Date of Filing : 07.03.2014
Date of Order : 12.04.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.120/2014
TUESDAY THIS 12TH DAY OF APRIL 2016
Rohit Gupta,
S/o. Suresh Kumar Gupta,
No.311, Pantheon Road,
Fountain Plaza,
V Floor, Egmore,
Chennai 600 008. ..Complainant
..Vs..
Air India Limited
Rep. by its Manager,
No.19, Rukmini Lakshmipathi Salai,
(Marshalls Road),
Egmore, Chennai 600 008. ..Opposite party.
For the Complainant : M/s. K. Harishankar & other
For the Opposite party : M/s. N.G.R.Prasan & another
Complaint under section 12 of the Consumer Protection Act 1986. Complaint is filed seeking direction against the opposite party to pay a sum of Rs.48,456/- and also to pay a sum of Rs.2,00,000/- due to gross negligent act of the opposite party.
ORDER
THIRU. T.PAUL RAJASEKARAN :: MEMBER-II
1.The case of the complainant is briefly as follows:
The complainant submit that he booked an air ticket on 20.8.2013 for four persons to travel by Air India flight No.AI 9814 schedule to departure Dharmasala on 9.9.2013 at 12 noon to Delhi in Economic class by paying a consideration of Rs.18,131/-. He is also stated the complainant received sms on 9.9.2013 at 8.08 a.m. from the opposite party stating that the flight was delayed by 2 hours and the flight would depart at 02.10 pm (14.10 hours) and the opposite part’s Mumbai office also contacted the complainant over phone and informed about the delay. The complainant further states that he reached the Dharmasala Air port at 12.15 pm with his family to board the flight. At the Airport the opposite party’s staff informed to the complainant due to pay load restrictions the flight may fly the route only with minimum load and it is stated by the complainant the opposite party’s staff advised the passenger those who intend to get the refund and book alternative flight they can book on their whims and fancies. Accordingly the complainant took his own decision and by paying 48456/-, he travelled by Spicejet flight to Delhi. Accordingly the complainant sent a legal notice dated 3.10.2013 to the opposite party calling upon them to reimburse the total amount paid to Spicejet for Rs.48,456/-. The opposite party received the notice and sent a reply dated 29.1.2014 denying the claim. As such the act of the opposite party is amount to deficiency in service which caused mental agony and hardship to the complainant. As such the complainant sought for claims of Rs.48,456/- towards booking flight tickets and also
to pay a sum of Rs.2,00,000/- due to the gross negligent act of the opposite party. Hence the complaint.
Written version opposite party is as follows:
2. The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. It is true that the complainant had booked four tickets on 2.8.2013 for their travel from Dharmasala to Delhi by flight No.A1 9814 with the schedule time of departure at 12 noon on 9.9.2013. At 8.08 am on the day of departure, he got an SMS from the opposite party informing him that the flight would be delayed by two hours due to technical snag and the estimated time of Departure would be around 2.10. p.m. The opposite party submits that on account of a technical snag, the said flight was delayed at Delhi on its incoming flight to Dharmasala and therefore the delay of two hours was notified to passengers of flight No.AI 9814 of 9.9.2013. Subsequently the Aircraft Engineers of the opposite party rectified the snag but the nature of snag was such that the aircraft could not carry the same amount of load which it was expected to while operating in stations with longer runways. The technical snag was something which was totally unexpected and it was beyond their control. Hence there is no deficiency of service on the part of the opposite party. Therefore the opposite party pleaded this complaint is liable to be dismissed.
3. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A8 were marked on the side of the complainant. Proof affidavit of Opposite party filed and Ex.B1 to Ex.B8 were marked on the side of the opposite party.
4. The points that arise for consideration are as follows:-
1) Whether there is any deficiency in service on the part of the opposite party?
- Whether the complainant is entitled to the reliefs sought for?.
5. POINTS 1 & 2 :
Perused the complaint filed by the complainant and his proof affidavit and documents Ex.A1 to Ex.A8 were marked on the side of the complainant. Written version and proof affidavit filed by the opposite party and Ex.B1 to Ex.B8 were marked on the side of the opposite party and also considered the both side arguments.
6. The complainant booked an air ticket on 20.8.2013 for four persons to travel by Air India flight No.AI 9814 schedule to departure Dharmasala on 9.9.2013 at 12 noon to Delhi in Economic class under PNR No.JD XWE and ZELWT by paying a consideration of Rs.18,131/- (Ex.A3). It is stated the complainant received sms on 9.9.2013 at 8.08 a.m. stating the flight was delayed by 2 hours and the flight would depart at 02.10 pm (14.10 hours) and the opposite party’s Mumbai office also contacted the complainant over phone and informed about the delay. The complainant further states that he reached the Dharmasala Air port at 12.50 pm. With his family to board the flight at the Air port the opposite party’s staff informed to the complainant due to pay load restrictions the flight may fly the route only with minimum load and it is stated by the complainant the opposite party’s staff advised the passenger those who intend to get the refund and book alternative flight they can book on their whims and fancies. Accordingly the complainant took his own decision and by paying Rs.48,468/- he travelled by Spice jet flight to Delhi and it is stated that the refund was made with an endorsement “cancel due to delay of over two hours” instead of not giving proper reason for cancellation which was insisted by the complainant and was refused to do so by the opposite parties by venture of cancellation. The complainant states it is the deficiency of service rendered by the opposite party and it is willful disdain on part of opposite party to the consumer. The complainant calling up the opposite party to reimburse Rs.48,456/- where he was forced to pay for alternative journey in Spice Jet instead of Air India. The complainant contented that he left Dharmasala at 12.50 p.m and reached Delhi at 2.30 p.m by submitting all the four boarding passes under Ex.A6 and the service of proof of travel in Spice Jet by paying Rs.48,456/- under Ex.A7. The complainant felt that he had been deprived of getting compensation on the basis of the forcible payment of price to travel in the alternative flight he had sent a legal notice on 3.10.2013 seeking the opposite party to refund the ticket price i.e. Rs.48,456/- paid to Spice Jet and suffered a loss which was quantified as Rs.2,00,000/ on the negligent act of the opposite party. Hence the complainant filed the complaint in this forum on 7.3.2014.
7. The opposite party having received the complainant’s legal notice they had replied to the complainant they had taken adequate measure in safeguarding the interest of the consumer and they denied the averments raised by the complainant in their legal reply by their learned counsel dated 29.1.2014. The opposite party had not disputed the consideration received by them through e.ticket for four persons for the journey from Dharmasala to Delhi Ex.A8. But the complainant having received a report there was technical snag of the incoming flight of AI 983 has faced a technical snag resulting in the delay of two hours which was duly informed to the customer on 9.9.2013 at 8.08 a.m. and it was telephonically informed to the complainant from their Mumbai office which was an admitted fact, accepted and narrated by the complainant in para-2 of Ex.A1. Moreover the opposite party had informed the complainant that the 12’ O clock flight will departure by 14.10 hours and due to pay load restrictions there might be a possibility of detaining some passengers and they had offered those who intend to have refund they can avail full refund and make their own arrangements by other flight to their booked destination. It is stated that the opposite party never denied of boarding of the passenger and they had acted upon the regulation of the aviation, Air India general condition (Ex.B1) and due to technical snag the flight left Dharmasala at 14.45 hours on 9.9.2013 to Delhi. The technical snag was beyond the control of the said Air craft operator it is contended that opposite party had informed the complainant in time and the complainant also withdrew his air ticket cost full payment and the complainant he himself had taken a decision to travel in Spice Jet and the opposite party never gave any direction and if the passenger could have waited and could have travelled on the same flight which had left Dharmasala at 14.45 hours. Hence there is no dereliction of the duty of Air India and the delay arised due to technical snag and not by the deficiency for service of the opposite parties.
8. Pursuant upon both the parties to the dispute on their written version, proof affidavit, documents and oral arguments, we find the normal journey hours from Dharmasala is 1.55 hours which was shown in the ticket of the complainant the schedule of the Air craft is 12 noon and arrival at Delhi 1.55 hours under Ex.A2 to Ex.A4. It is an admitted fact by the complainant that the flight which the complainant has to board by 12’o clock, wherein it is admitted by the complainant himself that he reached Dharmasala air port at 12.15 p.m. The complainant himself admitted he was given information about the delay of the flight by two hours, at 8.08 a.m and the opposite party’s telephonic information from their Mumbai office, was also admitted by the complainant. Based on the Air India Rules if there is any technical snag or metrological defects the delay is the complainant cannot sue against the opposite party whereby the opposite party had taken precaution in informing the complainant about the delay well in advance. In the mean time, the opposite party also submitted the copy of the mail of PAX disposal of A1 9814 the delay was due to technical snag under Ex.B2 and Ex.B3. The opposite party had submitted the copy of Ground handling Department log book of 7.8.2014 which confirms the delay was “due to C/F snag A/C VT ARSA clear by maintenance under NEL and there is a load penalty at Dharmasala Station 18 pax disposal.” (Ex.B2). The opposite party also submitted load sheet which mentions this air craft had been loaded in accordance with the loading instructions including the deviation recorded the load has been secured in accordance with the Companies Regulation (Ex.B5).
9. As per article 3.1 ticket prima facie evidence of contract was proved as per the passenger named the ticket and the complainant came to the Air port and visited the opposite party and acted on its own decision and having known about the delay in flights departure, he reached the Air port only by 8.15 a.m. and took his own decision on travelling by Spice Jet after cancelling and got the refund from Air India and as per condition No.10.2 “if due circumstances beyond its control carrier cancels or delays a flight, is unable to provide previously confirmed space fails to stop at passengers staff over or destination point or causes the passenger to miss the connection flight on which the passengers holds a reservation, Carrier shall either” 10.2.1 Carry the passenger on another of its scheduled passenger service on which space is available or” 10.2.2 Reroute the passenger to the destination indicated on the ticket or applicable portion thereof by its own scheduled services or the scheduled services of another carrier, or by means of surface transportation, if the sum of the fare, excess baggage charge and any applicable service charge for the revised routing is higher than the refund value of the ticket or applicable portion thereof, carrier shall require no additional fare or charge from the passenger, and shall refund the difference if the fare and charges for the revised routing are lower or 10.2.3 “Makes a refund in accordance with the provision of Article 11 and shall be and no further liability to the passenger. Article 11.1 clearly states that “On failure by carrier to provide carriage in accordance with the contract of carriage or where the passenger requests a voluntary change of his or her arrangements, refund for an unused ticket or position thereof shall be made by Carrier in accordance with this Article and with Carrier’s Regulations. “
10. Thus the opposite party was kind enough to execute the loss governed by Air India Regulation, are fully adhered too and on the safety angle thereby have taken precautionary measure in making good of the technical snag and due attendance was given to reschedule the flight to fly at 14.45 hours.
11. The opposite party had relying upon the following judgments as follows:
I (1992) CPJ 5 (NC)
P. GOPINATHAN
..Vs..
THE CHAIRMAN, AIR INDIA
It is held that
Consumer Protection Act 1986 – Section 14 (1) (d) – “Air lines” – Complainant purchased a Air ticket for U.A.E. – At the airport he did not find his name on the list of passengers travelling to Dubai though he possessed OK ticket – Complainant left for another flight – Alleges that he lost a job because of late arrival in Dubai – Claimed compensation – Whether the complainant is entitled to compensation? – (No).
The complainant left for another flight claimed compensation which was dismissed stating the reason the complainant should have taken adequate caution in making the travel for important assignment thereby it is stated in para-6 of the order “ It often happens that flights of airlines are delayed due to various reasons as have been time and again stated by them. The complainant should have made enough allowance for such contingency”.
In this case the complainant stating that he has got urgent meeting and also to make the children to go school thereby he took the cost list flight Spice Jet on his accord which will not be accepted by this forum as a deficiency of service.
III (1997) CPJ 119 (NC)
INDIAN AIRLINES LTD
..VS..
DR. V.J. PHILIP
Held that
“ Negligent of air lines delay in flight due to bad weather it is clearly specified in the Judgment that Air lines would not be responsible bad weather and poor visibility and consequent delay of flight it is found that there is no negligent that could attributed the cause of action cited by the complainant and thereby mentioning the Indian Air line non International Carrier Regulation 1999 caluse-3 of the regulation reads as below:
“The Corporation reserves to itself the right without assigning any reason, to cancel or delay the commencement or continuance of the flight or to alter the stopping place or places or to deviate from the route of the journey or to change the type of aircraft in use without thereby incurring any liability in damages or otherwise to the passengers or any other person on any ground whatsoever”.
Clause -5 of the Regulations further reads as follows:
“The corporation is not liable for damage occasioned by delay in the carriage by air of passengers or baggage. Similar conditions are also mentioned in the ticket and it will form part of the contract between the parties. “
12. In this case it is very clear of Air authority the discretion to explain the reason to the passenger or not to deliver the reason why there was a delay or the reason behind of making the alternative flight to fly therein.
I (2015) CPJ 414 (N)C
AIR DECCAN
..VS..
T.P.S. PHOOLKA & ORS.
Held that
Under COPRA Sec.2 (1) (g) 14 (1) (d) 21 (b) Air lines – Cancellation of flight – Great inconvenience and harassment - Deficiency in Service
“ It was ordered the responsibility of Air Carrier will be restricted to transporting the passenger only to the destination booked. The airline will not be liable / able to provide alternative transport, accommodation or refreshment at any point in time and the passengers will have to make their own arrangements.” Due to flight disruption of bad weather or technical snag “
Based on the all these citations it is proved that the opposite party was kind enough informing the complainant about the technical snag and safety of the passenger in mind well in advance and offered the choice of getting full refund or waiting to board into the same flight which was supposed to scheduled by 2.10 p.m. Whereby the said flight was taken off only by 14.45 hours. It is observed the complainant himself had taken a decision to fly on the other flight by neither the directives of opposite party nor by waiting to travel the flight what he had booked / delayed. Considering the facts and circumstances, it is found that there is no negligence on the part of Air carrier and there is no need for the complainant to get refund because he had already received full refund from the opposite party on cancellation. We are of the considered view that the negligence or deficiency of opposite party are not proved and hence the complaint is stands dismissed.
In the result, the complaint is dismissed. No cost.
Dictated directly by the Member-II to the Assistant, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the 12th day of April 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents :
Ex.A1- 3.10.2013 - Copy of Notice sent to Air India.
Ex.A2- - - Copy of Ack. Card.
Ex.A3- 2.8.2013 - Copy of email communication.
Ex.A4- 2.8.2013 - Copy of email communication.
Ex.A5- 2.8.2013 - Copy of Electronic ticket.
Ex.A6- 9.9.2013 - Copy of Spice jet Boarding card.
Ex.A7- 9.9.2013 - Copy of Spice jet ticket.
Ex.A8- 5.2.2014 - Copy of reply notice sent by Air India.
Opposite party’s side documents:
Ex.B1- - - Copy of General conditions of carriage for passengers and
Baggage of Air India Limited.
Ex.B2- 8.9.2013 - Copy of email sent by the operations controller of the
Opposite party.
Ex.B3- 9.9.2013 - Copy of email of the operations controller of opposite party.
Ex.B4- 9.9.2013 - Copy of log book of the Ground Handling Department of the
Opposite party Airlines at Dharmasala.
Ex.B5- 9.9.2013 - Copy of load sheet of AI 9813 Delhi to Dharmasala.
Ex.B6- 9.9.2013 - Copy of Passenger list of AI 9814.
Ex.B7- 9.9.2013 - Copy of load sheet of AI 9814 Dharmasala to Delhi.
Ex.B8- - - Copy of Complainant’s ticket image.
MEMBER-I MEMBER-II PRESIDENT.
