PER SHRI.S.S. PATIL – HON’BLE MEMBER-
1) The complaint is for deficiency in service on the part of Opposite Party as it denied boarding to the Complainant on the flight of Opposite Party inspite of having an authentic valid boarding pass and valid confirmed ticket issued by the Opposite Party.
2) The facts of this case as alleged by the Complainant are that, the Complainant was scheduled to travel in Opposite Party’s Aeroplane flight 128 –from Chicago via London to Mumbai and then subsequently from Mumbai to Chicago via London by Air India Flight 125.
3) While going to Chicago, the Complainant received a boarding pass and cleared immigration and customs. He was waiting for final security check before boarding the flight 125 to Chicago Via London. At this point of time the representative of the Opposite Party perused the passport, visa and other documents of the Complainant and then the Complainant was told by the representative of the Opposite Party not to board the flight as he was not having a transit visa. The Complainant further submitted that, not allowing him to board the flight was not correct on the part of Opposite Party as one month before, the Complainant had flown from Chicago to Mumbai via London but there was no such problem, cropped up in that journey. The Complainant requested the Opposite Party’s representative that he had to report to the work on 23/02/04, otherwise, dire consequences would follow. However, his request was turned down, but he was promised that he would be put, on board the Mumbai Frankfurt Chicago flight. The Complaint was also promised in retrieving the luggage, canceling the immigration stamp, getting coupon back, and expediting the booking formalities.
4) The Complainant has further alleged that, when he went to collect the luggage, there was no trolley. The Complainant was made to wait for 1½ hour at Opposite Party’s Manager’s office. The coupon was given and he was told that he should not worry. The Complainant went to Air India, mini booking office where he was told that there was no confirmed seats available for next one week and he should visit Opposite Party’s main office at Nariman Point.
5) Further, the Opposite Party endorsed the ticket to Lufthansa as Lufthansa promised to fly the Complainant on payment of extra charges for flying on a higher class in economy section. The Complainant paid extra charges. Lufthansa ticket was issued on surrender of Opposite Party’s ticket to Lufthansa. Still Complainant could not fly on Lufthansa as seat was not available, Lufthansa official refunded extra charges to the Complainant and also returned the ticket of Lufthansa to enable the Complainant to submit the same to Opposite Party for refund.
6) The Complainant further stated that he was forced to buy a new ticket of Korean Air lines and United Airlines. The Complainant flew on Korean Airlines form Mumbai to Seoul to Los Angeles and then on United Air lines from Los Angeles to Chicago (no mention of time, date, when he travelled on this Korian and United Airlines).
7) After 22/02/04, on 12/07/05 i.e. after more than 16 moths, the Complainant wrote a letter to Opposite Party and asked it to refund the unutilized portion of the Air India ticket which was meant to travel from Mumbai to Chicago.
8) The Opposite Party replied to the Complainant that air ways has billed the Opposite Party through IOTA clearing house for the portion of ticket. Lufthansa collected upgrade chargers. They uplifted the Air India ticket (‘coupon’ the word used by the Complainant) for Mumbai–Chicago and reissued a Lufthansa document. So Lufthansa has already collected the money for Mumbai – Chicago portion of the ticket and Complainant can take the issue with Lufthansa. The Opposite Party has also clarified to the Complainant that they are in no position to refund the money. The Opposite Party has further explained to the Complainant that U.K. Government had introduced the direct Air Transit visa regulation for passengers transiting U.K. if they were Green Card holders issued prior to April 21, 1998 or were U.S. Visa holders whose visas had expired. This information regarding the transit visa has been conveyed to all travel Agents and responsibility for meeting the Government formalities rests with the passenger as airlines are in contract with passengers only when they check in at airports.
9) Finally the Complainant has prayed for a sum of Rs.2 Lacs for the loss suffered by him for being denied boarding on the flight from Mumbai to Chicago with 9 % interest from 23/01/04 till realization, Rs.1 Lac compensation for mental agony and harassment caused by the Opposite Party with legal expenses.
10) The Complainant has attached the xerox copies of the following documents in support of his complaint.
i) Ticket of Lufthansa, South Korea Airlines.
ii) Letter dtd.12/07/05 sent by the Opposite Party to the Complainant.
11) The complaint was admitted and notice was served on the Opposite Party. Opposite Party appeared through its Ld.Advocate and filed its written statement wherein the Opposite Party has stated that the complaint is barred by limitation, as the Complainant was admittedly scheduled to fly on 22/02/04 and when he was denied the boarding. The present complaint has been filed on 20/03/07 i.e. after a period of 3 years from the date of travel.
12) The Opposite Party has further stated that, the Complainant has failed to disclose the material fact before the Forum as he was denied boarding on the Opposite Party’s flight because he was not having a valid transit visa at that time to travel via London. The Complainant did not enquire and comply with the Government Regulations with respect to Visa requirements applicable on his travel in advance. This has resulted in cancellation of his confirmed booking. Opposite Party has defended itself that, it cannot be held liable for the negligence of the Complainant. The Opposite Party has further clarified that the tickets were booked by the travel Agent. It was the duty of the travel Agent and the Complainant himself to check the requirements of the Visa, and Government Resolutions applicable to such travel before issuing confirm ticket.
13) The Opposite Party has further clarified that U.K. Government had introduced the ‘Direct Air Transit visa regulation for the passengers holding Indian passport transiting U.K. if they were Green Card holders which was issued prior to 21/04/1998 or were the U.S. Visa holders, whose visas had expired. This information was conveyed to all travel agents. Since, the Complainant was covered under the above regulation he was not allowed to board the flight because he was not having the valid, transit visa. The Opposite Party has submitted that, it was the Complainant and his travel agent to find out the necessary visa requirements on such travel from Opposite Party or from the concerned embassy.
14) The Opposite Party has further averred that Clause 10 of the contract of carriage states “Passengers shall comply with the Government Travel requirements, present exit entry and other required document and arrive at the Airport by time fixed by the carrier.” In view of this provision it is for the passenger to check and complete the formalities for boarding the flight. The Opposite Party has further clarified that the Complainant had travelled from Chicago to Mumbai via London earlier i.e. on 23/01/04. However, at that time on the inbound travel to India, no action was taken by the Airlines as the Complainant was holding an Indian passport and deportation meant “being sent back to one’s home country.” Whereas on he outbound journey, it would have been meant deportation from U.K. back to India and Airline would have been penalized for accepting the Complainant for a travel to foreign country with improper documents.
15) The Opposite Party had further submitted that it was not mandatory for Opposite Party to obtain another confirmed ticket for the Complainant as the booking of the Complainant was cancelled owing to his own negligence.
16) The Opposite Party has further stated that it is not responsible for non-availability of the luggage trolleys as it is related to the Airport Authority.
17) The Opposite Party has further averred that the Complainant expressed his willingness to travel with Lufthansa hence, the ticket was endorsed to Lufthansa but after paying extra charges & depositing the Opposite Party’s ticket with Lufthansa, Complainant could not travel with Lufthansa due unavailability of the seat. Extra fair charged by Lufthansa was refunded to the Complainant. However, Lufthansa Airline, submitted the unutilized ticket of the Complainant to the Opposite Party and billed for the said portion through IOTA Norms. So Lufthansa Airline collected the money form Opposite Party for unutilized portion of the Mumbai Chicago ticket.
18) The Opposite Party further submitted that, the Complainant had submitted the said claim after one and half year of the date of travel, this clearly shows the delay.
19) The Opposite Party further averred that the Complainant was not denied the boarding of the flight because of over-booking. So the citations mentioned by the Complainant are not relevant to this case.
20) The Opposite Party further stated that, the present case is not a case where passenger was having confirmed ticket, but the ticket at the airport was found unconfirmed. Therefore, the instances mentioned in the citations given by the Complainant are not applicable to the present case.
21) The Opposite Party stated that the Complainant has filed the present complaint for not allowing him to board the flight on 22/02/04 and there was allegation regarding the loss of baggage etc. but in the para no.19, the Complainant prays for compensation for being denied boarding on two occasions and also for loss of baggage. Hence, the complaint is liable to be rejected and the Complainant is not entitled for any relief as prayed for. The Opposite Party also filed affidavit of evidence wherein the facts in written statement are reiterated.
22) The Constituted Power of Attorney of the Complainant filed his affidavit wherein he reiterated facts mentioned in the complaint and further clarified that, in the instant case the compensation was denied on 12/05/05 by the Opposite Party and the complaint has been filed on 20/03/07 which is well within the prescribed limit mentioned in the C.P.A, 1986. Thereupon both the parties submitted their written arguments wherein they reiterated the facts mentioned in the complaint and written statement respectively.
23) We heard both the Ld.Advocates of both the parties and perused the papers produced by both the parties. Our findings are as follows –
24) The Complainant wanted to go Chicago. Therefore, he had purchased a valid ticket from the Opposite Party. On 22/02/04 a boarding pass was issued to him before the security check, the documents of the Complainant were inspected by the Opposite Party officials and it was found that he was not having a transit visa from Government of U.K. Therefore, he was not allowed to board the scheduled flight of the Opposite Party. The Opposite Party tried to accommodate the Complainant in Lufthansa flight. Initially, the Lufthansa also promised him to take him in its flight but later on he was not accommodated in Lufthansa flight, due to unavailability of the seat. Here the Complainant surrendered the ticket issued by Opposite Party to Lufthansa and also paid extra charges to Lufthansa. The Lufthansa airways returned the extra charges to the Complainant but did not return the Complainant’s ticket issued by Opposite Party, from Mumbai to Chicago.
25) It is very strange that the Complainant has neither mentioned anywhere in the complaint the cost of ticket issued by the Opposite Party nor the cost of the Lufthansa Air ticket. The Complainant in his complaint states that he was forced to buy new air ticket of South Korean Airlines but it seems absurd. Under the above circumstances nobody will force the Complainant to buy that ticket. Even the Complainant himself has not clarified as to who forced him to do so. The fact is that he wanted to go to Chicago at earliest. So he himself might have approached to South Korean Airlines to get the tickets. The Complainant has not disclosed the cost of this ticket. He travelled from Mumbai to Los Angele on this flight and from Los Angeles to Chicago on United Air lines flight. The Complainant has not disclosed the cost of this ticket also.
26) After this incident of not allowing the Complainant to board the flight of Opposite Party, the Complainant has written a letter to the Opposite Party on 10/12/04 i.e. after the 10 months of this incident, wherein he has requested the Opposite Party to refund upgrade charges on Air India Ticket endorsed to Lufthansa (Rs.9,550). Here in this letter the Complainant has requested the Opposite Party at Chicago to refund only the upgrade charges and nothing more. At the same time in para 13 of the complaint, the Complainant has stated as follows “However, he Could not fly on Lufthansa as the seat was not available and the officials of Lufthansa refunded the extra charges received from the Complainant and also returned the ticket of Lufthansa to the Complainant to enable the Complainant to submit the same to Air India for refund.” Thus inspite of getting the refund of extra charges from Lufthansa, the Complainant has requested the Opposite Party to refund the same.
27) Even in letter dtd.06/04/04 produced by the Complainant himself, he has again requested the Lufthansa Airlines to refund the upgraded chargers. As per this letter he enclosed the original Lufthansa Airline ticket and sent it to the Lufthansa Airlines.
28) The letter dtd.20/01/05 issued by the Opposite Party also indicate that the Complainant had requested the Opposite Party vide his letter dtd.04/01/05 to refund the amount of Air India Ticket endorsed to Lufthansa Airways. Opposite Party by its letter dtd.12/07/05, has communicated the Complainant that Lufthansa has already billed them through IATA clearing house for the unutilized portion of the ticket and Lufthansa has already collected the money (cost) of Mumbai-Chicago Air Ticket. The Opposite Party has finally stated in this letter that the Opposite Party was not in a position to refund the money of that ticket.
29) The Opposite Party has further clarified in its letter dtd.12/07/05 that the UK Govt. had introduced the Direct Air transit Visa regulation for passengers transiting UK if, they were green card holders issued prior to 21/04/98 or were US visa holder whose visas had expired. This information was conveyed to all travel agents etc. Thus the Direct Air transit visa regulation of UK Govt. was applicable to passengers who are green card holders issued prior to 21/04/98 or these passengers who are US visa holder and whose visas have expired.
30) It appears that from the papers that the alleged incident of not allowing to board, the Opposite Party’s flight has taken place on 22/02/04. After this incident the Complainant has written one letter dtd.06/04/04 i.e. after 2 ½ months addressed to Lufthansa Airways to refund the upgraded charges (i.e. A sum of Rs.9,550/-). As per this letter the Complainant has also sent back to Lufthansa, the air ticket issued by that airline (Lufthansa).
31) Thereafter, the Complainant has written a letter dtd.10/12/04 i.e. after 8 months, addressed to Opposite Party. In this letter the Complainant has requested the Opposite Party also to refund the upgraded charges (Rs.9,550/-) only and nothing more. At the same time, in para 13 of the complaint he has clearly stated that the officials of Lufthansa refunded the extra upgraded charges paid by him to Lufthansa. He has also mentioned in this para that Lufthansa also returned the air ticket issued by it to the Complainant. This clearly shows that the Complainant got the extra upgraded charges (Rs.9,550/-) from Lufthansa Airways still he has requested the Opposite Party to refund the said amount in his letter dtd.10/12/04.
32) From the papers submitted by the Complainant only, it appears that the Complainant has sent a letter dtd.04/01/05 to the Opposite Party requesting to refund the amount (cost) of Air India ticket endorsed to Lufthansa by the Opposite Party. Opposite Party has given a reply to this letter by sending a letter dtd.12/07/05 addressed to the Complainant. In this letter the Opposite Party has clarified that “Lufthansa has already billed them (OP) through IATA clearing house of unutilized portion of ticket (from Mumbai to Chicago) and Lufthansa has already collected the money (cost) of that air ticket. It can be recalled that the Complainant had given this ticket to Lufthansa on 22/02/04 only when Lufthansa was trying to accommodate him in its flight via Frankfurt but could not do so far unavailability of the seat. At this juncture, Lufthansa should have returned the Opposite Party’s air ticket to the Complainant as it could not accommodate him in its flight and again illegally billed the Opposite Party for that ticket and encashed that ticket through IATA norms. Therefore, the Opposite Party has clearly mentioned in the said letter that it is not possible for it to refund the cost of this ticket as Lufthansa has already collected the said money against that ticket.
33) In the same letter the Opposite Party has also clarified to the Complainant that UK Govt. had introduced direct Air transit visa regulation for passengers transiting UK if they were green card holders issued prior to 21/04/98 or were US Visa holders whose visas had expired. This information was conveyed to all travel agents. The Opposite Party has also averred in his written statement that “since the Complainant was covered under above regulation and hence, he was not having valid transit visa, ultimately, he was not allowed to board its flight. Neither the Complainant nor the Opposite Party has produced this document containing the above said regulation requiring the Indian person to have ‘Air Transit Visa’. This regulation is a regulation of UK Govt. Even the Complainant has not produced this regulation to establish that he was not covered under this regulation and the Opposite Party has disallowed him to board its flight without any valid ground taking shelter of the so called UK Govt. regulation. It is the basic principle of law that a person should prove the fact who asserts it. In the instant case, it is the contention of the Complainant that he was not allowed to board the flight of the Opposite Party though he was entitled to travel on that flight. Therefore, it was the obligation of the Complainant to prove that he was authorized to travel the said flight and he has all the documents for that traveling. In the instance case the Complainant has failed to prove that he was authorized to travel that flight with all required documents. Consequently it is not possible to come to the conclusion that there was a deficiency in service on the part of Opposite Party.
34) Even the Complainant has failed to submit before the Forum, the copies of the Korean Air ticket and United Airlines ticket on which the Complainant had finally traveled from Mumbai-Chicago via Seoul as alleged by him. Therefore, it is not possible to consider at least the refund of the cost of these tickets.
35) From the papers, it also appears that the Complainant had submitted the relevant ticket from Mumbai to Chicago to Lufthansa Airways and had not taken back the Air tickets issued by the Opposite Party from Lufthansa when Lufthansa expressed its inability to take the Complainant on its flight. Lufthansa Airways billed the Opposite Party’s for Opposite Party’s ticket under IATA norms and thus, Opposite Party has paid the bill of that ticket to Lufthansa. Therefore, calling upon the Opposite Party to refund the cost of this ticket would be unjust.
36) The Complainant was not allowed to board the flight of the Opposite Party as he was not having direct Air Transit visa of UK Government. This incident occurred on 22/02/04. Therefore, the cause of action has arisen on/or about 22/02/04 and the compliant was filed exactly on 22/03/07 i.e. after 3 years and one month of the incident. Therefore, there is a delay of one year and one month. There is no application for condoning the above said delay in filing the Complainant. Therefore, the compliant is barred by law of limitation.
37) In view of the above observations, we pass the following order –
O R D E R
i)Complaint No.98/2007 is hereby dismissed with no order as to cost.
ii)Copy of this order be furnished to both the parties.
