PER SMT. JYOTI IYER - HON’BLE MEMBER :
1) This complaint has been filed by the Complainants against the Opposite Parties alleging them for arbitrarily and illegally off loading the Complainants after boarding the Opposite Parties flight on 24/05/07 alleging security problems in their baggages and/or security drill conducted by Israel Police Officials and further for directions to the Opposite Parties to pay to the Complainants Rs.3,00,000/- towards loss injury caused to the Complainants due to negligence and dereliction of duty on the part of Opposite Parties and Rs.5,000/- towards the cost of litigation etc.
2) The facts of the case in a nut shell are as follows –
The Complainants i.e. father and daughter travelled on Egypt Air Flight on 19/05/2007 from Mumbai-Cairo Tele Aviv and back on 26/05/2007 (hereinafter for the sake of brevity & convenience referred to as Opposite Party No.1). It is contended by the Complainants that they had a nightmare on their Tele Aviv - Cairo Sector which they were scheduled to travel on 24/05/2007. The Complainants had booked themselves to travel on Tele Aviv – Cairo Sector in economy class and underwent the strict security check at Tele Aviv Airport. The Complainants were issued boarding cards in Club Class for the said travel in Club Class seat no.1C & 1H which they occupied in due course after completing necessary formalities. The Complainants contend that they observed a diplomatic bag on seat no.1A. It is the further case of the Complainants that approximately 10 minutes prior to the departure of their flight one Mr.Yousof, and Ms.Noami the Manager and the Asst.Manager of the Opposite Party No.1 at Tele Aviv Airport approached the Complainants and advised them that there was some alleged security problem with their baggages and hence, the Complainants were off loaded. The Complainants further aver that they were informed the staff of the Opposite Party No.1 that their baggages were opened and were thoroughly checked and therefore, the Complainants expressed their surprised that they were being off loaded due to alleged security problems in their baggages. The Complainants states that they were utterly humiliated and embarrassed and it caused them mental shock etc. to walk out of the plane in front of other passengers due to no fault of theirs and on account of alleged security reasons.
3) The Complainants aver that on enquiry with the officials of the Opposite Party No.1 at Tele Aviv Air port they were informed that they were being off loaded for alleged security reasons and would be taken care of and some kind of compensation would be offered to them for the same. The Complainants further contend that surprisingly their baggages were not re-checked by the security which was the reason for which the Complainants had been off loaded. The Complainants were thereafter booked on an El-A1 flight departing at 0115 hrs. on 25th May morning arriving Cairo at 0230 hrs. It is the contention of the Complainants that on inspection of the boarding cards which were issued to them just one hour prior to departure of the said El-A1 flight they discovered the remark “ENDORSED TO EL AL DUE OVER BOOKING” on their said boarding cards. The Complainants thereupon were shocked and surprised that they were off loaded at the boarding station on account of alleged over booking and not for security reasons as falsely contended by the staff of the Opposite Party No.1. The Complainants further aver that on reflection they realized that a Government Official had entered the business class cabin with lot of duty free baggage just before the departure of the said flight and therefore, the Complainants were targeted and deplaned to make the travel comfortable of the said Government Official at the cost of the Complainants who were falsely off loaded for alleged security reasons and on realizing the real reasons for being off loaded the Complainants contends that they went through immense mental agony and torture as no fault could be attributed to them. The Complainants states that they had to spend 13 long hrs. in the transit lounge at the Tele Aviv Airport to reach Cairo the journey duration of the said flight from Tele Aviv to Cairo being only one hour only, that to without proper rest, food, sleep and developed severe backache sitting on the chairs for such long hours. and that the Complainant no.1 being a diabetic and asthmatic patient had to undergo tremendous trauma on account of lapse and negligence on part of Opposite Parties. The Complainants further contend that they lost the whole day in Cairo because of the night mare at the airport on 24/05/07 and their itinerary and appointments for 25/05/07 which they had with three travel agents had to be subsequently cancelled due to lack of sleep and total exhaustion. The Complainants therefore attribute that due to the negligence of the Opposite Parties they had to not only go through tremendous mental agony but also physical trauma hence, they are liable to be compensated for the same in accordance with the Warsaw Convention and Montreal Convention.
4) The Complainants therefore, addressed letter dated 30/05/2007 calling upon the Opposite Parties to investigate and compensate the Complainants, however, in vain. Xerox copy of the said letter dated 30/05/2007 is at Exhibit – ‘A’ to the complaint. The Complainant thereafter addressed through their advocates a notice dtd.02/09/2007 once again placing the aforesaid facts on record and calling upon the Opposite Parties to compensate them for deficiency in service on their part however, again in vain. The Complainants therefore addressed another notice dtd.07/11/2007 to the Opposite Parties requesting compliance of their earlier requisitions. Xerox copies of the said notices dtd.02/09/2007 and 07/11/2007 are at Exhibit –‘B’ ‘C’ respectively to the complaint. The Opposite Parties advocate by his letter dated 29/11/2007 in reply to the said letter, notices of Complainant falsely contended that there was security drill by Israel Police Officials before the plane could be given a green signal for take off and if for any security reason the Complainants were deplaned by Israel Police Officials then the Opposite Parties were mute spectators in a country like Israel and therefore, denied they were liable to pay any compensation to the Complainant. Xerox copy of the said letter dtd.29/011/07 is at Exhibit-‘D’ to the complaint. The Opposite Parties failed to comply with the requisitions made by the Complainants in their aforementioned letters and notice hence, the Complainants were constrained to filed this present complaint seeking compensation to the tune of Rs.3,00,000/- for mental & physical agony etc. and Rs.5,000/- towards cost of litigation.
5) Pursuant to the issuance of notice the Opposite Parties appeared and filed their written statement denying all the allegations made against them in the complaint. The Opposite Party No.1 i.e Egypt Air contends that it is a company/corporation incorporated under the laws of Republic of Egypt having its head office situated at Cairo Airport, Cairo, Egypt and that the entire equity of Opposite Party No.1 i.e. Egypt Air is held and controlled by the Government of Egypt. Opposite Party No.1 i.e. Egypt Air is thus foreign state within the meaning of section 86 of the Civil Procedure Code and prior consent of Central Government is required before initiating any matter/case against a foreign state. No such prior consent of Central Government is on record. The Opposite parties submit that in the complaint as well as in letter dated 30/05/2007 at Exhibit-‘A’ & notice dtd.02/09/07 of Complainants advocate at Exhibit-‘B’ it is clearly admitted that there was a security drill and check as a result of which passengers i.e. Complainants were asked to deplane. The Opposite Party no.1 and 2 contend that vide their reply dated 29/11/2007 at Exhibit “C” they have clearly stated that there was a security drill by Israel Police before plane could be given green signal for “take off” and if for any security reason Complainants are deplaned by Israel Police Officials then officials of the Opposite Party No.1 i.e. Egypt Air are mute spectators in a country like Israel. Further in a country like Israel on ground of security anything is possible in an aviation sector for which Opposite Party No.1 Egypt Air and its officials cannot be blamed. The Opposite Party No.1 say that the Complainants are making mole out of mountain merely because tickets endorsed to EL AL an Israel Airline mentioned “endorsed to EL AL due to over booking”. In an aviation sector if a passenger is deplaned due to any security reason then if endorsement says endorsed to EL AL due to security reason then in a country like Israel no airline would carry the risk of flying such passengers without a through checkup which extends to the country of his origin. The Opposite Parties contend that mere endorsement of overbooking on ticket while in transit for other carrier to accommodate the passenger is not an act of disservice. These are exigencies of international travel especially in a country like Israel. The Opposite Parties therefore pray for dismissal of the Complaint with cost as no case of deficiency in service is made out by the Complainants against them.
6) We have perused the Complaint, Written Statement, Affidavit of Evidence, written Arguments filed by both the parties. Since the Advocate for Opposite Parties despite the matter being adjourned twice failed to appear before us for Oral Arguments, we therefore heard the Complainant-in- person at length and closed the matter for judgment on the basis of the written statement, documents and written argument etc. filed by the Opposite Parties.
7) The issues which arise for our consideration are as follows
a)Whether the Opposite Parties can be liable for deficiency in service ?
b)If yes, whether the reliefs sought by the Complainant can be granted and to what extent ?
8) It is the contention of Opposite Party No.1 i.e. Egypt Air is a company/corporation incorporated under the laws of Republic of Egypt having its head office situated at Cairo Airport, Cairo, Egypt. The entire equity of Egypt Air is held and controlled by the Government of Egypt. Egypt Air is thus a foreign state within the meaning of section 86 of the Civil Procedure Code and prior consent of Central Govt. is required before initiating any matter/case against a foreign state. No such prior consent of Central Government is on record. The Opposite Party No.1 in support of its said contention has relied on the Hon’ble Bombay High Court judgement reported in 1998 (3) L.J 253 in case of Kenya Airways V/s. Jinibai B. Kheshwala that as long as a company is fully owned and controlled by Government of foreign country the said company would be entitled to claim the immunity under section 86 of the C.P.C. The Hon’ble Court has further held that in India the Sovereign is not lost even though a company may be engaged in commercial activities. For coming to a conclusion whether section 86 of the C.P.C., 1908 would be applicable to the present facts and circumstances of the case and whether the Opposite Party No.1 can claim immunity under the said section. We will have to examine Sec.86 of C.P.C. 1908.
Sec.86 of the Civil Procedure Code, 1908 is reproduced hereunder –
Suit against foreign Rulers, Ambassadors and Envoys. – (1) No [***] foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government.
Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid [a foreign State] from whom he holds or claims to hold the property.
(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which [the foreign State] may be sued, but it shall not be given, unless it appears to the Central Government that [the foreign State] –
(a) has instituted a suit in the Court against the person desiring to sue[it], or
(b) by [itself] or another, trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege accorded to [it] by this section.
[(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State]
(4) The preceding provisions of this section shall apply in relation to –
[(a) any Ruler of a foreign State;]
[(aa) any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
(c)any such member of the staff [of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf,
[as they apply in relation to a foreign State]
[(5) The following persons shall not be arrested under this Code, namely:-
(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;
(d) any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf.
(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.]
9) It is pertinent to note that the caption under Sec.86 of the C.P.C. 1908 reads as suits against Foreign Rulers Ambassador & Envoys. It is also pertinent to note that the above reproduced Sec.86 bars the institution/filing of any suit against a company fully owned and controlled by Government of foreign country before taking prior consent from the Central Government. In the instant case in hand the Complainant has filed a complaint and not a suit. We are of the well considered view that had the intention of the legislature been to place a blanket bar with regard to institution of any proceedings against a foreign company fully owned by its Government the said Sec.86 of the C.P.C., 1908 would have been worded differently. Further from the stand taken by the Opposite Party No.1 in its written statement in para no.1 that Egypt Air is thus a Foreign State within the meaning of section 86 of the Civil Procedure Code and prior consent of Central Govt. is required before initiating any matter/case against a foreign state. No such prior consent of Central Government is on record. It appears that Opposite Parties have deliberately suppressed the word suit as they were/are well aware that the present proceedings filed before this Forum is not a suit but a complaint filed under the Consumer Protection Act, 1986 therefore, they have categorically stated in their written statement in para no.1 that prior consent of Central Government is required before initiating any matter/case against a foreign company which is fully owned by its Government. The Opposite Parties knowing fully well that only filing of any suit as specified in the above reproduced section 86 of the C.P.C. 1908 without consent of Central Government is barred and not a complaint under the Consumer Protection Act. It is also pertinent to note that in the present case there is not a iota of documentary evidence produced on record by the Opposite Parties to uphold the contention of the Opposite Party No.1 i.e. Egypt Air is a company fully owned & controlled by the Government of Egypt which being a foreign country prior consent from Central Government is necessary even in case of instituting any suit against the Opposite Party No.1 which actually is of no consequence in the present complaint filed before us. Further in our view the entire provisions of the C.P.C.1908 are not applicable in case of complaints filed under the Consumer Protection Act, 1986. The provisions of the C.P.C.1908 which are applicable in case of complaints filed under the Consumer Protection Act, 1986 are enumerated in the C.P.Act, 1986. It is pertinent to note that though the Opposite Parties vide their letter dated 29/11/2007 at Exhibit-‘D’ to the complaint have raised this contention that Opposite Party No.1 i.e. Egypt Air is a corporation wholly owned and controlled by the Government of Republic of Egypt and therefore Opposite Party No.1 is a foreign state in India and relied upon the aforementioned ruling of Hon’ble Bombay High Court and reiterated its said stand in their written statement and written argument. It is pertinent to note that the belated reply of the Opposite Parties dtd.29/11/2007 in reply to the letters of the Complainants at Exhibit-‘A’ to ‘C’ of the complaint appear to be completely afterthought, false and frivolous and therefore, devoid of any merit. It is also pertinent to note that though the Opposite Parties have relied on the aforementioned judgement of the Hon’ble High Court but have failed to produce the copy of the same before this Forum. It appears that knowing fully well that the said judgment will no way come to the rescue of the Opposite Parties hence, the said judgement has not been produced by the Opposite Parties before this Forum. Any which way the Complainants have produced the aforesaid ruling of the Hon’ble Bombay High Court relied upon by the Opposite Parties. On perusal of the said judgement it is clearly seen that it pertains to filing of a suit by the concerned party i.e. Petitioners and not a complaint hence, it is no way applicable to the present facts and circumstances of the case in hand as in the instant case the Complainants have filed a complaint under C.P.Act, 1986 alleging deficiency in service on the part of Opposite Parties. The Opposite Party No.1 has raised no preliminary objection regarding the maintainability of the complaint before this Forum on the contrary the Opposite Parties have filed their appearance and written statement and written arguments etc. hence, it can be concluded that knowing fully well that they were/are amenable to the provisions of the Consumer Protection Act, 1986 the Opposite Parties have done the needful & submitted themselves to the jurisdiction of this Forum. We are therefore, of the view that no prior consent from the Central Government is required to file a Complaint under C.P.Act, 1986 and that Opposite Party No.1 is not a company owned & controlled by the Government of Egypt and that Opposite Party No.1 i.e. Egypt Air is not a foreign State within the meaning of Sec.86 of the Civil Procedure, 1908. Hence, the said contention of the Opposite Parties claiming immunity under section 86 of C.P.C.1908 is untenable in law and therefore rejected.
10) The Complainants have filed the present complaint under Consumer Protection Act, 1986 & provisions of the said Act would come into play. On perusal of section 11 of the Consumer Protection Act, 1986 which deals with jurisdiction of the District Forum to entertain Complaints. The said section is reproduced hereunder -
11. Jurisdiction of the District Forum – (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs].
(2) A Complainant shall be instituted in a District Forum within the local limits of whose jurisdiction, -
(a) the Opposite Party or each of the Opposite Parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or
(b) any of the Opposite Parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the Opposite Parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
It is pertinent to note that though in Para No.1 of written statement and written argument the Opposite Parties have reiterated that the Opposite Party No.1 i.e. Egypt Air head office is situated at Cairo Airport, Cairo, Egypt. On careful perusal of the written statement of the Opposite Party it appears that the Opposite Party No.1 Regional Manager Mr.Ahmed Wasfty has affirmed /verified the written statement and address of the Opposite Party No.1 mentioned is Egypt Air Oriental House, J.J.Tata Road, Churchgate, Mumbai – 400 020. In the present case in hand it appears that the Opposite Party No.1 has a branch office at the above mentioned address and also the same address is reflected on the Internet. Under Section 11 of the C.P.Act, 1986 Complainants can file a complaint within the local limits of whose jurisdiction the Opposite Parties or each of the Opposite Parties at the time of institution of the complaint actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain. In the present case it can be concluded that the Opposite Party No.1 has a branch office at the aforementioned addressed at Mumbai and work for gain It is also pertinent to note that the Opposite Parties have received the letters of the Complainants at Exhibit – ‘A’ to ‘C’ of the complaint at their aforementioned branch office address at Mumbai Hence it can be concluded that the Opposite Party no.1 has a branch office which is within the local limits of this Forum’s jurisdiction and therefore this forum has jurisdiction to try the present complaint. In the instant case in hand the Complainants have filed this complaint alleging the Opposite Parties of deficiency in service. Under the Consumer Protection Act,1986 the Complainants would be consumers within the meaning of Sec.2(1)(d)(ii) of the C.P.Act, 1986 as they have hired the services of the Opposite Parties by paying consideration. Under the C.P.Act 1986 the term service is defined u/s 2(1)(o)which reads as follows -
“service” means service of any description which is made available to potential [users and includes, but not limited to, the provisions of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
In our view services rendered by any airlines would be within the meaning of the aforementioned definition of service. The term Deficiency under C.P. Act, 1986 is defined u/s 2(1)(g)which is follows
(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and 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 a person in pursuance of a contract or otherwise in relation to any service.
In the instant case the Complainants are consumers alleging deficiency in services rendered by the Opposite Parties & in view of the Opposite Party no.1 having its branch office at Churchgate, Mumbai which is within the jurisdiction of this Forum. In the present case the complaint filed against the Opposite Parties is maintainable and will be governed by the provisions of the Consumer Protection Act, 1986 & Carriage by Air Act 1972.
11) It is the contention of the Complainants that they were booked to travel from Tele Aviv to Cairo Sector on 24/05/2007 in economy class and under went a strict security check at Tele Aviv Airport and were issued boarding passes/cards in Club Class for the said travel in Club Class No.1C & 1H which they occupied in due course after completing necessary formalities. The Complainants state that the Opposite Parties alleging security problem with their baggages 10 minutes prior to departure of their flight off loaded them. The Opposite Parties in para no.6 of their written statement with reference to the above contention of para 4 of the complaint put the Complainants to strict proof thereof and have denied the allegations leveled against them. We are amused to the note the extent of audacity to which the Opposite Parties can go, though they have been served with the copy of the complaint alongwith all the Exhibits and it is also pertinent to note that the Exhibits produced with the complaint are not disputed nor can be disputed by the Opposite Parties as the Complainants have alongwith their complaint produced on record copies of the boarding cards of Egypt Air Flight issued to the Complainants for travel from Tele Aviv to Cairo on 24/05/2007 and copies of boarding cards of EL AL for travel from Tele Aviv to Cairo on 25/05/2007 and also the copies of Opposite Party No.1 i.e. Egypt Air Ticket dtd.25/05/2007 with their remark endorsed to EL AL due to over booking. On careful perusal of the boarding passes issued by Opposite Party No1 it is clearly seen that the names of the Complainants Mr.Menino J. Gomes & Ms.Nicolette Gomes are mentioned, Class of Travel is Economy, from Tele Aviv to Cairo, Time 12.00, Seat No.1C & 1H, Date printed is 24/05/2007 and other details are mentioned on it. There also appears to be EXIT STAMP of BEN GURIOW BORDER CONTROL of the even date i.e. 24/05/07 and on the EL AL Airways boarding passes issued the names of both the Complainants, destination to Cairo, Class – Y Flight No.LY0443 Date i.e. 25/05/2007. Boarding time, Departure time i.e. 0035 Seat No. etc. is mentioned and Tickets appear to be issued by Egypt Air and other details are seen and also a hand written endorsement to the effect “ENDORSED TO EL AL DUE TO OVER BOOKING & a stamp of AIR SINAI. TELE AVIV is seen below the said endorsement. In view of aforesaid documentary evidence produced by the Complainants i.e. tickets & boarding passes etc. We are of the view that the Complainants contention that on 24/05/07 they were deplaned and subsequently they travelled from Tele-Aviv to Cairo on 25/05/07 on EL AL Airway will have to upheld in view of the documentary evidence produced on record. It is pertinent to note that it is within the knowledge of the Opposite Parties that no evidence would be available to the Complainant hence, they have taken such a stand as to strict proof be provided regarding observation of diplomatic bag on seat 1A and regarding they being off loaded 10 minutes prior to the departure of their flight on 24/05/07 at the instance of the Opposite Party Manager and Asst.Manager. We failed to understand as to why no affidavits of the Manager Mr.Yousuf of the Opposite Party No.1 at Tele Aviv Airport and Ms.Noami, the Asst.Manager of Opposite Party No.1 at the instance of whom due to alleged security problems with the Complainants baggages and/or security drill for which the Complainants were deplaned and offloaded. It is also pertinent to note that the Opposite Parties in their reply dtd.29/11/2007 at Exhibit-‘D’ to the complaint have kept completely silent on the issue of security problem in the baggages of the Complainants although the Complainants had clearly mentioned in their letter and notice dated 30/05/07 and 02/09/07 which are at Exhibit-‘A’ & ‘B’ to the complaint had alleged that due to security problems in their baggages they were off loaded.
12. With reference to para 2 & 3 of the complaint the Opposite Parties contend in their para no.5 of written statement that if other sectors travelled by the Complainants were satisfactory it is of no consequence as the problem was/is alleged on Tele Aviv Cairo Sector and no other sector. Further the services rendered by the Opposite Party No.1 would not necessarily be deficient in other sectors. In view of the alleged special circumstances by the Opposite Parties which arose, on the Tele Aviv Cairo Sector on 24/05/07 on Opposite Party No.1 flight the Complainants were deplaned and/or off loaded. It is also pertinent to note that the Opposite Parties have merely leveled the allegations against them as false without producing any evidence to the effect as to what was the alleged security problem with the Complainants baggages for which they were off loaded. Though the Opposite Parties were informed by the Complainants that they were screened as well as their baggages were opened and thoroughly checked which is a normal procedure adopted by the Airline Industry prior to boarding the plane all passengers have to go through a mandatory security check of themselves as well as their baggages so as to confirm that no person is carrying any article etc. which is prohibited by the Rules governing the Airlines. In the present case the Complainants stand appears to be correct as they after going through the necessary security check of themselves and their baggages boarded the Opposite Party No.1 flight on 24/05/07. It is also pertinent to note that the boarding pass issued to the Complainants bears and stamp of BEN GURION BORDER CONTROL and also an exit stamp which support the contention of the Complainants that they were off loaded after boarding the said flight. Therefore, the contention of the Opposite Parties appears to be unsustainable.
13) It is contended by the Opposite Parties that the Complainants in their letter dtd.30/05/07 & their Advocate notice dtd.02/09/07 at Exhibit-‘A’ & ‘B’ to complaint addressed to the Opposite Parties as well as in their complaint contend that the Complainants have clearly admitted that there was security drill and/or check as a result of which passengers i.e. Complainants were asked to deplane. On perusal of the letters dated 30/05/07 & 02/09/07 as well as the complaint it is clearly reflected from the contents of the same that the case of the Complainants that they were off loaded alleging security problems with their baggages and/or security drill. Opposite Parties have neither failed any documentary evidence nor filed any affidavits of Mr.Yusuf, the Manager at Tele Aviv Airport and Ms.Noami the Assit.Manager at whose instance the Complainants were deplaned alleging the said aforementioned security problems etc. in support of their said contention. The Complainants contend that they had gone through a thorough check up and their baggages also were opened and thoroughly checked and after the said security check-in only they were allowed to board the said flight on 24/05/07. It is pertinent to note though that the Opposite Parties have disputed the same & put the Complainants to strict proof. There is no substance in the aforesaid stand taken by the Opposite Parties as it is nobodys case that the Complainants had not gone through the mandatory security check and/or their baggages were not opened & thoroughly checked & thereafter only the Complainants had boarded the flight on 24/05/2007.Mere denial without substantiating the same is of no consequence. Hence, in our view the Complainants contention will have to be upheld. The Complainants also contend that neither the Complainants nor their baggages were rechecked subsequent to off loading them though the Opposite Parties are disputing the same & putting the Complainants to strict proof thereof. In our view it appears that it was very much within the knowledge of the Opposite Parties that no proof would be available to Complainants & that there was no security problem in the Complainants baggages though alleged by the Opposite Party. In our view the real reasons for which the Complainants were deplaned would be only within the knowledge of the Opposite Parties which were false and frivolous within their knowledge therefore, the Opposite Parties did not recheck the Complainants nor their baggages. The Complainants have produced on record the tickets of EL AL flight departing at 0155 hrs. on 25th morning arriving Cairo at 0230 hrs. and contended that the tickets mentioned “Endorsed To EL AL due to over booking” On careful perusal of the said tickets it is clearly reflected that the tickets bear the said endorsement. Though the Opposite Parties are admitting the said endorsement by saying that such endorsement is made by Air Sinai and not by Opposite Party No.1 i.e. Egypt Air and that Air Sinai is not made party to the present proceedings. Further Opposite Party in para 4 of the written argument have stated that in any aviation sector if a passenger is deplaned due to any security reason then if endorsement says endorsed to EL AL due to security reason then in a country like Israel no airline would carry the risk of flying such passengers without a thorough checkup which extends to country of origin. In fact very wisely Egypt Air officials endorsed the ticket otherwise agony of the passengers would have further prolonged. We are of the well considered view that firstly there is no evidence produced by the Opposite Party No.1 that Air Sinai is a separate airline which has no connection with the Opposite Party No.1 airline i.e. Egypt Air. Secondly on careful perusal of the said tickets produced alongwith the complaint it is clearly reflected that on the top portion of the said tickets dtd.25/05/07 it is printed on the said tickets i.e. ISSUED BY EGYPT AIR. It appears that Egypt Air probably has a subsidiary airlines by the name of Air Sinai. In our view the Opposite Parties are coming out with lame and flimsy excuses and are on or the other pretext trying to evade their legal liability created under the statute Hence the aforementioned argument by the Opposite Parties in their written argument in para no.4 is absolutely untenable in law. It is highly inconceivable that had there been any alleged security reasons as contended by the Opposite Parties for which the Complainants were deplaned that neither the Complainants nor their baggages would not have been frisked after being off loaded. In our view the Opposite Party No.1 is not coming out openly with the truth as to why the Complainants were off loaded therefore Opposite Parties have taken a false and frivolous plea by saying that mere endorsement of overbooking on the ticket while in transit for other carrier to accommodate the passenger is not act of disservice. This stand taken by the Opposite Parties appears to be ridiculous. It appears that the Opposite Parties have lost track of the fact that deplaning the Complainants without any cogent reason after completing the necessary check in formalities would itself amount to deficiency in service on their part. The Opposite Parties have not produced any documentary evidence to the effect as to how many passengers were on board on the 24/05/2007 flight which was boarded by the Complainants
14) It is learnt from the reliable sources that if a flight/plane goes through a security drill for any reasons alleging planting of a bomb on flight then the flights take off is cancelled and all the passengers as well as crew members are deplaned thereafter the said flight is taken towards isolation bay for thorough check by the concern security agencies and also all the passengers are moved towards security held area and are put through another round of screening. The concerned security agencies not only check the air craft so also their officials go through each bag thoroughly. It is the case of the Opposite Parties that due to alleged security drill the Complainants were deplaned. However, it is pertinent to note that it is nobodys case that the said flight boarded by the Complainants on 24/05/07 was delayed.. We are also of the well considered view that in case of any security drill the aforementioned procedure is to be followed by all the concerned airlines. However, no records or any documentary evidence is produced to substantiate the contention of the Opposite Parties alleging that there was a security drill on the said flight. Hence, the Opposite Parties contention that there was a security drill conducted by the Israel Police Officials appears to be false within their own knowledge and therefore, unsustainable. In our view the Opposite Parties act is clearly an act of disservice as it can be clearly seen from the documents on record which bear the endorsement that the Complainants were off loaded due to over booking and the allegations of the Opposite Parties that due to security problems in the baggages of the Complainants and/or the security drill conducted by Israel Police Officials the Complainants were off loaded appear to be unsubstantiated. In our view the Opposite Parties are trying to mislead one and all at one hand contending that there were security problem with the Complainants baggages and on the other hand saying that the Israel Police Officials conducted a security drill. It appear that the Opposite Parties are blowing hot and cold at the same time and are trying to confuse and side track the main issue for which the Complainants were actually off loaded i.e. due to over booking and/or to make the travel of Government Official comfortable. The Complainants contention that on reflection they realised that a Government Official had entered the business class cabin with lots of duty free baggage just before departure, therefore the Complainants were targeted and deplaned just to make the travel comfortable of the said Government Official at the cost of Complainants and further falsely alleging security problems with their baggage and/or security drill the Complainants were falsely off loaded without any fault of theirs. Considering the facts and circumstances of this case we find substantial force and truth in the contention raised by the Complainants as there appears no other reasons for which the Complainants were off loaded and as neither the Opposite Parties have not been able to discharge itself from the onus /burden for which the Complainants for the aforementioned alleged reasons for which the Complainants were off loaded from their said flight on 24/05/07.
15) The Opposite Parties with reference to pare 7 of the Complaint in para 9 of their written statement state that in a country like Israel even if there is no problem with your baggage’s then also on mere suspicion one is deplaned, a fact known to all International Travellers who frequently visit Israel. It appears that the Opposite Parties want to indirectly say that there was no problem with the Complainants baggages as same was within their knowledge assuming that there was some suspicion on basis of which the Complainants were deplane. We fail to understand what prevented the Opposite Parties Officials to file necessary documentary evidence and/or affidavits as to what was the mere suspicion due to which the Complainants were off loaded rather in our view no such circumstances arose as alleged by the Opposite Parties therefore, the Opposite Parties have not filed any documentary evidence and/or affidavits as their contention for off loading the Complainants for the alleged security problem in their baggages and/or security drill conducted by Israel Police Officials was false within their knowledge.
16) In our view Opposite Parties have the audacity of saying that mere endorsement of overbooking on ticket while in transit for other carrier to accommodate the passenger is not an act of disservice. In the present case it was not offloading due to over booking as clearly seen from the facts and circumstances of the case. In our view there cannot be such provisions /Rules under any law which allow the Opposite Parties to make false endorsement in fact we fail to understand that if the alleged contention of Opposite Parties is to be upheld that there was security problem in the baggages of Complainants and/or security drill then in our view what prevented the Opposite Parties to endorse the same on the Tickets subsequently issued to the Complainants and further we fail to understand why the Opposite Parties were inclined to have the Complainants accommodated in another flight and why were Opposite Parties were sympathizing with the Complainants by wisely endorsing on the said tickets endorsed to EL AL due to over booking,on the contrary if the Complainants had a security issue with their baggages etc. they would have had to bear the brunt and would not have been allowed to board the other flight without checkup with their country of their origin. In the present case none was done.
17) It is pertinent to note that the Complainants contend that after getting their boarding passes and going through the security check-in they boarded the said flight on 24/05/07 which is not disputed by Opposite Parties. Further the Complainants contend that the Opposite Parties was aware if their said flight was overbooked then why the Complainants were boarded on the said flight as Complainants had after issuance of boarding pass and check-in had gone through immigration & customs after which the Complainants were offloaded, the Complainants could not leave the Airport since they had a single entry visa for Israel. In routine course in case of overbooking of any flight the Airlines provide a night stay at a Hotel and compensation to passengers as per their rules if they are not boarded on the flight in case of a booking that too if the passengers agree as otherwise the airlines would have to accommodate the passenger. In our view offloading passengers in view of over booking amounts to deficiency in service. In the present case it appears that the Opposite Parties had not over booked flight otherwise the Complainants would not have been boarded at all on the said flight. Further we are of the view that finding no other option the said endorsement on Tickets dtd.25/05/07 of EL AL was made i.e. ENDORSED TO EL AL DUE TO OVER BOOKING
18) The stand taken by the Opposite Parties in para no.10 of written statement and 11 of their written argument that the transit lounge at air port offered excellent services at the airport and that the allegations of the Complainants are false and fabricated and that the Complainants have not reported their sickness to fatigue to Airport Medical Officer at Israel Airport (Tele Aviv) to the Officials of Egypt Air i.e. Opposite Party No.1. The stand of the Complainants in their complaint was/is that due to the nightmare on 24/05/07 the Complainants had to spend 13 long excruciating hrs. at the transit lounge at the airport without proper rest, food, sleep and developed severe backache sitting on the chairs for such long hours to get connecting next flight from Tele Aviv to Cairo the duration of the said journey being only one hour. The Complainants further contended that due to fatigue and total exhaustion and delay of 13 hours the Complainant had to cancel their itinerary and appointments with their 3 travel agents for 25/05/07. It is pertinent to note that the Opposite Parties have no where disputed that the Complainants had to spend 13 long hours at the transit lounge at the airport for the journey of 1 hour only. The Complainants have on record produced two boarding passes dtd.24/05/2007 & 25/5/07. On perusal of the said two boarding passes the departure time of the said flights reflected was as follows – 1200 on the 24/05/07 and 0035 on the 25/05/07 respectively. The contention of the Opposite Parties that the Complainant No.1 did not report his sickness and fatigue to the Airport Medical Officer at Israel Airport or to the Officers of Egypt Air i.e. Opposite Party No.1 is quite absurd as it is not the case of the Complainant No.1 that he fell sick though he is diabetic and asthmatic patient. The Complainants only contended that due to sitting on the chairs for 13 long hours without proper rest and sleep they developed backache, fatigue and were completely exhausted therefore, in our view the question of reporting medical sickness to the concerned persons and/or authorities would not arise at all and further it is but natural that sitting on chairs for 13 long hours any person much less the Complainants would obviously develop backache etc. and would be totally exhausted. Hence, this contention of the Opposite Parties are appears to be absurd and therefore unsustainable.
19) Therefore, in our view the contentions raised by the Opposite Parties are totally devoid of merit and untenable in law. Further we are of the view the Opposite Parties to escape their liability has/is come out with a false, flimsy and concocted story which is not supported by a cogent documentary evidence. Therefore, we are of the well considered view that off loading passengers i.e. Complainants in the present case without any cogent reason on a false pretext of security problems with the Complainants baggages and/or on the false ground of security check/drill conducted by the Israel Police Officials and endorsing the tickets with a false remark endorsed to EL AL Airlines due to over booking although the same appears to be untrue from the facts and circumstance of the case and it would clearly amount to deficiency in service by the Opposite Parties. Therefore we answer both issues in affirmative and are of the view that the Complainants need to be compensated. The Complainants in their complaint have prayed for compensation of Rs.3,00,000/- towards mental agony and negligence and deficiency of service on the part of Opposite Parties and further prayed for sum of Rs.5,000/- towards cost of litigation etc. In our view there is no doubt in our minds that the Complainants must have gone through immense mental agony and torture firstly for been deplaned and/or off loaded on false grounds for no fault of theirs and further we also have not a iota of doubt in our minds that how immensely humiliating and embarrassing it must have been for the Complainants to walk through the said flight when the other passengers were giving them glances as though they were some culprits and had done something wrong for which they were been off loaded and secondly for the fatigue which they had to go through by spending 13 long hrs. in the transit lounge for a journey the duration which was only one hour and also for canceling their itinerary and appointments for 25/05/07 in Cairo for sight seeing due to the fatigue and exhaustion caused to the Complainants on the previous day i.e. 24/05/2007. It is rather unfortunate and highly deplorable that airlines i.e. Egypt Air being Airlines of such stature are adopting such unethical modes and methods to offload passengers like the Complainants in the present case. In our view to achieve ends of justice the Complainants should not only be compensated for the deficiency in services by the Opposite Parties but also for constraining the Complainants to such an extent that they had to approach this Forum for redressal of their grievances, hence, in our view what just and fair the Complainants should be compensated with. Hence, the following order -
: O RD E R :
1.Complaint no.121/2009 is partly allowed in following terms.
2.Opposite Parties are directed to pay an amount of Rs.1,00,000/- (Rs.One Lakh Only) to the Complainants towards compensation for mental agony and for
deficiency in services by the Opposite Parties.
3.Opposite Parties are directed to pay an amount of Rs.2,500/- (Rs.Two Thousand Five Hundred Only) towards cost of litigation to the Complainants.
4.Opposite Parties are directed to comply with this order within 1 month from the date of receipt of copy of this order. In case of failure to pay aforesaid
amount within stipulated period, then the Opposite Party shall be liable to pay interest @ 9 % p.a. till realization of entire amount to the Complainants.
5.Certified copies of this order be furnished to the parties.
