BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH ======== Complt. Case No: 1499 of 2009 Date of Institution: 17.12.2009 Date of Decision : 24.09.2010 1] Smt.Arunima Sud W/o Sh.N.K.Sud, R/o H.No.233, Sector 16, Chandigarh. 2] Sh.N.K.Sud son of Sh.D.D.Sud, R/o H.No.233, Sector 16, Chandigarh. ……Complainants V E R S U S 1] Air India through its Chairman & Managing Director, Air India Ltd., Regd. Office Air India Building, Nariman Point, Mumbai 400021. 2] Lufthansa Airways through its Managing Director (India Operations)/Operational Head (India), Lufthansa Airways, 12th Floor, DLF Building No.10, Tower B, DLF City, Phase II, Gurgaon, Haryana 122002. 3] FCm Travel Solutions (I) Pvt. Ltd., SCO 51-52, Sector 8-C, Chandigarh. .…..Opposite Parties CORAM: SH.LAKSHMAN SHARMA PRESIDENT SH.ASHOK RAJ BHANDARI MEMBER MRS.MADHU MUTNEJA MEMBER PRESENT: Sh.Karan Nehra, Adv. for the complainant. Sh.R.S.Khural,Adv. for OP No.1. Sh.Sandeep Suri, Adv. for OP No.2. OP No.3 exparte. PER MADHU MUTNEJA, MEMBER The instant complaint has been filed by Smt.Arunima Sud and ShN.K.Sud against Air India, Lufthansa Airways and FCM Travel Solutions (I) Pvt. Ltd. The complaint has been filed under Section 12 of the Consumer Protection Act alleging deficiency in service. The complainants have prayed for the following relief:- “(a) Opposite Parties may be directed to compensate the complainants to the extent of Rs.1,44,920/- being the cost of Business Class Return Air Ticket from Delhi to Frankfurt & Rs.5,00,000/- on account of mental harassment, Trauma and discomfort caused to the complainants. (a) Opposite Parties may be directed, to compensate the Complainants to the extent of Rs.69,263/- as refund of the cost of air Ticket and Rs.5,00,000/- on account of mental harassment and Trauma caused to our clients. (b) Opposite parties may be directed to Jointly and Severally pay to the Complainants an additional sum of Rs.15,000/- being the cost incurred by the complainants for making necessary communication on and after 16th Aug., 2009. (c) Opposite party No.3 may be directed to refund the full cost of tickets for misguiding the Complainants. (d) Pay the damages for physical and mental tension, harassment and loss of work as suffered by my client to the tune of Rs.5 lacs. (e) Pay the Cost of litigation to the extent of Rs.22,200/- to the Complainant.” 1] The brief facts of the case are as under:- The complainants had purchased Business Class Air tickets of OP No.1 to travel in the Delhi-Frankfurt-Delhi Air Sector from OP No.3 and paid a sum of Rs.1,44,920/- to OP No.3. This amount included Rs.1,26,146/- paid on behalf of Sh.N.K.Sud and Rs.18,325/- paid on behalf of Smt. Arunima Sud. The tickets were purchased against an offer of OP No.1 where the companion of a business class passenger could travel free by paying taxes only. The complainants purchased the tickets because the offer seemed very attractive. The complainant No.2 had to go to Stockholm and complainant No.1 had to go to Newark, USA. The travel agent (OP No.3) made the requisite booking under the said offer. The complainants state that they were told that Air India had a code sharing and seat sharing contract with Lufthansa Airways in the said flight sector, and in case of any contingency for re-scheduling of flight, the same could be arranged very easily as Frankfurt is an overseas hub of Air India. The complainants took their onward journey as per schedule, complainant No.2 also returned to Delhi as per schedule. Complainant No.1 took her return journey from Newark – Frankfurt on 15.8.2009 as scheduled. Unfortunately, when she was to take the connecting Air India Flight No.126 on 16.8.2009 from Frankfurt to Delhi, she missed her flight. In this regard the complainant has submitted that at the time of departure from Newark, in addition to the Boarding Card for her flight to Frankfurt, she was also issued Boarding Card No.009, Seat No. 8K for Flight AI 126 from Frankfurt to Delhi departing on 16.8.2009. Her baggage was checked in upto Delhi. On her arrival at Frankfurt at about 0800 hours on 16.8.2009, complainant No.1 approached the Air India counter to reconfirm her booking in Flight AI 126. Since she was a Business Class Passenger, she was advised by the lady at the counter to wait in the business class lounge of Lufthansa Airways as both the airlines had a code sharing and seat sharing arrangement. The complainant was advised that the staff of Air India would inform her personally before the boarding for the flight begins. The lady at the counter did not write the time of departure on the boarding pass. In order to confirm the flight time and gate number, complainant No.1 enquired from the Reception of Business Class lounge where a lady employee of OP No.2 after checking her monitor screen informed her that the flight had been delayed and the departure would be at 1045 hours. The complainant was informed that the departure gate would be notified after some time and she would be informed in the business class lounge by the staff of Air India personally. Thereafter, the complainant kept waiting in the business class lounge for someone to inform her about the departure of her flight. It is relevant to mention here that no screen or displays system were visible in the lounge to inform the passengers about the status of flight’s. Business Class Passengers were supposed to be informed personally. At 0910 hours, the complainant went to the Air India Counter to check the status of her flight. When she reached the counter at 0920 hours, she found the area almost vacant. A solitary lady member of Air India staff informed her that the flight had already departed. Complainant No.1 was obviously shocked. When she enquired about her baggage, she was told that the baggage has been off loaded and she could collect it from the baggage counter. Thereafter, the lady officer of Air India refused to extend any further services to complainant No.1 and she was left to solve her problems on her own. The complainant is a senior citizen. She was in a predicament. She did not know what to do. At this juncture, she approached the staff of Lufthansa Airlines for help. An official at the counter permitted her to use their official phone to contact her family in India. When complainant No.2 came to know about the incident, he requested Lufthansa Airlines to reschedule her trip in their next available flight leaving after 3 hours. Lufthansa Airlines expressed their inability to reschedule the trip of complainant No.1 on the ground that there was no written request or communication from the Air India Office to them. In the meanwhile Air India had shutdown their office at Frankfurt. After many frantic calls by complainant No.2 and other family members to the Air India Officials at Frankfurt, the telephone number of one Ms.Geeta Rajan, Deputy Manager, Air India at Frankfurt was traced. Unfortunately, Ms.Geeta Rajan also did not answer her phone. Meanwhile the staff at Lufthansa Airlines counter offered a seat in Economy class to the complainant No.1 in the next flight to Delhi (LH 760) for 3000 Euros. The complainant No.1 did not have any money or a suitable credit card to make this purchase. The offer was made available for only half an hour. Complainant No.1 again contacted complainant No.2 in India and asked him to purchase a fresh ticket from OP No.3 at Chandigarh. Finally a fresh ticket in the same flight No.LH760 was purchased for Rs.69,263/- by complainant No.2 from OP No.3 and e-mailed to the complainant No.1 at the Lufthansa Airways Counter at Frankfurt, just 15 minutes before the departure of the flight. By now the complainant No.1 was completely stressed out, but she was relieved to be able to board the flight. Despite holding a business class ticket, she had to travel to Delhi in Economy class. Later the complainant came to know that the Air India Flight AI 126 had actually departed from Frankfurt Airport at 1010 hours. When complainant No.1 returned back home, the complainants sent a legal notice to OPs No.1 & 2 alleging the above facts. Unfortunately, they have not received any reply till date. The complainants have thus filed the instant complaint against the OPs alleging that Air India is responsible for deficiency in service as not only had the complainant missed her flight but they had not even offered to help a senior citizen in an emergency like situation. As per correct information, the complainant was well in time to board her flight which departed at 1010hrs but was wrongly denied the right to board the flight due to the absence of staff from the counter of Air India at Frankfurt. The lone lady staff told complainant No.1 that the flight had already departed. The complainants have alleged that Lufthansa Airlines (OP No.2) is also responsible for deficiency in service as their staff provided wrong information about the time of boarding of flight of Air India, and also not offering a valid business class seat to complainant No.1 when she missed her flight. The complainants have alleged against OP No.3 that they are responsible for misguiding the complainants about the extra ordinary service being provided by OP No.1, thereby enticing the complainants to purchase the tickets. The complainants have thus prayed for damages against all the OPs as already mentioned above. 2] After admission of the complaint, notices were sent to the OPs. Summons were sent to Op No.3 through courier. POD was received. However, despite being served neither the Manager nor any authorized agent appeared on behalf of OP No.3 on the next date of hearing. Therefore, OP No.3 was proceeded exparte on 25.1.2010. OP No.1 in its reply took the preliminary objection that the complainant and other passengers were informed through public address system at Frankfurt repeatedly and the staff of OP No.1 at the Frankfurt made all efforts to locate business class passengers including the complainant. The boarding pass issued to the complainant at New York clearly mentioned the time for boarding the flight at 0840 hrs. Condition No.9 of the contract of travel printed on the ticket specifically states that:- “Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch. Times shown in timetables 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.” On merits, Op No.1 has stated that the complainant No.1 had booked a companion ticket along with complainant No.2 and had paid taxes only. The time of departure of the Air India flight was clearly mentioned on the boarding pass. If a passenger fails to board the flight on time, his/her baggage is off loaded and in the process the flight gets delayed as the airport staff has to identify the baggage of the passenger from the containers already loaded in the flight. OP No.1 has admitted that complainant No.1 approached the staff of OPNo.1 after 0920 hrs when the staff advised her to collect her check in baggage, which had been off loaded from the flight. Placing denial on all other averments made by the complainant, OP No.1 has prayed for dismissal of the complaint against them. In the reply filed by OP No.2, it is submitted that Complainant No.1 was made to suffer purely on account of the staff of Air India and the deficiency in service was on the part of OP No.1 alone. The grievance, if any, relates to OP No.1 and not OP No.2 as no cause of action has accrued against OP No.2. It is pertinent to mention here that a Code Sharing Agreement between two airlines is based on premise, and envisages that a party (Participating Party) to such an agreement shall be entitled to make reservations in respect of travel on a Flight operated by the other party (Operating Party) to the Agreement, and vice versa. The obligation of the Operating Party does not come into existence unless the Participating party has made an advance booking in respect of a flight operated by the Operating Party. It is a settled law that a stranger to contract cannot be sued on the basis of such contract. Further, as per the complainants own version, the OP No.2 has extended all possible help and assistance to complainant No.1 in Frankfurt Airport. An official of Lufthansa Airways permitted her to use their official phone to contact her family in India. The complainants were also informed by Lufthansa staff that they had made several call to Air India Office to help complainant No.1 but there was no response from Air India. OP No.2 had not made any promises to the complainant. The complainant was to travel from Frankfurt to Delhi on a flight operated by OP No.1, thus OP No.2 was under no obligation to provide a free ticket or allow complainant No.1 to board the flight operated by them without purchasing an air ticket. It is a matter of record that complainant No.1 booked a ticket for Flight LH760 of Lufthansa Airlines and utilized the same to travel back to Delhi (India). Countering all other allegations, OP No.2 has prayed for dismissal of the complaint. 3] We have heard the ld.Counsel for the parties and have also perused the evidence, documents placed on record by the parties along with written submissions of OP No.2, OP No.3 already exparte. 4] The complainants had purchased air tickets of OP No.1 for to & fro journey for Delhi-Frankfurt-Delhi sector. Complainant No.1 had to face harassment due to deficiency in service of OP No.1 at Frankfurt Airport since she was not able to board the flight and was left stranded at Frankfurt Airport. As alleged by her, no help was rendered by the staff of Air India to her at Frankfurt. In fact only one lady was present at the Air India Counter of Frankfurt Airport to help or guide her to get out of the predicament. The lady official also left the office soon after. Complainant No.1 had been advised to wait in the business class lounge of Lufthansa Airways and was assured that she would be informed by the staff of Air India about her flight. She was not sure about the correct time of the flight as the staff of Lufthansa Airways had informed her that the flight had been delayed and she would be informed in the business class waiting lounge when the boarding of the flight would start. OP No.1 has not denied any of these allegations except by stating that boarding pass issued to the complainant at Newark clearly showed that the time of boarding was 0840 hrs, hence it was due to the negligence of the complainant alone that she was unable to board the flight. 5] Further the complainant had been told at the counter of Air India at 0920 hrs. that the flight had already departed. In fact the flight only took off at 1010 hrs. This time was enough for the complainant to board the flight, if the staff was present. But unfortunately even the counter was closed. She was after all a Business Class Passenger. OP No.1 has submitted that the delay in flight was purely due to the delay caused in finding and off loading the complainant’s baggage at the airport. If they had spent this time in trying to trace her, the complainant No.1 would have boarded the flight. 6] The deficiency in service provided by OP No.1 is clearly due to their obvious fault, which could easily be avoided and for this deficiency, they should be made liable to compensate the complainants for the harassment and mental tension suffered. It needs to be reiterated here that they complainants are senior citizens. A lady stranded alone at the airport in a foreign land with no money, no phone, no knowledge of the language and none to help. Definitely a horrifying experience. Her husband, back home in India, frantically trying to call her, and arrange that she be put on the next best flight. Harrowing indeed ! Liability for deficiency in service of OP No.1 is very clearly made out. 7] The complainants have alleged against OP No.2 that they had a code sharing agreement with OP No.1 and as per this agreement they were bound to put Complainant No.1 in their next available flight without charging any thing from her. Their demand of Euros 3000/- at the Frankfurt Airport was hence unjustified. OP No.2 has replied to this contention by stating that the code sharing agreement between the two airlines is based on premise, and envisages that a party (Participating Party) to such an agreement shall be entitled to make reservations in respect of travel on a Flight operated by the other party (Operating Party) to the Agreement, and vice versa. The obligation of the Operating Party does not come into existence unless the Participating party has made an advance booking in respect of a flight operated by the Operating Party. As per the complainants version, they were booked with OP No.1 alone. Hence not having any booking with OP No.2, they were under no obligation to provide a free ticket to complainant No.1. In this regard, they have relied on the judgment of Billa Mali Vs. Secretary, Vol.II (1991) CPJ 495 wherein it has been held:- “After the filing of the version of the case, under S.13(2) (b), the District Forum has to decide the consumer dispute on the basis of evidence brought to its notice by the parties where the opposite party denied or disputes the allegations contained in the complaint. As stated above, the complainant did not produce any independent evidence in support of the complaint when the opposite party has denied the allegations made in the complaint on oath.” In light of the above judgment, OP No.2 has prayed for dismissal of the complaint against them. 8] No one was present on behalf of OP No.3 to make any submissions, as they were already proceeded exparte. Moreover, we feel that no case can be made out against them because they only provided the complainants with tickets for travel. When complainant No.1 missed her flight at Frankfurt, they helped complainant No.2 to buy a fresh ticket for complainant No.1 at a lower rate than what was offered by OP No.2 at Frankfurt. There is no deficiency in service proved here. 9] A perusal of the above facts & circumstances of the case as well as the duties of the OPs towards the complainants, must be considered in term of “deficiency” as defined in the Consumer Protection Act, 1986 (as amended upto date). As per Section 2(1)(g) of Consumer Protection Act "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service; The Hon’ble Supreme Court of India in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines, (2000) 1 SCC 66 has held:- “…The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service……The bona fide action taken by the staff of the respondent Airlines cannot be held to be a deficiency in service. Looking from another point, the complainant was not justified in preferring any claim against the said Airlines because he, admittedly, had booked his seat in the TWA flight from Amsterdam. It appears that the complainant never intended to have any service of the respondent for his onward journey from Amsterdam to New York. When no service was hired, there was no question of deficiency in it. 10] Relying on this mandate as well as the definition of deficiency given above, we are of the opinion that OP No.1 definitely did not help complainant No.1 for boarding her flight. The complainant have a justifiable grievance for claiming compensation from them. However, the complainant cannot hold OP No.2 liable as they were not booked with them when the problem of “deficiency” arose. In fact only the staff of OP No.2 have helped the lady at the airport in her time of distress. 11] Again, OP No.3 is only the agent who booked the tickets. Though it has not put in an appearance in the proceedings, it can not be held liable for any deficiency in service. They had provided Business Class Tickets to the complainants under a special offer/scheme of OP No.1 where complainant No.1 had to only pay for taxes. Also when complainant No.1 was in difficulty, OP No.3 immediately provided a fresh ticket for her when requested by complainant No.2 so that complainant No.1 could board the flight LH-760 of Lufthansa Airlines within a short period and come back home. The amount paid was less than what the airline staff had demanded at Frankfurt. 12] However, once again we cannot rule out the mistakes and deficiency in service of OP No.1. They have not been able to provide adequate service to complainant No.1 in a foreign land. Moreover, their staff was not available at the counter at Frankfurt Airport when complainant No.1 needed help. It is pertinent to mention here again that Complainant No.1 is a lady and a Senior Citizen. It was later also found out that the flight had in fact departed at 1010 hours. OP No.1 have admitted that complainant No.1 had reached the counter of Air India at Frankfurt Airport to catch her flight at 0920 hrs. She was well in time to board the flight, which actually took off at 1010 hrs. This information was not known to the complainant at that time, but was definitely available with the staff of Air India at Frankfurt Airport. It is due to their ‘negligence’ and deficiency alone that complainant No.1 missed her flight. Taking into consideration the detailed factual position, it is clearly proved that the acts of OP No.1 amounts to gross deficiency in service as well as unfair trade practice. They failed to help complainant No.1 (a Business Class Ticket holder) to board the flight. They also misrepresented to her that her flight had departed, whereas the flight actually took off at 1010 hours. 13] In view of the above, we feel that OP No.1 needs to compensate the complainants for deficiency in service and unfair trade practice. Coming to the point of compensation, both the complainants have paid Rs.1,44,920/- for their to & fro journey for Delhi-Frankfurt-Delhi sector. The Complainant No.1 has been unable to board the return flight from Frankfurt only. 1/4th of Rs.1,44,920/- would be Rs.36,230/-. Further, complainant No.2 paid Rs.69,263/- to OP No.3 for the purchase of economy class ticket of complainant No.2 to return from Frankfurt to Delhi. This amount need not have been spent if she had boarded the flight of OP No.1. The complainants have demanded the refund of both these amounts. However, we deem it appropriate and just to only allow for refund of Rs.69,263/-. 14] In view of the above findings, we allow this complaint and direct OP No.1 as under:- i) To pay Rs.69,263/- to the complainant No.1 being the amount spent by the complainants on a fresh ticket of Lufthansa Airlines purchased from OP No.3 for her return journey from Frankfurt to Delhi. ii) OP No.1 will further pay Rs.50,000/- as compensation to the complainants for negligence, deficiency in service as well as harassment caused to the complainants due to non-availably of their staff at Frankfurt Airport. OP No.1 missed her flight due to this reason alone. iii) OP No.1 will also pay Rs.5000/- as cost of litigation to the complainants. This order will be complied with by OP No.1 within 30 days from the date of receipt of copy of this order, failing which, OP No.1 shall be liable to pay the amount of Rs.1,19,263/- along with interest @12% per annum, from the date of the order till its actual payment to the complainants besides the cost of litigation. Certified copies of the order be supplied to the parties free of any charge. The file be consigned to the record room after compliance. Announced 24th Sept., 2010 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (ASHOK RAJ BHANDARI) MEMBER Sd/- (MADHU MUTNEJA) MEMBER “om”
DISTRICT FORUM – II | | CONSUMER COMPLAINT NO.1499 OF 2009 | | PRESENT: None. Dated the 24th day of September, 2010 | O R D E R Vide our detailed order of even date, recorded separately, the complaint has been allowed. After compliance, file be consigned to record room. |
| | | (Madhu Mutneja) | (Lakshman Sharma) | (Ashok Raj Bhandari) | Member | President | Member |
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
