Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 55 dated 07.03.2019
Ram Mohan Kumar s/o Late Sh. Kanchhi Lal Goel
R/o H. No. I-383, Sector-Alpha-2,
Gautam Budh Nagar, Uttar Pradesh-201306 …Complainant
Versus
OP1-Aeronet Travtour Pvt. Ltd (through its Manager)
4/54, Saraswati Marg, WEA, Karol Bagh, New Delhi-110005.
OP2-World of Wonders Travel Pvt. Ltd. (through its Manager)
101, Vishwamitra, Opp. Sacred Heart School & Church,
S.V. Road, Khar (West), Mumbai-400052, India
OP3- Kuwait Airways [through its Manager (India)]
Having office at: 401, 4th Floor, Ashoka Estate,24,
Barakhamba Road, Connaught Place, Delhi-110001
Also at: Kuwait Airways Room No. 109, Level-V,
Indira Gandhi International Airport Office,
Terminal T-3, New Delhi Airport, New Delhi-110037
OP4-ICICI Lombard General Insurance Company Ltd.
(through its General Manager) ICICI Lombard House,
414, Veer Savarkar Marg, near Siddhi Vinayak Temple,
Prabhadevi, Mumbai-400025 ...Opposite Parties
Senior Citizen Case
Date of filing 07.03.2019
Date of Order: 17.10.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) –The complainant has grievances of deficiency of services and of negligence against OPs that a tour package to Europe was taken from OP1, however, there was sudden change of air flight route and its landing at Baharain airport instead of at Kuwait by OP3, which result into loss of two days period vis-à-vis till alternate air journey was provided, the complainant had suffered trauma, inconvenience, etc. including his luggage and medicine that were sent to the original place, she also suffered hardship. That is why the complaint against OP1 to OP3 to pay a sum of Rs. 1,21,500/- jointly or severely towards loss of tour (two days and one night) along with interest @ 18% pa, insurance claim of Rs. 63,000/- along with interest of 18% pa for paying the claim lodged with OP4 besides compensation of Rs. 2,00,000/- against OPs in lieu of physical and mental harassment, pain and agony and litigation costs of Rs. 1,00,000/- & other relief.
1.2. OP1, OP2, OP3 & OP4 filed their respective separate reply, they denied the allegations of negligence or deficiency of services vis-à-vis they are not liable to pay any amount or compensation or litigation charges.
There is no allegation of negligence or of deficiency of services against OP1, who is a registered/approved travel agent with Travel Agents Association of India. OP2 just makes local arrangement for tour on behalf of OP1 and OP1 is one of the clients of OP2. OP3 also explains that the other route of Air flight was taken because of taking fuel in the way and other similar constrains of non-EU carrier. The OP4 has explanation that the situation of landing the aero-plane at another place and consequently making available alternate aero-plane for destination, it does not entitle the complainant for any compensation within the parameter of insurance policy.
1.3. Initially, the complaint was filed against OP1-Aeronet Travtour Pvt. Ltd. [who provided tour package namely the Great Wonders of Europe] and the OP2-World of Wonder Pvt. Ltd.; also against service provider the OP3-Kuwait Airways and the OP4-Bharti Axa General Insurance Company Limited. However, the name of OP4 was impleaded by order dated 15.05.2023 as ICICI Lombard General Insurance Company Limited since Bharti Axa General Insurance Company Limited merged into OP4. Accordingly, the array of OPs is reflecting the name of ICICI Lombard General Insurance Company Limited.
2.1. (Case of complainant) – In July, 2018 the complainant along with his wife and other relatives/friends planned to visit Europe tour. OP1 was contacted, who provided a tour package, namely, the Great Wonders of Europe for 14 nights and 15 days. OP1 assured to provide the best services since it has long experience in the field. It was also assured that they will arrange the tour with itinerary (namely return Airport transfer, 02 Nights in London, 3 nights France, 01 night Netherlands, 1 Night Germany, 03 nights Switzerland, 01 Night Austria, 03 Nights Italy, with all meals) and also to arrange the flight tickets, sightseeing, transportation, monument tickets & visa fees and the total cost of that tour package was Rs. 2,32,500/- per person on double sharing basis. The OP1 also furnished, at the same time, some flight detail for final tour so that they will book the tickets as well as hotel for the complainant.
2.2. After agreeing the terms & conditions, the complainant deposited a sum of Rs. 2,32,500/- (jointly with his wife account) in two installments through on line transfer of Rs.1,50,000/- dated 17.08.2018 in the account of OP1 through his bank HDFC Branch Sector-11 Dwarka & cheque no.852530 dated 16.08.2018 for Rs. 1,25,000/- drawn on SBI Parliament Street Branch, Delhi (which includes amount of Rs.42,500/- for Smt Sushma Rani Gupta). OP1 issued receipt no. 0001182 dated 07.07.2018 for Rs.1,30,000/- and another receipt no. 0001509 dated 17.08.2018 for Rs. 1,25,000/- After receiving amount of by OP1, complainant was requested to provide passport and other relevant documents, which complainant provided to OP1. Thence, on 12.07.2018 the OP1 introduced the complainant to OP2, who further arranged the tour of complainant and other persons by issuing intimation letter. The OP2 also provided insurance policy “Overseas Travel Insurance” from OP4 vide policy no. SX1461973 dated 14.07.2018. The policy covers many perils of emergency medical expenses, personal accident, repatriation of mortal remains, delay of checked baggage, personal liability, accident death and permanent total disability-common carrier, trip cancellation and interruption, emergency medical evacuation, dental treatment expenses, total loss of checked baggage, loss of passport and documents, daily allowance in case of hospitalization and bounce hotel booking.
The complainant was very excited that all booking were confirmed by OP1 & OP2, they arranged flight tickets from OP3, who arranged the flight for U.K. vide flight no. 384 from Delhi to Kuwait, departure time 6:15 hours on 21.08.2018 and arrival time 08:05 and from onwards Kuwait to London departure time 10:00 and arrival time 14:45.
2.3. On 21.08.2018 the complainant took scheduled flight no. 384 from Delhi to Kuwait but because of mismanagement of OP3, the aircraft landed at Bahrain Airport for more than one hours without sufficient reason or schedule (instead of reaching Kuwait as per schedule). During that period the staff and executive of OP3 were announcing that passengers need not worry, they will provide connected flights to them, however, there was unnecessary stay and delayed the flight more than two hours, because of that the complainant’s other connected flight no. KU101 to be departure from Kuwait to London at their scheduled time was missed because of sole and negligent act of OP3.
Moreover, OP1, OP2 & OP3 had collected the luggage at Delhi Airport and it was sent to LHR Airport (London) U.K. that is why the complainant was not having their luggage. Moreover, OP3’s executive detained the complainant more than one day in Kuwait and shifted his at hotel Safir. The complainant was assured to provide Indian food, tea, luggage, medicine, insulin and daily use items but in the hotel vegetarian food was not provided as well as he could not take his medicine as the medicine was kept in the luggage as per rules and regulations. This period was very shocking to the complainant and she suffered mental harassment and torture at the instance of executive of OP3. After some time, as the executive of OP3 provided a ticket/boarding pass from Kuwait to London via Doha and ticket of Qatar Airways from Kuwait to Doha and thereafter Doha to London. The complainant had requested OP3 repeatedly to handover his luggage as his luggage was missing, then it was informed that his luggage has been sent to LHR (London) U.K. and it was lying in its office there, OP3 issued a manuscript note to this effect. The complainant reached London, U.K. on 22.08.2018 at night at about 22:00 and missed the tour schedule of 21.08.2018 and 22.08.2018 due to negligence of OP3; the day one and two of the tour-London tour-was spoiled due to sole negligence of OP1 to OP3. The tour came to end on 04.09.2018 and complainant returned to India on 05.09.2018.
2.4. The complainant approached OP4/Insurer service provider to invoke the emergency clause and requested OP4 by letter dated 19.09.2018 for claim of 900 USD. The complainant also sent request email dated 11.09.2018 to OP3 by lodging his claim of 1350 pounds because of losses occurred from the side of OP3 besides letter to Ambassador of Kuwait Embassy apprising it the wrongful acts of OP3 as well as to help the complainant. The complaint further narrates about the efforts and correspondence done by complainant with various authorities (of Secretary- Public Grievances, Cabinet Secretariat). But 09.01.2019, the OP4 sent a repudiation letter that there is no coverage for missed connection in the travel policy nor any letter to this effect of missed connection was received from Airlines, that is why claim was repudiated by OP4.
Similarly, complainant also received a letter dated 31.12.2018 from Ministry of Civil Aviation through Director General of Civil Aviation regarding reply dated 24.12.2018 of OP3 that it was unable to clear the claim of the complainant with remark “we are unable to compensate the same under EU Regulation as the departure from a Non EU country and Kuwait Airways is not a EU carrier”. The complainant was advised to approach the competent Forum/Court/Tribunal. On 31.01.2019, the OP4 sent a repudiation letter to the complainant without any sufficient reasons and rejected the claim of complainant on false and frivolous reasons. That is why the complaint.
2.5. The complaint is accompanied with documentary record of copy of quotation, receipt of amount paid, copy of invitation letter, insurance policy, tickets, visa, passport, boarding pass and hand written note issued by OP3, request letters and other correspondence exchanged as well as e-mail, etc.
3.1 (Case of OP1)- There is no allegation of negligence or of deficiency of services against OP1, which is a registered/approved travel agent with Travel Agents Association of India. The OP1 being travel agency has performed it terms & conditions agreed between the parties and OP1 has no concerned in any manner, if the flight was delayed or cancelled or re-scheduled due to any reason. Moreover, the complainant had agreed to the terms & conditions through e-mail dated 05.07.2018 (for tour package the Great Wonders of Europe) between the parties that no change/ no refund in package if flight delays due to any reason. The complainant paid Rs.2,75,000/- for the said tour package for the two persons namely the complainant himself and part payment for his wife Smt. Sushma Rani. The complainant was provided various option of flights but the subject flight was chosen by the complainant that too before finalizing the tickets. The complainant has not approached the Commission with clean hands, the complaint has been filed unnecessarily to harass the OP1. However, the complainant had deposited the package amount but other documents were provided to finalize the booking etc. No relief is made out against OP1.
The reply is accompanied with board resolution dated 08.05.2019 to author the reply & do needful in the proceedings, notification issued by Travel Agents Association of India for the customers/passengers, copy of e-mail dated 05.07.2018/04.07.2018.
3.2 (Case of OP2)- the OP2 opposes the claim that there is no cause of action or any liability of the OP2 towards complainant. The OP2 asserts that it makes local arrangement for tour on behalf of OP1 and OP1 is one of the clients of OP2. There is no deficiency in services nor adoption of any unfair trade practices by the OP2, there is no privity of contract between the complainant and the OP2, since complainant admits in para-5 of the complaint that entire consideration was paid to OP1. Moreover, the complainant has entire grievances, as appearing, against OP3 Airlines as flight did not take off in time and luggage was not properly handled due to which the complainant’s travel and sight-seeing plans got upset. The complainant is not consumer of OP2.
3.3 (Case of OP3)-The OP3 opposes the complaint by denying by stating them baseless, frivolous and based on wrong and misleading facts. The complainant has seeking undue indulge of the present Forum and has sought unwarranted and exorbitant relief against OP3 for no wrong or deficiency on the part of OP3. The terms & conditions of package tour were settled between the complainant and OP1, the flight tickets were booked through OP1, therefore, there is no privity of contract between the complainant and the OP3 nor any responsibility of OP3, nor OP3 has any control over OP1.
On 21.08.2018 there was diversion of flight towards Bahrain because there was runway closure at Kuwait. On every flight the prime goal of OP3 is to ensure that passengers reached their destination safely and without any hindrances, in order to ensure it was imperative to undertake the aforesaid steps, by making minor and negligible delay but it was necessary in the circumstances. Moreover, the staff of OP3 provided necessary assistance within the ambit and authority. OP3 also made appropriate arrangement for stay of complainant, in view of unfortunate delay in the flight but it was not within the purview of responsibility of OP3 to make arrangement of vegetarian food or cuisine as it was exclusive duty of concerned hotel Safir. Moreover, as per rules of Europe Civil Aviation Security, Ministry of Civil Aviation, Government of India provide for carriage of medicines, including insulin, onboard in Point 24, Annexure II of AVSEC Order No.5/2005 dated 07.06.2005 in reasonable quantities, required for the total duration of flight taking into consideration the possibilities of flight delays and diversions.
The OP3 took all timely measures to ensure minimum inconvenience or difficulty to all its passengers including the complainant, thus no harassment - mental or physical or agony was caused to complainant. The executive of OP3 assured the passengers for connecting flight and OP3 stood upto their words and provided boarding pass of Qatar Airways to the complainant for a flight to London via Doha and departure on 22.08.2018 at 12 noon, which reached London, U.K. on 22.08.2018 at 12 hours, the luggage of complainant was traced by OP3, manually written note dated 22.08.2018 was issued and informing the complainant about safe arrival of luggage at London, UK where BMA staff was instructed to check and label the luggage to ensure its security and safety, it was also handed over to the complainant.
So far tour package is concerned, it was within exclusive domain of OP1, there was no role of OP3. It was also clarified by OP3 by e-mail dated 24.12.2018 that it is unable to complainant because of EU Regulation (Regulation EC) no. 261/2004 of European Parliament and of Council, which applies to passengers who either start their trip at an EU airport, or land in an EU airport, provided that the airline is headquartered in the EU. Whereas, in the present case, the departure was from a non-EU country and OP3 is not a EU carrier. All the passengers were duly re-routed from Kuwait on flight. There is no privity of contract between the complainant and the OP3.
3.4 (Case of OP4)-The OP4 also opposes the complaint for want of any cause of action against it, the complaint is liable to be dismissed. The OP4 reproduces coverage clause of bounce hotel booking, trip-cancellation & interruption, cancellation before the trip and curtailment of trip under certain eventuality to show that the case of complainant is not covered for any compensation or there was confirmed booking but it could not be obtained in such hotel accommodation. The OP4 has explanation that the situation of landing the aero-plane at other place but consequent making availability of another aero-plane for destination, does not entitled the complainant for any compensation within the terms of insurance policy. Since, the situation is not covered within policy, therefore, OP4 is not liable for any claim.
4. (Replication of complainant) –The complainant filed rejoinder/replication separately to reply of OP1, OP2, OP3 & OP4. The complainant reaffirms the contents of complaint as correct while referring and relying upon the documentary record of tour package to emphasis that the case of complainant is covered against all the OPs. They are liable to pay the amount claimed.
5.1. (Evidence)-The complainant led his evidence by filing detailed affidavit, it is on the lines of complaint coupled with documents filed in support of complaint.
5.2. The OP1 failed to lead evidence despite opportunities and ultimately opportunity was closed on 04.09.2019. However, OP2 led its evidence by filing compact affidavit of Sh. Madhav Pai, Director & AR, it is replica of the reply. OP3 also led its evidence by filing affidavit of Sh. Ashish Malhotra, Sales Manager, New Delhi, it is also on the pattern of written statement. OP4, being the then Insurer (Bharti Axa General Insurance Co. Ltd.) led evidence by filing affidavit of Sh. Rishikant, Senior Executive (Legal) , it is also in the compact form embarrassing reproduction of terms & conditions of the policy as narrated in the reply.
6.1 (Final hearing)- At this stage, the written arguments were filed by complainant based on evidence with oral narration. The complainant has also relied upon (i) SOTC Travel Services Pvt. Ltd. & Anr. Vs. Omprakash Gulia (dead) thr. LR III 2017 CPJ 36 (NC) that there was no authenticated person present at Colombo airport from the side of petitioner and considering the circumstances of the case the compensation was quantified as Rs. 1,25,000/- as reasonable compensation. (ii) Jet Airways India Ltd. Vs. Vandna Jain IV 2013 CPJ 369 (NC) there was traffic congestion at Mumbai airport which result into delay in landing of flight and travelling public is in no way responsible for delay cause by any of them. It was held deficiency of services. (iii) ICICI Lombard General Insurance Co. Ltd. Vs. Premkumar Puri FA No. 97/2015 dod 14.05.2015 (by SC Chandigarh) there was delay in the flight being travelled by the complainant, which result into his unable to board the next flight to Melbourne, it was held deficiency of services. (iv) National Insurance Co. Ltd. Vs. Hardeep Singh FA no. 725/2006 dod 20.05.2011, it was held deficiency of services as there were missing of valuable documents and other articles from the baggage of respondent, while reaching at the airport Nairobi.
6.2. The OP3 & OP4 have filed their respective written arguments, which are replica of their written statements.
7.1 (Findings)- The contentions of both the sides are considered, keeping in view material on record. By taking into account stock of all material, the following conclusions are drawn:-
(i) The OP1 is a travel agent which has been approved by Travel Agents Association of India and OP1 has proved notification issued by Travel Agents Association of India demarcating its area of functions and terms and conditions,
(ii) The complainant and OP1 have agreed by e-mail in respect of services of OP1 that there will be 'no change/refund in package if flight delays due to any reason'.
(iii) The task of OP2 begins for making local arrangement for tour on behalf of OP1 and as such there is no evidence on behalf of complainant against OP2 to infer deficiency of services on the part of OP2 in the local space.
(iv) The sub-clauses (i) & (ii) above do not make out case of deficiency of services against OP1, similarly it is also not a case of deficiency of services against OP2 in terms of conclusion in sub-clause (iii) above.
7.2. The grievances of complainant commences because of landing of air-flight at Bahrain, instead of Kuwait. Thus, further conclusions are as follows:-
(a) The OP3 has certain constrains that the air flight no. 384 was landed at Bahrain because of unforeseen runway closure at Kuwait. Moreover, OP3 is bound by EU Regulation (Regulation EC) no. 261/2004 of European Parliament and of Council, which applies to passengers who either start their trip at an EU airport, or land in an EU airport, provided that the airline is headquartered in the EU but in the present case, the departure was from a non-EU country and OP3 is not a EU carrier.
(b) In email dated 24.12.2018 OP3 also explains that the other route of Airplane was taken because of taking fuel in the way and other similar constrains. The complainant also refers this email but there is no contrary evidence by the complainant.
(c) The OP3 has provided accommodation in hotel, boarding pass/ticket & alternate air-flight to enable the complainant to reach the destination, consequently, the OP3 had performed the obligations of lodging and boarding.
(d) The complainant was also handed-over his luggage safely since it had reached directly at the end designation and there was complete tour by the complainant.
(e) In view of the above, there was no contingency to be covered the peril for want of bounce hotel booking being the insurance cover.
(f) By considering the conclusion in sub-clause (a) to (e) above based on evidence that OP3 had made available accommodation and also alternate flight with ticket/boarding pass, safe luggage, it does not make out case of deficiency of services and negligence on the part of OP3. Consequently, there is no deficiency of services against OP4 as concluded in sub-clause (e) above.
7.3. Therefore, in view of the discussion, analysis and conclusion in sub-paragraphs 7.1 & 7.2. above, it is held that the complainant could not establish the circumstances either of deficiency of services or their negligence against any of the OPs, therefore, the complaint fails. It is dismissed. No order as to costs.
8: Announced on this 17th October, 2023 [अश्विन 25, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Vyas Muni Rai] [Shahina] [Inder Jeet Singh]
Member Member (Female) President
