BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 21/2006 Filed on 23/01/2006

Dated: 31..05..2010

Complainant:

Dr. Ambareesh S. Mohan, 'Krishna Kripa', Pazhaya Road, Medical College P.O., Thiruvananthapuram – 11.

(By Adv. R. Sathi)

Opposite parties:

1. Gulf Air Company, P.O. Box No.138, Manama, Kingdom of Behrain.

2. Gulf Air, Diamond Hills, Saran Chambers, Vellayambalam, Thiruvananthapuram.

   (Opp. Parties 1 & 2 by Advs. A.Abdul Kharim & R. Ranjit)

    

3. Jay Hind Travels, Diamond Plaza, Vellayambalam, Thiruvananthapuram.

    

This O.P having been heard on 27..02..2010, the Forum on 31..05..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant is a Doctor by profession and had gone to London on 11/07/2005 for permit free training at Royal Free Hospital, London and while working there he had applied for the Entrance Test Examination of the National Board of Examinations, Ministry of Health and Family Welfare, Government of India, to be conducted in December 2005, that in the last week of November 2005 the complainant was informed by his parents that the Admit Card had arrived and the examination was on 11^th December 2005 at 9.30 A.M to 12.30 P.M and from 2 P.M to 5 P.M and the venue of examination was Medical College, Thiruvananthapuram, that as the complainant had already taken the ticket from the 3^rd opposite party for his return journey also at any time, the only thing he had to do was to confirm the ticket and as such he had confirmed his ticket for the journey on 9/12/2005 itself, that complainant reached the Heathrow Airport and promptly reported at the Gulf Air Counter at 9 A.M itself as the flight was scheduled at 11 A.M, that on reporting at the counter it was informed by the counter staff of the 1^st opposite party that the complainant had excess luggage and the same had to be booked through Air Cargo and was further directed to book the excess luggage in the opposite party counter and to come back after booking for his onward journey to Thiruvananthapuram, that complainant booked the excess luggage of 42kgs in the luggage counter and came back to the ticket counter by 10 A.M itself, that the complainant was informed that the counter was closed and that he could not travel by the flight on 9/12/2005, he pleaded with the authorities that he had to write the examination on 11/12/2005 and that he was having a confirmed ticket and that it was as per the instructions of the counter staff he had gone to book the excess luggage in the opposite parties counter. Opposite parties turned a deaf ear to his request and pleadings and the plane taking off without being able to travel by that flight, though the complainant requested the officials of the opposite parties to make arrangements to enable him to travel by the next days's flight, opposite parties denied the same. Complainant was permitted to travel only on 11/12/2005 which was of no use to him, that complainant lost a golden chance by not being able to write the examination on 11/12/2005 though he had thoroughly prepared for it, that the opposite parties had committed grave deficiency in service and unfair trade practice in not permitting the complainant to travel by the flight on 9/12/2005. Hence this complaint to direct opposite parties to pay a sum of Rs. 20 lakhs as compensation to the complainant along with cost.

2. Opposite parties 1 & 2 filed version contending that the complaint is not maintainable, that it is true that the complainant was a passenger holding an OK ticket for travel from London – Heathrow Airport to Thiruvananthapuam (via) Abudhabi in the flight of 2^nd opposite party on 9/12/2005, that complainant failed to report to 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 for the same, that the Gulf Air check in counter at the London Heathrow Airport shall close 45 minutes prior to the departure of the flight due to security and operational reasons, that complainant reported to the check in counter after paying the excess luggage charges only after the closure of the counter and hence the Airline was not in a position to issue boarding pass to the complainant or to permit him to travel in the flight. It is submitted that the seats were not available for accommodating the complainant on the next day's flight also, that he could be accommodated only on 11/12/2005 for want of vacant seats in any earlier flights. There is absolutely no negligence nor deficiency in service on the part of the opposite party, that the purpose of journey of the complainant was only known to him, that the complainant did not come back to the check in counter by 10 A.M as alleged but only after the closure of the counter at 10.15 A.M. Hence opposite parties prayed for dismissal of the complaint.

3. 3^rd opposite party did not turn up and file version instead of having received notice from this Forum. 3^rd opposite party set expate.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of opposite parties?

    

2. Whether the complainant is entitled to compensation, If so, at what amount?

    

3. Whether the complainant is entitled to cost, If so, at what amount?

In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P4. Complainant has been cross examined by opposite parties. In rebuttal, 2^nd opposite party has filed affidavit and has marked Exts. D1 & D2 subject to proof. 2^nd opposite party has been cross examined by the complainant.

4. Points (i) to (iii) : Admittedly, complainant was holding an OK ticket for travel from London–Heathrow Airport to Thiruvananthapuram in the flight of opposite parties on 9^th December 2005. It has been the case of the complainant that he was undergoing a training from 11/07/2005 at the Royal Free Hospital London. While so, he had applied for the Entrance Test Examination of the National Board of Examinations, Ministry of Health and Family Welfare, Government of India to be conducted on 11/12/2005, and that he had already taken the ticket from 3^rd opposite party for his return journey at any time, and the same was confirmed for journey on 9/12/2005. It has also been the case of the complainant that he reached the Heathrow Airport on 9/12/2005 and reported at the Gulf Air Counter at 9 A.M and the flight was scheduled at 11A.M, that he was informed by the counter staff of the 1^st opposite party to book excess luggage through Air Cargo and come back after booking for his onward journey to Thiruvananthapuram, that accordingly he booked the excess luggage of 42kgs in the luggage counter and came back to the ticket counter by 10 A.M, that thereupon he was informed that the counter was closed and that he could not travel by the flight on 9/12/2005. It has also been the case of the complainant that even after repeated requests opposite parties did not permit him to travel by the next day's flight but permitted him to travel only on 11/12/2005 which was of no use to him. Ext. P1 is the copy of Admit Card for Centralised Entrance Test (CET-NBE) Examination, December 2005. As per Ext. P1 the date of Examination is 11^th December 2005 and venue is Medical College, Thiruvananthapuram, Name of the candidate is Ambareesh S. Mohan . Ext. P2 is the copy of the Air ticket. Ext. P3 is the copy of the invoice for having booked the excess luggage on 9/12/2005. It has been contended by opposite parties that complainant failed to report to the Airport sufficiently in advance when he intended to travel with excess luggage in view of the time and procedure for weighing and paying for the same, that the procedure in the London – Heathrow Airport for checking in was that the passenger, who carries luggage in excess of the free baggage allowance, had either to remove the excess luggage or pay for the excess baggage counter and to report back in the queue for checking in, with the luggage weighing within the limits of free baggage allowance, permissible in the relevant sector from time to time. It has also been contended that the Gulf Air check in counter at the London Heathrow Airport shall close 45 minutes prior to the departure of the flight due to security and operational reasons, that complainant reported to the check in counter after paying the excess luggage charges only after the closure of the counter and hence the Airline was not in a position to issue boarding pass to the complainant or to permit him to travel in the flight. Opposite parties denied the contention of the complainant that he reported to the Gulf Air counter at 9 A.M on 9/12/2005. According to opposite parties, complainant ought to have reported to the Airport at least 3 hours before the Time Scheduled for departure of the flight, especially when he had excess luggage with him for carriage. Ext. D1 is the certified copy of the complaint Investigation Report. Ext. D2 is the certified copy of the Purged Passenger Name Record. Both Exts. D1 & D2 were marked subject to proof. In his cross examination, when asked about the possible uncertainities in the Air Travel, PW1 has deposed that he would know it, and that was the reason why he decided to travel two days before the date of examination (11/12/2005). When asked about the original of Ext. P2 he said it was not in his hand. He has admitted in his cross examination that he had brought luggage weighing 42 kgs. In his cross examination when asked: London Airport - ന്‍െറ നിയമം അനുസരിച്ച excess baggage fare അടയ്ക്കേണ്ടത് പ്രത്യേക കൗണ്ടറില്‍ ആണെന്നും ടി കാര്യങ്ങള്‍ എല്ലാം തന്നെ Mmetal sign board - ല്‍ എഴുതിയിട്ടുണ്ട് എന്നും പറയുന്നു (Q) excess baggage - ന്‍െറ പൈസ അടയ്ക്കേണ്ടത് separate counter – ലാണ്. പക്ഷേ check-in ചെയ്യുന്നത് ഞാന്‍ നിന്ന കൗണ്ടറിലാണ്. അവിടെ weight ചെയ്ത് tag ചെയ്ത് receipt തരുന്നത് അനുസരിച്ചാണ്പൈസ അടയ്ക്കുന്നത് (A)”. Airport – ലെ check-in counter flight departure - ന് 45 മിനിട്ട് മുന്‍പെ close ചെയ്യുമെന്ന കാര്യം അറിയാം . എന്‍െറ flight 11 - ന് ആയതിനാല്‍ 10.15 – ന്close ചെയ്തു എന്ന വിവരം അറിയാം . നിങ്ങള്‍ check in counter – ല്‍ എത്തിയപ്പോള്‍ counter close ചെയ്തിരുന്നല്ലോ (Q) close ചെയ്തിരുന്നില്ല . കാരണം bbusiness and 1^st class passengers അപ്പോഴും check-in ചെയ്തുകൊണ്ടിരിക്കുകയായിരുന്നു . (A) Affidavit paragraph 6 & complaint para 5- ല്‍ counter 10.00 ന് close ചെയ്തു എന്ന് പറഞ്ഞിട്ടുണ്ടല്ലോ (Q) എന്നോട് അവിടുത്തെ Gulf Air Staff പറഞ്ഞതാണ്ഇനി check-in ചെയ്യാന്‍ പറ്റില്ല എന്നുള്ളത് (A) നിങ്ങള്‍ counter closeചെയ്തശേഷം മാത്രമാണ് check-in ചെയ്യാന്‍ വന്നത് എന്നു പറയുന്നു (Q) അല്ല , ശരിയല്ല (A). നിങ്ങള്‍ 10 മണിക്ക് check-in counter- ല്‍ വന്നു എന്ന് പറയുന്നത്കളവാണ് (Q) അല്ല (A). In his cross examination, 2^nd opposite party (DW1) has admitted that he has not mentioned Exts. D1 & D2 in his version – when asked: opposite party – യുടെ അടുത്ത് complainant സമയത്ത് report ചെയ്തപ്പോഴല്ലേ excess luggage charge അടച്ച് വരാന്‍ complainant – നെ direct ചെയ്തത് എന്നു പറയുന്നു. ശരിയല്ലേ (Q) complainant ആദ്യം സമയത്ത് counter – ല്‍ എത്തി excess baggage ഉണ്ടെന്നു പറഞ്ഞു, excess കുറച്ചിട്ട് അല്ലെങ്കില്‍ pay ചെയ്തിട്ട് within 45 minutes before departure വരാന്‍ ആവശ്യപ്പെട്ടു,, he never reported (A) Charge അടച്ച് സമയത്ത് check-in ചെയ്യാന്‍ വന്നു എന്നു പറയുന്നു (Q) ശരിയല്ല (A)............ഈ സംഭവം നടക്കുംപോള്‍ നിങ്ങള്‍ ഏത് Office –ല്‍ ആയിരുന്നു (Q) I was in Trivandrum (A).

5. In view of the foregoing discussions and evidence available on record we find the complainant reported at the check in counter at 9.00 A.M on 9/12/2005 while the flight was scheduled to departure by 11.00 A.M, that after paying the excess freight charge he came back the counter at 10.00 A.M. Even if we admit the contention of the opposite partis that the counter was closed at 10.15 A.M, it remains uncontroverted that he reported the check in counter before the closure where check in process for business and class I passeners was going on while Gulf Air Staff was not ready and willing to check in the complainant. Further, it remains undisputed that the complainant could not reach Thiruvananthapuram to attend the intended examination and he could not regain the lost chance thereby he might have experienced mental agony and tension which could not be evaluated by pecuniary ways. Complainant has claimed a compensation of Rs. 20 lakhs considering his loss of future prospects. At this juncture, it should be mentioned that the complainant, the confirmed ticket holder, who was reported the check in counter at 9.00 A.M on 9/12/2005 was directed by opposite parties' staff to clear of the excess luggage and to report thereafter, had came back to the counter at 10.00 A.M after clearance of excess luggage. While the check in process for other business and class I passengers was going on at the counter, complainant was not permitted to check in by opposite parties. The action of opposite parties would tantamount to denial of boarding which would definitely amount to deficiency in service on the part of opposite parties. In this context, it would be worthwhile to mention the decision of the Hon'ble National Commission in Rajender Pal Jaura Vs. Secretary, Union of India reported in 2003(1) CPJ 24(NC) in which it was held that the Denied Boarding Compensation (DBC) is 300 US Dollar and that the Airline not bound to pay any remote damages. Taking overall view of the matter and applying above refered yardstick we deem that compensation of 300 US dollar would meet the ends of justice.

In the result, complaint is allowed. Opposite parties 1 & 2 shall pay the complainant 300 US Dollars (converted into rupees at the rate of exchange prevailing on date of passing of this Order). The said amount will carry interest at the rate of 12% p.a if not paid within two months from the date of order. Both parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31^st day of May, 2010.

G. SIVAPRASAD PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

C.C.No. 21/2006

APPENDIX

APPENAII. Complainant's witness:

PW1 : Dr. Ambareesh S. Mohan

II. Complainant's documents:

P1 : Copy of admit card for Centralised Entrance Test (CET – NBE) Examination, December 2005.

P2 : " Air ticket

P3 : " Invoice for having booked the excess luggage on 9/12/2005

P4 : " Passport

III. Opposite parties' witness"

DW1 : Gopalakrishnan Nair

IV. Opposite parties' documents:

D1 : Copy of the complaint Investigation Report

D2 : " purged Passenger Name Record

PRESIDENT