The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of complaints to impeach the final order/judgment being order No. 07 dated 12.03.2019 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit- I (in short, ‘Ld. District Forum’) in consumer complaint No. 351/2018 whereby the complaint lodged by the appellants under Section 12 of the Act was dismissed without any order as to costs.
The appellants herein being complaints lodged the complaint before the Ld. District Forum asserting that they purchased air tickets from Kolkata to Guwahati for departure on 17.05.2017 and return tickets on 22.05.2017 at an amount of Rs. 36,075/- from Indigo Air Lines through Make My Trip. On the date of journey i.e. on 17.05.2017 the complainants reached the boarding counter at 6.16 AM and the Indigo flight being 6E- 823 was scheduled for departure at 6.50 AM. The complainants have alleged that they have appeared before the boarding gate much earlier than the scheduled time of departure. But the officers on duty on the counter deliberately disallowed them from boarding. In such a situation, the complainants compelled to return home and also compelled to cancel the return tickets vide Guwahati to Kolkata i.e. return journey on 22.5.2017. The complainants have made a complaint with the Customers Relation Officer of Indigo Air Lines and also the Airport Authority of India but all their requests and persuasions and claim for compensation went in vain. Hence, the appellants approach the Ld. District Forum with prayer for several reliefs, viz.- (a) to direct the Opposite Parties to refund the ticket fare on both the journey on 17.05.2017 of an amount of INR Rs. 20,403/- and return journey on 22.05.2017 of an amount INR Rs. 15,672/- (total INR of Rs. 36,075/-); (b) to pay Rs. 3,00,000/- as compensation.
Despite service of notice the Opposite Party i.e. Indigo Air Lines did not appear to contest. Under compulsion, the case was heard ex parte.
In support of their case, complainants tendered evidence through affidavit. They have also filed several documents including the copy of correspondences through e-mail, legal notice dated 20.9.2017 and reply to the same given by respondent on 31.10.2017.
It remains undisputed that in order to visit Guwahati the appellants purchased 9 return Air Tickets from Kolkata to Guwahati on 17.05.2017 and return from Guwahati to Kolkata on 22.05.2017 by Indigo Air Lines. The appellants booked the tickets through a third party travel agent named Make My Trip and paid Rs. 42,966/- in respect of 9 tickets. Admittedly, the appellants web checked in and collected their 9 respective boarding passes. It is also not in dispute that the appellants reached to the boarding gate at 06.16 AM and they were disallowed to board the flight.
The fact remains that on 13.6.2017 a communication was made by the respondent Company to the appellants and the contents of the said e-mail is recorded below-
“Dear Mr. Kundu,
Thank you for writing to IndiGo.
From your email, we understand that you were not able to board flight 6E-623 form Kolkata-Guwahati on 17th of May 2017 due to late arrival at the boarding gates. We would like to mention here that passengers reporting within 25 minutes of the scheduled departure cannot be accepted on the flight as per terms and conditions agreed upon at the time of making the reservation. This information is also mentioned on the itinerary sent to you.
With reference to your email, we would like to bring your attention to the instructions mentioned on boarding card which is as follows: “please be at departure gate at the indicated boarding time. Any passenger failing to do so may be refused boarding privileges. Further, we would like to state that as per our conditions of carriage, it is mentioned that “In order to maintain schedules, the boarding gate will be closed 25 minutes before departure time.
Since the passenger had reported at the boarding gate after the gate closure time, our airport staff was not in a position to accept the passenger for the flight.......”
The reply against the legal notice dated 20.9.2017 given by the legal agent of the respondent dated 31.10.2017 appears to be relevant. The said reply contains some provisions of ‘Indigo Conditions of carriage-Domestic’(“IndiGo CoC”). Article 8.2 of CoC stipulates as under:
“8.2-Boarding
xx xx xx
In order to maintain schedules, the boarding gate will be closed 25 minutes prior to the departure time. The Customers must be present at the boarding gate not later than the time specified by IndiGo when they check in or any subsequent announcements made at the airport. Any Customer failing to report at the boarding within the aforesaid timelines shall be treated as a “Gate No Show” and the ticket amount for such Booking shall be forfeited by the Company. The Customers are, however, entitled to a refund of the Government and Airport Fees and/or Taxes (if applicable).
The contents of paragraph 7 of the reply make it quite clear that as per respondents records, the appellants arrived at the boarding gate at 6.16 AM with baggage. However, it has been stated that as the baggage was beyond limitations as prescribed under IndiGo CoC to be permitted as hand baggage and in accordance with BCAS guidelines, travelling customers made carry one hand baggage of maximum 7 KGs (this will be including Laptop) with an additional restriction on maximum size of hand baggage not exceeding 7.0 KG and of dimension- length 55 cm+ width 35 cm+ height 25 cm respectively.
In paragraph 8 of the reply it has been mentioned that the staff of Indigo advised the appellants to leave the baggage at the boarding counter which would be connected to the destination by the next flight and proceed to the boarding gate. However, the appellants refused to do so. Therefore, finally at 6.29 AM the staff of respondent was constrained to treat the appellants as Gate no show.
The allegation of hand bag exceeding 7 KGs made by the respondent in paragraph 8 of the reply of notice dated 31.10.2017 has not been mentioned in the e-mail dated 13.06.2017. The e-mail dated 13.6.2017 speaks that as the appellants could not reach the boarding gate before 25 minutes of the departure time they were not allowed to board the flight. It is important to note that the flight was scheduled for departure at 6.50 AM. Therefore, if the guideline contained in Article 8.2 of the Indigo CoC is taken into consideration, the boarding gate should have been closed at 6.25 AM. Evidently, the appellants reported at boarding gate at 6.16 AM much earlier than the schedule time of closing boarding gate. The plea of luggage beyond permissible limit has been taken by fertile brain and had there been any such case certainly it would have been reflected in the earlier correspondences, particularly in e-mail dated 13.06.2017. Therefore, it is palpably clear that the ground of luggage exceeding the permissible limits has been taken by the respondent just to absolve the responsibility and the same being an afterthought cannot be given any importance.
In that perspective, the observations of the Ld. District Forum that the complainants did not reach at the boarding gate within the scheduled time and as such OP has no deficiency in providing service does not appear to be correct appreciation of evidence available on the record.
Mr. Matri Prasad Das, Ld. Advocate for the respondent has submitted that the appellants should have arrived airport prior to two hours of the journey but when the appellants themselves admitted that on 17.05.2017 at about 5.24 AM the appellants visited Frank Ross Medical Store for purchasing medicine and late/delay was caused thereto by the appellants and they reached to the boarding gate at 6.16 AM avoiding baggage check in counter and they forced to carry their baggage as hand baggage and argued with the staff, there cannot be any deficiency in services on the part of respondent. Such a submission does not appear to be acceptable because there is no evidence whatsoever that without any security pass the appellants were allowed to enter into the boarding gate.
Ld. Advocate for the respondent referring a decision reported in (2011) 7 SCC 463 (M/s. Inter glove Aviation Limited –vs- Satchidanand) has submitted that the Indigo CoC are binding in nature and as it is binding in nature, the respondent had no occasion to refund appellants to avail the flight when they reach the boarding gate at 6.16 AM, more particularly when the flight were scheduled to departure at 6.50 AM. Therefore, the referred decision has no manner of application in the facts and circumstances of the present case.
The decision in the case reported in (2000) 1 SCC 66 (Ranveet Singh Baggage –vs- KLM Dutch Airline and another) also does not appear to be applicable. In paragraph 6 to the said decision, the Hon’ble Supreme Court has observed that the deficiency of service cannot be alleged without attributing fault imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. In our case, it is quite evident that the schedule departure of the flight was at 6.50 AM and the appellants reached at the boarding gate at 6.16 AM and as per Indigo CoC in order to maintain schedule, the boarding gate will be closed 25 minutes prior to the departure time.
In that perspective, when the appellants reached the boarding gate at 6.16 AM there was no occasion to disallow them to board the flight. The allegation of carrying hand baggage more than 7 KGs appears to be an afterthought and had it been true certainly it would have been reflected in the earlier correspondences, particularly the reply to the e-mail given by respondent dated 13.06.2017.
Considering the facts and circumstances and the materials on record I have no hesitation to hold that the Ld. District Forum did not consider the matter appreciating the evidence available on the record. In other words, there is apparent deficiency in rendering services on the part of respondent within the meaning of Section 2(1) (g) read with Section 2(1) (o) of the Act. The observation of the Ld. District Forum that the complainant did not reach at the boarding time is contrary to the evidence on record and as such I am constrained to interfere with the order impugned.
For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned judgment/final order is hereby set aside.
Consequently, the complaint is allowed in part with a direction upon the Respondent/Opposite Party to refund the amount of Rs. 36,075/- (fare of return journey) in favour of the appellants/complainants after deduction of the amount already paid by them to the Respondents/Complainants and the agent through which the tickets were purchased by the complainants) within 60 days from date.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
