Consumer Complaint No. 242 of 2016

Date of filing: 23.12.2016                                                                      Date of disposal: 05.5.2017

Complainant No.1:    Mr. Nikhil Nirmal, IAS, S/o. Adv. S. Nirmal Kumar, Nirmalyam, K.K. Road, Kadavanthra, Kochi-20, Kerala, working as Additional District Magistrate (General), Burdwan, residing at ADM (G) Bungalow at Burdwan.

                               2. Dr. Nandhini Krishnan, W/o. Mr. Nikhil Nirmal, IAS, residing at ADM (G)

                                      Bungalow at Burdwan.

-VERSUS-

Opposite Parties: 1:  INDIGO, Level-1, Tower-6, Global Business Park, Mehrauli-Gurgaon Road,

                                     Gurgaon-122002, Haryana, India, represented by its authorized Officer.

                               2. INDIGO, Central Wing, Ground Floor, Thapar House, 124, Janpath, New

                                  Delhi, India, represented by its authorized officer.

3. INDIGO AIRLINES, Administrative Office, A 252/1, Road No. 6, Mahilapur, New     Delhi – 110 037.

                             4. INDIGO AIRLINES, Netaji Subhas Chandra Bose International Airport, Dum

                                 Dum, Kolkata, West Bengal-700 052, represented by its authorized Officer.

5. Mr. Akshay Anand, INDIGO, Level –I, Tower -6, Global Business Park, Mehrauli-  Gurgaon Road, Gurgaon – 122 002, Haryana, India.

6. Ms. Laxmi, INDIGO, Level –I, Tower -6, Global Business Park, Mehrauli-   Gurgaon Road, Gurgaon – 122 002, Haryana, India.

Present:      Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant No. 1                     : Complainant No. 1 in person.

Appeared for the Complainant No. 2                      : Autho. Representative i.e. Complainant No. 1.

Appeared for the Opposite Party No.1 to 6 :          None.

J U D G E M E N T

This complaint is filed by the Complainants u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs have restrained the Complainants from boarding at the schedule flight inspite of issuance of boarding passes and necessary security check on the ground that the Complainants were carrying prohibited article namely ‘Power Bank’.

The brief fact of the case of the Complainants is that the first Complainant being an IAS Officer of 2011 batch is presently posted as Additional District Magistrate (General), Burdwan and the second Complainant is the newly wedded wife of the first Complainant. The OPs are operating Air Traffic in Civil Aviation in their Air Craft under the name INDIGO or are their authorized personnel. The OPs have willfully and deliberately constrained them to take flight from Delhi Domestic Airport to Kolkata on 10.12.2016. The Complainants were readily waiting in the waiting lounge for boarding the air craft after their security check. The authorized employees of INDIGO Airlines arrayed as OPs-5 and 6, who were posted at Gate 8B of Domestic Air Terminal, Indira Gandhi International Airport on 10.12.2016 have willfully obstructed the Complainants from traveling in the schedule flight. The gist of the allegation is that the first Complainant was visiting New Delhi on official duty for the purpose of attending a Course on Disaster Management at NIDM, New Delhi from 05.12.2016 to 09.12.2016. The second Complainant had also accompanied the first Complainant on the trip. After successful completion of training they were scheduled to travel back to Kolkata by IndiGo flight (6E 283) on 10.12.2016 (schedule departure 16.55 PNR LFU86H). Having reached the airport at 14.00, the Complainants obtained ticket from the IndiGo self-service KIOSK and completed proper security check. At 16.30 when boarding of the said flight was announced, the Complainants were stopped at the boarding gate (Gate 8B) abruptly by the OPs-5 and 6 without any proper reason and were forced to wait there for 15 minutes while other passengers continued their boarding. On enquiry the Complainants were informed that they were carrying some ‘prohibited articles’ in their luggage. The Complainants questioned them how this could be possible as they had completed all proper security checks. Then the authorized employees of INDIGO Airlines i.e. OPs-5 and 6 authoritatively asked the second Complainant to go the cargo along with their staff and to check the luggage for the prohibited articles. The second Complainant returned from the cargo after 10 minutes and informed that the Complainants were carrying a portable Power Bank in their luggage which is a prohibited item and that the same has been confiscated. The Complainants were further instructed to collect the same from the Airport within 14 days, failing which it would be ‘disposed off’. The first Complainant pointed out how it would be possible for him to come to Delhi within 14 days only for the purpose of collecting a Power Bank and requested them that they may kindly courier the Power Bank at his address for which all charges shall be borne by the Complainants. When they refused, the first Complainant requested that if the Power Bank was not allowed in the cargo, the same may kindly be allowed to be carried as hand baggage. The OPs-5 and 6 then behaved rudely with the Complainants and shouted at them that the Power Bank are not allowed on their flights and the same has been ‘written everywhere’. The first Complainant has further pointed out that he being a frequent flyer travelled from Kolkata to New Delhi with the very same luggage including the power bank a week back without any problem and requested the OPs-5 & 6 to be more polite in their dealings with paying customers. When the first Complainant informed that he would take up the matter with the Director General of Civil Aviation (DGCA), the OPs-5 & 6 were audacious enough to say ‘what if you are IAS & what if you complaint to DGCA, nothing will happen.’ They also threatened that if the Complainants created further problem, they would ensure that they do not travel by the said flight or by any flight today or tomorrow. Finding that there was no use in continuing the argument the Complainants decided to board the flight at 17.00. Most astonishingly they informed the Complainants that they cannot board the flight because the flight had already taken off. However the Complainants saw that the flight was still on the ground and the passengers were boarding the flight from the bus. It may be noted that though the schedule departure of the flight was 16.45 p.m., but the flight was delayed by half an hour as boarding was started at 16.30 p.m. instead of 16.00 p.m. The exact time of its departure will be available from the record of the Air Traffic Control. The Complainants also enquired that how the flight can take off without any paging calls or last minute announcement in their names as they were already in possession of the tickets/boarding passes and their details had been entered into the flight manifest. All these questions were met with highly rude replies like ‘I don’t know, I don’t care and it is not my problem that you missed your flight’ from the OP-5 & 6. Hence due to rude, highly unprofessional and vindictive behavior of the OPs-5 & 6, the Complainants missed their flight and their tickets were stamped as ‘cancelled’ and on enquiry it was informed that since the cancellation was owing to ‘non-show or non-appearance,’ no money would be refunded. However it is astounding that how the tickets can be cancelled for non-appearance when the Complainants were personally present at the Airport and prevented from boarding by the OPs. Furthermore, it is an established practice of all reputed Airlines to make alternative arrangements for passengers who have missed the flights, the OPs acted nonchalantly, unprofessionally and made no such arrangements. The Complainants were further informed that no IndiGo flights will be available on 10^th and 11^th as all were full and the next flight will be available on 12.12.2016 at 3.00 p.m. and to avail of the same they should pay a sum of Rs.31, 000=00 as extra. However, on checking the IndiGo website, the Complainants found that flights were available on 11^th. Due to such harassment at the hands of the OPs the Complainants were constrained to book two flights tickets in the Jet Airways flight 9W 7140 on 11.12.2016,  scheduled to be departed at 2.30.p.m.  (PNR WGHOIL) and had to pay a sum of Rs.69, 458=00 for the tickets. Not only that the Complainants were physically and mentally harassed as they had to spend nearly 12 hours in the Airport and had to travel from domestic to T3 Terminal Delhi for the next flight. In order to recover the confiscated Power Bank the first Complainant had to run from pillar to post for three hours. He was informed by some ground crew of the OP that the Power Bank was in the custody of the CISF while some crew informed that the Power Bank was in the custody of the OP itself. Some other crew bluntly informed that the Power Bank was confiscated and will never be returned. On the ticket, one contact number was provided to get back the Power Bank. The first Complainant tried in the said number to contact for more than 20 times, but no one cared to reply. After constantly pursuing and pleading the matter with the OP for over three hours and with the assistance of CISF, the Power Bank was finally returned to the Complainant. The CISF Jawan confidentially informed the first Complainant that such Power Banks and electronic devices were never returned and the staff of the OP stole/misappropriate the same. It is submitted that the OPs had no valid reason to raise obstruction to the lawful journey of the Complainants because all the statutory requirements were complied with from their part. Neither in the website from where tickets booked nor in the statutory warning, exhibited in the Airport, it is mentioned that the passengers are prohibited to carry the Power Bank. Even if the contention of the OPs that the Power Banks are prohibited to be carried as cabin baggage, is accepted, they have acted willfully and deliberately in confiscating the same as the same could have been allowed to be carried in the hand baggage. Furthermore the OPs have acted in a highly vindictive manner for which the Complainants could not board the flight and no paging calls were made in their names, though their names appeared in the flight manifest as they were in possession of valid boarding passes. The Ops told lie that the flight had taken off at 17.00 p.m. when the Complainants found that the schedule flight was still on the ground. The OPs have acted in a most negligent manner, willfully and deliberately did not provide service to the Complainants inspite of receiving due charges from them, for which the Complainants had to suffer huge mental agony, harassment and financial loss. The OPs have  neither showed any care or compassion to the Complainants and did not make any alternative arrangements to accommodate them in any of their other flights from Delhi to Kolkata, rather demanded a sum of Rs.31,000=00 extra for another flight which was scheduled two days later. The OPs are liable to compensate the Complainants for such loss suffered by them not due to their own fault.  According to the Complainant the cause of action has arisen within the jurisdiction of this Ld. Forum as the payment for the ticket for IndiGo aircraft was made and completed within Burdwan District. The IndiGo Tickets was booked by the first Complainant through an agent having his registered office in Burdwan District. The first Complainant reimbursed the above said agent the booking amount of Rs.13, 744=00in cash at Burdwan. In this respect Mr. Santanu Dutta, the agent as well as the first Complainant has filed affidavits. Due to deficiency in service and negligent service of the OPs the Complainant were constrained to book tickets in the Jet Airways and the amount was paid by the first Complainant to the tune of Rs.69,458=00 from his bank account lying at Burdwan on 10.12.2016. According to the Complainants this complaint is very well maintainable before this Ld. Forum. As their grievances have not been redressed by the OPs, hence having no alternative the Complainants have approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to refund them the charges as paid towards purchasing of the tickets in the IndiGo flight for Rs.13,744=00, to pay the consideration amount of Rs.69,458=00 as paid to purchase the tickets in the Jet Airways, compensation to the tune of Rs.4,00,000=00 (i.e. Rs.2,00,000=00 each) on account of harassment, mental agony and to pay them Rs.6,000=00 (i.e. Rs.3,000=00 each) for personal expenses towards food and etc which the Complainants have to incur due to detention at the Airport for about 12 hours. In this manner the Complainants have claimed a sum of Rs.4, 89,202=00 in total from the OPs.

After admission of the complaint notices were issued upon the OPs. Though the OPs-1, 2 & 4 have received the notices, but the said OPs did not turn up before this Ld. Forum to contest the complaint either orally or by filing written version/s. As the notices in respect of the OPs-3, 5 and 6 were returned with the postal endorsement as ‘untraceable’ hence the Complainants were directed to take appropriate steps and accordingly the addresses of the OPs-3, 5 &6 were amended. At the amended addresses of the said OPs notices were issued, but inspite of receipt of the same the OPs-3, 5 & 6 also did not turn up to contest the complaint. Hence the Ld. Forum was pleased to proceed with the complaint ex parte against the OPs.

During final argument as none was present on behalf of the OPs we took up the hearing argument ex parte against the OPs. The Complainant-1 has advanced argument, who had also filed authorization on behalf of his wife-Complainant-2.

The Complainants by filing an application had prayed for giving direction upon the OP-1 to supply the Rules and Regulations showing that the Power Bank is declared as prohibited article and to submit the protocol/standard procedure (as per DGCA guidelines and allied Rules and Regulations) to be followed in the event of flight cancellation. Accordingly the prayer of the Complainants was allowed and the OP-1 was directed for production of the said documents/Rules & Regulations before this Ld. Forum. The order no-10, dated 16.03.2017 reveals that though the OP-1 had duly received the said notice whereby direction was given for production of the documents, but the OP-1 did not take any step. For this reason reminder was also issued in this connection, but to no effect.

We have carefully perused the petition of complaint and documents filed by the Complainants and heard argument advanced by the Complainant-1in person. We have also gone through several affidavits filed by the Complainants and the concerned agent of the Complainant-1.

                                  POINTS TO BE DECIDED:

1. Whether the Complainants are the consumers of the OPs or not.
2. Whether the complaint is maintainable or not.
3. Whether there was any deficiency in service on behalf of the OPs or not.
4. Whether the Complainants are entitled to get any relief as sought for or not.

                                DECISION WITH REASONS:

1. At the very outset we are to adjudicate as to whether the Complainants are the consumers of the OPs or not. Admittedly the Complainants hired the services of the OPs Airlines for travelling from Delhi to Kolkata on 10.12.2016 by making payment of due consideration of Rs.13, 744=00 towards the charges of two tickets in the IndiGo Airlines being no-6E 283 which was scheduled to be departure at 16.55 p.m. and the PNR was LFU86H. The copy of the e-tickets show that the booking was confirmed and subsequently boarding passes were issued and security checking was completed. Therefore as the services of the OPs were availed of by the Complainants by making due consideration money, hence in our opinion the Complainants are the consumers of the OPs in view of the definition as enumerated in the Consumer Protection Act, 1986 under ‘Consumer’.

In this connection further discussion is required as to whether the Complainant-1 is a consumer or not. It is mentioned in the petition of complaint that the Complainant-1 was visiting New Delhi on official duty for the purpose of attending a course on Disaster Management at NIDM, New Delhi from 05.12.2016 to 09.12.2016. The Complainant-2 being his wife had accompanied the Complainant-1 on the trip. From the Annexure-I dated 23.12.2016 issued by the Department of Disaster Management, Government of West Bengal it is evident that Sri Nikhil Nirmal-Complainant-1 was nominated to attend a ToT course on Incident Commander from 05.12.2016 to 06.12.2016 and Operation Section Chief from 07.12.2016 to 09.12.2016 at NIDM. The said annexure also reveals that the Office of the District Magistrate & Collector, Burdwan Establishment Section (Gazetted Cell), Government of West Bengal, dated 25.11.2016 by issuing letter gave permission to the Complainant-1-Sri Nikhil Nirmal, IAS from this District to attend ToT Course on ‘Incident Commander’ from 05.12.2016 to 06.12.2016 and ‘Operation Section Chief’ from 07.12.2016 to 09.12.2016 to be held at National Institute of Disaster Management, New Delhi. Accordingly the Complainant-1 went for training in New Delhi and for this purpose he booked ticket in the IndiGo Airlines for coming back to Kolkata from New Delhi on 10.12.2016. As his wife being the Complainant-2 accompanied him, hence her ticket also was booked in the same flight on the same day. Now one question is cropped up in our mind that where the Complainant-1 went New Delhi for official training course, hence it is natural that entire expenses along with the travelling charges for the Airlines should be borne by the Government of West Bengal and if the cost of the Airline ticket either has been paid or will be reimbursed by the Government of West Bengal, hence in what capacity the Complainant-1 can be a consumer of the OPs. In this respect the Complainant-1 during argument has attracted our notice to the paragraph no-9 of the petition of complaint and affidavit filed by him. In the affidavit it is mentioned that ‘the ticket for IndiGo Airlines Flight 6E-283 on 10.12.2016 from Delhi to Kolkata (PNR LFU86H) in the names of me and my wife was booked by an agent namely Santanu Dutta on 25.11.2016. The payment for the booking of two tickets for Rs. 13,744=00 only was originally paid by the said agent, but the same was fully reimbursed by me in cash to the agent at Burdwan. I have not claimed for reimbursement of the ticket value from either the Government of West Bengal or Central Government.’ From the said affidavit it is clear to us that the Complainant-1 had incurred the cost of the IndiGo Airlines Tickets from New Delhi to Kolkata, dated 10.12.2016 for himself and his wife out of his own pocket and till date no reimbursement has yet been claimed by him either from the Government of West Bengal or Central Government through his concerned Office/Department. As the Complainant-1 has stated aforementioned on affidavit, nothing remains to disbelieve the same. Therefore the Complainants can easily be termed as Consumers.

2. Regarding maintainability of this complaint we are to adjudicate from the points territorial and pecuniary jurisdictions. In respect of pecuniary jurisdiction this complaint is maintainable because the Complainants have sought for relief to the tune of Rs.4, 89,202=00 in total including the cost of the service. As the said amount does not exceed the pecuniary jurisdiction of this Ld. Forum, hence the complaint is maintainable from the point of its pecuniary jurisdiction.

In respect of territorial jurisdiction the Complainants have provided detailed explanation in the paragraph no-9 of the petition of complaint stating that the cause of action of this complaint in part arose within the territorial jurisdiction of this Ld. Forum. In the said paragraph it is mentioned which runs as follows-

‘The cause of action for the complaint has arisen within the jurisdiction of this Forum as the payment for the tickets of the OP (IndiGO) was made and completed within Burdwan District. The IndiGo tickets were booked by the Complainant-1 through an agent having his registered office in Burdwan District. The Complainant-1 has reimbursed the full amount of Rs.13, 744=00 to the said agent at Burdwan…….’ In this respect the Complainants have filed an affidavit further stating the same inspite of filing the petition of complaint supported by affidavit. Further Mr. Santanu Dutta being the agent of the Complainant-1 (as stated above) has also filed an affidavit stating that ‘the tickets for IndiGo airlines Flight 6E-283 on 10.12.2016 from Delhi to Kolkata in the name of Nikhil Nirmal, IAS, Nandhini Krishnan (PNR LFU86H) was booked by me in the capacity of agent of the first Complainant, namely, Nikhil Nirmal. The payment for booking of tickets for Rs.13, 744=00 only was debited from my HDFC Bank account located in the Burdwan District. I was reimbursed in full of the tickets booking amount of Rs.13, 744=00 only by the first Complainant Nikhil Nirmal, IAS, in cash at Burdwan. No refund has been received by me at my bank account due to cancellation of flight.’

From the above it is established that payment for two tickets in the IndiGo Airlines dated 10.12.2016 for the journey from New Delhi to Kolkata was made in Burdwan District, and hence part cause of action arose within the territorial jurisdiction of this Ld. Forum. It is an admitted fact that no branch office of the OP-1 exists within the territorial jurisdiction of this Ld. Forum.

In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of Managing Director, Club 7 Holidays Limited vs. Prabir Kumar Maitra, in the Revision Petition no-1941/2016, wherein the facts and circumstances of the said complaint is almost same and identical with the case in hand. We have gone through the said judgment and it is seen by us that the fact of the said case is as under:-

‘The Complainant booked a foreign tour to Europe starting from 12.04.2014 for himself and his wife. He booked the tour from the website of the OP i.e. http://www.club7holidays.co.in on 09.12.2013. He paid advance of Rs.10, 000=00 on 19.12.2013 and thereafter, Rs.40, 000=00 on 30.12.2013. He paid total amount of Rs.3, 57,970=00. It was alleged that there was severe deficiency in service as the OP did not provide safety and security during tour and indulged an unfair trade practice by not discharging all the promises as mentioned in the itinerary. The Complainant also sent notice to the OP through International Consumer Rights Protection Council on 05.11.2014.’

The Complainant filed a complaint before the District Forum, Nadia alleging deficiency in service caused by the OP in respect of Holiday Package. The OP challenged the maintainability of complaint before the District Forum, Nadia and prayed for dismissal of complaint. The District Forum dismissed the application. Therefore the OP preferred revision petition no-97/2015 before the SCDRC, West Bengal, it was also dismissed.

Being aggrieved with the said order the OP filed revision petition before the Hon’ble NCDRC. It was argued by the OP that the Complainant booked his itinerary by making cash payment in the office of the OP at Kolkata. He brought the attention to the cash receipt voucher of Rs.10, 000=00 from Kolkata. Therefore there is no territorial jurisdiction to entertain the complaint in the District Forum, Nadia.

It is mentioned by the Hon’ble NCDRC in the paragraph no-5 of the said judgment as follows-

5. ‘On perusal of all the documents and e-mail communication, receipts filed by Complainant, it clearly transpires that the Complainant got the information about the tour through the website of OP. Several e-mail communications took place between the Complainant and the OP and ticket through cash and cheques………’ The Hon’ble NCDRC has relied on the judgment of the Hon’ble Supreme Court namely Secretary, Thirumurugan Co-operative Agricultural Credit Society vs. M. Lalitha & Others (2014) I SCC 305 in which it was held that “Consumer Protection Act, 1986-Ss 3, 11, 17 and 21-Jurisdiction of Consumer Forum vis-à-vis specific remedies under other Act- 1986 Act should be interpreted broadly, positively and purposefully having regard to the additional/extended jurisdiction conferred under S.3…. The remedies that are available to an aggrieved party under the 1986 Act are wider. For instance, in addition to granting a specific relief the forums under 1986 Act have jurisdiction to award compensation for the mental agony, suffering etc.”

Also in the matter of Gaziabad Development Authority vs. Balbir Singh (2004) 5 SCC 65, it was held…. “The consumer must not be made to run from pillar to post”.

The Hon’ble NCRDC has been pleased to mention the Section 11 of the Consumer Protection Act, 1986. The Section 11(2) of the Consumer Protection Act, 1986 deals with the territorial jurisdiction of the District Forum.

11. Jurisdiction of the District Forum- (1)……….

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,

(a) The OP or each of the OPs, 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 OPs 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.

We have noticed that the Hon’ble NCDRC was pleased to dismiss the Revision Petition with cost affirming the impugned order of the SCDRC, West Bengal and directed the both parties to appear before the DCDRF, Nadia for further adjudication.

On careful perusal of the said judgment of the Hon’ble NCDRC it is seen by us that the said proposition can be implemented in the case in hand because in the instant complaint also part cause of action arose within the territorial jurisdiction of Burdwan because tickets for IndiGo Airlines were booked by the agent of the Complainant-1 at Burdwan through online and payment was made from the bank account of the said agent lying with the District of Burdwan and subsequently the total cost of two tickets was duly reimbursed by the Complainant-1 to his agent. Not only that the said statement has been made by the Complainant-1 and the agent of affidavits separately. Therefore, having regard to the above-mentioned judgment of the Hon’ble NCDRC, it can be said that this complaint is maintainable before this Ld. Forum from the point of its territorial jurisdiction.

3. Now we are to adjudicate the most vital and important point as to whether there was any deficiency in service on the part of the OPs or not. It is stated in the petition of complaint that the Complainants booked IndiGo Airlines tickets for their journey from Delhi to Kolkata on 10.12.2016 (6E 283) & (schedule departure 16.55 PNR LFU86H) by making payment of Rs.13, 744=00 towards the cost of two tickets, having reached in the airport at 14.00, the Complainants obtained boarding passes from the IndiGo self-service KIOSK and completed proper security check. At 16.30 when boarding for the said flight was announced, the Complainants were stopped at the boarding gate (Gate 8B) abruptly by the OPs-5 and 6 without any proper reason and were forced to wait there for 15 minutes while other passengers continued their boarding. On enquiry the Complainants were informed that they were carrying some ‘prohibited articles’ in their luggage. The Complainants questioned them how this could be possible as they had completed all proper security checks. Then the authorized employees of IndiGO Airlines i.e. OPs-5 and 6 authoritatively asked the Complainant-2 to go the cargo along with their staff and to check the luggage for the prohibited articles. The Complainant-2 returned from the cargo after 10 minutes and informed that the Complainants were carrying a portable Power Bank in their luggage which is a prohibited item and that the same has been confiscated. The Complainants were further instructed to collect the same from the Airport within 14 days, failing which it would be ‘disposed off’. The first Complainant pointed out how it would be possible for him to come to Delhi within 14 days only for the purpose of collecting a Power Bank and requested them that they may kindly courier the Power Bank at his address for which all charges shall be borne by the Complainants. When they refused, the Complainant-1 requested that if the Power Bank was not allowed in the cargo, the same may kindly be allowed to be carried as hand baggage. The OPs-5 and 6 then behaved rudely with the Complainants and shouted at them that the Power Bank are not allowed on their flights and the same has been ‘written everywhere’.

Therefore the moot point is as to whether the Power Bank which the Complainants carried in their cargo luggage is a prohibited article in the Indian Airlines and/or in the IndiGo Airlines. For production of such Rules and Regulations by the OP-1, one application was filed by the Complainants and after allowing the said application direction was made to the OP-1 for production of the same by documentary evidence before this Ld. Forum, but the OP-1 inspite of receipt of notice/reminder did not turn up either to contest the complaint or produce the required documents for proper adjudication of this complaint. The Complainants have adduced some documentary evidence in this regard and stated their averment on affidavit. As none is present to contradict the same, hence we are binding to take the documentary evidence as adduced by the Complainants as true because no rebuttal is forthcoming. The Complainants have annexed Exhibit-P6 and P7, from where it is evident the names of the article which are prohibited either in cargo luggage and/or in the hand baggage/hand luggage. From those Annextures we do not find anywhere that the Power Bank is a prohibited article to carry either in the cargo luggage or in the hand luggage or as a hand baggage in the Indian Airlines and/or IndiGo Airlines in India. The Complainants have submitted one list from which reveals some items that are banned for carriage on person/hand baggage on board flights operating from civil airports in India; and Indian Registered aircrafts from foreign airports. Upon going through the list we do not find that the Power Bank falls within the item which is banned in the Indian Airlines as on date. Therefore in our considered view carrying of the questioned Power Bank by the Complainants was not illegal, improper and did not amount to violation of the Rules and the Regulations of the Indian Airlines. Admittedly, the Complainants could not board in the schedule flight as they were stopped by the employees of the OP-1 in the IGI Airport and the allegation of the said employees was that as the Complainants were carrying Power Bank being the prohibited article, hence the Complainants were resisted to get boarding in the flight. As the documentary evidence adduced by the Complainants that the Power Bank being not a prohibited article in the Airlines, hence such resistance raised by the employees  (OP-5 & 6) of the OP-1 in boarding can be termed as illegal, deficiency in service, as well as, unfair trade practice on their part. Be it mentioned that the OP-5 and 6 knew that the Complainant-1 is an IAS, so if in case of an IAS such situation and harassment cropped up, then the general public at large certainly will face unbearable harassment and non-cooperation from such employees of the OP-1 in case of arising similar situation. On the whole where there is no rule and regulation mentioning that the Power Bank is a prohibited article, hence by raising such situation, the OP-5 and 6 obviously have violated the Rules and Regulations of their employer, for which the OP-5 and 6 should be punished by the OP-1. The OP-1 is hereby directed to initiate a departmental proceeding against the OP-5 and 6 due to such illegal activities and violation of the rules and regulations of the concerned Airlines. For such deficiency in service on the part of the OP-5 and 6, the Complainants are entitled to get compensation from the OP-1 being the principle of the OP-5 & 6.

We have noticed that though the OPs were requested to send down the Power Bank at the address of the Complainants through courier and assurance was also given that the entire charge will be paid by the Complainant-1, but the request was turned down. The Complainants have mentioned that the OP-5 & 6 behaved with them rudely and used some unparliamentarily words audaciously to them. But in these two counts no documentary evidence is adduced, but the Complainants have stated the same on affidavit and none is coming on behalf of the OPs to contradict the same by adducing counter evidence. Under the circumstances the statement made by the Complainants will certainly stand.  

It is mentioned in the petition of complaint that without continuing argument with the OP-5 & 6 the Complainants decided to board the flight at 17.00 p.m., but they were informed that boarding is not possible in the said flight as the same had already taken off. However the Complainants saw that the flight was still on the ground and the passengers were boarding the flight from the bus. It may be noted that though the schedule departure of the flight was 16.45 p.m., but the flight was delayed by half an hour as boarding was started at 16.30 p.m. instead of 16.00 p.m. In this respect we are of the opinion that it is difficult for coming to the conclusion as to whether there was any delay on that date in departure of the concerned flight or not, when boarding started, completed and flight took off, whether paging calls or last minute announcement in the names of the Complainants was made or not because no evidence is forthcoming on this aspect from the OP-1. The exact time of its departure along with other details will be available from the record of the Air Traffic Control. But admittedly the tickets/boarding passes were stamped as ‘cancelled’ on 10.12.2016 at the IGI Airport  and it is stated by the Complainants that on enquiry it was informed that since the cancellation was owing to ‘non-show or non-appearance,’ no money would be refunded. According to the Complainants it is astounding that how the tickets can be cancelled for non-appearance when the Complainants were personally present at the Airport and prevented from boarding by the OPs. In this regard we are to say that documents show that boarding passes were issued in favour of the Complainants, security check up completed and the Complainants were waiting for boarding in the schedule flight before the schedule gate. We all know that after security check up passengers cannot come out from the Airport premises as per their will and whims and after issuance of boarding passes in the name of any passenger it is the responsibility of the concerned authority of the OP-1to board the concerned passenger in the schedule flight, but the authority cannot cancel the boarding pass/ticket due to non-appearance of the said passenger. In case of cancellation due to some reason, if any, the cause should be assigned to the concerned passenger by the concerned authority and it is an established practice of all reputed Airlines to make alternative arrangements for passengers who have missed the flights or whatever it may be, but in the case in hand the OPs have acted nonchalantly, unprofessionally and made no such arrangements for the Complainants. Moreover, in our view where the passengers should come across through a vast security check up, which being the most vital and important task for the Airport Authority, hence during security checking why the appropriate authority did not declare that the questioned Power Bank is a prohibited article in the concerned Airlines and the Complainants are not entitled to carry the same either in their cargo luggage or hand baggage.

The Complainants by filing Exhibit-P8 have stated that facilities was to be provided to the passengers by airlines due to denied boarding, cancellation of flights and delays in flights. We have gone through the said order issued by the Office of the Director General of Civil Aviation, Technical Centre, New Delhi, showing issuing date as 06.08.2010 and effective since 15.08.2010. In the said order under the column ‘Denied Boarding’ in the clause no-3.2 & under the column ‘Cancellation of Flight’ in the clause no-3.3 it is mentioned as follows-

1. When the number of passengers, who have been given confirmed bookings for travel on the flight and who have reported for the flight well within the specified time ahead of the departure of the flight, are more than the number of seats available, an airline must first ask for volunteers to give up their seats so as to make seats available for other booked passengers to travel on the flight, in exchange of such benefits/facilities as the airline, at its own discretion, may wish to offer, provided airports concerned have dedicated check-in facilities/gate areas which make it practical for the airline to do so.
2. If the boarding is denied to passengers against their will, the airline shall as soon as practicable compensate them in accordance with the provisions of para 3.5 in addition to refund of air ticket.
3. Airlines overbook their scheduled flights to a limited extent in order to reduce the possibility of flights departing with unoccupied or empty seats because of ‘No Shows’ by booked passengers i.e. passengers who do not report for travel despite firm bookings before the time stipulated by the airline. Under the provisions of this CAR, airlines shall be liable to pay compensation to passengers who are denied boarding. Hence, in order to minimize ‘No Shows’, the airlines will be allowed to levy appropriate  ‘No Show’ penalties in relation to the Fare as defined under rule 135 of the Aircraft Rules 1937. This penalty will be deducted from the Fare paid by the passenger.
4. Cancellation of Flight
   1. In order to reduce inconvenience caused to the passengers as a result of the cancellations of the flights on which they are booked to travel, whenever possible, airlines should endeavour to invariably inform the passengers of cancellations of their flights as far in advance as possible of the scheduled time of departure provided at the time of effecting his/her reservation, the passenger has given relevant contact information e.g. telephone number (landline or mobile), and/or fax number and/or e-mail id or in any alternate reasonable form requested for by the airline.
   2. Subject to para 3.3.1, in respect of passengers who have not been informed at least three hours in advance about the cancellation of the flight on which they were scheduled to travel,

1. Airlines shall provide compensation for the inconvenience caused in accordance with para 3.5,
2. Refund the ticket prices in the event they do not wish to travel instead on an alternate travel opportunities at no additional cost, and
3. Additionally provide them facilities at the airport in accordance with Para 3.6.1.(a) in the event they have already reported for their original flight and whilst they are waiting for the alternate flight.
   1. No financial compensation shall be payable to passengers who have not provided adequate contact information at the time of making booking or when the ticket for firm travel on the selected flight is issued. In respect of such passengers the airlines will either refund the ticket prices or make reasonable endeavour to make alternate travel arrangements as per the choice of the passengers. Additionally, in respect of such passengers who elect to travel to their destination on an alternate flight, the airline shall provide them with reasonable facilities during the period that they are required to wait at the airport for the alternate flights in accordance with para 3.6.1 (a).
   2. ………………
   3. The refund of air ticket shall be made in accordance with CAR Section 3, Series M, Part II.
      1.  

3.6 Facilities to be offered to Passengers

3.6.1 Passengers shall be offered free of charge the following:

(a) meals and refreshments in relation to waiting time.

(b) hotel accommodation when necessary (including transfers).

We have carefully perused the abovementioned rules and regulations mentioning therein what it the duty of the Airlines authority in case of denied boarding, cancellation of flights and delay in flights. In the petition of complaint it is mentioned by the Complainants that they were denied to board in the schedule flight by the OPs and the cause shown for such denial was not as per their rules and regulations, rather the denial was made illegally and in a whimsical manner. So in our opinion the Complainants are entitled to get refund the cost of two tickets from IndiGo Authorities paid by them at the time of purchasing the same for their journey from Delhi to Kolkata on 10.12.2016. It is further mentioned in the complaint that the Complainants were informed by the OPs that no IndiGo flights will be available on 10^th and 11^th as all were full and the next flight will be available on 12.12.2016 at 3.00 p.m. and to avail of the same they should pay a sum of Rs.31,000/- as extra. In this regard we are of the view that where the cancellation of two confirmed tickets were made by the OPs arbitrarily and without any basis, hence the OPs are not entitled to claim extra amount for their journey in the next available flight. However, on checking the IndiGo website, the Complainants found that flights were available on 11^th. Due to such harassment at the hands of the OPs the Complainants were constrained to book two flights tickets in the Jet Airways flight 9W 7140 on 11.12.2016,  scheduled to be departed at 2.30.p.m.  (PNR WGHOIL) and had to pay a sum of Rs.69, 458=00 for the tickets. Not only that the Complainants were physically and mentally harassed as they had to spend nearly 12 hours in the Airport. In order to recover the confiscated Power Bank the first Complainant had to run from pillar to post for three hours. Therefore from such averment it is clear that admittedly the Complainants could not board in the schedule flight of the IndiGo airlines due to deficiency in service of the OPs as mentioned earlier, because the OPs have miserably failed to assign any reason as to why the tickets of the Complainants were cancelled by them and why the OPs raised resistance to the Complainant in boarding. Carrying of the Power Bank as prohibited article has no legs to stand upon because from nowhere it is evident that the Power Bank is a prohibited article either in the Indian airlines or in the IndiGo airlines. The tickets show that endorsement was made as ‘cancelled’. Inspite of such cancellation no refund towards the cost of the tickets was made by the OP-1 to the Complainants, rather the OPs told them to pay extra amount for the next available flight. Not only that though the Complainants were told by the OPs that next flight will be available in the IndiGo Airlines on 12.12.2016 at 3.00 p.m., but no arrangement was made by the OPs for their meals, accommodation and other necessary facilities, which the OPs were under the obligation to do the same according to their Rules and Regulations. Though the Rules says that in case of cancellation, denial or delay of flights, no extra amount should be claimed, but according to the Complainants the OPs claimed further Rs.31,000=00 to avail of the next available flight in the IndiGo Airlines. Being compelled and frustrated with the attitude, non-cooperation and deficient service of the OPs  the Complainants booked two flights tickets in the Jet Airways flight 9W 7140 on 11.12.2016, scheduled departure was at 2.30.p.m. on 11.12.2016  (PNR WGHOIL) and had to pay a sum of Rs.69,458=00 for the said tickets. The documents as adduced show that the amounting to Rs.69, 458=00 was deducted from the SBI account of the Complainant-1, lying in the District of Burdwan and the two boarding passes reveal that on 11.12.2016 the Complainants travelled in the Jet Airways without any difficulties and hazards by carrying the same Power Bank. Therefore it is clear that due to cancellation of the two IndiGo confirmed tickets dated 10.12.2016 in an arbitrary manner, the Complainants had to bear huge amount for purchasing the tickets in the Jet Airways at a very belated stage. For this reason in our view the Complainants are entitled to get refund of the excess amount as paid by them due to deficient service of the OPs. Not only that the Complainant entered in the IGI Airport, New Delhi at about 2.00 p.m. on 10.12.2016 for boarding in the IndiGo Airlines against confirmed tickets, but as OPs have created resistance in boarding in the schedule flight based on flimsy and untenable ground, the Complainants under compelling situation had to pass for about 12 hours in the said Airport. Admittedly, during that period they had to take and buy tea, dinner, breakfast and lunch within the Airport to save their lives. We all know and it is an admitted fact that the cost of the food and other items available within the Airport premises are costlier than the outside shops and the Complainants had to purchase food and water etc. by making payment of more amount than the outside shops because no permission was given to them to go outside the Airport premises. In the prayer portion of the complaint, complainants have prayed for Rs. 6,000=00 (Rs. 3,000=00 each) towards the cost of meal and other facilities etc., in our view as the complainants have to purchase food by making payment of huge amount in the IGI Airport, hence the amount as sought for in our view is quite reasonable. Surprisingly, the OPs have failed to arrange accommodation/hotel for the Complainants as the Complainants had to pass one sleepless night in the IGI Airport. So in our considered view the Complainants are entitled to get the approximate cost of food (water, tea, lunch, breakfast & dinner) and other expenses from the OP-1. We have noticed that after strenuous effort the Complainants were succeeded to get refund of the Power Bank from the custody of the OPs and they have returned in Kolkata by Jet Airways along with the questioned Power Bank and no obstruction was made by the Jet Airways for carrying the same.

The Complainants have prayed for compensation to the tune of Rs.4,00,000=00 in total i.e. Rs.2,00,000=00 for each due to harassment, mental and physical pain, agony etc. for deficiency in service and high handedness motive and behavior of the OPs. In our view that as the Complainants have successfully proved that the service of the OPs was deficient and they acted going beyond their rules and regulations, hence in our view the Complainants are entitled to get some amount towards compensation.

Going by the forgoing discussion, hence it is

O r d e r e d

that the complaint is allowed ex parte against the Ops with cost. The OPs are directed either jointly or severally to refund a sum of Rs. 13,744=00 towards the cost of the two tickets purchased by the Complainants for their journey from Delhi to Kolkata on 10.12.2016 in IndiGo Airlines and Rs.55, 714=00 (Rs.69, 458=00 - Rs.13, 744=00 = Rs.55, 714=00) to the Complainants towards the excess payment made by the complainants for purchasing the air tickets in JET Airways within a period of 45 days from the date of passing of this judgment, in default the said total amount of Rs.69,458=00 shall carry interest @8% p.a. for the default period. The OPs shall pay either jointly or severally a sum of Rs.6, 000=00 to the Complainants towards the cost of meals, water and other necessary items purchased by them as per their requirement within 45 days from the date of passing of this judgment, in default, the said amount of Rs.6, 000=00 shall carry interest @8% p.a. for the default period. The OPs are further directed to pay either jointly or severally a sum of Rs.1, 00,000=00 to the Complainants as compensation (Rs. 50,000=00 each) due to mental & physical pain, agony and harassment caused due to deficiency in service of the OPs and litigation cost of Rs.500=00 within a period of 45 days from the date of passing of this judgment, in default, the Complainants are at liberty to put the entire decree in execution as per provisions of Law.

Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

            Dictated and corrected by me.                                                                

                  (Silpi Majumder)

                       Member

                DCDRF, Burdwan

                                                      (Pankaj Kumar Sinha)                        (Silpi Majumder)

                                                                    Member                                          Member   

                                                          DCDRF, Burdwan                          DCDRF, Burdwan