Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member

          This appeal filed by the Appellant/original Complainant, namely – Air France (hereinafter referred to as ‘the Appellant’ for the sake of brevity) takes an exception to an order dated 30/10/2010 passed by the District Consumer Disputes Redressal Forum, Central Mumbai (hereinafter referred to as ‘the Forum’ for the sake of brevity) in Consumer Complaint No.222 of 2009, Dr. Ajay Chimanlal Kothari and Another  Vs.  M/s. Air France.

[2]     Undisputed facts are that the Respondents/original Complainants, namely – Dr. Ajay Kothari and Dr. Mrs. Gopa Kothari (hereinafter referred to as ‘the Complainants’ for the sake of brevity) who are the medical practitioners by profession being frequent air-travelers and are commercially important persons (for the airlines).  The Complainants utilizing mileages at their credit booked an air-passage from Mumbai to Naples via Paris for the flight operated by the Appellant for 11/5/2009.  They booked an air-passage in the business class.  Flight No.AF-217 of the Appellant was scheduled to leave at 02:25 a.m. on 11/5/2009.  Said flight on the date was rescheduled due to its inordinate delay and renumbered as leaving on the following day as Flight No.AF-271A.  The Complainants who reached the Mumbai airport about three hours prior to the scheduled departure of the flight around 11:30 p.m. on 10/5/2009, came to know that their flight was cancelled.  The Complainants were not informed about such change in the schedule of the flight prior to they reached the airport.  As a result thereof, their reservation at Naples in Hotel Positano as well as the taxi which they booked through hotel to carry them from Naples airport to the hotel got wasted.  Hotel charged them €179 and for the taxi they were charged at €150.  On the next day also their flight departed late and as such they reached late at Paris airport and as a result of which they missed their connecting flight for Naples.  The Complainants had to incur expenses of €40 over their meals.  Alleging deficiency in service on the part of the Appellant, the Complainants claimed reimbursement of these expenses towards hotel, taxi as well as meals, supra, and also claimed compensation from the Appellant.  Since the flight according to the Complainants was cancelled referring to the European Union (EU) Regulations 251 of 2004 (hereinafter referred to as the ‘EU Regulations’ for the sake of brevity) claimed compensation for each Complainant @ €600.  Thus, the total claim of compensation of `2,76,330/- is as under:-

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[3]     The Forum partly allowed the consumer complaint and directed the Appellant/original Opponent to pay to the Complainants an amount of `1,11,330/- together with interest thereon @ 9% p.a. as from 4/12/2009 besides compensation of `30,000/- towards physical and mental agony and `5,000/- towards costs.  Feeling aggrieved by the impugned order, the Appellant, Air France preferred this appeal.

[4]     Heard Adv. I. H. Rahman instructed by D. H. Law Associates on behalf of the Appellant.  Respondents/original Complainants chose to remain absent at the time of hearing and did not advance their oral submissions.

[5]     In the instant case, first and foremost ground which the Appellant has raised is about the applicability of EU Regulations to determine the amount of compensation.  According to the Appellant, as far as India and as such, the Complainants are concerned, they are not covered by it but the provisions of Carriage by Air Act, 1972 shall apply.  Appellant further referred to the provisions in the light of the circumstances of the present case and submitted that no compensation for alleged mental and physical torture could be payable to the Complainants since the Carriage by Air Act, 1972 which incorporates the provisions of Warsaw and Hague Conventions, a carrier cannot be held liable for mental tension, mental agony etc. unless the same is accompanied by a physical injury and which is absent in the instant case.  Appellant further denied that they are not liable for any deficiency in service on their part, as alleged by the Complainants.

[6]     It is revealed from the submissions made on behalf of the Appellant and the facts which go undisputed as to the circumstances in which the Flight No.AF-217 could not take off at the scheduled time, that the Flight No.AF-218 from Paris to Mumbai is the one which after reaching Mumbai is to be numbered as Flight No.AF-217 for Mumbai to Paris.  Flight No.AF-218 due to some technical problem took off from Paris airport at 12:45 p.m. local time and thus, actually there was a delay in take-off of the said flight by about two hours.  Thereafter, after two hours approximate flying time, the flight crew indicated to the airport control at Paris that a loud noise in the front cargo-hold was being heard and the vibrations were also felt in the main cabin.  Cargo included a low risk radioactive parcel being transported to India by France for the purpose of diagnosing liver cancer i.e. for medical diagnostic purpose and it contained low radioactive Yttrium.  Though said cargo was perfectly safe, it was by its nature driven the crew to be extra-cautious who reported the incident to Centre-D Control Desk Operation at ParisAirport (hereinafter referred to as ‘the CCO’ for the sake of brevity).  The CCO showed its concern with the problem and the potential danger in case the radioactive parcel of Yttrium gets an unexpected breakage then, perhaps, Mumbai Airport may not be able to cope-up with the possible risk and, therefore, decided in its own wisdom and in consultation with the Appellant’s senior management official, directed the flight to return back to Paris airport.  After return of the flight accordingly at Paris, due care was taken.  Risk involved was met out and thereafter, rescheduling the flight it was sent back to Mumbai in the early morning on 11/5/2009.  This fact would show that an unexpected and inordinate delay in the flight was a result of a situation which was beyond the control of the Appellant.

[7]     A dispute is raised as to whether it was a case of flight cancellation or otherwise.  Since the flight was renumbered, ultimately, it was cancellation of the original flight.  Apart from that in any case, there was an inordinate delay (long delay) even after the rescheduled timing of about 24 hours.  There is no evidence to show that said rescheduled flight left the airport at Mumbai before the next scheduled flight.  Therefore, in any case, even by any norms, it can be treated as either a cancelled flight or flight which was inordinately delayed (long delay).

[8]     EU Regulations 261 of 2004 in such circumstances of the cancellation or inordinately delayed flight for the operating carrier like the Appellant may not be directly applicable to the subjects like the Complainants still, the Appellant being an operating international carrier is expected to maintain those standards to satisfy those minimum rights of a passengers in the given circumstances and if the Appellants fails to stand by it then, it amounts to deficiency in service on the part of the Appellant within the meaning of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for the sake of brevity) since the Appellant failed to act in a manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by it in relation to the services they are expected to render.

[9]     In the instant case, it is the case of the Appellant that after the Complainants reached the airport, like any other passenger in the given circumstances, were given an option to indicate their choice to be accommodated on any other operating carrier’s flight as per the availability on ‘first come first serve’ basis or otherwise the Complainants would be accommodated as per the rescheduled timing of the flight.  It is the case of the Appellant and which is disputed by the Complainants that the Complainants opted to return back to their home and catch the next day’s rescheduled flight.  Whatever it may be but, the fact which remain is that the Appellant did not informed the Complainants about long delay/cancellation of the flight which the Appellant in normal course is expected to do.  It may be mentioned here that the total travel time from Mumbai to Paris and from Paris to Mumbai is over eight hours and, therefore, at the juncture when the CCO had taken a decision and directed the flight to return back to Paris, supra, simultaneously, as per apparent consequences, it would result into inordinate (long) delay in Flight No.AF-217.  Therefore, sufficient time was left to the Appellant to inform the passengers of Flight No.AF-217 about these developments and change of flight timings which the Appellant failed to do and, therefore, their deficiency in service on this count is well-established.

[10]    It is further revealed as per the statement of the Appellant that they have offered 10,000 bonus miles as a result of the inconvenience suffered by the Complainants.  Besides that the Appellant even agreed to reimburse to the Complainants the actual expenses which the Complainants incurred due to cancellation of the hotel booking on the day of arrival, taxi charges and also meals expenses which the Complainants had to incur at Paris airport due to missing of the connecting flight to Naples since the flight from Mumbai reached there late.  The Appellant asked the Complainants to submit original vouchers/bills/invoices and the claim was not reimbursed since the Complainants failed to submit the original documents.  It is further revealed from the material placed on the record that the Complainants claim to have lost all those original bills etc. since their bags were stolen during the transit.  Under those circumstances, since the claim made is quite reasonable and not exorbitant, the Appellant should have acted upon the statement made by the Complainants to reimburse those amounts which would be €179, €150 and €40 respectively for cancellation of the hotel booking on the first occasion, taxi-fare to reach them to the hotel from Naples airport and expenses for meals for two at Paris airport on the second day; and which comes to `25,830/- in Indian Currency (INR) considering €1 is equivalent to `70/- (INR) as per then prevailing foreign exchange rate, as alleged by the Complainants and not disputed by the Appellant.

[11]    The Complainants have also claimed compensation @ €600 for each one of them as per EU Regulations.  However, the Complainants failed to show that those regulations govern the affairs in question.  Then, as submitted by the Appellant, the Complainants are covered by Carriage by Air Act, 1972.  Under the circumstances compensation based upon EU Regulations which is a case of quantified damages for compensation, cannot be awarded in the instant case.

[12]    Further, as per provisions of Carriage by Air Act, 1972 which reflects Warsaw Convention and Hague Protocol, it being a case falling of operating the flight with excessive delays compared to planned schedule, the operating carrier in agreement with the passenger must carry the passenger on the next flight with an available seat, without surcharge and where applicable, extend the Ticket validity commensurately, or re-route the passenger to the destination shown on the ticket within a reasonable time, in whole or in part on the Carrier’s own flights or those of another Carrier, or by any other means of carriage agreed on with the passenger.  In a case before us, it is alleged by the Appellant that the passengers of Flight No.AF-217 were informed about the status of the flight and they were given an option.  However, according to the Appellant, the Complainants opted to return back to get accommodated on the flight which was delayed and scheduled to depart on the next date.  Considering the preponderance of probabilities we find no reason to disbelieve their such statement.  Therefore, in the given circumstances as far as accommodating the Complainants on the rescheduled flight is concerned, no deficiency in service on the part of the Appellant could be complained.  Furthermore, in the given circumstances and considering the provisions of Carriage by Air Act, 1972 no compensation for mental torture, as alleged and `30,000/- awarded by the Forum as per impugned order could be claimed and/or awarded.  Therefore, the impugned order needs modification to that extent.  We hold accordingly.

[13]    However, as earlier pointed out, deficiency in service on the part of the Appellant by not informing in advance the Complainants about expected long delay in the flight or likely cancellation thereof is well-established.  Therefore, in the backdrop of the circumstances, we find it proper to award token compensation of `25,000/- to each one of the Complainants i.e. total `50,000/-.

          For the reasons stated above, we find that it would be just and proper to award to the Complainants compensation of `50,000/- plus `25,830/-, supra.  We hold accordingly and pass the following order:-

ORDER

Appeal is partly allowed.

Impugned order dated 30^th October, 2010 passed by the District Consumer Disputes Redressal Forum, Central Mumbai in Consumer Complaint No.222 of 2009 is modified.

Appellant, Air France do pay compensation of `75,380/- to the Respondents, Dr. Ajay Chimanlal Kothari and Dr. Mrs. Gopa Kothari.  Compensation be paid within a period of forty-five days from today and failing which it shall carry interest @ 18% p.a. from the date of default till its realization.

Appellant, Air France to bear its own costs and shall pay `5,000/- as costs of consumer complaint to the Respondents.

Pronounced on 12^th October, 2012