PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service and unfair trade practice followed by Opposite Party as the Complainant was not allowed to travel from Moscow to Istanbul on 06/05/05 and from Istanbul to Mumbai on 23/05/05, though the Complainant was having a confirmed tickets.
2) The facts of the complaint, as stated by the Complainant are that the Complainant has booked returned tickets of the Opposite Party airlines from Mumbai to Istanbul and from Istanbul to Mumbai via Moscow, under the special promotion offer in Feb., 2005. It is stated that the Opposite Party has given him confirmed tickets for the journey from Mumbai to Istanbul on 06/05/05 and from Istanbul to Mumbai on 14/05/05. Later on the Complainant changed the return journey date from 14/05/05 to 23/05/05. Thus, as per the contention of the Complainant, he had confirmed tickets from Mumbai to Istanbul on 06/05/05 and from Istanbul to Mumbai on 23/05/05.
3) He has further averred that his journey to Istanbul was strictly time bound and fixed budget trip. Although the air ticket had a direction that reporting time at the starting airport is strictly 4 hours before the departure of the flight the counter of the Opposite Party was opened one and half hours before the Departure which caused inconvenience to the Complainant and other passengers.
4) It is further alleged that the Complainant was in transit at Moscow. His flight was to take off at 23.15 hours on 06/05/05 from Moscow. At Moscow, when he reached the departure gate, at 23.15 hours he received boarding pass. He entered the Aeroplane and occupied his seat no.21(A) when the Aeroplane was to takeoff, he was asked to come out of the Aeroplane by the employee Ms.Swetlana of the Opposite Party. No reason was given by the employee for this act. The manager of the Opposite Party also asked him to come out of the Aeroplane for discussion. When the Complainant asked the explanation for coming out the Aeroplane, the manager told him that his seat was given to another passenger, because they were the couple traveling together. Meanwhile the flight took off leaving him at Moscow Airport. It is the contention of the Complainant that the above said reason cannot be a good and proper reason to make the passenger vacate from his already occupied seat. This is a refusal to transport the passenger who had already occupied the seat in the aircraft with confirmed ticket and valid boarding pass. For this incident, he complained to the Station Manager. Thereafter, he was offered a stay at Airport hotel. He was provided no dinner or water. He had to pay for his dinner and water in Russian Currency. This caused mental stress to the Complainant. In the next morning he was made to vacate the room early in the morning.
5) The Complainant has further stated that the Opposite Party awarded an Aeroplane compensation voucher of Rs.100 US $ at Moscow. He initially refused but later on, accepted the same. Because of the above incident, his planned itinerary was changed. This caused inconvenience to the Complainant. On 07/05/05 he reached at Istanbul by next flight of the Opposite Party. However, his luggage did not arrive alongwith him in the same flight. Consequently he did not receive the same when he arrived at Istanbul on 07/05/05. It arrived one and half day later i.e. on the evening of 08/05/05. This also caused monetary loss and inconvenience to the Complainant.
6) It is further averred by the Complainant that he had planned some important meeting at Istanbul University and historical site visits on 07/05/05. He had to make a trip to Airport at Istanbul again on 08/05/05 in order to collect his luggage. It is further alleged that, it was not possible to postpone these visits to later dates.
7) Complainant has further stated that he required to visit a doctor for his skin allergy and medical problem at 07/05/05 at Istanbul. However, it was not possible as he was stranded at Moscow in the night of 06/05/05. These lead many medical complications later throughout the stay at Turkey and even in India when he returned back. Due to this he incurred medical expenses to the tune of Rs.10,000/- on return to India.
8) On 09/05/05 the Opposite Party’s Officer had confirmed that his ticket for return journey from Istanbul to Moscow on 23/05/05 was confirmed. Therefore, he came to Istanbul Airport counter of the Opposite Party. The Opposite Party’s counter open 2 hours before the flight. When he came to the above said counter of the Opposite Party, he was told that his ticket was invalid and he should contact the Opposite Party’s office at Istanbul on the next day. He offered to pay additional charges of 200 US $ but his offer was rejected. On next day i.e. on 24/05/05 he visited the Opposite Party’s officer, paid 200 US $ and got the ticket for 24/05/05. At this time he was offered no hotel stay. He could not call at his home or office and communicated about delay. At this time he had exhausted his funds. He had to spend entire day and half at Airport. He was also not offered meal options.
9) Due to the above said delay he could not resume his duties as per the planned programme. He had to attend his office 2 days later because of late joining he was reprimanded. Important project at work was delayed.
10) The Complainant has sought direction from this Forum to declare the Opposite Party deficient in its service. Opposite Party to rectify his defects in service and refund a sum of Rs.18,110/- (cost of air tickets). It should reimburse Rs.37,950/-, the amount spent by the Complainant at Istanbul. The Complainant has stated that compensation of Rs.18 Lacs be awarded to him for mental agony, harassment and discrimination, disrespect inconvenience, rude behavior etc. The Complainant has also prayed for Rs.25,000/- towards the cost of the complaint, Rs.10,000/- be awarded to the Complainant towards medical expenses incurred by him in India.
11) The Complainant has attached the xerox copies of the following documents in support of his complaint. Air ticket alongwith Travel Agents bill, boarding pass, baggage delay report (Ex.‘A’). Letter dtd.07/05/05 of Complainant addressed to Opposite Party (Ex.‘B’), medical reports dtd.20/06/05, 26/05/05, 13/06/05. He has also attached medical report of patient viz Mrs.Anis Cementwala dtd.20/06/05, e-mail dtd.26/05/2011 of the Complainant to Opposite Party, Notice dtd.04/10/06 addressed to Opposite Party’ Manager.
12) The complaint was admitted and notice was served on the Opposite Party. the Opposite Party appeared through its Ld.Advocate and filed its written statement wherein it is stated that the Complainant is not a consumer, as the Complainant had purchased the ticket through his Travel Agent i.e. Travel Forte. The Complainant has not made this Tour Agent a party to the complaint. Therefore, the complaint deserves to be dismissed for non joinder of the party. The Opposite Party is not a principal of the Travel Forte from whom the Complainant purchased his traveling air ticket. There is no privity of contract between the Complainant and the Opposite Party.
13) The Opposite Party has stated that the Complainant has offered and provided with accommodation and all facilities for his stay prior to his rescheduled flight. He was also provided compensation of 100 US $ in lieu of rescheduling of the flight. Therefore, the Complainant is estopped from making any claim against the Opposite Party having accepted the compensation amount and accommodation on rescheduling of his flight and hence, the complaint is not maintainable on this ground.
14) The Opposite Party has admitted and clarified that the Complainant had booked return tickets from Mumbai to Istanbul under the special promotion offer in Feb.,05, through Travel Agent M/s.Travel Forte. As per itinerary, the Complainant undertook outward journey–Mumbai-Moscow-Istanbul on 06/05/05. The Opposite Party stated that Complainant had alleged to have spent money from his pocket when he was put up in the Hotel at Moscow but the Complainant has not given any details of these expenses incurred by him during the stay at Moscow.
15) The Opposite Party has admitted that the Complainant was not allowed to travel, due to overbooking but in accordance with the rules of International Carrier of Warsaw conventions he was rescheduled to travel by immediate next flight. Before that he was provided with accommodation and a compensation of Rs.100 US $. The Complainant had accepted these facilities, the hospitalities of the Opposite Party. Thus, Opposite Party has further submitted that, as admitted by the Complainant himself, he had changed his return ticket to 23rd May, 2005 instated of 14th May, 2005. The Complainant’s ticket being a special fare ticket it cannot be changed or rescheduled and therefore, the return ticket had become invalid. It is alleged by the Opposite Party that the Complainant is trying to attempt to gain unjust enrichment.
16) The Opposite Party has reiterated that the Complainant having travelled and availed of the facilities and compensation, he cannot claim refund of the fare.
17) The Opposite Party has denied that the Complainant had confirmed tickets for all the four flights. Admittedly the special fare air tickets were booked and issued to the Complainant in Feb, 2005 for 6th May and 14th May, 2005, but there was no provision for any change or rescheduling. The Opposite Party has stated that it is not known as to how the Complainant’s travel agent issued a revised ticket for 23rd May, 2005.
18) The Opposite Party has further explained that the check in time are uniform for all International Airlines and no exception can be made especially when the passengers are expected to comply with the immigration/security formalities.
19) The Opposite Party has also denied that the Complainant was compelled to go out of the Aeroplane and another couple was given his seat as the couple was traveling together.
20) The Opposite Party has further averred that the Complainant was aware of the 12 hours break in journey which is also evident from the itinerary and air tickets. It is also denied by the Opposite Party that the Complainant was discriminated by the Sr.Manager of the Opposite Party.
21) The Opposite Party was also not aware that the Complainant required medications, medical complications and allergy faced by the Complainant as these things are not relevant to the service given by the Opposite Party. The medical papers attached with the complaint, relates to a period after the journey and when the Complainant arrived at Mumbai. Therefore, it is an afterthought allegation to gain illegal and unjust monetary gain. The same deserves to be dismissed.
22) It is clarified by the Opposite Party that the tickets booked by the Complainant were under special fair ticket scheme which did not have provision for change of date. It was necessary to pay the differential fare to validate the ticket. The Complainant had accordingly paid US $ 200 at Istanbul and validate of the ticket on 24/05/06. Therefore, Opposite Party is not responsible for this change in schedule and consequential expenses.
23) The Opposite Party has vehemently stated that the claim of compensation of Rs.18 Lacs is frivolous, vexatious and baseless without any justification.
24) The cause of action has taken place on 06/05/05. The complaint was filed on 06/02/07 still the Opposite Party stated in para 7 of the written statement that, the complaint filed is barred by limitation. Thus, the Opposite Party has made a baseless averment.
25) The Opposite Party has further stated that according to Article 120 Air Codex RF, the compensation, if any should not be more than 50 % of the actual fare on the ticket. Finally the Opposite Party has prayed that the complaint be dismissed with compensatory cost.
26) The Complainant has filed affidavit of evidence and written argument wherein the Complainant has reiterated the facts mentioned in the complaint and added that he had accepted hotel accommodation and US $ 100 as compensation offered by the Opposite Party at Moscow under protest because his itinerary had changed and he was not sure if the money he was having, was sufficient to take care of the rescheduled change. He further alleged that, though he was provided hotel accommodation, he was asked to vacate the hotel room of the hotel early in the morning inspite of the fact that his flight was much later in the morning. Therefore, he could not get proper rest. He further alleged that in the stay at hotel he was not provided with food and drinking water. Therefore, he had to spend for food and water.
27) The Complainant has further stated that he had lodged the complaint in respect of the above incident at Moscow Airport immediately after the incident. The Complainant reiterated all other allegations and averments stated in his complaint. The Opposite Party has also filed its affidavits of evidence and written argument wherein it has reiterated the facts mentioned in its written statement.
28) We heard the Ld.Advocates of both the parties and perused the papers submitted by both the parties and our findings are as follows –
The Complainant had purchased air tickets of the Opposite Party through Travel Agent viz Travel Forte to travel form Mumbai to Istanbul Via Moscow on the Opposite Party’s air craft and from Istanbul to Mumbai via Moscow. Therefore, there is no doubt that the Complainant is a consumer of the Opposite Party.
29) The tickets were purchased well in advance in the month of Feb., 2005. It appears that the return tickets taken by the Complainant were under special promotion offer. Initially the tour programme was to start from 06th May. The Complainant was supposed to reach at Istanbul on 07/05/05 and he was to return from Istanbul on 14/05/05. In this connection we perused the concerned papers submitted by the Complainant and found a xerox copy of the boarding pass dtd.06/05/05. However, we cannot peruse the air ticket as it is a blurred copy and even the Ld.Advocate for the Complainant could not explain the contents of the air ticket. The other document is an invoice issued by Travel Forte for Rs.18,110/-. As per this document the date of travel is 06/05/04 and ticket No.A5554415683604. On page No.19 of the complaint there is a xerox copy of boarding pass dtd.24/05/05. From this document it cannot be concluded that the ticket was for dtd.23/05/05 and it changed from 23rd May to 24th May, 05. Date 23rd May appears on this document but it is not explained even by the Ld.Advocate for Opposite Party that this date 23rd May, 05 indicates that this air ticket was a confirmed ticket for the date 23rd May, 05 but it was changed to 24th May, 2005. Therefore, the averment of the Complainant that he had confirmed ticket for date 23rd May, 2005 from Istanbul to Mumbai via Moscow is not supported by the documents or any air tickets.
30) The Complainant has made an averment in an e-mail dtd.26th May, 2005 to Opposite Party by the Complainant that “I called up the Aeroflot city office in Istanbul to confirm my tickets, I was told that the tickets are perfectly OK and my seat is confirmed for return on May 23, 2005 showing that it was a confirmed ticket.” Then if it was a confirmed ticket then it is absurd that he would call the Opposite Party to confirm the said ticket. Therefore, the averment of the Complainant, that he had first booked the return ticket from Istanbul to Mumbai via Moscow for 14/05/05 and then got it changed the travel date to 23rd May, 2005 and that this ticket for 23rd May, 2005 was a confirmed ticket is without documentary proof and as such not substantiated from the xerox documents produced by the Complainant. Only it appears that the Complainant was having a boarding pass dtd.24/05/05 and ticket from 24/05/05 on which he has traveled from Istanbul to Mumbai.
31)Para 4 of the above said e-mail of the Complainant states “May 23, 2005 – 0010 hrs. – I go to Aeroflot counter which opens 2 hours before the flight (my tickets says I should report 4 hours before the flight) I am told that my tickets is invalid and I should contract the city office the next day. I even offered to pay the additional charges of US $ 200 on the spot but the Station Manager in brown suit was strongly unconcerned.” This averment is also only a bare averment not supported by any document. If the Complainant was having a confirmed ticket for date 23rd May, 2005. Then where is that ticket ? at least the copy of that ticket must have been attached to this complaint. All these points certainly show that the Complainant has not established his averment that he was having a confirmed ticket for date 23rd May, 2005.
32) Apart from the averments in respect of confirmed ticket for 23/05/05, it is the fact that, the Complainant had a confirmed ticket for date on 06/05/05 from Mumbai to Istanbul via Moscow. Accordingly he was taken in the flight by the Opposite Party upto Moscow. However, at Moscow the Complainant was not allowed in the flight which was scheduled to take off at 23.15 hrs. on 06/05/05. As per the averment of the Opposite Party itself, the journey of the Complainant was rescheduled and the Complainant was taken in the immediate next flight. In para 5(b) of its written statement, the Opposite Party has specifically stated that “The Complainant was not allowed to travel due to over booking and in accordance with rules of International Carrier of Warsawa convention, he was rescheduled to travel by immediate next flight”. This clearly shows that the Complainant was not allowed to travel from Moscow to Istanbul as per the scheduled flight but he was taken to Istanbul by the next flight. This must have caused delay to the Complainant in arriving at Istanbul which should have cause further inconvenience to the Complainant. Secondly when the Complainant arrived at Istanbul by next flight, his luggage did not arrive alongwith him and the Opposite Party did not deliver the said baggage to the Complainant when he arrived at Istanbul. It is seen from the papers that the Complainant got this baggage next day in the evening. This act of the Opposite Party (delay in baggage arrival) certainly must have caused inconvenience to the Complainant. Therefore, these acts of the Opposite Party i.e. not allowing the Complainant to travel as per schedule at Moscow and not handing over the luggage/baggage at the time of his arrival at Istanbul certainly amount to deficiency in service on the part of the Opposite Party.
33) The other allegation of the Complainant is that after refusal in the aircraft at 23.15, on 06/05/05, he was offered a stay at Airport Hotel. Accordingly he was provided with the hotel accommodation but he was not provided with dinner or drinking water. In this connection it is noted by us that the timing of stay at hotel was between 12 hrs. midnight and in the morning, he had vacated the hotel early in the morning and he had traveled by the next flight in the morning. Therefore, there is no question of providing a dinner at the Hotel. In addition to this, the Complainant was awarded a compensation of Rs.1,000/- US $ for rescheduling the flight. Therefore, this allegation in respect of dinner and water does not hold water.
34) The other allegations of the Complainant regarding the medical problem, it is seen that the xerox copies of the medical papers attached to the complaint in this connection shows that they pertains to dates when he returned to Mumbai and there is no any evidence to show that he needed medical help at Istanbul stay. In these papers he had attached one medical papers pertaining to his wife – Mrs.Annes Cementwala issued by Dr.Roopa Vishwanathan. Therefore, these medical papers do not substantiate the allegations of the Complainant regarding his medical problem at Istanbul.
35) The next allegation of the Complainant that he was again refused to travel on 23rd May, 2005 and asked to contact the Opposite Party’s office on 24th May, 2005 and get the ticket confirmed accordingly he paid extra 200 US $ and then he traveled on 24/05/05. In this respect this allegation was elaborately discussed earlier and it is again reiterated that the Complainant has failed to establish that he was having a confirmed ticket for date 23/05/05. Therefore, this allegation of the Complainant is not substantiated.
36) the next allegation, that he could not resume his duties on time on return from Istanbul, is also not substantiated in light of the fact that the Complainant has failed to establish that he had a confirmed ticket for date 23/05/05.
37) The Complainant has prayed that Opposite Party should reimburse an amount of Rs.18,110/- (the cost of entire ticket) Rs.37,950/- the amount spent by him. In this connection, the Complainant has traveled from Mumbai to Istanbul on this ticket of Rs.18,110/-. This amount was taken by the Opposite Party to take the Complainant from Mumbai to Istanbul safely in its flight. The Opposite Party has done its duty. However, there was a delay at Moscow for which the Complainant should be compensated. The Complainant has not given a single document to show that he has spent Rs.37,950/-. Therefore, this prayer cannot be acceded to.
38) The other prayer of the Complainant that a compensation of Rs.18 Lacs be paid to the Complainant and Rs.25,000/- be paid towards the cost of complaint seems to be exorbitant and without any basis.
39) As discussed in para 32 above, there is a deficiency in service on the part of the Opposite Party as it did not allow the Complainant to travel as per the air ticket schedule from Moscow to Istanbul only and did not deliver the luggage at Istanbul when the Complainant arrived at Istanbul. The luggage was deliveredto the Complainant next day i.e. on 08/05/05 i.e. there was a delay in delivering the luggage to the Complainant. Therefore, the Complainant should be compensated accordingly, taking into consideration, he was provided a temporary hotel accommodation in the night of 07/05/05 and he was compensated with Rs.100 US $ for rescheduled flight. In the written statement Opposite Party itself has admitted that as per article 120 Air Codex RF, the compensation, if any should not be more than 50 % of the actual fare on the ticket. Therefore, in our considerate there is a deficiency in service on the part of the Opposite Party as stated in para 32 & 39 above and hence it will be just and proper to direct the Opposite Party to pay the compensation of Rs.15,000/- to the Complainant for deficiency in service and causing inconvenience to the Complainant as discussed earlier. It will also be just and proper to award the cost of this complaint. We therefore, pass the following order –
O R D E R
i. Complaint No.45/2007 is partly allowed.
ii The Opposite Party is directed to pay Rs.15,000/- (Rs. Fifteen Thousand Only) to the Complainant for deficiency
in service and causing inconvenience to the Complainant.
iii.Opposite Party is directed to pay Rs.5,000/- (Rs. Five Thousand Only) to the Complainant towards cost of this
complaint.
iv.Opposite Party is directed to comply with the above order within 30 days from the receipt of this order.
v.Certified copies of this order be furnished to the parties.
