejet Limited; First Appeal No.364/2011

(NCDRC)

i) Air France Vs. Dimple Bhambra Malhotra; Revision Petition No. 3570/2017

(NCDRC)

14. However, No judgment was filed by the Complainant alongwith written arguments.

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15. Accordingly, the complaint has been examined in view of the averments/documents/Evidences put forth by the complainant & OPs and it has been observed that:-

a. On 02.06.2017, the Complainants travelled from Miami to Toronto, Canada via Flight No. AA2671, operated by OP No. 2. Upon offloading at Toronto Airport, the Complainants found that two of their bags were severely damaged, ripped open, and several personal/gift articles were missing. The Complainants immediately reported the incident to OP No. 2 at Toronto Airport on 02.06.2017. A Pilferage Report and Damaged Baggage Receipt were prepared (Annexure-C/4 & Annexure-C/5), initially estimating the immediate missing items at USD 1,800. Subsequently, upon full inventory verification and requests from OP No. 2 to submit the Passenger Property Questionnaire, the claim was increased to USD 17,461.73 (Annexure-C/6 Colly.).

b. After e-mail communications, OP No. 2 rejected the claim on 20.09.2017 citing invoice discrepancies. OP No. 3 (Insurer) also repudiated the claim citing terms and conditions of the policy specifically Benefit 5 (Clauses 3 &

6).

c. OP No. 1 pleaded that the Miami-Toronto sector was operated solely by OP No. 2. and the travel on OP No. 1's sectors was completely incident- free. OP No. 2 (American Airlines) has contended that the complainant's claim has been rejected on the following grounds:-

i. There was inconsistency in Claim Amount because the complainants have revised the claim from USD 1,800 to USD 15,430.73 and finally

USD 17,461.73.

ii. Carrying jewellery, high-end electronics, and luxury items without special declaration is excluded under airline's Conditions of Carriage.

iii. Section 22(2) of the Carriage by Air Act, 1972 provides limited liability to 1,000 / 1,131 Special Drawing Rights - SDRs. d. OP No. 3 (Insurance Co.) contended that partial loss/damage to baggage contents is excluded under Benefit 5, Clauses 3 & 6 of the policy's terms and conditions.

16. After observing above facts, circumstances and contentions of the OPs, it has also been noticed that

I. The Complainants acted with complete promptness and due diligence. Immediately upon arrival in Toronto on 02.06.2017, they reported the ripped bags and missing items to the airport staff of OP No. 2.

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The Pilferage Report and Damaged Baggage Receipt, prepared are on records. (Annexure-C/4 and Annexure-C/5).

II. OP No. 2 (American Airlines) has systematically attempted to evade its operational responsibility by shifting blame onto OP No. 1. The record unequivocally demonstrates that the physical custody and handling of the checked baggage on the sector from Miami to Toronto rested entirely with OP No.2. The OP-2 has also not filed any contract/sub-contract of operation with OP-1.

III. The Complainants subsequently revised their Claim while replying to the queries of the OP-2, which we find inappropriate to the extent of purchases made after reaching Toronto on 2-6-2017. The initial declaration made on 02.06.2017 claiming the amount of missing articles/items at USD 1,800 stands valid, genuine and binding.

IV. OP No. 2 has also failed to submit any report of a meaningful internal investigation or produce an official Baggage Search/Survey Report explaining as to how checked baggage in their exclusive custody was delivered ripped wide open with missing items of the complainants. OP No. 2 cannot escape its liability by hiding behind technical pleas when gross negligence in baggage custody is evident on the face of the record. The following provisions under section 22(5) of the Carriage by Air Act, 1972, under Chapter-III related with

LIABILITY OF THE CARRIER AND EXTENT OF COMPENSATION

FOR DAMAGES, also support the case of complainants:-

"(5) The provisions of sub-rules (1) and (2) shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result:

Provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.

V. While OP No. 2 has contended about the ceiling of claim filed by the complainants, under the Carriage by Air Act, 1972, the Hon'ble Supreme Court in Trans Mediterranean Airways v. Universal Exports [(2011) 10 SCC 316] has held that the relief sought under the Consumer Protection Act is an additional remedy, and total failure of care resulting in ripped baggage with missing items constitutes an

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actionable deficiency in service. The airline cannot use liability limitation clauses as a complete shield against gross operational failure.

VI. Since the damage and pilferage occurred while the baggage was under the custody of OP No. 2 on Flight AA2671, no operational deficiency is established against OP No. 1. Besides, no deficiency in service has been noticed on the part of OP-3. The primary liability to indemnify and compensate the Complainant rests squarely on OP No. 2.

17. In view of the above observations, we are of the considered view that the OP-2 has been deficient in handling and protecting the luggage of the complainants which has caused mental agony, torture, inconvenience and harassment to the Complainants for which the OP-2 is also liable to compensate them. It is well settled that the word 'Compensation' is of very wide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the harassment and mental agony suffered by a consumer on account of deficiency in-service, the following observations by a three Judge Bench of the Hon'ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors., (2000) 7 SCC 668 which has also been relied by the Hon'ble National Commission in case titled AIR France Vs. O.P. Srivastava, decided on 22.03.2018 are also apposite:-

"While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge."

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18. With regard to the compensation on deficiency in service , following judgment are also relevant in this matter:-

a) In "National Seeds Corporation Ltd. v. M. Madhusudhan Reddy & Anr."

(2012) 2 SCC 506, Para 44], the Supreme Court has held:-

"When a consumer is supplied defective goods or services that fail to conform to the agreed standard, it amounts to unfair trade practice. The service provider must bear the responsibility for any loss or inconvenience caused to the consumer as a result."

b) In "Cox & Kings (I) Ltd. v. Joseph A. Fernandes" [(2006) NCDRC 124, Para 81, the Hon'ble National Commission has observed that:-

"the failure to deliver promised goods or services as per the agreement between the parties amounts to deficiency in service. The consumer is entitled to compensation for such deficiency."

c) In "Ghaziabad Development Authority v. Balbir Singh ." [(2004) 5 SCC 65, Para 6], the Supreme Court has held that :-

"A service provider's failure to deliver the promised quality of goods or services, especially when the service provider has induced the consumer by making misrepresentations, amounts to a breach of contract and deficiency in service."

d) In "Lucknow Development Authority v. M.K Gupta .. Gupta" [(1994) 1 SCC 243, Para 9], the Supreme Court has held that:-

"Any failure in service due to negligence, lack of proper skills, or non-adherence to the standards required of service providers amounts to deficiency of service, and the consumer is entitled to compensation for the loss suffered."

e) In "Ravneet Singh Bagga v. KLM Royal Dutch Airlines" [(2000) 1 SCC 66, Para 13], the Supreme Court has observed that:-

"When a service provider fails to respond to consumer complaints and refuses to rectify the deficiency, it amounts to gross negligence. The consumer is entitled to compensation for the resulting mental agony and financial loss."

f) In "Rajesh Dembla v. Emaar MGF Land Ltd." [(2022) NCDRC 134, Para 22], the NCDRC has held that:-

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"Mental agony and inconvenience caused by a service provider's deficiency entitles the consumer to claim compensation, especially when such deficiency has compromised the safety and well-being of the consumer."

19. Considering the facts of the case and above legal position, the complaint is partly allowed against Opposite Party No. 2 (American Airlines) with the following directions:-

a. pay the Complainants a sum of USD 1,800 (equivalent in Indian Currency @ Rs. 62/- per USD as per the exchange rate prevalent at the time of claim filing, amounting to Rs.1,11,600/-), towards the damage of baggage and loss of missing articles as declared on 02.06.2017, along with interest @ 9% per annum from 05-10-2018 ( date of filing of the complaint) till the date of payment; b. pay a sum of Rs.2,00,000/- (Rupees Two Lakh only) to the Complainants as compensation for mental agony, harassment, hardship, and inconvenience caused due to gross deficiency in service;

c. pay Rs. 50,000/- (Rupees Fifty Thousand only) to the Complainants towards the costs of litigation.

20. It is also directed that directions given above at para 19 (a,b & c) shall be complied with by Opposite Party No. 2 within 45 days from the date of receipt of a copy of this Order, failing which the entire awarded amount shall carry interest @ 12% per annum for the period of delay.

21. The complaint against OP No. 1 and OP No. 3 stands dismissed with no order as to costs.

22. Order be given to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

ASHWANI KUMAR MEHTA HARPREET KAUR CHARYA

Member Member

DCDRC-1 (North) DCDRC-1 (North)

DIVYA JYOTI JAIPURIAR

President

DCDRC-1 (North)

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