Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This consumer complaint pertains to alleged deficiency in service on the part of the British Airways (hereinafter referred to as “BA”) for detaining the Complainant at London Airport which prevented her from boarding the flight and in the result missed the graduation ceremony by her daughter studying in U.S.A., on 01.05.2009.
(2) It is the case of the Complainant – Maria K. Harjani (“The Complainant” in short) that she is a citizen of Spain and hold a valid and legal passport issued by Government of Spain. Her daughter was graduating from Pepperdine University in Los Angeles (U.S.A.) and the graduation ceremony was scheduled on 01.05.2009. Since this is the must and precious ceremony in the life of Complainant’s daughter as well as Complainant herself, she planned to visit U.S.A. and remain present at the graduation ceremony. She accordingly book a ticket for Los Angeles (U.S.A.) from Agent – Sadhana Travel Services on 24.04.2009 and subsequently her booking got confirmed and BA issued air ticket bearing No.1253533156695 on 24.04.2009. Said air ticket was for journey starting from Mumbai (India) to London (U.K.) and London to Los Angeles (U.S.A.). The boarding passes were issued accordingly at Mumbai Airport itself. Complainant got reported at Mumbai and boarded Flight No.BA-138 for London and after reaching London Heathrow Airport, she approached the gate to board connected flight no.BA-279 for Los Angeles (U.S.A.). However, she was stopped from travelling to Los Angeles (U.S.A.) by the staff of BA at London Heathrow Airport, since her Spanish passport was not found valid for ‘Visa Waiver Programme’ (VWP, in short), since her passport was not machine readable. Official of BA did not accept the explanation of the Complainant. Complainant therefore called her husband Mr.Ashok Harjani, narrated him the incident and on receiving guidance from her husband, approached higher authorities of BA at London Heathrow Airport. However, by that time connecting flight left for Los Angeles (U.S.A.) and the Complainant had to take shelter in London with her brother-in-law. On next day she met the executive of BA at Heathrow Airport and convinced them that the travel documents of the Complainant were in order. However, the Complainant missed a graduation ceremony which severely upset Complainant as well as her daughter. All her plans to attend the graduation ceremony got shattered as well as the arrangement made at hotel at Los Angeles (U.S.A.) for her stay and expenses made in arranging transport, gone wasted. Complainant then returned back to India from London and thereafter filed consumer complaint, claiming compensation of `49,00,000/-.
(3) The Opponent BA resisted the claim as per their written reply and denied all the adverse allegations. The Spanish passport held by the Complainant was not machine readable passport and as such it was required to be cleared by either the U.S. Embassy and/or its superiors and in those circumstances only detention of the Complainant for further check by the security officials of BA at Heathrow Airport, was proper.
(4) Heard both sides. Complainant relied on one circular as record relating to VWP but it relates to one which is made effective from July 1, 2009 i.e. after the event of travel by the Complainant. We asked Ld.Counsel appearing for the Complainant to show us the relevant document/provision relating to VWP which would be relevant as on the date of travel i.e. on 01.05.2009. He failed to do so. We, therefore, checked information from the internet. The information about VWP as could be found from “Wilkipedia, the free encyclopedia” (http:/en.wilkipedia.org/wilki/Visa_Waiver_Program) records the history, as relevant for our purpose, as under:
“Following the September 11 terrorist attacks, the George W. Bush Administration decided to tighten entry requirements into the United States, as a result of which legislation was passed requiring foreign visitors entering under the Visa Waiver Program to present a machine readable passport upon arrival starting from 1 October 2003. However, as a number of VWP still issued non-machine readable passports (for example, more than a third of French and Spanish passport holders held a non-machine readable version), the implementation of the new rule was postponed to 26 October 2006, with the exception of Belgian citizens, as there were concerns about the security and integrity of Belgian passports.
The George W. Bush Administration originally planned to require all visitors to the US under the Visa Waiver Program to hold a biometric passport starting from 26 October 2004 if their passport is issued on or after that date. However, after requirement to have a machine readable passport was postponed to 26 October 2004, the biometric passport requirement subsequently had its implementation date moved to 26 October 2005, only to be further postponed by another year to 26 October 2006 at the request of the European Union, which raised concerns about the number of participating countries which would have been able to make the deadline”
Similarly, it is further mentioned therein as under:
“Passports issued after 26 October 2005 need digital photographs embedded on them, and passports issued after 26 October 2006 must be biometric passports, which have a chip embedded with the user’s information. Some countries, e.g. France, did not have biometric passports available at that date, meaning that citizens from these countries with newer passports but not biometric passport have to obtain a tourist visa, which can be a cumbersome, costly and time-consuming process. If you have a non e-passport issued after 26 October 2006 and you are from a Visa Waiver country, try having your government exchange it for an biometric passport, explaining that you wish to travel to the U.S.”
(5) From the copy of the passport attached with the complaint it can be seen that the passport of the Complainant was issued on 15.07.1992 and was valid upto 14.07.2002 and it was admittedly non-machine readable passport. To travel to U.S.A., being the holder of passport issued by Spain, the Complainant wanted to avail benefit of VWP to enter U.S.A. Since such passport was not machine readable as per the requirement of the U.S.A., she ought to have earlier got a new passport issued to meet her requirement or she would have completed the necessary visa clearance from the authorities of U.S.A., before she undertook the journey to attend graduation ceremony of her daughter. No doubt, to travel to London she had no problem while boarding the plane at Mumbai but nevertheless it does not mean that the security officials of the BA demonstrated the act of misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent, particularly when he found that the passport held by the Complainant being not readable by machine, she cannot take advantage of VWP and therefore, detained her. In the circumstances, no deficiency in service on the part of the BA could be inferred or said to have been established. A useful reference on the point can be made to ratio decidendi of the decision of the National Consumer Disputes Redressal Commission, New Delhi in the matter of Ravnnet Singh Bagga, Partner, M/s.B.R. Exports V/s.KLM Royal Dutch Airlines & Anr., reported in II (1997) CPJ 134 (NC).
(6) For the reasons stated above, we find that the Complainant miserably failed to establish any deficiency in service on the part of the Opponent – BA and holding accordingly, we pass the following order:
O R D E R
(i) Complaint stands dismissed.
(ii) However, in the given circumstances, both the parties to bear their own costs.
Pronounced on 6th March, 2012.
