BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 12th of May 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.204/2010
(Admitted on 27.04.2010)
1. Alexander Lancy Carlo,
So. Henry Thomas Carlo,
Aged about 49 years,
RA. 703, Abhiman Gardens,
Kadri, Mangalore 575 003.
2. Mrs.Maria Lobo,
W/o. Henry Thomas Carlo,
Aged about 72 years,
R/A. Panjikal Village,
Bantwal, Dakshina Kannada – 574 211.
3. Mr.Rolan Ashley Carlo,
S/o. Alexander Lancy Carlo,
Aged about 19 years,
R/A. 703, Abhiman Gardens,
Kadri, Mangalore – 575 003. …….. COMPLAINANTS
(Advocate for the Complainants: Mrs.Suma R. Nayak).
VERSUS
1. Air India Express,
Air India Building,
Nariman Point,
Mumbai 400 021, India,
Represented by Mr.A.DSouza, COO.
2. Air India Express,
Terminal 2, Ground Floor,
Dubai International Airport,
Al Quds Street, Al Twar, Dubai,
Represented by its Manager.
3. Air India Express
Terminal Buildings,
Air Port Engineering Department,
Ground Floor, Bajpe, Mangalore.
Represented by its Manager. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Smt.Asha Nayak).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainants submitted that, they were scheduled to travel from Dubai to Mangalore on 08.04.2010 via Air India Express flight and availed tickets. It is stated that, the 1st and the 3rd Complainants are the Musicians who were accompanied the 2nd Complainant who is a Senior Citizen. The Opposite Party No.1 is the head office of Air India Express, Opposite Party No.2 is the Dubai office of Air India Express and Opposite Party No.3 is the Bajpe office of Air India Express.
It is stated that, the Complainants were scheduled to travel on flight and their boarding passes were issued to them, their luggage was already checked in, at this point of time when the Complainants proceeded towards immigration clearance, one Mr.Shahid, employee of Air India Express was called into clarify about the hand baggages the Complainants were carrying. It is stated that, the Complainants were carrying two hand bags and two musical instruments (apart from 5 bags which were already checked in). The hand bags were within the permitted weight and dimensions so as to fit into the over head cabinets in the aircraft. It is stated that, every passenger is permitted to carry hand baggage weighing upto 10 kgs each, the total hand baggage i.e., two hand bags and two musical instruments weighed only 24 kgs.
The allegation of the Complainants that they were prevented from proceeding from Immigration Clearance at the gate itself and were called upon by the employees of the Opposite Parties one Mr.Shahid to pay for the hand baggages which the Complainants were carrying. The Complainants refused to do so since the weight of the hand bags were within the permitted limit. It is stated that, all the three Complainants were off-loaded inspite of the fact that their hand bags were weighing less than 7 kgs each. It is stated that, the senior staffs of the Opposite Parties were present but they have not helped the Complainants.
It is further stated that, the Opposite Parties were rude and created havoc at the immigration clearance gate. The Complainants after being off-loaded had spent the entire night in the airport lounge and put to lot of inconvenience and embarrassment. The Complainants had to reach Mangalore before evening the same day and they were compelled to purchase fresh tickets on the 2nd flight of Air India Express by paying exorbitant fair. It is stated that, the Complainants on the 2nd flight carried the same number of hand baggage weighing same weight apart from 5 baggages which were checked in and were permitted to do so without any problems. It is stated that, the Complainant No.1 after being off-loaded from the first flight lodged a complaint with Dubai Civil Aviation before leaving the Dubai airport. Due to the deficiency and adamant behavior of the Opposite Parties, the Complainants were put to lot of inconvenience so also financial losses which amounts to deficiency and stated that, all the three Complainants were off-loaded illegally without any legal justification.
It is further stated that, the Complainants were compelled to spend the entire night of 08.04.2010 and early morning of 09.04.2010 at Dubai Airport lounge and spend double by purchasing flight tickets on 2nd flight for no wrong committed by them. Feeling aggrieved by the same, the Complainants issued a legal notice to the Opposite Parties to pay the compensation but the Opposite Parties not complied the same and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties jointly and severally to pay the cost of the tickets of both the flights and also claimed Rs.15,00,000/- as compensation for the mental agony and physical hardship caused to the Complainants and further claimed Rs.20,000/- as cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed common version and admitted that the Complainants were scheduled to fly from Dubai to Mangalore on 08.04.2010 via Air India Express flight in flight No.1X 812. It is stated that, the Complainants were scheduled to travel on flight 1X 812 and that their boarding passes were issued and their luggage had already been checked in. It is denied that, one Mr.Shahid, employee of Air India Express was called to clarify about the hand baggage the Complainants were carrying. It is stated that, except the passenger in transit, none were allowed into the immigration area. It is not the representatives of the Opposite Parties who stopped the Complainants at the immigration gate as they have no access to the said place, the said area which is managed by the DNATA staff and the local police it was who had stopped the Complainants from carrying extra piece of luggage as Dubai Airport authority allows only one piece of handbag by whatsoever it be per passenger in all airlines. It is stated that, the Complainants were carrying excess hand bags which was more in quantity than mandated by law, which consisted of two hand bags each and two instruments. It is further stated that, the Complainants were prevented from proceeding for immigration check in gate not by the Opposite Parties but by the immigration and police. The employee of the Opposite Parties were summoned by the said officials, because the Complainants were in contravention of the law of the land they were carrying excess hand baggage which was more than mandated quantity. Since the Complainants were creating a lot of havoc with their rude behavior, which they were not able to counter, the Opposite Parties’ staff politely explained mandatory provisions to the Complainants and had appraised them, if the Complainants insisted on carrying the extra piece of baggage, they are liable to pay excess baggage but instead of complying to the rules of the Airport, the Complainants were adamant and not co-operated and insisted on carrying the same on board. It is stated that, if carrying the extra price of baggage, they are liable to pay excess baggage but instead of complying the rules of the Airport, the Complainants had acted arbitrarily. It is stated that, the Complainants were off-loaded, as they had failed to board the aircraft inspite of repeated announcement by the Opposite Parties. It is further stated that, on the 2nd flight the Complainants had carried the same number of hand bags i.e., two bags, two instruments apart from 5 checked in bags were permitted to go without problems. Since the Complainants had checked in the baggage as per rules they were allowed to off-load the flight. It is stated that, there is no deficiency nor any lapse on the part of the Opposite Parties and it is because of the lapse on the part of the Complainants they have put to inconvenience and not because of the Opposite Parties and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainants prove that the Opposite Parties committed deficiency in service?
- If so, whether the Complainants are entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Rolan Ashley Carlo (CW1) – Complainant No.3 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C13 were marked for the Complainants as listed in the annexure in detail. One Ms.Chellam Prasad (RW1), Area Manager of the Opposite Party No.3 filed counter affidavit and answered the interrogatories served on her. The Complainants as well as Opposite Parties filed notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
The facts which are admitted in this case is that, the Complainant No.1 to 3 were scheduled to fly from Dubai to Mangalore on 08.04.2010 via Air India Express Flight and their booking numbers were IX 07057092 and IX 06646658 on flight No.IX 812. It is also admitted that, the Complainant No.2 is a senior citizen in this case. The Complainants were scheduled to travel on flight IX 812 and their boarding passes were issued to them on the above said day.
Now the point in dispute between the parties before this FORA is that, the Complainants came up with a complaint stating that they were scheduled to fly from Dubai to Mangalore on 08.04.2010. The Complainant No.1 and 3 are musicians and Complainant No.2 is a senior citizen and among them one was suffering from Guillian Barre Syndrome. The Complainants were issued boarding passes and their luggage was already checked in. At that point of time when the Complainants proceeded towards immigration clearance at the gate itself prevented from proceeding further and called the employee of the Opposite Parties one Mr.Shahid to pay for the hand baggage which the Complainants were carrying. It is stated that, the Complainants were carrying two hand bags and two musical instruments apart from five bags which were already checked in. The hand bags were within the permitted weight and dimensions so as to fit into the overhead cabinets in the aircraft. Every passenger is permitted to carry hand baggage weighing upto 10 kgs each, the total hand baggage two hand bags and two musical instruments weighed only 24 kgs and the Complainants were prevented from proceeding immigration clearance at the gate itself. The Complainants refused to pay for the hand baggage since the weight of the hand bags were within the permitted limits and all the three Complainants were off-loaded inspite of the fact that their hand bags were weighing less than 7 kgs each were also off-loaded. None of the senior staffs of the Opposite Parties were present to deal with the matter and contended that, because of the off-loaded they had spent the entire night in the airport lounge and put to inconvenience and the Complainants compelled to purchase fresh air tickets on the 2nd flight of Air India Express by paying exorbitant fare and also stated that the Complainants on the 2nd flight carried the same number of hand baggage weighing same weight (2 hand bags and 2 musical instruments) apart from 5 baggage which were checked in and were permitted to do so without any problems. According to the Complainants, the Opposite Parties committed deficiency and came up with this complaint.
The Opposite Parties on the other hand denied the entire allegations made by the Complainants and stated that they were carrying excess hand bags which was more in quantity than mandated by law, which consisted of two hand bags each and two instruments. Since they were carrying excess hand bags the Complainants were prevented from proceeding for immigration check in gate not by the Opposite Parties but by the immigration and police. The employee of the Opposite Parties was summoned by the said officials because the Complainants were in contravention of the law of the land they were carrying excess hand baggage which was more than mandated quantity. Since the Complainants were creating a lot of havoc with their rude behavior, which they were not able to counter, at this juncture Mr.Shahid had been summoned and he had politely explained mandatory provisions to the Complainants and had appraised them, if the Complainants insisted on carrying the extra piece of baggage, they are liable to pay excess baggage but instead of complying the rules of the Airport, the Complainants had acted arbitrarily in an unruly and adamant manner and did not listen and adhere to the rules and regulations. The Opposite Parties are not responsible in off-loading the Complainants No.1 to 3 and there is no deficiency.
The Complainant No.3 filed oral evidence by way of affidavit on behalf of Complainant No.1 and 2 and produced documents i.e., Ex C1 to C13. Opposite Parties also filed oral evidence by way of affidavit.
On perusal of the oral as well as the documentary and admitted facts, we find that, the Complainants were scheduled to travel on flight IX 812 on 08.4.2010 from Dubai to Mangalore via Air India Express Flight. The Opposite Party No.1 to 3 are the head office of Air India Express and branch office of Dubai Air India and Bajpe Air India Express. However it is admitted fact that, the Complainants were carrying two hand bags and two musical instruments apart from five bags which were already check in. As we know, the every passenger is permitted to carry hand baggage weighing up to 10 kgs each. But in the instant case, the Complainants were carrying two hand bags and two musical instruments, according to them the same were weighed 24 kgs. The Ex C5 reveals that, 5 bags which were carried by the Complainants were put under baggage tags and already checked in. It is a settled position that, when the Complainants were scheduled to travel on flight, they have to get a boarding passes from the Opposite Parties who issued the tickets. Once the passengers enter the airport it is the bounden duty of the Complainants / passengers to obey the command/order of the Airport authority. As per the rule laid under Civil Aviation, it is the bounden duty of the Complainants / a passenger to put a tag on all the baggage’s that they carried. If at all the Complainants / passengers were carrying less than the permitted weight and dimensions so as to fit into the overhead cabinets of the aircraft such baggages very well carry with them. If the hand bags or any other instruments were within the permitted weight and dimensions, it is the duty of the Complainants to satisfy the immigration clearance or the airport authority at the gate itself. No materials produced to show that such attempts were made by the complainants. It is an admitted fact that the Complainants were not prevented from the Opposite Parties but from immigration and police of the airport authority. When that being the case, the Complainants cannot blame the Opposite Parties but they have to blame immigration clearance officials as well as the police one who are on duty on the particular day.
We observed that, The Opposite Parties rightly issued the E-tickets of economy classes to the Complainants and accordingly boarding passes were issued and the bags five in numbers were put tags and checked in. No doubt in the instant case, the Complainants sworn to the fact that they carried the hand bags within the permitted limit despite they were prevented from proceeding from immigration clearance at the gate itself on the particular day. When that is so, the officials of the immigration clearance/police of the airport authority on duty on the particular day who prevented the Complainants are held responsible for the loss and inconvenience suffered by the Complainants and not the Opposite Parties in this case. However, the immigration officials or the police authority of the airport who prevented the Complainants were not made as a party to this proceedings, only the officials of the Air India Express are made as a party to the proceedings. It is a settled rule that, if the Complainants / passengers insisted on carrying on the extra piece of the baggage, they are liable to pay excess baggage. Since the Complainants failed to pay for the hand baggage, the Complainants were being off-loaded in this case. As we discussed herein above, it is the duty of the Complainants / passengers to obey the orders of the officials of the airport authority, if at all the Complainants / passengers aggrieved by the act of the officials of the airport authority, they should have paid the amount under protest. Further if at all the weight of the baggage is less than the permitted limit they should have asked to weigh the baggage which they were carried with them because there is a facility in every Airport to check the weight of the baggage. What we find in this case is that, The Complainants themselves admitted that they were asked to pay for the hand baggage which the Complainants were carrying and the Complainants refused to do so. A complainants being a senior citizen and one is suffering from some illness instead of complying the demand made by the officials of the airport authority, they disobeyed the order and invited the problem and thereby the Complainants were off-loaded on the particular day. Further we observed that, it is not the duty of the Opposite Parties to look after the immigration clearance or security check, their job is only to issue boarding pass to the passengers and receive the baggage’s and put a tag and check in. In the instant case, the Opposite Party officials issued a boarding pass to the Complainants and five bags were checked in. The problem arisen only with regard to the hand baggages which were carried with them. It is not the duty of the Opposite Parties’ officials but by the Complainants / passengers have to answer the airport officials if at all the baggages are excess or beyond the permitted limit. But in the instant case, it is the definite case of the Complainants that they carried the baggages i.e., two hand bags and two musical instruments are within the permitted limit but the immigration officials not given clearance and they were prevented from the gate itself. When that being the case, the Complainants should have either paid the amount for excess weight under protest or they could have weighed the baggages carrying with them or atleast they ought to have obtained an endorsement from the concerned officials. In the instant case, as the Complainants were acted in contravention of the Aviation Regulations and the immigration officials prevented the Complainants for proceeding immigration clearance not by the Opposite Parties, hence there is no lapse or negligence or deficiency on the part of the Opposite Parties in this case. If at all, the hand bags are within the limit then it is the Complainants to lodge a complaint against the immigration clearance officials or the police one who was on duty on the particular day. Because of the lapse committed by the immigration officials or the department of airport authority, the Opposite Parties cannot be blamed. As we know, the scheduled time already fixed and no aircraft will wait for the passengers according to their whims and fancies. If at all, the passengers were prevented unnecessarily or harassed by the immigration officials or police of the airport authority, then the Complainants / passengers must lodge a complaint against the concerned officials and not against the air ticket agent. In the instant case, no doubt the Complainants were put to inconvenience and their hand bags were within the permitted limit even though they were off-loaded in this case but for the above alleged lapse the Complainants cannot blame the Opposite Parties but they must claim a compensation from the immigration officials or the police one who prevented the Complainants for immigration clearance. Under that circumstance, we hold that there is no lapse/deficiency on the part of the Opposite Parties and the complaint filed by the Complainants deserves to be dismissed. No order as to costs.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 16 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 12th day of May 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 – Mr.Rolan Ashley Carlo – Complainant – Complainant No.3.
Documents produced on behalf of the Complainants:
Ex C1 – 21.03.2010: E-ticket of flight IX 812.
Ex C2 – 18.04.2010: E-ticket of flight IX 384.
Ex C3 – : Boarding pass of flight IX 812 (3 in numbers).
Ex C4 – : Boarding pass of flight IX 384 (3 in numbers).
Ex C5 - : Baggage tags of IX 384 (5 in numbers).
Ex C6 – 08.02.2010: Medical report of Complainant No.3 from Al Quassimi Hospital (2 in numbers).
Ex C7 – 20.05.2010: Certificate issued by physiotherapist at United Arab Emirates.
Ex C8 - : Photographs (4 in numbers).
Ex C9 - : Acknowledgement of the complaint registered with DCA at Dubai Airport.
Ex C10 – 25.05.2010: Lawyer’s notice issued to the Opposite Parties.
Ex C11 – 18.06.2010: Reply of the Opposite Parties to the Complainant’s advocate.
Ex C12 - : Postal acknowledgements (3 in numbers).
Ex C13 - : CD of the photographs.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Ms.Chellam Prasad, Area Manager of the Opposite Party No.3.
Documents produced on behalf of the Opposite Parties:
Dated:12.05.2011 PRESIDENT
