NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
Govind S. Poddar Complainant
M/s. Cathay Pacific Airways Ltd. & Ors. Opposite Parties
HONBLE MR. JUSTICE D.P. WADHWA,
HONBL MR. JUSTICE J.K. MEHRA, MEMBER.
MR. B.K. TAIMNI, MEMBER.
Limitation - Rule 30 of Second Schedule to the Carriage by Air Act, 1972 vis a vis Section 24A of the Consumer Protection Act, 1986 - limitation for cause of action. Warsaw Convention - uniformity of interpretation.
For the complainant : Mr. R. Jain, Advocate
For the opposite party Nos.1 to 3 : Ms. Surekha Raman, Advocate
For the opposite party No.4 : N E M O
O R D E R
DATED THE 31st May, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT).
Complainant was unable to take a flight from Hong Kong to Seoul on a particular day and he lost his baggage as well for which he filed the present complaint under Section 21 of the Consumer Protection Act claiming Rs.1,05,53,771.00, comprising as under:
The Complainant most modestly puts his claim for compensation as under along with interest @ 24% from 10.6.99:
A] Refund of the entire amount of Ticket : Rs. 39,196.00
B] Expenses incurred by the Complainant : Rs. 2,07,120.00
During his stay at various destinations
C] Compensation towards Mental and : Rs. 6,77,455.00
D] Compensation towards loss of Reputation : Rs. 10,00,000.00
E] Loss in Business : Rs. 86,30,000.00
On the face of it, it is the complainant who has abused the process of the Consumer Protection Act where relief is claimed without rhyme or reason, simply because court fee is not payable and no expense otherwise fee other than the counsel is to be incurred by the consumer. Consumer forum send notices to the parties at the cost of State exchequer.
Complainant who claims to be a businessman of repute and the Managing Director and Director of certain companies wanted to go to Seoul in South Korea to attend Trade Week98 organised in Seoul where various Korean companies had confirmed participation. With the hope that he will get orders for his companies including supply of 40000 tons of rice complainant thought of visiting Seoul and taking part in the Trade Week98. He got a confirmed ticket from M/s. Cathay Pacific Airways Ltd. through M/s. Pawansut Tour and Travel Service, a travel agent with the following itinerary:
6th July 98 Bombay - Hong Kong
6th July 98 Hong Kong - Seoul
14th July 98 Seoul - Taipai
18th July 98 Taipai - Tokyo
25th July 98 Tokyo - Hong Kong
25th July 98 Hong Kong - Bangkok
29th July 98 Bangkok - Bombay
Complainant reached Hong Kong all right. He was to take next flight from Hong Kong to Seoul. He got the boarding pass and sat in the aircraft. It is stated that after 3-1/2 hours passengers were told that flight had been cancelled and that they would be taken to Seoul on the following day in the next flight. Complainant was accommodated in a hotel. His complaint is that his two baggages containing important documents/papers , photographs, samples of various qualities of rice and business diary were not handed over to him. This fact has been denied in the reply filed by the airlines. They said that two baggages were in fact delivered to the complainant. However, when the complainant reached Seoul next day his baggage did not arrive and he was told that airlines staff missed loading the baggage in the aircraft. Complainant says on account of this he was seriously jeopardized in his business and the whole purpose of his visit was lost. To cut it short, complainant left Seoul on 10.7.98 for Hong Kong staying there till 13th July, 1998 from where he proceeded to Bangkok on 14.7.1998 and came back to India on 15th July, 1998. Complainant says he had to cancel his visit to Taipai and Tokyo and to cut short his visit by 14 days. Hence the claim for over Rs.1.00 crores.
Cause of action in such a case would arise on 7.7.98 as at that time the baggage of the complainant at Seoul was not delivered to him. Under Rule 30 of Second Schedule to the Carriage by Air Act, 1972, action for damages has to be brought within two years from 7.7.98 when complainant reached Seoul. This Rule 30 reads as under:
(1) The right to damages shall be extinguished if an action is not brought within two years reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
(2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.
We may also quote Section 24A of the Consumer Protection Act, 1986 providing for period of limitation as under:
24A. Limitation Period.-(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
It would be thus seen that sub-rule (2) of Rule 30 in Schedule-II of the Carriage by Air Act, 1972, provides for method of calculating the period of limitation while sub-section (2) of Section 24A of the Consumer Protection Act, 1986 provides for entertaining a complaint after the period specified in sub-section (1) on the complainant showing sufficient cause for not filing the complaint within such period.
In our judgment in Bharat S. Modi Vs. British Airways - Original Petition No.48/1996 decided on 10.12.2001, we have held that the Carriage by Air Act, being a
special Act and incorporating international convention this period of two years cannot be extended on any grounds. Calculation of period of limitation as per law of the country is not the same thing as extension of period of limitation if a sufficient cause is shown in not filing the complaint within the period of two years reckoned from the date of arrival of the aircraft at the destination. Here the right of damages is extinguished altogether under sub-rule (1) of Rule 30. It must be borne in mind that Schedules to the Carriage by Air Act, 1972 incorporate international conventions i.e. Warsaw Convention as amended by the Hague Convention and it is essential that there is international uniformity
of interpretation of provisions of international convention. There has to be purposive consideration of the various provisions of the convention. Period of limitation for action as fixed by sub-rule (1) of Rule 30 cannot be extended with reference to Section 24A of
the Consumer Protection Act. It would therefore, appear that this complaint is barred by limitation having been filed on 1.6.2001 when cause of action arose on 7.7.98.
It is not necessary for us to go into other details given in the complaint as we are of the view that such type of complaint cannot be decided in summary jurisdiction . We would, therefore, dismiss the complaint with cost which we assess at Rs.10,000/-, half of which shall be payable to the NCDRC Bar Association for legal aid. Such a payment shall be made by way of demand draft/cross cheque drawn in the name of NCDRC Bar Association and the same shall be sent to Mr. S.K. Sharma, President, NCDRC Bar Association at his address X-33 (at the back of U Block) Green Park (Main) New Delhi.
However, this dismissal will not come in the way of the complainant in seeking his remedy elsewhere if permissible under law.