COMPLAINT FILED: 26.12.2008

DISPOSED ON:31.12.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

31^ST DAY OF DECEMBER– 2011

  PRESENT:-  SRI. B.S. REDDY                        PRESIDENT

                     SRI. A. MUNIYAPPA                       MEMBER                      

       COMPLAINT NO.2813/2008

O R D E R

SRI. B.S. REDDY, PRESIDENT

The complainants filed this complaint U/s 12 of CP Act 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to pay an amount of Rs.4,62,322/- and compensation of Rs.10,00,000/-, to award interest at 18% p.a. along with litigation costs on the allegations of deficiency in service on the part of the OPs.

2.     The case of the complainants to be stated in brief is that:

The complainants No.1 and 2 are the spouse and complainant No.3 is the minor son of complainants No.1 and 2. Since 8 years complainants are working in US, their parents are in India, the complainants came to India for naming ceremony of complainant No.3. After naming ceremony, they planned to return to USA, they booked Air India return tickets in USA for journey from Bangalore to Salt Lake City (USA) via Los Angeles. As per the schedule, complainants boarded the flight of AIR SAHARA in Bangalore on 31.12.2006 at 8 p.m. and checked in 6 luggages all way from Bangalore to Los Angeles. Unfortunately the flight did not land at New Delhi and pilot announced that due to bad weather conditions in New Delhi, the flight was being          re-routed to Lucknow. When the complainants asked about their flight from New Delhi to Los Angeles, the flight crew and the ground staff of Air India / Air Sahara assured them that Air India (flight from New Delhi to Los Angeles) was informed of the re-route and that Air India at the International Airport in New Delhi will make sure that complainants will board on the flight from New Delhi to Los Angeles. On reaching Lucknow at 12 a.m. mid night, they collected all 6 checked in bags and 3 carry on bags. The complainant No.2 carrying complainant No.3 with lot of difficulty managed to push 3 carts to the bus waiting to take complainants to hotel at Lucknow as there was no staff to help them to carry these bags. In the bus the bags were piled top of each other and the complainants were made to sit next to the bags. When the bus started moving the bags started shaking and started falling on the complainants. Each bag weighed 20 kgs plus and were made hard plastic and metal. The complainant No.1 had tried his best to make sure that the bags didn’t fall on complainant No.2 and their 4 month old baby complainant No.3. Complainant No.1 was holding one stack of 4 bags. There were more stacks of bags which 1 hard metal bag was about to fall on the baby, complainant No.3 which would caused permanent serious injuries to the complainant No.3. The complainant No.2 reacted in time and moved the baby away and in result, the complainant No.2 got hit by the bag which caused severe pain and blood clots on her lap / thighs. The complainants have checked into hotel Piccadilly arranged by Air Sahara in Lucknow at around 2 a.m. early morning on 01.01.2007. On 01.01.2007 at 8 a.m. the complainants left the hotel and reached airport. The complainants talked to the Air India / Air Sahara staff to make sure that Air India was aware of the flight re-route. The airlines assured the complainants that Air India flight (New Delhi to Los Angeles) would be taken care of by Air India at New Delhi International Airport. The Air Sahara flight took off from Lucknow to New Delhi and landed at New Delhi domestic airport at around 9 a.m. Air Sahara issued letters stating that the complainants have misconnected Air India flight (Delhi to Los Angeles) as Air Sahara flight was delayed due to bad weather in New Delhi. The complainants were shocked to hear the said news and the weather was bad and extremely cold with heavy fog. With lot of difficulty due to severe cold weather, not being clothed warm enough for the weather conditions and no help from airlines, the complainant Nos.1 and 2 managed to get to International Airport along with the baby and went to Air India counter, presented their tickets, letters issued by Air Sahara and explained everything about how flight was re-routed. Air India staff told the complainants that the flight was left they can’t help or do anything, when the complainants told them that since the ticket was issued by Air India, they are responsible for boarding them on the next immediate flight to Los Angeles. The Air India staff started acting indifferently and irresponsibly and asked the complainants to go to their Air India Connaught place office. The New Delhi International Airport filled up with people due to flight cancellation and delays caused by bad weather conditions and no place to sit or feed the baby. When the complainants asked for some help to contact Air India Connaught place branch, New Delhi and explaining how helpless, they were with an infant baby in hand and all luggages and the bad weather. Air India staff had no mercy and no concern to help them, they said sorry we can’t help you in any way. Complainant No.1 was forced to go to Air India office at Connaught place branch around 15 kms away in severe bad cold weather in a city that they were strangers to not knowing where exactly to go and where to leave complainant No.2 and baby with all mental tension, physical stress and emotional agony. The Air India Connaught place office staff was equally uncaring, irresponsible and ruthless people who gave the same reply that the flight has gone and Air India can’t help the complainants to board on the next flight available. While complainant No.1 was out to Air India main office, the complainant No.2 was forced to sit at the heavily crowded airport alone in shivering cold with complainant No.3 without even being able to go to toilet as she has to look after the baby and the luggage which lead to urinary infection later. While the complainant No.2 sat at the airport, she saw lot of passengers from other airlines who were stuck in the airport, but those passengers airlines put them on next available flights and accommodated in hotels till the weather was cleared. The complainant No.2 never felt so helpless for her baby and herself and sat crying waiting for the complainant No.1 without knowing where the complainant No.1 was and no way to communicate with each other, every minute and every second passed by with such mental, physical and emotional stress and agony for the complainants. After being turned down by Air India main office, the complainant No.1 returned back to airport with all worries and tension about the complainants No.2 and 3. The complainant No.1 was able to get Air France tickets for Rs.1,27,755/- for the earliest available flight on 03.01.2007. The complainants were forced to stay in New Delhi until 03.01.2007, as there was no other alternative. Complainants telephoned around 5 different hotels to get accommodation for 2 days (until 03.01.2007). No accommodation was available; finally they were able to get a room for 2 nights at hotel Tajmahal. The complainants were forced to have 2 days stay and food at Hotel Tajmahal which cost them Rs.22,569/-. Finally they left New Delhi on 03.01.2007 by Air France and reached Los Angeles, all three complainants fell sick in New Delhi. The entire situation led to loss of work / salary for week to the complainants No.1 and 2 amounting to Rs.1,40,000/- for the complainant No.1 and Rs.1,72,000/- for the complainant No.2. The complainants have approached OPs several times over phone and requested for refund of the money paid to unused air tickets, but OPs failed to refund the said amount. The complainant No.1 had written letter to OPs and requested for refund of the amount. The negligent act of the OPs caused tremendous mental agony and humiliation to the complainants besides financial and precious time loss, for which OPs are liable to compensate the complainants. OPs acted irresponsibly by not allowing the complainants to board immediate next available flight and arranging for their stay. OPs have branch at Bangalore and the complainants boarded the flight from Bangalore within the jurisdiction of this Forum. Hence the complaint seeking necessary reliefs as stated above.

3.     On appearance, OP-1 filed version denying the allegations of negligence or deficiency in service. It is stated that the complainants themselves at para – 7 of the complaint stated that the flight did not land at New Delhi due to bad weather conditions, the flight was being re-routed to Lucknow, all flights flying into New Delhi were re-routed to other nearby cities and flights flying out of New Delhi being cancelled or delayed, would clearly establishes that the complainants missed the connecting flight at New Delhi on account of bad weather conditions. The flight for Bangalore to New Delhi was delayed. The complainants had purchased tickets subject to conditions of contract of travel which are printed on the ticket jacket. The complainants missed the connecting flight due to the delay of flight from Bangalore to New Delhi on account of bad weather. The complainants admittedly purchased fresh tickets for their travel from New Delhi by Air France and not by next available flight of Air India. Since they did not choose travel by the next available flight of Air India on which space is available, they became disentitled to avail the facilities including hotel accommodation and subsequent travel at Air India’s cost. Hence the claim of reimbursement of hotel accommodation expenses etc., claimed the complainants is not sustainable in law. There is no legal liability or negligence or deficiency in service on the part of the OPs in the light of the rules governing the carrier and the passenger and the relevant articles applicable Article 10.1, 10.2, 10.2.1, 10.2.2, 10.2.3 and 10.3. Further Article 11.2.3, 11.3, 11.3.1, 11.3.1.1 and 11.3.1.2. Under Article 16.3.5 the complainants are not entitled to claim consequential damages. The allegations made against the staff of Air India and the alleged inconveniences to the complainants are denied as false and baseless. Hence it is prayed to dismiss the complaint with costs.   

4.     OP-2 filed version contending that the name of Sahara Airlines Ltd., has changed to Jet Lite (India) Ltd., with effect from 15.05.2007. The same is pursuant to take over of management of Sahara Airlines Ltd., by Jet Airways (India) Ltd., The allegation regarding the deficiency in service against OP-2 is false, baseless, frivolous. This is a case of diversion of S2, Sahara Airlines Ltd., flight Bangalore – Delhi sector to Lucknow for the then prevailing bad weather condition at Delhi. The complainants were provided a suitable accommodation at Lucknow and immediately next day, the complainants were made to fly back to Delhi on improvement of weather condition. The conditions printed on the jacket of the ticket is as per the statutory requirement of Sub Rule 2 of Rule 3 of second scheduled of carriage by Air Act 1972. The northern part of India, at that point in time weather is very cold and foggy, due to which visibility at the airports in all the northern part of India drops considerably. No flights can operate in such extreme weather conditions in the larger safety interest of the passengers. The condition of carriage which is printed on the web ticket is contract between the passenger and Airline Company which is a valid contract as per International Air Transportation Association Rules and is binding on both the parties. OP-2 does not have any branch office in Bangalore; therefore this Forum has no territorial jurisdiction to entertain the complaint. This OP had made all arrangements including accommodation in hotel for the complainants at Lucknow and had extended the best possible service to the complainants under the then prevailing circumstances. There has been no negligence caused by this OP. Hence it is prayed to dismiss the complaint.      

    5.     In order to substantiate the complaint averments, the complainant No.2 filed her affidavit evidence. The Manager Administration of OP1 filed affidavit evidence, the airport Manager for jet airways filed affidavit evidence in support of defence version.

    6.     Both parties filed Written Arguments. Arguments on both sides heard.

    7.     Points for consideration are: 

Point No.1:- Whether the complainants proved

                   deficiency in service on the part of

                    the OPs?

Point No.2:-Whether the complainants are entitled            

                   for the relief’s now claimed?

Point No.3:-:- To what Order?

  8.       We record our findings on the above points:

Point No.1:- Affirmative in respect of OP1

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

   9.      The complainant No.1 is the husband of the complainant No.2, the complainant No.3 is their Minor son. The complainant No.1 & 2 are working in U.S,. The complainant No.2 gave birth to complainant No.3 on 18.08.2006. For naming ceremony the complainants returned to India and they booked Air India return tickets in U.S.A for journey from Bangalore to Salt Lake City (USA) via Los Angeles. The complainants boarded the flight of AIR SAHARA (OP2) in Bangalore on 31.12.2006 at 8 p.m. to go to Los Angeles. Due to bad weather conditions in New Delhi, the flight was being re-routed to Lucknow, the flight reached Lucknow at 12.a.m. mid night. On January 1^st 2007 around 8 a.m. the complainants left the hotel at Lucknow and came to airport and they landed at New Delhi domestic airport at 9 a.m.  By that time, the connecting  Air India flight A 1137 had left New Delhi; as a result the complainants could not travel through that flight they have misconnected air India Flight # A1137 (January-01, 07 from New Delhi to Los Angeles).

    10.   The complainants claims that the Air India staff failed to help or do anything to make them boarding the next immediate flight available to Los Angeles. The staff at Airport asked them to go to their Air India Connaught place office. The complainant No.1 visited the said office but the officials there also expressed their helplessness and they have not helped the complainants to board the next flight available to los Angeles. Ultimately the complainants were able to get Air France tickets for Rs.1,27,755/- as the earliest available date i.e.03.01.2007. Thus they were forced to stay back in New Delhi until  3^rd January-2007. For two days they stayed at Hotel Tajmahal and the total bill for the said hotel of Rs.22,569/- was paid. They left New Delhi on 03.01.2007 by Air France and reached Los Angeles. OP1 failed to refund the amount paid for the unused air tickets. Thus Ops are responsible for the inconvenience caused; they are liable to compensate for physical, mental and emotional sufferings. It is stated that the complainants fell sick in New Delhi; the entire situation led to loss of work/salary for a week to both complainant Nos.1 & 2. Loss of salary for complainant No.1 at Rs.1,72,000/- and for complainant No.2 at Rs.1,40,000/-. Thus the complainants are claiming the Air France tickets amount of Rs.1,27,755/- the loss of salary of complainant No.1 & 2 to an extent of Rs.3,12,000/- and the hotel bill paid at New Delhi Rs.22,569/- in all Rs.4,62,322/-.

11.   At para-4 of version, OP1 pleaded that the complainants purchased tickets subject to the conditions of contract of travel printed on the ticket jacket. The Clause-9 of the conditions of the contract provides that:

            “ Carrier undertakes to use its best efforts to

  carry   the  passenger  and  baggage     with

  reasonable dispatch.   Times  shown in time

  tables or elsewhere are not guaranteed and

  form no part of this contract.    Carrier may

  without notice substitute alternate  carriers

  or  aircraft and may alter or omit   stopping

  places  shown   on   the   ticket  in   case of

  necessity.  Schedules are subject to change

  without    notice.   Carrier   assumes      no

  responsibility for making Connections”

Thus it is submitted that due to this delay, the complainant missed the connecting flight. The complainants purchased fresh tickets for their travel from New Delhi by Air France and not by next available flight of Air India. Since the complainants did not choose to travel by the next available flight of Air India, they became disentitled to avail the facilities including hotel accommodation and subsequent travel at Air India’s cost. Hence the claim of reimbursement of hotel accommodation expenses etc, claimed is not sustainable in law. There is no legal liability or negligence or deficiency in service on the part of the OP.

             It may be noted that the complainants have produced air tickets Annexures-A, B and C, Boarding cards, Annexures-D, E and F to show that the return tickets from Bangalore to Lake City were taken. In view of the same, the question of complainants taking fresh air tickets of OP1 does not arise. When the officials of OP1 failed to provide the required help to the complainants for boarding the next immediate flight available to Los Angeles, the complainant No.1 had no other go except to choose some other alternative flight and the next earliest available flight was of Air France on 03.01.2007; hence Air France tickets were taken and travelled to Los Angeles. Because of the indifferent attitude of the officials of OP1 in not extending the required assistance to board next available flight of OP1, the complainants were made to stay back at New Delhi for two nights on first and 2^nd Jaunary-2007 by staying in a hotel Tajmahal. We are unable to accept the defence that the complainants did not chose travel by the next available flight of OP1 on which space is available. When the complainants were holding return tickets of OP1; there was no reason for them in refusing to travel by the next available flight of OP1. Article 10.2, 10.2.1, 10.2.2 & 10.2.3 the General Conditions of Carriage-Passenger and Baggage provides that if the passenger miss a connecting flight, the carrier shall carry the passenger on another of its scheduled passenger services on which space is available or reroute the passenger to the destination indicated on the ticket by its own scheduled services or the schedule services of another carrier or make a refund in accordance with provisions of Article-11. OP1 has failed to comply these articles. As per Annexure-9 the complainant NO.1 has addressed a letter dt.15.01.2007 to OP1 narrating in detail as to how the officials of the OP1 failed to arrange the travel of the complainants by next available flights and refused to do anything to help the complainants and sought for refund of the amount of the return journey tickets. In spite of such letter OP has not responded by refunding the amount of return journey tickets. Under these circumstances, we are of the view that the act of OP1 in not making the complainants boarding the next immediate flight available to Los Angeles from New Delhi and refund the amount of the return journey tickets and provide the accommodation for the stay of the complainants at New Delhi amounts to deficiency in service.

12.   The allegation against the OP2 is that the flight reached Lucknow at 12.a.m. mid night, there was no staff to help the complainants to carry the bags. The complainant No.2 was carrying the complainant No.3 they were asked to carry all 6 checked in bags and 3 carry on bags. In the bus the bags were piled top of each other and the complainants were made to sit next to the bags. When the bus started moving the bags started shaking and started falling on the complainants. One hard metal bag was about to fall on the baby, complainant No.3. The complainant No.2 reacted in time and moved the baby away and in result, she got hit by the bag which caused severe pain and blood clots on her lap/thighs. The complainants have checked into hotel Piccadilly arranged by Air Sahara in Lucknow at around 2 a.m. on 01.01.2007.

            It may be noted that due to bad weather at New Delhi the flight was rerouted through Lucknow; for that OP2 cannot blamed. The complainants were provided a suitable accommodation in hotel Piccadilly at Lucknow and on the next day they were made to fly back to Delhi on improvement of weather condition. All the airlines are required to observe and strictly follow the mandatory government rules regulations in view of the security and safety of all the passengers. OP had made arrangements including accommodation for the complainants at Lucknow, they have extended the best possible services to the complainants under the then prevailing circumstances. There is no negligence on the part of the OP2. We are unable to accept the contention of the complainants that no staff was available at Airport Lucknow to help these complainants to carry the luggage to the bus which had taken them to the hotel. There is no any deficiency in service on the part of the Op2.   

   13.    The complainants have produced Air France tickets marked as Annexures J.K and L, receipt Annexure-M to show that total amount of Rs.1,72,755/- is paid for the tickets. Annexute-N is the Hotel bill of Tajmahal hotel for Rs.22,569/- for the accommodation of the complainants at New Delhi. OP1 is liable to reimburse the hotel bill and the Air fare of the return tickets of Air France purchased by the complainants.

            The complainants have claimed the loss of salary of complainant No.1 and 2 to a total extent of R.3,12,000/- on the grounds that they fell sick at New Delhi and the entire situation led to loss of work/salary for a week. As per Article 16.3.5 of the General Conditions of Carriage-Passenger and Baggage the carrier’s liability shall not exceed the amount of proven damages. Carrier shall furthermore not be liable for indirect or consequential damage. In view of the same, the complainants are not entitled for loss of salary claimed.

        On account of deficiency in service on the part of the OP1 in not making alternative arrangement for boarding the immediate flight available to Los Angeles the complainants were made to suffer mentally and physically with the small kid of 4 months (complainant No.3). They were forced to stay back at New Delhi for 2 nights. The compensation claimed at Rs.10,00,000/- by the complainants is exaggerated claim. Taking into consideration of all the facts and circumstance it would meet ends of justice by awarding compensation of Rs.50,000/- towards mental agony and hardship suffered by the complainants. Under these circumstance, the complainants are entitled for an amount of Rs.1,27,755/- towards Air Fare of Air France, tickets Rs.22,569/- paid towards hotel Tajmahal bill and R.50,000/- compensation towards physical, mental and emotional stress and agony, in all Rs.2,00,324/-. Accordingly we proceed to pass the following:         

Order pronounced in open Forum (vide separate order)

O R D E R

The complaint filed by the complainants is allowed in part.

OP-1 is directed to pay an amount of Rs.2,00,324/- with interest at 12% from the date of complaint till the date of realization and pay litigation cost of Rs.10,000/- to the complainants.

The complaint against OP2 stands dismissed.

This order is to be complied within 4 weeks from the date of communication. 

Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 31^st  day of December-2011.)

MEMBER                                                         PRESIDENT

Cs.

Cs.

Order pronounced in open Forum

O R D E R

The complaint filed by the complainants is allowed in part.

OP-1 is directed to pay an amount of Rs.2,00,324/- with interest at 12% from the date of complaint till the date of realization and pay litigation cost of Rs.10,000/- to the complainants.

The complaint against OP2 stands dismissed.

This order is to be complied within 4 weeks from the date of communication. 

Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 31^st day of December– 2011.)

MEMBER                                                         PRESIDENT

Cs.