PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Parties for not providing adequate facilities and causing physical and mental harassment while traveling from London to Mumbai and particularly at Delhi Airport for loss of baggage and non redressal of their grievances by the Opposite Parties.
2) The facts of this complaint are as follows –
The Complainants are the senior citizens and Opposite Party No.1 is the Airlines Company. Complainants had booked the tickets to travel from New York to Mumbai on 26/05/2005. The Complainants having valid travelling ticket of the Opposite Parties and were returning from New York to Mumbai on board Flight AI 112 on 26/07/08. This flight was scheduled to arrive at Delhi at about 23-37 hrs on 27/07/08. All flight to and from Mumbai were cancelled and were diverted to various other destinations Air ports due to torrent at Mumbai city. It is the contention of the Complainants that no facilities whatsoever were provided to them and other passengers travelling on the said flight from New York to Mumbai. a) The passengers including the Complainants were not provided hotel accommodation. b) No beverages, snacks were supplied. After protest from the passengers, some fruits and vegetables were provided in the whole day. c) Treatment meted out to the Complainants was atrocious. d) The flight was rescheduled every now and then on that day. e) The Complainants were not provided with the facilities as per the Civil Aviation Rules & Regulations. This was brought to the notice of the Opposite Parties vide letter dtd.28/07/08 jointly written by the passengers.
3) On 28/07/05 at 16.30 Complainants were informed to have their baggages screened and deposit the same at A-I Counter. Accordingly the baggages were checked and striped with white AI Stripe till 7 p.m. they are not informed about their departure.
4) They were directed to locate their baggages from the whole lot lying. Complainants could locate 3 baggages but not one. Baggages were pilfered and expensive articles were missing.
5) Complainant No.2 denied boarding on the flight on the ground that the flight was full and there was no accommodation available in the craft. She was directed to board another next flight. After tremendous protest by the Complainants they were accommodated in the same craft. Thus they were humiliated and hence they are entitled to compensation.
6) After landing at Mumbai they have to file the claim of their missing baggage so they were waiting till 2.00 a.m. for giving the details of the missing bag. On 03/08/05 Opposite Party informed the Complainant that the 4th bag missing was found (arrived). The Complainant collected the bags on 04/08/2005 but the some articles were missing from the baggage.
7) The Complainants further stated that, inspite of written complaint by all the passengers including the Complainants no action was taken in the matter by the Opposite Parties. The Complainants again wrote letters dtd.30/07/08, 08/08/05, 06/10/05, 11/01/06, 31/10/06, 15/11/06, 07/12/06, 26/02/07 to the Opposite Parties and the Civil Aviation Minister for taking suitable action. Upon receipt of the said letters Opposite Party No.2 replied to the Complainants expressing regrets on the entire issue & further assured them about the appropriate corrective action but nothing was done in this respect by the Opposite Parties.
8) The Complainants have finally prayed that a total sum of Rs.6 Lac and interest on the said sum be paid to the Complainants. The Complainants have annexed the claim-sheet in which it was classified that Rs.23,000/- be paid fro the loss of baggage, Rs.3,00,000/- for mental agony and trauma suffered by the Complainants & Rs.77,000/- for inconvenience, hardships caused to the Complainants and Rs.1,00,000/- as interest and cost.
9) The Complainants have attached the xerox copies and some typed copies of the following documents alongwith the complaint.
a) The itinerary issued by Travel Agency, dtd.25/05/05.
b) Letter dtd.28/07/08 by all passengers and addressed to Opposite Party No.2.
c) Letter dtd.30/07/05 by the Complainant to Opposite Party.
d) Letter dtd.08/08/05 by the Complainant to Opposite Party.
e) Letter dtd.06/10/05 by the Complainant to Opposite Party.
f) Letters addressed by the Complainants to Prafulla Patel, Civil Aviation Minister, etc. dtd.11/09/05, 31/10/06 and 15/11/06.
g) Letter dtd.18/11/06 by Opposite Party to Complainant.
h)Letter dtd.07/12/06 by the Complainant to Opposite Party No.2.
i)Letter dtd.26/02/07 addressed to Nil by with no signature of the Complainants.
10 The Complainants also filed a delay condonation application on 19/11/07 as there was a delay of 107 days in filing the complaint before this Forum. Notices were served. This delay condonation application has been allowed by this Forum vide its order dtd.22/01/08 after hearing the arguments of both the parties.
11) The Complainant thereafter filed an amendment application for the amending the name of the Opposite Party No.1 as National Aviation Company of India Ltd. instead of Air India Ltd. The said amendment application was also allowed by this Forum. On 11/07/08 necessary amendment is carried out in the complaint as per the order of this Forum.
12) Opposite Parties filed written statement jointly on 22/01/09 wherein they have denied almost all allegations mentioned in the complaint and specifically stated that they took necessary steps to avoid loss, damage & delay and if any loss, delay of whatsoever nature is caused to any passenger, then it would have been caused due to the reasons beyond their control and in such event, weather, or Air Traffic Control delays, they are exempted from the liabilities under the provisions of warsue, conventions article 20, and mentrial conventions article 19, the Airlines are exempted from liability. Therefore, the Opposite Parties cannot be held deficient in their services in the instant case.
13) The Opposite Parties admitted that the Complainants have booked their tickets to travel New York during period 26th May, 2005 and returned from New York on 26th July, 2005 to Mumbai during heavy rain and flood occurred on 26/07/05. The Opposite Parties further submitted that, from record produced by the Complainant it appears that Complainant reached Mumbai from Delhi on 27/07/05. During the flood in Mumbai on 26/07/05. The whole city was under water. Government had declared holidays from 26/07/05 to 01/08/05. During this period the Complainants travelled from New York to Mumbai this flight was diverted to Delhi and from Delhi passengers were sent to their respective destinations by connecting flights. During this situation, as per the Complainants, their was missing. However, it was collected by the Complainants on 04/08/05 after receiving the information from the Opposite Parties.
14) The Opposite Parties further submitted that, if any delay or loss occasioned to his baggage, it happened in the circumstances when Air lines are exempted from the liability. Secondly Complainants have not produced on record to substantiate the claim of delay or loss of articles from his baggage. Opposite Parties stated that they are not liable to pay any compensation. The Opposite Parties stated that the Complainants had produced a letter dtd.08/08/08 without proof of service on the Opposite Party where he has stated some loss of articles from the baggage. The amount of articles lost claimed in this letter is much less than the amount claimed in the complaint. Opposite Parties further submitted that the complaint is baseless, false and without documentary evidence.
15) The Opposite Parties clarified regarding the letter dtd.28/07/05 mentioned by the Complainant in his complaint that there is no proof produced by the Complainants to show that this letter had been served on the Opposite Parties. The Opposite Parties have stated that the Complainants traveled by flight AI 112A from Delhi to Mumbai on 28/07/05 but deny the other allegations made against the Opposite Parties. They further denied that articles were missing from the Complainants baggage. The Opposite Parties also denied the service of the letter dtd.30/07/05, 08/08/06 and 06/10/05 upon them. However, they admitted the receipt of the letter dtd.11/09/06 by the Minister of Civil Aviation Office. It was further submitted that the claim made by the Complainant in this letter dtd.11/09/06 remained unproved and was made without any documentary proof. Opposite Parties also explained that the alleged letter dtd.26/02/07 was not addressed to the Opposite Parties and was also not received by them. Finally the Opposite Parties stated that the complaint is false and baseless. Allegations of deficiency in service have not been proved by the Complainant and hence the same be dismissed with cost.
16) The Opposite Parties attached the xerox copy of Montreal Convention 1999 Chapter XXI. The Complainants filed affidavit of evidence and Opposite Parties filed written argument wherein the Opposite Parties reiterated the facts mentioned in their written statement.
17) We heard the Ld.Advocates of both the parties, perused the documents produced by both the parties and we came to the conclusion as follows.
18) The Complainants travelled by Air flights of the Opposite Parties from Mumbai to New York and back. The return journey was on 26/07/05 from New York to Mumbai when the consumer dispute cropped up. On 26/07/05 the Air India flight in which the Complainants were supposed to travel was schedule to depart at 19 hours but actually it took off at 21.30 hrs. At this point of time there was a torrent/heavy rain at Mumbai and surrounding areas and the whole city roads were under water. Due to the said situation the flights to Mumbai were diverted to Delhi and other places for safety. Accordingly the flight of the Complainants AI 112 was also diverted to Delhi. Therefore, instead of arriving at Mumbai this flight arrived at Delhi in the early hours of 28/07/05.
19) The Opposite Parties were aware of the situation and atmosphere at Mumbai and hence they had taken a decision to divert the flight of the Complainants to Delhi to avoid any inconvenience to the passengers and for the overall safety of the passengers as the whole life in Mumbai was paralyzed due to torrential rain. It is also the fact that nobody knew when the situation would be normal at Mumbai. At the same time the life in Delhi was normal as compared to Mumbai. Therefore, it was the responsibility of the Opposite Party Company to make necessary arrangement of their passengers/customers at Delhi in respect of their accommodation and their basic necessities such as food, drinking water, tea, etc.
20) The Boarding passes allotted to the Complainants show that they travelled by the Air India flight AI 112 A on 28/07/05. The timing on the boarding pass is 10.40. We suppose that it is p.m., because the original timing of boarding is mentioned as 15.45 hrs. Therefore, the Complainants might have arrived at Mumbai after the midnight of 28/07/05 and 29/07/05. Therefore, the Complainants were stranded at Delhi Air Port from early hours of 28/07/05 to 28/07/05 at 10.40 p.m. (Boarding time) at Delhi. During this stay of about 22 hours, the passengers were given one slice of a cake only. The Opposite Parties in their written statement in para 6(e) specifically stated that “the airlines staff has taken reasonable and necessary steps to avoid any unnecessary inconvenience being caused to passengers, whose flights were diverted to New Delhi due to heavy rain & flood in Mumbai. However, due to heavy rush of Air traffic at IGI Air port some inconvenience may have caused to some passengers which happened due to situation beyond their control. For such act, Warswa Conventions & Montreal Convention have exempted from liability of Air Lines.”
21) In this respect the Opposite Parties have not mentioned as to what specific steps the staff had taken during the awkward period of 22 hours at Delhi Air Port. Under these circumstances the Opposite Parties should have made arrangement of food, tea & another necessities of the life at Delhi Air port. The Montreal Convention exempts the Airline when the situation is beyond their control. In this case the situation is out of control at Mumbai and not at Delhi and Opposite Parties had to take steps at Delhi. The overall situation at Delhi was normal. The passengers were brought by the Opposite Parties at Delhi for their safety. Therefore, it was also their responsibility to at least to provide them with basic necessities like food and proper rest. Unfortunately it appears that the Opposite Parties remained indifferent towards the passengers in this respect. Even their baggages were not attended properly. The Opposite Parties contention that the Complainants do not have documentary proof to substantiate their allegations but under these circumstances, deficiency, like not providing the food, tea, proper accommodation, not guarding the baggages of the passenger, can be ascertained from the circumstantial evidence and the Opposite Parties also did not mention about the facilities provided to these passengers during the period of 21 to 22 hrs. of stay at Delhi Air Port. Only making a vague statement that, the staff had taken necessary steps to avoid inconvenience is not sufficient for the Opposite Parties to absolve of their services to their customer.
22) At the same time the Complainants also made some wrong statements in the complaint i.e. in para 6 of the complaint, the Complainants stated that the mental agony and trauma resumed on 25th July, 2005 at 19 hrs. when the flight was scheduled to depart from New York, there was no such announcement of the delay in departure of the said flight, which ultimately took off at 21.40 hrs. However, in para 4 the Complainants averred that the return journey was on 26/07/2005. From the whole complaint it appears that the flight was scheduled to depart at 19.10 hrs. on 26/07/05 but actually departed at 21.30 hrs. and not on 25/07/05 as averred by the Complainant. Again the Complainant has not mentioned the timing at which the flight landed at Delhi and they were off loaded from the flight. Even the Complainants are silent on the point as to when they started the return journey from Delhi to Mumbai. The Complainants have mentioned the date 27/07/05 on which they landed in Mumbai Air Port (Para 10 of the complaint) but the boarding pass of flight AI 112 A shows the date 28/07/05. As per the letter dtd.11/09/06 which were admittedly sent to the Civil Aviation Minister and replied by the Opposite Party, the Complainants had stated that they reached Mumbai Air Port at 11.00 p.m. and they were made to wait till 3.00 a.m. till next day. However, in the letter dtd.28/07/5 it is mentioned that they filed the claim at Mumbai at 11.00 p.m. if they filed the claim of missing 4th baggage at 11.00 p.m. There is no question of making them wait till 3.00 p.m. in next day.
23) As per the Complainants only the 4th baggage was not traced by them at Delhi and they gave the complaint in this respect at Mumbai Air Port on 28/07/05. on 3rd August, 2005 the Opposite Parties informed the Complainants that the baggage had arrived at Mumbai and Complainants should collect the same. Accordingly the Complainants collected the baggage on 4/8/05 (para 10 of the complaint). In the letters addressed to the Opposite Parties the Complainant had averred that he collected the 4th baggage on 06/08/05. The Complainants have not even described the articles which were stolen by the loaders as alleged by the Complainants in the complaint. The Complainants has also alleged in the complaint that the letters dtd.28/07/05, 30/07/05 and 08/08/05 were received by the Opposite Parties but there is no acknowledgement or receipt proof and the Opposite Parties have vehemently denied the receipt of these letters from the Complainants. Same is the position in respect of letter dated 06/10/05. The Complainants are making a base statement that this letter was duly received & acknowledged by the Opposite Parties but they have not produced the acknowledgement or other proof in this respect to show that the Opposite Parties have received these letters.
24) From the averments made by the Complainants and the reply of the Opposite Parties it appears that the 4th baggage remained behind and Complainants could not get it on 28/07/05 when they arrived at Mumbai. It is the contention of the Complainants that they received the 4th baggage on 04/08/06 / 06/08/06. At this point of time they should have made a complaint regarding the stolen articles from the baggage in the prescribed form of the Opposite Parties. But only in the letter dtd.08/08/2005 the Complainants have mentioned about the description of the articles stolen. Even the Opposite Parties have denied that they had received this letter and the Complainants had not proved that this letter was received by the Opposite Parties. Therefore, the allegation regarding the theft of the articles from the 4th baggage of the Complainants is not substantiated by any cognate evidence and only oral averment in this respect is not sufficient to prove the theft.
25) Inspite of all these shortcomings, we are of the opinion that, the Opposite Parties did not take care of their customers at Delhi. The flight schedule to depart at 19.00 hrs. on 26/07/05, actually took off at 21.30 hrs. i.e. it was late by 2 hrs. and the trouble of the Complainants started from this point of time. During their stay at Delhi Airport the Complainants were not provided with food, tea, etc. which are the essential necessities of the life. The baggages were also not looked after properly by the staff of Opposite Parties at Delhi. The treatment given by the staff of the Opposite Parties was not cordial. The Complainants were made to search their baggages several times. All passengers were told that they have to pay for the rest room facility at Air port. The 4th baggage of Complainants was not traced at Delhi Air Port. Because of the mismanagement of the Opposite Parties, the Complainants could not get his one baggage on 28/07/05 but received it on 04/08/05. All these things definitely caused mental agony and trauma to the old passengers like Complainants who were above 70 years of Age. The Opposite Parties are the well organized institute and they should have handled the situation in a professional manner causing least mental harassment to their customers by establishing a proper coordination between them and the Opposite Parties because the torrential rainy situation was not at Delhi Air Port.
All the above said drawbacks and lack of earnestness to help the passengers stranded at Delhi Air Port certainly establishes deficiency in the part of Opposite Parties. Therefore, we hold the Opposite Parties liable for deficiency in service as stated above and the Complainants deserve to be compensated for their mental trauma and agony sustained by them during their stay at Delhi Air Port. However, the prayers made by the Complainants are exorbitant. Therefore, we pass the following order -
O R D E R
i. Complaint No.291/2007 is partly allowed.
ii The Opposite Party Nos.1 & 2 are directed to pay jointly and/or severally Rs.25,000/- (Rs.Twenty Five Thousand
Only) to the Complainants for mental trauma and agony sustained by them due to deficiency in service by
Opposite Parties.
iii The Opposite Party Nos.1 & 2 are also directed to pay jointly and/or severally Rs.5,000/- (Rs.Five Thousand
Only) to the Complainants towards the cost of this complaint.
iv Opposite Party Nos.1 & 2 are also directed to comply with the above said order within 30 days from the date of
receipt of this order.
v Certified copies of this order be furnished to the parties.
