P.N.WANCHOO vs Air France

THIS is an appeal against the order of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short, hereinafter, to be referred as District Forum-II], dated 28.11.2002 in Complaint Case No. 684 of 1999; "P.N. Wanchoo v. Air France & Others".

IN brief the Complainant''s case is that he and his wife travelled from Washington to Delhi via Paris by flight No. AF 29 and AF 148 of the O.P. on 23.8.1998 and 24.8.1998. On reaching Delhi Airport, it was found that his baggage No. AF-113045 was ruptured due to mishandling by the O.P. For the damage to the suitcase he was paid Rs. 1000/- by the O.P., however, on reaching home at Dehradun (Annexure C-1 of the complaint refers), it was found that following items were missing from the suitcase : (a) Two Sari suit worth $ 100.00. (b) Two cooking-cum-serving steel spoons worth $ 10.00. (c) Medicines : (i) 210 Nos. Cardura 1 mg. Tablets worth $ 212.04. (ii) 273 Nos. Tenormin 50 mg. Tablets worth $ 238.78, Total (INdian Rs. 25.000/- approximately) Total Loss = $ 597.04 IN addition the suitcase 36" x 24" CTA worth $ 45 had become unusable.

Later, on 16.10.1998 the Complainant was paid another Rs. 3,150/- for the loss as compensation by the OP. Therefore, he was paid only Rs. 4,150/- whereas his actual total loss amounted to approximately Rs 25,000/-. Moreover, he had lost life saving drugs which were not available in INdia. He, therefore, filed this complaint and prayed for the following payments as relief : (a) Rs. 21,850/- being the balance price of items lost after deducting payment of Rs. 4,150/- (b) Rs. 1,00,000/- for mental harassment, physical torture and danger to life due to loss of items including the medicines. (c) Rs. 6,600/- as litigation costs.

O.P.''s version is that the Complainant had 4 bags which weighed 114 kgs. at the time of ''check in'' and even at the time of ''delivery'' the weight of the bags was the same. It is accepted that one bag had opened from left side towards the binding and for this the OP was paid Rs. 1,000/- on the spot and later another Rs. 3,150/- were paid and this total payment of Rs. 4,150/- is for full discharge of the liability of the OP and hence it was prayed that the complaint be dismissed.

O.P. No. 1 also challenged the complaint of territorial jurisdiction and for non-joinder of Air France, Paris as a party.

THE learned District Forum, in their analysis of the complaint dismissed the plea of O.P. No. 1 that it is only a General Sales Agent of the Air France in the absence of any document as proof of the same and O.Ps. not having repudiated the description of O.P. No. 1 as given in the complaint. Holding O.P. No. 1 to be a Branch Office at Chandigarh of Air France of O.P. Nos. 2 and 3 it also repelled the objection of O.P. No.1 regarding territorial jurisdiction of the complaint. Further holding that an executable order can be passed under Section 14 of the Consumer Protection Act. 1986 (executable as decree) even in the absence of Air France, Paris, it also rejected the plea of misjoinder of parties. Discussing the case on merits based on on evidence on record, the learned District Forum observed that the contention of the O.Ps. that Rs. 4,150/- were paid as full and final settlement of the claim cannot be accepted in the absence of any written acknowledgement by the Complainant of the same. It also observed that plea of delivery of 4 bags weighing 114 kgs. did not distract them from the averments made by the Complainant as the weight of the lost item must be more than a kg. It held that the OPs would not have paid Rs. 4,150/- if a suitcase of the Complainant had not been ruptured/damaged and some of its contents were not missing. Taking it as a proven case of negligence by the O.Ps., establishing deficiency in service wherein the lost items included medicines loss of which could endanger the life of the Complainant, the learned District Forum directed the O.Ps. to pay Rs. 25,000/- as cost of lost items and Rs. 15,000/- as compensation. It also directed that Rs. 4,150/- already paid be deducted from this amount i.e. only balance of Rs. 35,850/- be paid to the Complainant with interest @ 9% per annum from 24.8.98 till payment. The O.Ps. were also directed to pay Rs. 1,000/- as costs of litigation to the Complainant.

AGGRIEVED by the order of District Forum-II, the Complainant has filed this appeal. The appeal having been taken on board, record of the complaint case was summoned from District Forum-II and notices were sent to the respondents. Mr. H.P.S. Kochhar, Advocate represented the Appellant/Complainant whereas Mr. Sukant Prabhakar, Advocate appeard for Respondent/O.P. No. 1 and Mr. Lalit Thakur. Advocate represented Respondents/O.Ps. 2 and 3. Mr. H.P.S. Kochhar, Advocate submitted that this appeal was only limited to seeking enhancement of compensation and cost of litigation. He submitted that the lost items included life saving drugs which were not available in India and because of this the Complainant''s wife, who had to switch over to other Indian substitute medicines, which are not as good as the American medicines, died during the pendency of the complaint. He further submitted that the Hon''ble High Court has laid down that in cases where compensation is less than Rs. 25,000/-. 10% of the amount be awarded as the Counsel fee and when it is more than Rs. 25,000/- this should be 8% of the compensation. He also prayed for invoking Clause 14(i)(d) and order punitive damages to be paid by the O.Ps. and referred to Clause 14 (hc)(i) for providing adequate costs to parties. He finally submitted that even the interest ordered to be paid was on the lower side. Mr. Sukant Prabhakar, Advocate initially raised the issue of O.P. No. 1 being only the General Sales Agent and not the Branch Officer of O.P. Nos. 2 and 3. He also submitted that there was no interaction between the Complainant and OP No.1 and no service was provided by it to the Complainant thus qua O.P. No. 1 the Complainant had no case. He also raised the point of Air France, Paris not being made a party. The Bench, however, declined to go into these aspects as O.P. No. 1 had not put in any appeal against the impugned order of District Forum-II. Since the appeal was that of the complainant, learned Counsel for O.P. No. 1 was told to confine his argument only to the controversy raised in the appeal i.e. enhancement of the amount of compensation. In this context he submitted that the liability of the OPs in this case was only restricted to the scope laid down in the Warsaw Convention and the same has been fully discharged, hence he prayed for the appeal to be dismissed.

LEARNED Counsel for O.P. Nos. 2 and 3 in his submissions highlighted that the weight of the 4 bags at the time of ''check in'' and ''deliver'' was the same i.e. 114 kgs, and reiterated that Rs. 4,150/- had been paid as full and final payment. He further submittd that the costs of litigation has been correctly awarded by the learned District Forum and to seek the enhancement the Counsel fee certificate should have been placed on record.

THE main plea of the learned Counsel for the appellant for enhancement of the compensation is that the lost items included life saving drugs which are not available in India and because of this the Complainant''s wife had to switch over to Indian medicines and as a result of which she unfortunately died during the pendency of the complaint. We have gone through the entire evidence on record and have listened to the submissions of the learned Counsel for the appellant but we find nothing to prove that late Mrs. Durga Wanchoo was prescribed the medicine Cardua 1 mg. and Tenormin 50 mg. that were lost or that the Indian substitute names which have not been mentioned anywhere are not as effective as the American counter parts. Moreover, nowhere has it been proved by evidence of any expert or medical literature that the loss of the medicines namely Cardura 1 mg. and Tenormin 50 mg. hastened the unfortunate demise of the Complainant''s wife. Though it is sad that the Complainant lost his life partner but reference to Annexures A-10 filed with the complaint clearly brings out that her death was caused by carcinoma of Gall Bladder and not due to heart failure whereas the aforesaid drugs were purchased for treatment of heart. We find that the learned Counsel for the appellant has not been able to make out any case for enhancement of the compensation awarded by the learned District Forum as he has failed to establish any nexus between the loss of aforesaid medicines and the cause of death of Mrs. Durga Wanchoo, wife of the complainant. As regards rate of interest awarded by the learned District Forum, we find that award of interest @ 9% per annum is clearly as per the guidelines laid down by the Hon''ble Supreme Court and it needs no change. Even the costs of litigation awarded by the learned District Forum is adequate in our view particularly when there is no evidence on record in the form of Counsel fee certificate or any other document to indicate that the costs actually incurred were more. In view of the foregoing discussion, we are of the clear view that loss of the medicines brought by the Complainant from U.S.A. has in no way contributed to the hastening of unfortunate demise of the wife of the Complainant. In our considered view the Complainant has been adequately compensated for his loss by the impugned order of learned District Forum-II. We find the order to be fair, just and legal and it does not warrant any interference. Consequently, the Appeal No. 273 of 2003 is dismissed and the impugned order is upheld. Copies of this order be sent to the parties free of charges. Appeal dismissed.