| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR. Complaint No.130 of 2019 Date of Instt.26.04.2019 Date of Decision:09.02.2021 Iqbal Singh, aged years son of Shri Chanda Singh, Resident of House No.4, Anand Nagar, Threeke Road, Ludhiana. ..........Complainant Versus 1. Air Canada, 111, 1st Floor, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi, through its Principal Officer/Manager. 2. Sharma Travels, NS Tower, Central Market, Narinder Cinema, Jalandhar through its Proprietor/Partners. ….….. Opposite Parties Complaint Under the Consumer Protection Act. Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) Present: Sh.B. S. Bhatti, Adv. Counsel for the Complainant. OPs No.1 & 2exparte. Order Kuljit Singh (President) The instant complaint has been filed by the complainant, wherein complainant averred that the daughter and son-in-law of the complainant namely Jaspreet Kaur and Harpreet Singh made a plan to visit Canada in summer vacations falling in June, 2018 alongwith their two kids. They got the tickets booked for both sides i.e. from Delhi to Vancouver Via Seoul and from Vancouver to Delhi via Hong Kong through the OP No.2 of AIR Canada. The daughter and son in law of the complainant were to leave India on 17.06.2018 for Vancouver and were to return to India on 29.06.2018 from Vancouver as per the schedule of tickets got booked of Air Canada. The complainant and his wife also planned to visit Canada alongwith daughter and son-in-law and they also got booked tickets through the OP No.2 of Air Canada for the same dates and the same flight so that they will have the company of their daughter and son-in-law. The tickets purchased by the complainant and his wife were confirmed by the OP No.2. That the complainant alongwith his wife, daughter, son-in-law and their kids reached Vancouver by flight No.AC 064 of AIR Canada as per schedule. That on 29.06.2018, the complainant alongwith his wife, daughter, son-in-law and their kids reached Airport at Vancouver to board the flight No.AC 007 of AIR Canada to Hong Kong as per schedule of tickets. On reaching at the Air Port they all learnt from the display that the aforesaid flight is late by four hours. The complainant alongwith aforesaid persons deposited their luggage with Air Canada for getting boarding pass of their flight No.007 of AIR Canada. The employee of AIR Canada issued the boarding pass to the complainant and his wife Mohinder Kaur of flight No.AC 003 from Vancouver to Tokyo instead of flight No.AC 007 of AIR Canada to Hong Kong as per schedule of the tickets purchased by the complainant. The complainant and his wife were informed by the employee of AIR Canada at the Airport Vancouver that their flight No.AC 003 is ready to fly and they have to rush to board in flight otherwise they will leave their flight for India and will not be allowed to board flight No.AC 007 of AIR Canada though the luggage of the complainant and his wife were booked in flight No.AC 007 of AIR Canada to Hong Kong. The tickets/flight of the complainant and his wife were changed from flight No.AC 007 to Flight No.AC 003 without any prior intimation and without their consent. The complainant and his wife were to board in the changed flight under the compelled circumstances as they were left with no other option since their daughter and son-in-law and their kids were to board in their flight No.AC 007 of AIR Canada as per schedule. The complainant as well as his wife also suffered nervous shock on learning their flight has been separated from their daughter and son-in-law and have been deprived of their moral support in the flight since it was the first experience of the complainant travelling through flight. The change of flight and of route of the complainant and of his wife without their consent and prior intimation amounts to deficiency in service. On reaching at Delhi on 30.06.2018 the complainant and his wife have to wait at the airport of connecting flight No.AC 007 of AIR Canada from Hong Kong to Delhi to receive their luggage and in this situation they have to miss their train from Delhi to Ludhiana in which their tickets were already booked and they had to hire a Taxi from Delhi to Ludhiana. That the complainant has suffered damage on account of deficiency in service, inconvenience caused, mental agony and harassment. The complainant also got served a legal notice to the OPs through his counsel and the said notice was duly received by the OPs and the OP No.1 demanded some details and complainant supplied all the details vide letter dated 15.10.2018 to the OPs. Thereafter the OP No.1 sent a reply dated 13.11.2018 and in the said reply, the OP No.1 admitted the deficiency in service. That by the said acts aforementioned the OPs have committed unfair trade practice towards the complainant and is also deficiency in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the compensation of Rs.10,00,000/- for his mental tension and agony and Rs.10,000/- as litigation expenses. Notice of the complaint was given to the OPs,but despite service both the OPs did not come present and ultimately, both the OPs were proceeded against exparte. In order to prove his respective version, the counsel for the complainant produced on the file his respective evidence. Ex parte arguments of counsel for complainant heard. File also carefully perused. Copy of the tickets from OPs admitted as purchasedfrom OP No.2 has been produced on the record, which fully establishes claim of complainant qua such purchase. Complainant approached OPs, through legal notice and in reply the OPs admitted the deficiency in service towards the complainant and his wife and also taken false ground of weather issue in Hong Kong.Further, the Ops offer to contribute INR3500 towards taxi fare from New Delhi to Ludhiana and also given offer that as a goodwill gesture for the inconvenience caused they provide one time discount of 20% off the base fare on their next booking. Thus, virtually statement of complainant suffered through affidavit through Ex.CA/1 is fully believable that the deficiency of Ops, the complainant has been suffered. Therefore, statement of complainant through affidavit fully believable. This complaint has been filed for compensation on account harassment and mental agony. It was the case of the complainant that when he boarded the flight of OP-1 did not ready to take off due to some technical fault in the plane and when tame of the flight was passed and the flight did not ready to take off. On the Ops not make proper arrange to travelled in booked flight. But the complainant was not entertained and responded well. The flight got delayed in excessive time. On the other hand, in reply by said letter, airline submitted that flight could not reached in time due weather issues in Hong Kong hault which was beyond the control of the Airline authorities. Therefore, opposite party No.1 made offer to contribute Rs.3500/- toward taxi fare from New Delhi to Ludhiana. We have made reference to the evolution of law with regard to the liability of the Air Carriers at the international and domestic levels because a big issue relating to the applicability or otherwise, of the Montreal Convention on the facts of the present case was sought to be made out by the Learned Counsel for the complainant, although we are of the view that the question of award of compensation to the Complainants on account of the alleged harassment for the delay in their Hong Kong to Vancouver to Narita to New Delhi due to admitted overbooking by the Appellant deserves to be examined under the provisions of the Act (CPA, 1986) dehors the Air Act or the above-noted on ventions/protocol. However, before entering this arena, we deem it necessary to clarify that we are examining the question of award of compensation to the Complainants in addition to what is payable or paid to them under the afore-noted Conventions. It needs little emphasis that the Act (CPA, 1986) was envisaged as a special social legislation to protect consumer rights unlike other legislations that create dispute resolution mechanisms between level players, this legislation establishes a level-playing field between unequal players i.e. Consumers and large Corporations. The following observations of the Hon'ble Supreme Court in Lucknow Development Authority v. M. K. Gupta - (1994) 1 SCC 243, clearly and finally delineate the objective behind the enactment of the Consumer Act:
" The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, 'a network of rackets' or a society in which, 'producers have secured power' to 'rob the rest' and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot. A scrutiny of various definitions such as 'consumer', 'service', 'trader', 'unfair trade practice' indicates that legislature as attempted to widen the reach of the Act. It has been approved by this Court in Regional Director, Employees' State Insurance Corpn. v. High Land Coffee Works of P.F.X. Saldanha and Sons, (1991) 3 SCC 617; CIT v. Taj Mahal Hotel, Secunderabad - (1971) 3 SCC 550and State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610.The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to the attempted objective of the enactment." (Emphasis supplied). A similar approach has been recommended by the Hon'ble Supreme Court in its recent decision in National Insurance Co. Ltd. v. Hindustan Safety Glass Works Ltd. - (2017) 5 SCC 776, wherein, it has been observed as follows
"...... in a dispute concerning a consumer, it is necessary for the Courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-a-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament." The area of operation of the Act (CPA, 1986) on the one hand and the Carriage by Air Act, 1972 has been examined and reconciled by the Hon'ble Supreme Court in Trans Mediterranean Airways (Supra). Answering the issue whether a Consumer Fora has the jurisdiction to entertain and decide a complaint filed by the consignor claiming compensation for deficiency of service by the carrier, in view of the provisions of the Carrier by Air Act and the 'Warsaw Convention' or whether domestic laws can be added or substituted for the protection of the consumers, relying on the observation in the three-Judge decision in Ethiopian Airlines Vs. Ganesh Narain Saboo - (2011) 8 SCC 539, the Hon'ble Supreme Court had opined that the protection provided under the Act (CPA, 1986) to the consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy. Consequently, the Supreme Court affirmed the decision rendered by this Commission, holding the carrier in that case, deficient in rendering service to the Complainant. In the light of the stated authoritative pronouncement, we have no hesitation in rejecting the contention of the Appellant that the compensation to Complainants has to be determined under the Air Act and not under the Act (CPA). Now adverting to the question of deficiency in service on the part of the OPs, in our view, in the light of specific averment in the Complaint to the effect that the procedure like searching for the volunteers, the Airlines are required to follow in situations created by them on account of the over bookings, was not followed. In the absence of any cogent evidence by the Airlines to rebut the averment and prove that all necessary measures to avoid the unnecessary delay in Complainants' departure, or that it was impossible for it to take such measures, as stipulated in Article 20 of the 'Warsaw Convention' and Article 19 of the 'Montreal Convention' no fault can be found with the finding returned by the State Commission on the point, particularly when nothing has been brought on record to show that the practice of overbooking the flights has the sanction of Director General of Civil Aviation (DGCA). The practice of overbooking may be a commercially viable international practice being adopted by all the Airlines, probably, to ensure that seats in the flights do not go vacant in the event of no-shows by booked passengers(s) but the same cannot be at the altar of the passengers. Not permitting a passenger, holding confirmed ticket to board a flight, amounts to deficiency of service on the part of an Airline. In view of the above discussion, the complaint is partly allowed and the opposite party No.1 is directed to pay Rs.3500/- as the price of the taxi fare, to the complainant. However, complaint against opposite party No.2 stands dismissed. Opposite Party No.1 is also directed to pay Rs.10,000/- on account of compensation for causing mental tension and harassment besides Rs.5000/- as costs of litigation. The OPs have no right to keep and misappropriate the public money. It must go back to the public. We, therefore, order that the OPs will deposit a sum of Rs.5,000/-, the estimate rough amount, with the legal aid account of this Commission. Opposite Party No.1 is directed to comply with the order within one month from the receipt of copy of the order; failing which, awarded amount shall carry interest @ 6% p.a from the date of passing of order until full and final recovery.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after its due compliance. ANNOUNCED IN THE OPEN COMMISSION: 9th Day of February 2021
(Kuljit Singh) President
(Jyotsna) Member | |
