Per Mr.B.S.Wasekar, Hon’ble President 

1)                The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, she is elderly woman aged about 59 years suffering from Osteoporosis in her knees.  She planned for holidays in U.S.A. between 8^th September, 2011 to 4^th October, 2011 with her two daughters. She had purchased ticket from business class from opponent for herself.  She purchased the business class ticket for comfortable journey.  The other two tickets for her daughter were purchased from economy class.  The business class ticket is valued at Rs.1,92,970/- and the economy class is valued at Rs.58,095/-. On 8^th September, 2011, departure of the flight was 01.35 A.M.  The complainant requested cabin crew to provide her a travel night suit which is generally provided to all business class passengers, especially to elderly passengers.  The cabin crew informed her that night suit is out of stock and flight does not provide night suits to passengers.  As the night suit was not provided, she had to stay awake for the entire night as the temperature was too low.  Thereafter, the complainant boarded connecting flight to San Francisco from Hong Kong at 14.05 hours.  The complainant requested the cabin crew to provide her snacks as she had to take her prescribe medicine. The cabin crew provided stale bread and peanut butter sandwich which was having rancid smell. There was no other snacks available on board.  The complainant requested cabin crew to provide cappuccino coffee as it was advertised by the opponent on their website.  The cabin crew informed the complainant that there is no such coffee available on board and he served regular coffee.

2)                On her return journey from Hong Kong to Mumbai, the complainant was finding difficult to load her hand baggage in the over head compartment.  She requested the cabin crew to help her to put her hand baggage in the over head compartment.  The cabin crew refused to help her and demanded other co-passenger to do the needful.  The complainant requested for wheel chair while booking her tickets as it was difficult for her to walk.  Accordingly, wheel chair was provided to her every time while boarding from entrance gate to the boarding gate and also at the time of deplaning from arrival gate to exit gate.  When the complainant arrived at Mumbai on 4^th October, 2011 there was no crew or staff of the opponent to assist her when she deplaned at Mumbai.  After lot of waiting, a wheel chair was provided to the complainant.  The boy assisting the complainant started demanding tip from the complainant.  Out or curtsey, the complainant paid him Rs.100/- but he kept on arguing and insisting for more tip.  He was drunk.  He was misbehaving with the complainant and with her two daughters.  The complainant was in embracing situation. 

3)                Being aggrieved and dissatisfied by the behaviour of the opposite party, the complainant sent email to the Customer Relation Officer of the opponent through her son on 14^th October, 2011.  The said email was replied on 25^th October, 2011 and tendered the apology.  The opponent started investigation through airport manager with the ground handling agency and offered 100$ USD as goodwill gesture to the complainant for the said deficiency in service.  The complainant sent another email dated 25^th October, 2011 through her Son. It was replied on 3^rd November, 2011 informing the disciplinary proceeding.  Again, apology was tendered.  One Vishnu Rajendran by email dated 22^nd November, 2011 informed the complainant about the review of the case and offered flight service voucher to the value of 200$ USD.  Thereafter, the complainant issued notice through advocate.  The same was replied by the opponent on 7^th August, 2012.

4)                As the opponent failed to provide travel night suit, quality meal, cappuccino coffee, to give help to place hand baggage in the over head compartment, wheel chair and because of misbehaviour of the staff of opponent, the complainant has filed this complaint for recovery of the entire ticket amount Rs.1,92,970/- with interest at the rate of 12% per annum, compensation of Rs.65,000/- for mental trauma and Rs.40,000/- for expenses. 

5)                The opponent appeared and filed written version. It is submitted that there is no deficiency in service therefore the complaint is liable to be dismissed. The opponent was not aware that the complainant was suffering from Osteoporosis. It is admitted that the tickets were booked by the complainant for business class as well as economy class as contended.  It is no where mentioned that the opponent will provide night suit to the passengers in business class.  There was no promise to provide night suit.  It is admitted that on demand of complainant bread and peanut butter was provided.  But, it is denied that it was substandard and stale bread having rancid smell.  The complainant never objected about the service of breakfast and she had consumed the same without objection. The snacks are provided according to season, route and flight class.  There was no commitment to provide cappuccino coffee on every flight and on every route. As mentioned on website the passengers are required to stow their own baggage.  The crew members are always ready to help the passengers. The opponent was not informed about the suffering of complainant from Osteoporosis. After receiving email from the complainant, investigation was carried out and it was found that the person was not employee of the opponent.  He belongs to ground handling agency.  As per international norms, the airline has to use the services of ground handling agencies.  The said person was dealt with under disciplinary proceeding by the ground handling agency and he was taken out from terminal duty. Vide letter dated 25^th October, 2011, the opponent unconditionally tendered apology and offered service voucher in the amount of 100$ USD. The emails of the complainant were responded by the opponent.  Offer was made by way of goodwill gesture and not for any deficiency in service on the part of the opponent.  As there is no deficiency in service, the complainant is not entitled for relief as claimed and the complaint is liable to be dismissed with cost.

6)                After hearing both the parties and after going through the record following points arise for our consideration

POINTS

REASONS

7) As to Point No. 1 & 2 :- It is not disputes that the complainant is elderly woman and purchased business class return ticket from the opponent for travel to USA.  It is also not disputed that she traveled on 8^th September, 2011 from Mumbai Hong Kong and Hong Kong to San Francisco.  There is no dispute that she returned from San Francisco to Hong Kong and from Hong Kong to Mumbai on 3^rd and 4^th October, 2011.  According to the complainant, she requested cabin crew to provide her travel night suit which is generally provided to all business class passengers.  According to her, cabin crew informed her that night suit is out of stock.  According to the opponent, there is no provision or promise to provide night suit to the passengers of business class.  The complainant has not produced any evidence to show that the opponent promised or agreed to provide night suit at the time of purchasing ticket.  It is further alleged by the complainant that she had requested the cabin crew to provide her snacks and the cabin crew provided her stale bread and peanut butter sandwich which was having a rancid smell.  The cabin crew also refused to provide cappauccino coffee and provided regular coffee.  According to the complainant, as per website of the opponent there is provision to provide cappauccino coffee to the passengers.  It is denied by the opponent.  The complainant has not produced copy of website showing such provision or any evidence to show that the opponent promised or agreed to provide cappauccino coffee to the passengers.  According to the opponent, the complainant had consumed the breakfast willingly without objection and the said breakfast was not stale or having a rancid smell.  It is true that there is nothing on record to show that the complainant objected for stale breakfast having rancid smell. 

8)                It is further alleged by the complainant that the cabin crew refused to help her to put her hand baggage in the overhead compartment.  According to the opponent, as mentioned on the website the passengers are required to stow their own baggage.  The crew members are always ready to help the passengers.  In view of this message on website, the complainant can not claim damages on the ground of refusal to help by the cabin crew.  It is further alleged by the complainant that she was waiting for wheel chair after deplaning but there was no staff of the opponent.  After a long waiting, one boy assisted her by providing wheel chair.  He was misbehaving and demanding tip thereby there was embracing situation.  In the notice itself, the complainant has stated about the boy from ground handling agency. According to the opponent, ground handling agency is different from the opponent. Admittedly, ground handling agency is not the party before this Forum. In reply, the opponent has admitted the misbehaviour of the boy from ground handling agency.  However, the opponent offered 200$ USD by way goodwill gesture to the complainant.  As the ground handling agency is not the party to this complaint, this Forum can not award compensation for the misbehaviour by the boy of ground handling agency. 

9)                It is submitted by the learned advocate for the opponent that the burden of proving the deficiency in service is upon the complainant and there is no evidence on record to show the deficiency in service as alleged by the complainant.  For this purpose, he has placed reliance on the judgment of Hon’ble Supreme Court in the case of Ravneet Singh Bagga –Versus- M/s. KLM Royal Dutch Airlines & Anr. reported in (2000) 1 SCC 66. In para 6 of the judgment, the Hon’ble Supreme Court has laid down as under :

The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.  The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent.  The deficiency in service has to be distinguished from the tortuous acts of the respondent.  In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service.

In the instant complaint before us also, the complainant has alleged various deficiencies in service by the opponent.  But, there is no sufficient evidence to prove it.  Even though, the complainant had traveled by business class and she is elderly woman still there is nothing on record to show that the opponent agreed or promised to provide such facilities and the opponent failed.  It is submitted by the learned advocate for the opponent that the Forum can not award compensation merely on the ground of sympathy.  For this purpose, he has placed on the judgment of the Hon’ble Supreme Court in the case of Inter Globe Aviation Limited –Versus- N.Satchidanand, reported in (2011) 7 SCC 463.  In para 39 of the judgment, the Hon’ble Supreme Court has laid down as under :

Consumer Fora and Permanent Lok Adalats can not award compensation merely because there was inconvenience or hardship or on grounds of sympathy. What is relevant is whether there was any cause of action for claiming damages, that is whether there was any deficiency in service or whether there was any negligence in providing facilitation. 

In the instant complaint before us also, there is no sufficient evidence to prove the allegations of the complainant. Admittedly, the complainant is a elderly woman and traveled by business class.  Therefore, the Forum has sympathy with the complainant for her inconvenience but in view of the above judgment of the Hon’ble Supreme Court this Forum can not award compensation to the complainant. 

10)              Thus, the complainant failed to prove the deficiency in service as alleged by her in the complaint. However, from the admission of the opponent in correspondence, it is clear that the services provided by the opponent were not as per requirement.  Therefore, the opponent offered to pay compensation of 200$ USD as a goodwill gesture.  It is submitted by the learned advocate for the opponent that the said offer was by way of goodwill gesture and there is no admission of deficiency in service. On perusal of the correspondence by the opponent, it is clear that there was no deficiency as alleged by the complainant but the services were not as per requirement.  We think, the opponent should continue with its officer of 200$ USD as the services were not as per requirement.  We think it just to modify this offer i.e. instead of adjusting 200$ USD in the next trip by the complainant, the opponent should pay it in cash to the complainant which is equivalent to indian rupees prevailing on 4^th October, 2011. 

11)              The learned advocate for the opponent has placed reliance on the judgment of our State Commission in First Appeal No.A/10/205.  In this judgment, the Hon’ble State Commission has held that as the respondent traveled, travel expenses can not be returned to him.  In the instant complaint before us also, the complainant traveled therefore she is not entitled for return of travel expenses.  The learned advocate for the opponent has further placed reliance on the judgment of the Hon’ble State Commission of U.T., Chandigarh.  In that judgment, defects were rectified by the opponent therefore the appellant was not entitled for replacement of the laptop. This judgment is not relevant in this complaint. 

12)              Thus, the complainant is entitled for the amount of 200$ USD only.  The opponent should pay it in Indian currency equivalent to the prevailing rate on 4^th October, 2011. In view of the above discussion, the complainant is not entitled for further compensation as claimed by her.  Hence, we proceed to pass the following order.

ORDER

1. Complaint is partly allowed
2. The opponent shall pay amount of 200$ USD equivalent to the Indian currency at the prevailing rate on 4^th October, 2011. 
3. Parties to bear their own costs.
4. Inform the parties accordingly.

Pronounced

Dated 23^rd April, 2014