KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

  APPEAL NO. 604/2010

JUDGMENT DATED:29-11-2011

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

Dr. Ambareesh S. Mohan,

“Krishna Kripa”, Pazhaya Road,                        : APPELLANT

Medical College P.O, TVPM.

(By Adv:Sri.S.Reghukumar)

          Vs.

1.      Gulf Air Company,

P.O.Box NO.138, Manama,

Kingdom of Behrain.

2.      Gulf Air Diamond Hills,

Saran Chambers, Vellayambalam,          : RESPONDENTS

Thiruvananthapuram.

3.      Jay Hind Travels, Diamond Plaza,

Vellayambalam.

(By Adv:Sri.Abdul Kharim)

                                               JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT

The appellant is the complainant in CC.21/06 in the file of CDRF, Thiruvananthapuram.  The complaint has been allowed in part directing the opposite parties to pay Rs.300. US Dollars with interest at 12% per annum from the date of the order.

2.      The case of the complainant in short is that he was denied boarding in the flight of the opposite parties from London to Thiruvananthapuram wherein he had to attend an entrance test which he could not attend on account of the action of the opposite parties.  The complainant is a doctor by profession and was working from 11.7.05 at Royal Free Hospital, London.  He applied for the entrance test of the National Board of Examinations, Ministry of Health and Family Welfare, Government of India to be conducted in December 2005.  The admit card for the examinations was issued to him.  The examination was to be held on 11.12.2005 at 9.30 am at Medical College, Thiruvananthapuram. For his onward journey to India he obtained the confirmed ticket for the flight of the opposite parties on 9.12.2005.  Had he boarded the flight he would have reached Thiruvananthapuram on 10.12.2005 and written the examinations on 11.12.2005.  He reached the Heathrow Airport and promptly reported at the gulf air counter at 9.am itself.  The flight was scheduled at 11 am. At the reporting counter he was told that he is having excess luggage and that the same is to be booked through air cargo and was directed at 9.30am to book the excess luggage in the opposite counter and to come back.  As directed he booked the excess luggage of 42 Kg. at the luggage counter and came back to the check in counter at 10.am itself.   But the complainant was informed that the counter was closed and that hence he cannot travel by the particular flight.  Although he pleaded the authorities that he has to write examination on 11.12.2005 and that he was having a confirmed ticket and that it is as per the instruction of the counter staff that he had gone to book the excess luggage, the authorities of the opposite parties did not permit him to board the plane.  He pleaded that the authorities to permit him to travel by the next day flight even by upgrading the class so that he could reach Thiruvananthapuram on 11.12.2005 and write the examination.  The above request was also rejected and he was permitted to fly only on 11.12.2005. He could reach Thiruvananthapuram only on 12.12.2005 by which time the examinations were over.  It is stated that he had made all the preparations to write the examination and he had booked the flight sufficiently early.  He had reported at the airport at 9 am and the 1^st opposite party authorities had directed him to send the excess luggage at 9.30 am and he had come back the counter by 10 am after booking the luggage.  The flight was only at 11. am.  It was due to recalcitrant attitude of the opposite parties that he could not travel by the particular flight.  Had he attended the entrance test he would have qualified for undergoing the course which would have helped him to obtain higher placements in London as the course was approved by the foreign Universities also.  Due to the negative attitude of the opposite parties he has sustained great loss, suffered harassment and mental agony.  He has claimed a sum of Rs.20.lakhs as compensation.

3.      On the other hand, the opposite parties have filed version pointing out that the complainant had failed to report at the airport sufficiently in advance especially when he intended to travel with excess luggage in view of the time and procedure for weighing and paying the same.  The gulf air check in counter at the London Heathrow airport is to be closed 45 minutes prior to the departure of the flight due to security and operational reasons.  The complainant reported at the check in counter after paying the excess luggage charges only after closure of the counter.  The airline was not in a position to issue boarding pass to the complainant or to permit him to travel in the flight.  Seats were not available for accommodating the complainant on the next day’s flight also.  He could be accommodated only on 11.12.2005 for want of vacancies in the earlier flights.  It is denied that the complainant came back to the check in counter by 10 am as alleged but only after the closure of the counter at 10.15 am.

4.      The evidence adduced consisted of the testimony of PW1, DW1, Exts.P1 to P4, D1 and D2. 

5.      The Forum has found that there is deficiency in service on the part of the opposite parties.  The Forum has found that the evidence of PW1 that he came back to the check in counter after booking the excess luggage at 10 am is reliable.  The Forum has also observed that he reported at the check in counter before the closure of the counter. The compensation was limited to Rs.300. US dollars on the basis of the decision of the National Commission in Rajender Pal Jaura Vs. Secretary, Union of India 2003 (1) CPJ 24 (NC) that as the Denied Boarding Compensation (DBC) is 300 US dollars and that the airline is not bound to pay any remote damages.

6.      The counsel for the appellant has pointed out that PW1 in the cross examination has stated that he  came to the airport at 8 am ie 3 hours prior to the departure of the flight and that he could reach at the counter standing in the queue only at 9 am.  It is further pointed out that due to the deficiency on the part of the opposite parties, the complainant could not write the Medical Board’s graduate entrance examination and he lost opportunity to complete the above course which would have helped him in his carrier a lot.  The counsel has sought for a higher amount of compensation and pointed out that 300 US dollars is nothing in comparison with the losses that he has sustained. The counsel for the appellant has also relied on the decision of the National Commission in Royal Jordanian Vs. Shakuntala Rani and Others 2011 (1) CPR 207 NC wherein a higher amount of compensation was awarded. Wherein the National Commission has dismissed the Revision Petition filed the airlines against the order of the State Commission.  The direction of the Revision Petitioner’s to pay Rs.1.lakh as compensation and Rs.2500/- as cost.  The above has also a case of denial of boarding.    On the other hand, it was strongly contended by the counsel for the respondent/opposite parties that in fact it was only on account of the lapse on the part of the complainant that he could not be accommodated in the flight.  It is pointed out that he had an excess luggage of 42 Kgs and that he came to the airport only at 9 am whereas he ought to have reported at 8 am as there is specific instruction in this regard that with respect to the international flights  that the passenger should report 3 hours earlier. The check in counter is bound to be closed 45 minutes before the time for the take off of the flight and that they are bound by the regulations of the authorities in this regard.

7.      Of course as pointed out by the counsel for the respondents, the complainant has not stated in the complaint that he reached the airport at 8 am.  It is mentioned in the complaint that the authorities directed him to send the excess luggage by air cargo at 9.30 am and he come back at 10 am.  It has to be noted that he reported at the check in counter and was directed to book the excess luggage through air cargo and report back.  He had a confirmed ticket.  The check in counter staff was aware of the fact that such a person had reported with the confirmed ticket and he had gone to book the excess luggage.  The Forum has found the evidence of PW1, the complainant that he reported back at 10 am is credible.  No appeal has been filed by the opposite parties.  Evidently the arrangement at the check in counter is not sufficiently helpful as he could reach at the counter only by 9.30 am, standing in the queue.  He had to take about half an hour to sent the excess luggage in another counter. Therein also he had to wait for about half an hour.  More facilities ought to have been provided for the passengers having confirmed tickets.  PW1 has further deposed that when he reported back boarding of business class passengers were going on and that the counter was not closed.  There is nothing to disbelieve the evidence of PW1 in this regard.  In the circumstances we find that there is nothing to interfere in the finding of the Forum as there is pronounced deficiency in service on the part of the opposite parties.

8.      In view of the fact that the complainant could not attend the PG entrance examination and that the certificate obtained on completion of the course is recognized by all foreign universities the compensation directed to be paid ie 300 US dollars appears to be quite on the lower side.  In view of the decision of the National Commission in Royal Jordanian Vs Shakuntala Rani and Others (supra) there is no restriction to confine the amount of compensation to 300 US dollars.  We find that the amount of compensation ordered to be paid is liable to be enhanced.  We find that it would be reasonable to direct the opposite parties to pay a sum of Rs.1000/- US dollars as compensation as per the conversion value as on the date of the order of the Forum ie 31.5.2010.  The complainant also would be entitled for interest as ordered by the Forum. The complainant will also be entitled for cost of Rs.7500/-.  The amounts are to be paid within 3 months from 29.11.2011 the date of this order failing which the complainant will be entitled for interest at 18% from today.

In the result the appeal is allowed as above.

Office will forward the LCR along with a copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU:  PRESIDENT

VL.