BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/10/282 of  20.4.2010

                                                Decided on:          11.5.2011

Harbans Singh Sran aged about 56 years son of Sh.Gopal Singh, resident of House No.10, Anand Nagar-A, Tripuri Town, Patiala.

                                                                             -----------Complainant

                                      Versus

1.                 Lufthansa Airlines through its Country Manager/Managing Director, 12^th,DLF Building No.10, Tower-B,DLF City, Phase-II, Gurgaon,State Haryana-122002.

2.                 M/s Johal Air Travels Services Pvt. Ltd. Opposite Bus Stand, Fly Over Side, Patiala, through its Prop/Partner.

3.                 Air Canada through its Country Manager/Managing Director, 803, 8^th Floor, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi 110001.

                                                                             ----------Opposite parties.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sh.J.S.Sandhu  , Advocate

For opposite party No.1:        Ex-parte

For op no.2:                            Sh.Sudhir Kumar, Advocate

For op no.3:                             Sh.Kamal Nagpal,Advocate

                                         ORDER

D.R.ARORA, PRESIDENT

                                      The complainant had purchased e-ticket No.2205739809719 from Lufthansa Air lines(op no.1) through op no.3 on 15.5.2008 for visit to Canada in a sum of Rs.58000/-.The ticket was for Delhi-Frankfurt-Toronto  and back Toronto-Frankfurt-Delhi. The schedule of flights of the two routes is given as under:

2.                                   All the departure timings of the flights were confirmed at the time of the purchasing of the ticket and even before boarding the plane from New Delhi.

3.                                   The complainant had no problem while flying from Delhi-Toronto on 6.6.2008 but on return flight on 22.7.2008, when the complainant reached the Toronto Airport before the scheduled time, he was apprised by the officials of op no.1 that his return flight ticket had not been confirmed and the same was cancelled. It was a shock to the complainant. After the complainant having made repeated requests and struggled for his flight from Toronto-New Delhi, the officials of op no.1 transferred/shifted the complainant to Air Canda flight which was scheduled to take off on 23.7.2008 at 1.45P.M..During the interregnum period, the complainant had to wait for about 16 hours, under a mental stress and tension and he remained restless. He was transferred by the staff of Air Canda in the mid of night at 3:00AM to a sub standard hotel and he was adjusted with a stranger in a room and was not looked after. Then he was brought to the Airport at Toronto at 10a.m. although the flight was scheduled to take off at 1.45p.m. The complainant had to spend Rs.10000/- for making phone calls to relatives/friends in India and Canada.

4.                                   The complainant boarded the flight of Air Canda for Frankfurt at 9p.m. From Frankfurt the scheduled departure of the Air Canada was 1.00p.m. on the next date i.e. 24.7.2008.There was thus a waiting period of about 16 hours, during which period the complainant suffered mental harassment as also the discomfort in that whereas all the other passengers of the Air Canada flight were shifted to five star hotel,the complainant being a transferee passenger was not shifted to any hotel and he had to spend the whole 16 hours in the waiting lodge at the airport and no one attended to him. He incurred Rs.12000/- on diet, refreshment and phone calls made from Frankfurt airport.

5.                                   The Air Canada flight AC 876 departed  Frankfurt on 24.7.2008 at 1:00 p.m. and reached New Delhi on 25.7.2008 at 12.30a.m. although the scheduled arrival date and time of the flight of op no.1 was 24.7.2008 at 12.35 a.m. Thus, the complainant arrived at New Delhi Airport after a long delay of 24 hours. All this occurred because of the negligence and unfair trade practice on the part of the ops. Op no.3 had written a letter of apology on 23.7.2008 to the complainant.

6.                                   It is also the case of the complainant that he is working as Sr.Medical Officer in the Public Health Department. Due to his late arrival he could not attend to his official work to be held on 24.7.2008.Moreover the real brother of the complainant had fallen seriously ill on 22.7.2008 and who was admitted in Forties Hospital, Mohali .Due to late arrival of the complainant health of his brother had become weak and he became unconscious and could not discuss any family matters with the complainant. The brother of the complainant expired on 6.8.2008 in the hospital and thus, the complainant felt guilty and remained under depression.

7.                                   The complainant requested the ops several times to reimburse the expenses incurred by him at the airport of Toronto and Frankfurt. He also got the ops served with a legal notice through registered post/AD dated 27.2.2010. The notice was duly received by op no.2 but the notices sent to ops no.1&3 were received back with the report of the notices having left their address. The complainant again having traced out the recent addresses of the said ops got them served with another notice dated 9.3.2010, which was not received back by the complainant.

8.                                   Describing the act of the ops as a mal practice and unfair trade practice, he approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act)for a direction to the ops to reimburse him with the sum of Rs.10000/- incurred by him at Toronto Airport; Rs.12000/- incurred by him at Frankfurt airport; Rs.2lac as a compensation for the mental harassment suffered by him at the Toronto airport,Rs.2lacs as compensation for the harassment suffered by him at Toronto  because of the delay in the flights and for the illegal cancellation of the return ticket ;to pay a sum of Rs.3lacs because of his inability to meet his brother at the last time of his life and pay Rs.25000/- as the expenses of the litigation.

9.                                   The notice of the complaint was issued to the ops. Ops no.2&3 have come forward to contest the claim of the complainant, whereas op no.1 was proceeded against exparte.

10.                                 In the written statement filed by op no.2 it has raised certain legal objections, interalia, that the complainant is not a consumer under the Act; that there is no deficiency of service on the part of the op and that the op having been dragged in the complaint unnecessarily; he is entitled to be compensated with a costs of Rs.50000/-.As regards the facts of the complaint, it is admitted that the complainant had purchased the air tickets for flying from Delhi-Toronto via Frankfurt and back from Toronto-Delhi via Frankfurt through op .It is also admitted that the tickets were confirmed at the time of the purchasing of the same by the complainant. There was no lapse on the part of the op as he had provided the confirmed airline tickets.

11.                                 It is further averred by this op that the complainant was suitably compensated by the Air Canada having offered him 75$ vide letter dated 23.7.2008 because the flight had got delayed/cancelled due to some technical reasons which were beyond the control of the airlines. It is denied, if the complainant had incurred an expenses of Rs.12000/- on diet and refreshment. Similarly it is denied if the complainant had reached Delhi airport by 20 hours late. Similarly it is denied if the complainant wanted to see his brother who was lying admitted in the Forties Hospital having fallen seriously ill on 22.7.2008 and because of the arrival of the complainant late; his brother had become weak/semi conscious .Ultimately this op prayed for the dismissal of the complaint.

12.                                 In the written statement filed by op no.3 it is averred that flight no.LH9625 was operated by Air Canada as AC876 scheduled to fly on 22.7.2008 at 10 a.m. had got delayed due to unforeseen reasons and accordingly some of the passengers were accommodated in two separate 5 star hotels at Toronto. As per the records, Aircanda flight AC 876 departed YYZ(Toranto) at 8.44 a.m. on July 23,2008 and arrived FRA(Frankfurt) at 2209(10.9p.m.) on July 23,2008. Air Canada, considering the delay, immediately informed Lufthansa about the delay in arrival of the complainant and requested them to book him on the next available flight. Lufthansa confirmed the passengers on LH 760 which had to depart on July 24, 2008 at 1.45 p.m. OP has got no record after the said event as the rest of the journey had to be performed in Lufthansa flight no.LH760 and only Lufthansa airline could comment on the allegations pertaining to the sufferings experienced by the complainant at Frankfurt.

13.                                 This op has raised the objections interalia , that the complainant is not a consumer under the Act vis a vis op no.3. Flight no.LH 9695 was operated by Air Canada under a code share agreement  which is an internal agreement between the airlines but it does not make the complainant  a consumer of Air Canada and for all purposes the complainant remains a consumer of Lufthansa Airline; that op no.2 is not an agent of op no.3 and therefore, no jurisdiction could be conferred   upon the Forum qua Air Canada having impleaded op no.2 as a party; that the Forum lacks territorial jurisdiction to entertain and try the complaint. No jurisdiction can be conferred upon the Forum  by the mere purchase of a ticket from a travel agency, op no.3 having no office at Patiala;that airlines do no guarantee the time or schedule of  flight. As per carriage by Air Act, the terms printed on the ticket are the terms of agreement between the parties and forms a contractual document. Every passenger is bound by the terms and conditions of the airline. According to the terms and conditions of travel, Air Canada does not guarantee the schedules and thus delay in flight or any alternation or cancellation of flight does not amount to unfair trade practice; that the complaint against op no.3 is not maintainable as the complainant did not purchase any ticket from it and rather the complainant was holding the ticket of flight no.LX9695 of Lufthansa Airline and that there was no negligence or deficiency in service on the part of Air Canada and therefore, it is not liable to pay any compensation to the complainant. Ultimately this op prayed for the dismissal of the complaint.

14.                                 To substantiate his claim the complainant tendered in evidence his sworn affidavit,Ex.CW1/A alongwith documents,Exs.C1 to C15 and his learned counsel closed the evidence.

15.                                 On behalf of op no.3 its learned counsel tendered the sworn affidavit Ex.R1 of Mr.Arun Pandeya, General Manager Air Canada and closed the evidence.

16.                                 On behalf of op no.2 its learned counsel tendered in evidence the sworn affidavit,Ex.R2 of Mr.Baljit Singh Johal and closed its evidence.

17.                                 The complainant and op no.2 filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence/record on the file.

18.                                 There is no dispute about the fact that the complainant had got the air tickets for travel from Delhi-Toronto via Frankfurt and return from Toranto-Delhi via Frankfurt in the Lufthansa Airline through op no.2 and that the travel tickets were duly confirmed. The complainant did fly on 6.6.2008 from Delhi-Toronto via Frankfurt on the aforesaid confirmed tickets. The complainant had the problem when he had to fly back from Toronto-Delhi via Frankfurt on 22.7.2008, when he reached the airport Toronto, he was told by the officials of op no.1 that his return ticket was not confirmed and the same had been cancelled. Certainly the same was a shock to the complainant because there was no notice to him for the cancellation of his flight from Toronto-New Delhi via Frankfurt.

19.                                 Op no.1 has not come forward to contest the claim of the complainant and to disclose the circumstances under which its flight LX9626 could not takeoff at the scheduled time i.e. 10.5 p.m. from Frankfurt on 22.7.2008. The explanation furnished by op no.3 that flight no.LH9626 was delayed due to some unforeseen mechanical reasons can not be accepted  in the absence of a cogent evidence to have been led by op no.3 in this regard.

20.                                 Now the question arises as to whether the complainant is entitled to any compensation for the harassment suffered by him because of flight no.LH9626 having been delayed and which was operated by op no.3 with AC876 and also as to whether the complainant is entitled to the compensation from op no.3 or op no.1. Flight No.LH9626 was scheduled to take off from Toranto –Frankfurt on July 22,2008 at 10.05 p.m. and the same was operated by op no.3 with AC876 on July 23,2008 at 8.44 a.m. i.e. after a gap of about 11 hours as per the plea taken up by op no.3. Whereas, it is the plea taken up by the complainant that Air Canada flight AC 876 departed Frankfurt on 24.7.2008 at 1p.m. and reached New Delhi airport on 25.7.2008 at 12.30p.m. as against the scheduled departure  from Frankfurt at 12.35 am on 24.7.2008, it is the plea taken up by op no.3 that the Air Canada conveyed  the delay and immediately informed Lufthansa about the delay in arrival of the complainant and requested them to book him in next available flight. Lufthansa confirmed the passenger on LX 760, which had to depart on July 24, 2008 at 1.45 p.m.. Op no.2 has got no record of the event having taken place thereafter as the rest of the journey was performed by the complainant in Lufthansa flight no.LX 760 from Frankfurt –Delhi. The plea taken up by op no.3 in this regard is supported by the sworn affidavit, Ex.R1 of Mr.Arun Pandeya,General Manager of op no.3 .In that way, it would appear  the complainant had to face the harassment because of the non availability of the scheduled flight on 22.7.2008 from Toronto for Frankfurt i.e. LX9625, as per the e-ticket receipt,Ex.C1. The scheduled original flight from Frankfurt-Delhi had to take off on 23.7.2008 at 1.45p.m. and as per the case of the complainant the same had taken off on 24.7.2008 at 12.35a.m. In that way the complainant had to suffer for the delay of flight by 24 hours.

21.                                 Apparently, there was no contract between the complainant and op no.3(Air Canada) for flying the complainant from Toronto-Frankfurt and it was because of an internal arrangement made between op no.1 and op no.3, under a code-share agreement  that the complainant was adjusted in flight AC 876 operated by op no.3 and thus we find that it does not make the complainant a consumer of Air Canada. The responsibility for harassment suffered by the complainant because of the non availability of the confirmed flight at Toronto Airport on 22.7.2008 at 10.55 p.m. securely lies upon op no.1.

22.                                 As per  electronic ticket receipt,Ex.C1, the flight from Frankfurt by LX 760 had to depart at 1.45 p.m. on 23.7.2008 but according to the complainant air Canada flight AC 876 departed Frankfurt on 24.7.2008 at 1 p.m. and reached New Delhi Airport on 25.7.2008 at 12.30 am. In the sworn affidavit,Ex.R1 of Mr.Arun Pandyea of op no.3 it is disclosed that flight AC 876 of op no.3 had departed YYZ(Toronto) at 8.44 a.m. on July 23,2008 and arrived FRA(Frankfurt) at 2209(10.09p.m.) on July 23,2008. Air Canada, considering the delay, immediately informed Lufthansa about the delay in arrival of the complainant and requested them to book him on the next available flight. Lufthansa confirmed the passenger on LH 760 which had to depart on July 24, 2008 at 1.45 P.M. In that way admittedly there was a delay of about 24 hours in the departure of the flight LX 760 from Frankfurt-Delhi.

22.                                 We can very well understand the inconvenience and the harassment experienced by the complainant because of his having not got confirmed flight firstly on 22.7.2008 at Toronto for Frankfurt and then on 23.7.2008 at Frankfurt for Delhi. We do not find any reason to disbelieve the complainant that he was not accommodated like other passengers in a five star hotel at Toronto, he being a transferee passenger. The complainant might have spent the money from his pocket on refreshment, diet etc. and he might have spent the amount in making telephone calls to his friends and the relatives because of the flights having got delayed. There is a sworn deposition made by op no.2 Mr.Balbir Singh Johal in his sworn affidavit,Ex.R2 that the complainant was suitably compensated by the Air Canada to the tune of 75$ vide letter dated 23.7.2008, the same being ,Ex.C3, but that fact was not disclosed by the complainant. In any case finding op no.1 to be responsible for the problem faced by him we direct op no.1 to compensate the complainant in a sum of Rs.one lac for the inconvenience and the discomfort which the complainant suffered en route  Toranto-Delhi via Frankfurt, which also includes the costs of the litigation. The passing away of the brother of the complainant, who was allegedly lying admitted in the Forties since 22.7.2008 having fallen seriously ill, has nothing to do with the case of the complainant. The complainant had to reach New Delhi by the scheduled flight on 24.7.2008 at 12.35 a.m. while his brother died on 6.8.2008. Op no.1 shall make the payment of the amount of the compensation to the complainant within a period of one month on receipt of the copy of the order by way of issuing the cheque/draft in favour of the complainant failing which the complainant shall be  entitled to recover the same with interest @12% per annum from the date of order till realization.

Pronounced.

Dated:11.5.2011

                                                Neelam Gupta                  D.R.Arora

                                                Member                            President