MRS. NEENA SANDHU, PRESIDING MEMBER

1.      This is an appeal filed by the complainant against order dated 24.9.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No.1499 of 2009.

2.        Briefly stated, the facts of the case are, that the complainants purchased Business Class Air tickets of Air India i.e. OP No.1 to travel in the Delhi-Frankfurt-Delhi Air Sector from FCm Travel Solutions i.e. OP No.3 and paid a sum of Rs.1,44,920/- (Rs.1,26,146/- paid on behalf of Sh.N.K.Sud and Rs.18,325/- paid on behalf of Smt. Arunima Sud).  The complainant No.2 had to go to Stockholm and complainant No.1 had to go to Newark, USA to meet her daughter. It was submitted that clients of the complainants contacted the OP No.3, an authorized agent for the requisite bookings and were advised to avail the services of Air India under the companion offer of Air India for the New Delhi-Frankfurt Sector as under the said offer, the companion of a business class passenger could travel free by paying taxes only. Due to the excellent offer, the complainants purchased the tickets and the OP No.3 made the requisite booking under the said offer.  It was submitted that the complainants were further informed that the Air India had a code sharing and seat sharing contract with Lufthansa Airways in the said flight sector and therefore in case any contingency for re-scheduling her flight arises, then the same could be arranged very easily as Frankfurt is an overseas hub of Air India.  The complainants purchased the air tickets from OP No.3 for a sum of Rs.1,93,314/- and the payment was made by cheque No.771001 drawn on State Bank of India, New Haryana Secretariat, Sector 17, Chandigarh out of the saving bank account belonging to complainant No.2. This payment included a sum of Rs.1,44,920/- towards the cost of two business class tickets for the Delhi-Frankfurt-Delhi under the Companion Offer Scheme. The complainant No.1 flew to Frankfurt with her husband on 8.6.2009 by Air India Flight 127. From Frankfurt she flew to Newark on 21.6.2009 by Air India Flight AI 191 and for her return journey, the complainant No.1 was booked in Air India Flight 144 on 15.8.2009 for the Newark-Frankfurt sector and in the connecting Air India Flight 126 on 16.8.2009 for the Frankfurt-Delhi Sector. She made a through check in for Delhi at Newark on 15.8.2009. Thus, in addition to the boarding card for her flight to Frankfurt, she was also issued boarding card number 009 Seat number 8K for her Flight AI 126 from Frankfurt to Delhi departing on 16.8.2009. Her baggage was checked upto Delhi. It was submitted that on her arrival at Frankfurt at about 0800 hours the complainant No.1 approached the Air India counter to reconfirm her booking but the lady at the counter advised her that since she was a business class passenger, she should wait in the Business Class Lounge offered by the Lufthansa Airways as both the airlines had a code sharing and seat sharing agreement. She was further advised to present her boarding card at the reception of the business class lounge of Lufthansa Airways at the airport in order to seek entry into the lounge and she further told 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. Therefore, in order to confirm the flight time and gate number, the complainant No.1 inquired from the reception of business class lounge where a lady employee at the reception after checking her monitor screen informed her that there was a delay in the flight and the departure time would be at 10:45 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 and thereafter the complainant kept waiting in the business class lounge for someone to inform her about the departure of her flight.  It was submitted that no screen or displays system were visible in the lounge to inform the passengers were offered personalized services by the airlines. In the absence of any information, the complainant No.1 got up at 9:10 hours and went to the Air India counter to check the status of the flight. It was further submitted that when she reached the counter at 0920 hours, she found the area almost vacant and upon inquiry from the single lady staff member of Air India about the status of the flight, she was informed that the flight had already departed. The complainant No.1 was shocked and upon her informing that she was a business class passenger and had not been informed about the boarding of the flight, she was told that since the flight had already been departed, therefore, nothing could be done.  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 simply told her that nothing could be done for her as the Air India Counter had been closed. It was further submitted that the complainant No.1 being a senior citizen of age of 61 years was made to suffer purely on account of negligence of the staff of Air India. It was submitted that the complainant No.1 approached the staff of Lufthansa  Airlines for help and an official at the counter, permitted her to use their official phone to contact her family in India. It was submitted that 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 but 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 present situation, when the complainant left with no other alternative then to reach her destination from Frankfurt to Delhi, she has to buy a fresh ticket in economy class with Lufthansa Airways i.e. OP No.2 for Rs.69,263/-.  By the time the complainant No.1 was  completely stressed out and the complainant despite of holding a business class ticket had to travel in economy class. When the complainant No.1 returned back home then the complainants sent a legal notice to OPs No.1 & 2 but no reply was received from their side. The above said act of OPs amounts to deficiency in service as well as unfair trade practice. Hence, the complaint was filed.

3.        Notice sent to Op No.3 through courier service but OP No.3 did not appear, despite service. Hence, OP No.3 was proceeded against exparte on 25.1.2010.

4.      Reply was filed by OP No.1 and took preliminary objections that there was no deficiency in service on its part. The flight AI126 on 16.8.2009 Frankfurt-New Delhi scheduled to depart at 9.25 hours was missed by the complainant due to her own failings. 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.  It was pleaded that the boarding pass issued to the complainant at New York clearly mentioned the time for boarding the flight at 8.40 hrs.  It was submitted that complicated and disputed questions of facts involved in the present case, as the flight was missed by the complainant due to her own failings and detailed evidence has to be lead to prove deficiency by the complainant which can only be proved in the civil court, hence, the learned District Forum has no jurisdiction to try and entertain the complaint.  It was further pleaded that 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, it was pleaded that the complainant No.1 had booked a companion ticket along with complainant No.2 and had paid taxes only.  The allegation regarding approaching the counter staff of Air India at Frankfurt for reconfirmation was denied and the boarding pass issued to the complainant clearly mentions the seat number and time of boarding. There was no question of reconfirmation except to report for boarding the flight. It was further pleaded that the time of departure of the Air India flight was prominently mentioned on the boarding pass and the gate number was not indicated in the boarding pass which was supposed to be displayed at the airport langue well in time before the boarding for the flight starts. It was next pleaded that if the 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.  It was admitted by OP No.1 that complainant No.1 approached the staff of OP No.1 after 0920 hrs, the staff advised her to collect her off loaded baggage from the flight. It was further submitted that no evidence was produced by the complainants to prove these allegations and the invoice dated 22.8.2009 attached to the complainants was not genuine. All other allegations leveled by the complainants in the complaint were denied and pleaded that there was no deficiency in service on its part and prayed for dismissal of the complaint. 

5.      Reply was filed by OP No.2 and 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 and not OP No.2 as no cause of action accrued against OP No.2.  It was next pleaded 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 was further pleaded that complainant No.1 was to undertake travel from Frankfurt to Delhi on flight operated by respondent No.1 and that the respondent No.1 had not made any booking of the complainant No.1 to travel on any flight operated by the answering OP. Thus, the answering OP was under no obligation to prove a ticket free of cost and to allow the complainant No.1 to board the flight operated by the answering OP. It was denied that the complainant No.1 was informed by a lady employee at the reception of business class lounge that there was a delay in the flight operated by the respondent No.1 as alleged at all and also denied that the complainant No.1 was told by the said lady that the departure gate would be notified after sometime and she would be informed in the business class lounge.   It was next pleaded that as per the version of the complainants, the OP No.2 provide all possible help and assistance to complainant No.1 in Frankfurt Airport and an official of Lufthansa Airways permitted her to use their official phone to contact her family in India.  It was next pleaded that 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. All other allegations leveled by the complainants in the complaint were denied and prayed for dismissal of the complaint.

6.      The parties led their evidence in support of their contentions.

7.         The learned District Forum allowed the complaint and directed the OP No.1 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 along with compensation of Rs.50,000/- 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. With the result, the complainant no.1 missed her flight. The learned District Forum also directed the OP No.1 to pay Rs.5,000/- as costs of litigation to the complainants.  The learned District Forum directed to comply the aforesaid order 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% p.a. from the date of the order till its actual payment to the complainants besides the cost of litigation.

8.        Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant. Sh.Karan Nehra, Advocate has appeared on behalf of appellant, Sh.R.S.Khural, Advocate has appeared on behalf of respondent No.1, Sh.Sandeep Suri, Advocate has appeared on behalf of respondent No.2 and Sh.S.K.Arora, Advocate has appeared on behalf of respondent No.3.

9.      In appeal, it is submitted that the learned District Forum has failed to consider that Air India is responsible for deficiency in service as its staff could not provide services to the complainants to assist her to board the flight. Due to inordinate conduct and inefficiency of the staff of Air India, the complainant was missed her return flight from the Frankfurt Airport. Air India has failed to deliver the services promised for the business class passengers at the airport. Air India is responsible for deficiency in service as no after sale service were provided to the complainants by the staff of Air India at Frankfurt Airport. It is further submitted that Air India is responsible for deficiency in service as the single lady staff member present at the Air India Counter had refused to offer services to the complainant No.1 even after an emergency like situation had arisen for a senior citizen. Even as per the schedule, the complainant was within time but had been wrongly denied the right to board the flight. Due to absence of its staff from the counters of Air India and its unresponsive telephonic services, the complainants had been harassed and compelled into purchasing a fresh ticket and travel in economy class. Air India is responsible for deficiency in service as they have not provided any assistance to complainant No.1 to reschedule her departure in the next Air India Flight or in the Lufthansa Flight as per the code sharing and seat sharing agreement between them. The learned District Forum has failed to consider that OP No.2 is responsible for deficiency in service as their staff provided wrong information to the complainant No.1 at the business lounge at the Frankfurt Airport about the time of boarding as 1045 hours against the actual time as 0925 hours. The OP No.2 is further responsible for adopting unfair trade practices as its staff without making appropriate efforts compelled the complainants to purchase a new ticket from them at an exorbitant price. Further OP No.2 is responsible for adopting unfair trade practice by not offering a valid and a free seat in business class to complainant No.1 in any of their flights. The learned District Forum has failed to consider that OP No.3 has deficient in providing the services as it had misguided the complainants about the extra-ordinary services being provided by OP No.1 and induced them to purchase the tickets. Further after returning to India and after informing the OP No.3, there was no assistance from him in processing the complaint of the complainant, with the other OPs. The learned District Forum has failed to consider that Air India and Lufthansa Airways are responsible for mental harassment and stress caused to the complainant No.1 at the Frankfurt Airport. The learned District Forum has failed to consider that Air India and Lufthansa Airways are jointly and severally responsible mental harassment and stress caused to the complainants, who was wrongly induced to hire the services of OPs based on false and frivolous promises of effective and efficient services. Further due to irrational conduct of the staff of OPs No. 1 and 2 with his wife at the Frankfurt Airport, he was under immense pressure to make arrangements for his wife stranded at the Frankfurt Airport all by herself and without any assistance and in the absence of any support from the service desk of Air India at New Delhi, Mumbai and Frankfurt. It is further submitted that despite a code sharing agreement between the OPs they deliberate did not coordinate only to harass the complainants. The learned District Forum has totally lost sight of the averments made in the replication. The learned District Forum has fallen into a grave error by granting interest w.e.f. date of the passing of the order and that too conditionally in case the OP No.1 fails to make the payment within a period of 30 days. It is submitted that the interest is liable to be paid from the date of purchase of ticket especially after holding that there has been a deficiency in service. The complainant is entitled to receive compensation from the date, the cause of action arose. Therefore, the grant of interest from the date of order and that too conditionally is wholly arbitrary and therefore the date is liable to be preceded to the date on which the cause of action arose in the facts and circumstances of the case. The learned District Forum has gravely erred by not granting the full refund of business class tickets and compensation as prayed for in the complaint filed by the complainants. It is submitted that the compensation granted by the learned District Forum is grossly inadequate and the OPs No. 2 and 3 cannot escape from the liability especially when they are specifically liable to be held for deficiency in service and adopting unfair trade practice. It is submitted that the litigation costs of Rs.5,000/- being awarded by the learned District Forum to the complainants are grossly inadequate. Hence, it is prayed that the impugned order passed by the learned District Forum may kindly be modified to the extent of granting interest @ 18% w.e.f. the date of accrual of cause of action and compensation as prayed for in the consumer complaint and  prayed for refund the full price of the tickets for misguiding the complainants, to enhance the cost of litigation to the extent of Rs.22,000/- to the complainant and to enhance the compensation as prayed for in the appeal.  

10.    We have heard the learned counsel for the parties and perused the record.

11.    It is argued by the learned counsel for respondent No.1/OP No.1 that there was no deficiency in service on its part as the flight AI126 on 16.8.2009 Frankfurt-New Delhi scheduled to depart at 9.25 hours was missed by the complainant due to her own failings as the complainant and other passengers were informed through Public Address System at Frankfurt repeatedly. 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 8.40 hrs. There is no dispute that the complainant No.1 had traveled on free ticket as the complainant No.2 had booked this ticket under the companion free offer and had paid taxes only for the ticket of complainant No.1.  The time of departure of the Air India flight was prominently mentioned on the boarding pass and if the 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.  The complainant No.1 approached the staff of OP No.1 after 0920 hrs the staff advised her to collect her check in baggage off loaded from the flight. Hence, there was no deficiency in service on its part and prayed for dismissal of the appeal.

12.    It is argued by the learned counsel for the respondent No.2/OP No.2 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 and not the answering OP. 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. Hence, there was no deficiency in service on its part and prayed for dismissal of the appeal.   

13.    The learned counsel for OP No.3 argued that as per the instructions from the complainants, the OP No.3 has purchased the tickets for the complainants and duly delivered it to the complainants. Hence, there is no cause of action has accrued against OP No.3 and prayed for the dismissal of the appeal against OP No.3. 

14.    From the facts of the case, it is clear that on arrival of the complainant no.1 at Frankfurt at about 0800 hrs. the complainant no.1 approached the Air India Counter to reconfirm her booking in flight AI 126. The lady (employee) at the counter did the needful and advised her that since she was a business class passenger, she should wait in business class lounge offered by the Lufthansa Airways as both the airlines made a code sharing and seat sharing agreement and the Air India staff would inform the complainant No.1 personally before the boarding of the said flight. Thereafter on the asking of the employee of the Air India, the complainant No.1 sat in the business class lounge. Out of curiosity and to be more conscious, the complainant No. 1 being a lady traveling alone again went to the reception of the business class passenger lounge and inquired about the departure of the flight and the gate number. The lady employee at the reception of the business class lounge informed the complainant No.1 that there was a delay in the flight, the departure time would be at 10:45 hrs. The departure gate would be notified after sometime and the same will be conveyed to the complainant No.1 in business class lounge only. Therefore, she should feel comfortable and should not worry as in any case, the Air India flight staff would come to this lounge to make a formal request and announcement to all the business class passengers to board the flight. After waiting since long, when nobody turned up to inform the complainant regarding the status of the flight, she got panicky and she left the business class lounge at 0910 hrs went to Air India counter to check the status of the flight. When at 0920 hrs on reaching at the Air India counter the complainant No.1 inquired about the status of the flight. The single lady staff member of Air India informed that the flight had already been departed. As the employee of the Air India told the complainant that the flight departed at 0920 hrs but in fact the flight took off at 1010 hrs. After hearing this that the flight had taken off without her, the complainant No.1 was shocked and perplexed.

15.     This sequence of events makes us believe that the complainant No.1 had to suffer a lot due to the act and conduct of the employees of the OP No.1 and that too in foreign land. The learned District Forum is justified in allowing the complaint in favour of the complainants and has rightly directed the OP No.1 to refund the amount of Rs.69,263/- which the complainant had paid for the purchase of fresh ticket and also after considering all the facts of the case had adequately compensated the complainants by awarding an amount of Rs.50,000/- as  compensation for negligence, deficiency in service as well as harassment caused to the complainants due to non-availably of their staff at Frankfurt Airport along with litigation expenses of Rs.5,000/-.  Even we don’t find any merit in the contention made by the learned counsel for the appellants/complainants for the refund of the whole amount of the ticket as the complainant No.1 could not travel on the same ticket from Frankfurt to Delhi due to the fault of the employees of the OP No.1. Moreover, it is an admitted fact that the complainants have purchased this ticket under the companion offer scheme i.e. the companion of a business class passenger could travel free by paying taxes only. Admittedly, the complainants had paid a total sum of Rs.1,44,920/- (Rs.1,26,146/- paid on behalf of complainant No.2 i.e. the husband Sh.N.K.Sud and Rs.18,325/- as taxes on behalf of Smt.Arunima Sud). Therefore, when it is clear that the complainant No.1 has traveled on a free ticket then the question of refund of the any amount does not arise. Hence, the prayer made for the refund of the whole amount of the ticket is denied as baseless.

16.    The allegations made against OP No.2 by the complainants that the OP No.2 is also responsible for deficiency in service and unfair trade practice as their staff provided wrong information about the time of boarding of flight of Air India and also by not offering a valid business class seat to the complainant No.1 free of cost when she missed her flight without her fault. We do find that all these allegations made against OP No.2 by the complainants are baseless. Hence, relief claimed against OP No.2 is denied. No doubt that there is a code sharing agreement between the two airlines but the OP No.2 is not at all responsible for any act of the OP No.1 because in the absence of an agreement that a party (participating party) shall be entitled to make reservations in respect of travel on a flight operated by the other party (operating party) as in the present case no advance booking was done by the OP No.2 in respect of the flight operated by the OP No.1. Hence, OP No.2 is not liable for any act of OP No.1. Further, as the complainants themselves admitted this fact that the OP No.2 has extended all possible help and assistance to complainant No.1 in Frankfurt Airport. When in the event of missing the flight, the complainant No.1 had to purchase a fresh ticket from OP No.2 i.e. Lufthansa Airways to reach her destination by paying the price of the ticket and the OP No.2 has rightly charged the complainant for the issuance of fresh ticket as the OP No.2 is not under any obligation to provide free ticket to the complainant No.1. Thus, we don’t find any deficiency in service as well as unfair trade practice on the part of OP No.2 and there is no merit in the contention made by the complainant. Hence, the appeal qua the OP No.2 (Lufthansa Airlines) is liable to be dismissed.

17.    The allegations regarding deficiency in service as well as unfair trade practice against OP No.3 are also baseless because the OP No.3 had only made booking for the tickets which the complainant had purchased from the OP No.3. The OP No.3 had duly provided the tickets to the complainants. Hence, no cause of action has accrued against OP No.3 and thus the appeal filed against OP No.3 is also liable to be dismissed.

18.    With the foregoing discussion, we have come to the conclusion that there is a deficiency in service as well as unfair trade practice on the part of OP No.1 and not against OPs No.2 and 3. The learned District Forum has rightly allowed the complaint by directing the OP No.1 to compensate the complainant adequately. The order passed by the learned District Forum is just, fair and proper, therefore, no interference is called for. The appeal filed by the complainants for enhancement is dismissed without any order as to costs and we upheld the order passed by the learned District Forum. Parties are left to bear their own costs.