| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO. CC/861/2014 Date of Institution:- 23.01.2015 Order reserved on:- 20.03.2023 Order Pronounced on :- 29.03.2023 IN THE MATTER OF: - Rajeev Bhargava
D-7/7315, Vasant Kunj New Delhi–110070 - Archna Bhargava
D/o Shri Rajeev Bhargava D-7/7315, Vasant Kunj New Delhi – 110070....Complainants VERSUS - Austrian Airlines
IGI Airport terminal 3 Room No. 25 Office Level +20 New Delhi - Air Canada
803, 8th FloorAnsal Bhawan 16, Kasturba Gandhi Marg New Delhi - 110001…..Opposite Parties O R D E R Per Dr. Harshali Kaur, Member - Brief facts of the Complaint are that the Complainant and his wife travelled to Vancouver via Vienna and London on 02.10.2013 with OP-1 Airline for a conference. The Complainant has annexed the copy of the tickets with the Complaint on page no. 1. He states that he was asked to board the flight operated by OP-2 as they were code-sharing partners. He has annexed the copy of the boarding passes on page no. 2/1-2/4 of his Complaint.
- It is the Complainant's case that he is a vegetarian, and he had booked vegetarian meals on his flights. The vegetarian meal requirement was confirmed by OP-1 in their e-mail dated 08.10.2013 (Pages no. 10/1 and 10/2). He alleges that since he had booked the flight with OP-1, it was the duty of OP-1, who changed his flight to OP-2, to inform them about his preferred vegetarian meal requirement. Instead, he was served non-vegetarian food, i.e. Beef, on the OP-2 flight, which he realised on opening the meal tray and touching the food inside. This act of OP-2 hurt his religious sentiments. He further alleges that on asking about the type of meal served to him, the OP-2 Airline staff told him that they forgot to pick up the special vegetarian food. The Complainant has annexed the e-mail dated 07.10.2013 wherein he claims that OP-1 has admitted to their negligence.
- Without any vegetarian meal onboard OP-2, the Complainant, remained hungry throughout his 9.30 hrs flight.He claims he was not given anything besides cola and coffee, which proved disastrous to his health as he is diabetic. He felt unwell due to the OP's lackadaisical attitude and could not concentrate on his conference, and he also suffered financially.
- The Complainant wrote several letters and e-mails to the OPs, copies of which are annexed with his Complaint (Pages No. 3,4,6 & 9).He received a reply via an e-mail from OP-1 (Pages No. 1,2 & 3) and also a letter dated 03.12.2014 copy of which is annexed on page no. 9 of the Complaint. When the OPs did not proactively address his grievance, the Complainant filed the present Complaint alleging Deficiency-in-Service on the part of the OPs.He has prayed for Rs.10,00,000/- as compensation for not providing him food of his meal preference,leading him to feel unwell.
- Notice was issued to the OPs, who appeared and filed their Reply. OP-1, in their Reply, states that the present Complaint is frivolousand vexations in nature and liable to be dismissed as the Complainant has not filed the 'meal request' made by him while booking his Air Tickets with OP-1. In case such a request was made with OP-1, the issue arose in Flight OS-8211 operated by OP-2, and the same request was to be made by the Complainant to OP-2 in advance. The Complainant could have confirmed with OP-1 if they had supplied the vegetarian food to OP-2.
- Vehemently denyingthe Complainant's allegations regarding serving him Beef, OP-1assertthat no one can know which kind of non-vegetarian food is being served merely by touching and seeing. OP-1 further state that the Complainant has neither placed on record any proof or evidence to substantiate the contention that he was unable to attend his conference due to his ill health.OP-1 has clarified that in cases wherein the passenger is not served special food, OP-1 is not liable to compensate the passenger but provides a letter of apology along with an MCO/voucher of Euro 150 per meal and hence seeks dismissal of the present Complaint.
- OP-2,in the Reply,have taken several preliminary objectionssuch as misjoinder of parties as the Complainant, in his legal notice dated 24.10.2013 issued to OP-1, wrote that
"he did not have any ticket contract or dealing with Air Canada,but only Austrian Airlines and so could not understand how they are responsible". According to OP-2, the Complainant is not their consumer within the definition of the Consumer Protection Act as he booked his ticket through Yatra.com for OP-1 Airlines as reflected in the itinerary annexed by him with his Complaint. The flight on which he travelled was undoubtedly operated by OP-2 under a code share agreement which is an internal agreement between the airlines and does not make the Complainant a consumer of OP-2. - OP-2 also stated on record regardingthe allegation that he realised that the food was Beef upon touching the same is unsubstantiated with DNA testing or any other laboratory test and cannot be established without an expert report. Similarly, his statement that he could not attend his conference is also falsified by the Complainant's Facebook posts where he has posted about the successful conclusion of the same. Further, OP-2 claim that the Complainant is a habitual offender and has filed the present Complaint for unjust enrichment and hence prays for the present Complaint to be dismissed with a heavy cost.
- The Complainant has filed the rejoinder to the replies filed by the OPs stating that he shall file proof of his medical condition if asked and that he could not have spoken to OP-2 without a visa of UK, and all instructions from passengers are taken 24 hours prior to flight take off. Since OP-2 had an internal agreement with OP-1, and the non-vegetarian food was served to him on OP-2 Airline after specifically booking a vegetarian meal, OP-2 was equally liable for being deficient in service. The Complainant also filed his affidavit in evidence reiterating what he had already stated in his Complaint. Sh. Arun Pandeya, General Manager for OP-2, filed his affidavit and proved all the documents filed by OP-2 on record repeating what had already been averred in their Reply. OP-1 did not wish to file their affidavit in evidence as stated by their Ld. Proxy Counsel Sri Ram on record. The same was duly noted in the order sheet dated 22.07.2016 by this Forum. All parties filed their written arguments, and the present Complaint was fixed for final arguments since then.
- We have carefully heard the Ld Counsels Sh. Satish for the Complainant and Ms Sana Harta, Counsel for OP-2, who addressed their final oral arguments and have also perused the documents placed on record by the contesting parties.
- In our view, the Complainant booked his flights through Yatra.com to travel from Delhi to Vancouver on 02.10.2013. He booked a hopping flight with stopovers at Vienna and London. He alleges that he went with his wife to attend a conference and has annexed a copy of his booked ticket with OP-1(Marked1).The Complainant states that when he was travelling from London to Vancouver, OP-1 shifted his flight to OP-2, Flight No. AC 034, as they had an internal code-sharing agreement. He has annexed the copies of the boarding passes with the Complaint (Marked 2).
- While on this leg of his journey, the Complainant states that though he had booked a vegetarian meal as his preferred meal choice while booking his tickets, he was served a non-vegetarianmeal with Beef meat which hurt his religious sentiments. He learned that it is Beef meat by touching and feeling the food. He was allegedly informed that special meals were not loaded on the OP-2 flight when he refused the meal.Due to the unavailability of a vegetarian meal, the Complainant remained hungry on the long 9.5 hours flight. He could only drink coffee and cola, which caused him to become sick as he is a diabetic and thus, he could not attend his conference.
- Aggrieved at the OP's negligence, the Complainant lodged several complaintsto no avail. He, therefore, filed the present Complaint before this Forum seeking compensation of Rs.10,00,000/- for the Deficiency-In-Service and Unfair Trade Practice by the OP's.
- OP-1 & OP-2 deny the Complainant's averments and have clarified that one cannot identify the kind of meatmerely by touching the food served without sending the food sample for DNA testing. Here we agree with the OP's statement as there is no proof of the kind of meat that was served to the Complainant is placed on record; hence the veracity of the Complainant's claim cannot be ascertained.
- OP-1 has contended that it was the Complainant's duty to inform OP-2 about his meal preference when he learnedthat his flight had been changed. This we find unpalatable as the Complainant had booked the flights of OP-1, who on their own accord shifted the Complainant to OP-2 flight. Therefore, it is the duty of OP-1 to inform OP-2 of the meal preference or vice versa, as it is OP-1 and OP-2 who are code-sharingpartners. The Complainant has no say in this agreement. Further, the Complainant's tickets were changed to OP-2 Airline unilaterally by OP-1 without the Complainant's interference, request or knowledge. Neither OP-1 nor OP-2 has filed any Rules or Guidelines on record to substantiate that it fell on the Complainant to inform OP-2 about his meal preference.
- A bare perusal of the e-mail dated 07.10.2013 (Page No.10/2) sent by OP-1 to the Complainant is sufficient to prove the Complainant's case wherein the authorised personnelof OP-2 has clarified as follows:-
"Mr. Bhargava, on checking your reservation we find that there was no meal requested for you on your flight OS8211 dated 2 Oct, 2013 from London to Vancouver which was operated by Air Canada. We would like to kindly advise you that special meals are pre-loaded in numbers they have been requested and since your booking did not reflect the special meal, the same couldnot be catered to you. In view of this we assume that the Air Canada crew offered you a non-vegetarian meal as they were not aware of your vegetarian meal preference and had no intention of hurting your religious sentiments. We request you to kindly advise your agent to confirm the meal of your choice in your reservation, for your future travels at least 48 hours prior to departure." Clearly, OP-2 was not informed by OP-1 that the Complainant had opted for a vegetarian meal plan. This e-mail is sufficient to prove that the Complainant is justified in feeling harassed and would undoubtedly have undergone mental agony and pain for which he should be duly compensated. - OP-1 chose not to file their affidavit-in-evidence for reasons best known to them have mentioned in their Reply that in cases where the passenger is not given their choice of meals, OP-1 has the procedure to provide 150 Euros and a written apology. They have, however, not filed any document to show that OP-1 approached the Complainant with this offer. OP-2 has taken preliminary objection of misjoinder of parties as Complainant is not the consumer of OP-2. Since the cause of action occurred in OP-2 Airline, and OP-2 is also the partner of OP-1, OP-2 is equally and vicariously liable in the instant Complaint. Even the definition of "Consumer" as given in the Consumer Protection Act, 2019 Clarifies as follows:-
(7) "consumer" means any person who— (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose. Clearly, the OP'swere in code sharing partnership, as admitted by them in their Reply and affidavit in evidence with the Complainant having paid consideration to OP-1 for his tickets.Thus the service provided by OP-2 was paid for by the Complainant to its partner OP-1, making him a 'consumer' of OP-2 as well. - Furthermore, the e-mail dated 07.10.2013 sent by OP-1 to the Complainant stating that:-
"since your booking did not reflect the special meal, the same could not be catered to you. In view of this we assume that the Air Canada crew offered you a non vegetarian meal as they were not aware of your vegetarian meal preference and had no intention of hurting your religious sentiments." This e-mail is enough to prove beyond a doubt that the Complainant was served a non-vegetarian meal on board OP-2 Airlines when he had booked a vegetarian meal. OP-2, despite belatedly realising that the Complainant is vegetarian, had nothing to serve the Complainant,who was left hungry for the remainder of his journey to Vancouver, which would have undoubtedly caused him mental agony and pain. It is inconceivable that OP-2 had no vegetarian food they could serve the Complainant even in the Business or 1st Class seats, knowing fully well that their code partner had failed to inform them of the Complainant's meal preference. - Hence allowing the Complainant, we hold both OP-1 & 2 deficient in service and direct them to jointly and severally pay the Complainant a lump sum amount of Rs.1,00,000/- inclusive of compensation and litigation cost.
- Order be given as dasti to both parties.
- Order be complied with within 30 days of receipt of this order failing which they shall be liable to pay interest @9% on the awarded amount from the date of pronouncing the order until realisation.
- The file be consigned to record room thereafter.
(R. C. YADAV) (DR. HARSHALI KAUR) MEMBER MEMBER (SURESH KUMAR GUPTA) PRESIDENT | |
