Kerala

StateCommission

A/318/2017

SPICE JET LTD - Complainant(s)

Versus

JAISON ABRAHAM - Opp.Party(s)

BABY ANTONY

07 Feb 2020

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO. 318/17

JUDGMENT DATED: 07.02.2020

PRESENT : 

HON’BLE JUSTICE K. SURENDRA MOHAN          : PRESIDENT

SHRI. T.S.P MOOSATH                                             : JUDICIAL MEMBER

SHRI.RANJIT .R                                                          : MEMBER

SHRI. RADHAKRISHANAN K.R                                 : MEMBER

Spicejet Ltd.,

319, Udyog Vihar, Phase-IV,

Gurgaon – 122 016.                                                            : APPELLANT

 

(By Adv: Sri. Baby Antony)

 

            Vs.

 

1. Mr. Jaison Abraham,

Thazhayil House, Hospital Hill,

Nilambur Post, Malappuram District, Kerala.

                                                                                                : RESPONDENTS

2. UAE Exchange, ICICI Building,

Main Road, Nilambur, Kerala-679 329.

 

(By Adv: Sri. Bimal V.S)

 

 

JUDGMENT

SHRI. RANJIT. R : MEMBER

 First opposite party has filed this appeal against the order dated, 30.06.2015 in CC.400/13 on the file of the Consumer Disputes Redressal Forum, Malappuram (for short the District Forum).  The District Forum by its order has directed them and the 2^nd opposite party jointly and severally to pay a compensation of Rs.50,000/- to the complainant. 

2.      The complainant who is a practicing lawyer at Nilambur and Manjeri Bar had approached the District Forum stating that he had booked a Flight Ticket to Delhi for a discussion with some Senior counsel of the Hon’ble Supreme Court to be held on 25.8.2013 at 8pm and opposite party No.2 had promised and offered better service and promptness if he travelled in the flight of opposite party No.1.  Since the flight was delayed he could not reach the destination in time, causing much inconvenience, monetary loss and mental agony. 

3.      First opposite party vehemently resisted the complaint, contending that just before the departure of the flight, the Air Maintenance Engineers while checking the air worthiness had found some problem in the Engine of the aircraft which could not be repaired and rectified.  So the opposite party No.1 had to arrange a new aircraft.  In the process, the opposite party No.1 had to re-route the flight.  Therefore the delay caused was not intentional and hence there was no deficiency.  

4.      Second opposite party did not file any version.

5.      Evidence consisted of the proof affidavit filed by the complainant and Exts.A1 to A4 marked on his side.  Opposite parties did not adduce any evidence.

6.      The District Forum has found that there was deficiency in the service of the opposite parties and that the delay in the Flight had caused much mental agony, inconvenience and harassment to the complainant.  On the above finding, the District Forum has directed the opposite parties jointly and severally to pay a compensation of Rs.50,000/-.  Aggrieved by this order the first opposite party has come up in appeal.

7.      Heard both counsel and perused the records.  Learned counsel for the appellant contended that all the passengers of the first opposite party are governed by the terms of the carriage contained in the E-ticket framed in accordance with Carriage by Air Act 1972.  One of the clauses of the said terms of carriage is that “where bad weather or instances beyond Spicejet control has resulted in your Flight being cancelled or delayed, Spicejet will try to assist you to get to your destination, but will not be liable in any way for the delay or cancellation”.  The complainant had booked a ticket for travel from Kozhikkode to Delhi via Chennai on 25.8.2013 which was scheduled to reach Delhi at 17.35 hours (7.35.pm).  However before take off the Air Maintenance Engineers while checking the worthiness of the aircraft found defects in the engine and since those defects could not be rectified the flight was cancelled and the appellant arranged a different aircraft and had to divert the journey of the complainant with a fresh timing.  The fact was intimated to the complainant and all the passengers including the complainant who reached Delhi at 22.20.hours (10.20pm).  He further contended that the appellant by providing alternative arrangements and ensuring that the complainant reached Delhi on the same day itself at 10.20pm instead of 7.30pm shows that there was no negligence whatsoever on the part of the appellant.  The delay occasioned was only due to the technical snag.  There was only two hours delay and that too, in the aforesaid facts and circumstances where the aircraft had suddenly become unfit to fly.  Since the appellant had immediately arranged another aircraft awarding a compensation of Rs.50,000/- was absolutely irrational and illogical and therefore he prays for setting aside the order.  He has placed reliance on Spicejet  Vs. Himadri Sharma in Revision Petition.No.1294/09 (NC) in support of his case.

8.      On the other hand the learned counsel for the respondent contended that the complainant had booked the Flight to Delhi for having a discussion with two senior counsel of Supreme Court to be held on 25.8.2013 at 8pm.  Since the Flight was delayed his appointment with the senior lawyers of the Supreme Court was frustrated and he had to return to his native place which caused much mental agony, hardship and loss for which he has to be adequately compensated.

9.      We have considered the arguments advanced by both counsel and have examined the materials on record.  It is an admitted fact that there was delay in the Flight on 25.8.2013.  The Flight was scheduled to depart from Kozhikode at 12.20 hours and was scheduled to reach Delhi at 7.35pm.  Instead, the Flight took off from Kozhikkode only by 3.30.pm it was re-routed via Goa and finally reached Delhi only at 10.20pm.  There was a delay of almost three hours.  According to the complainant he had booked the ticket for travel to Delhi for discussions with senior counsel of Supreme Court and his appointment on 25.8.2013 was at 8pm.  Since the Flight was delayed he could not reach his destination in time and the very purpose of his travel was frustrated and spoiled which caused much inconvenience, monetary loss and mental agony.  The contention put forward by the opposite party for justifying the delay and the consequent re-routing of the Flight was a technical fault of the aircraft.  According to them, just before departure of the Flight, the air Maintenance Engineers while checking the air worthiness found that there was some problem in the engine of the aircraft which could not be repaired and rectified and so they had to arrange a new aircraft.  Accordingly the flight was re-routed. Here the reason for the delay canvassed is a technical snag.  The onus lies heavily upon the airline to prove the said reason.  Unexplained delay and unproved reason for cancellation of flight and consequent delay amounts to deficiency in service.  Unless it is shown that it was due to some natural causes like fog, poor visibility, bird hit or any other unforeseen events, the opposite parties are liable  The explanation canvassed by the appellant for the delay is not acceptable without proof.  The appellant/first opposite party has failed to prove through oral or documentary evidence that there was mechanical fault to the engine of the aircraft.  It is the responsibility of the airline to run the flight on time.  The Hon’ble National Commission in  Air India Vs. Banivrata Boddar reported in 2019 (2) CPJ 366 (NC) has found that the service of the airline was proved to be deficient since it did not run its concerned flight as scheduled.  Thus the above ruling of the National Commission is clearly applicable to this case also.  The learned counsel for the appellant has placed reliance on Spicejet  Vs. Himadri Sharma (supra). In that case it was held that the delay was due to reasons beyond the control of the airline and if the appellant and crew acted visibly and bonafide manner, the appellant could not be made liable to pay damages even if there is some inconvenience or hardship to the passengers due to the delay.  However, in the present case the appellant has failed to prove that the delay occasioned was due to a technical snag which was beyond their control.  As the facts in the referred case are different, the above dictum of the National Commission is not applicable to the present case.  Here it is clearl that the complainant has suffered a lot of mental agony when he came to the airport and came to know that his flight will be delayed for about 3 hours and would reach Delhi only by 10.20.pm.  The very purpose of the journey was to have a discussion with the senior counsel of Supreme Court at 8pm in New Delhi which was frustrated.  Therefore he is entitled for compensation.  However it is seen that the compensation of Rs.50,000/- awarded by the District Forum is on the higher side.  It should be kept in mind that a flight could be delayed for many reasons, like bad weather, fog, bird hit, technical snag etc.  The complainant should have booked an earlier flight if he had genuinely wanted to reach Delhi before 8 pm, as is alleged by him.  The original schedule of arrival of the flight which the complainant booked was at 7.30pm.  If the complainant was having an important appointment with the senior counsel at 8pm then he should have made arrangements to reach Delhi sufficiently early.  Moreover the 1^st opposite party had made arrangements to convey the complainant in another Spicejet aircraft which reached Delhi via Goa at 10.20pm.  There was a delay of only 3 hours in reaching Delhi.   Keeping these facts in mind we are of the opinion that it is appropriate to allow a compensation of Rs.15,000/- to be paid to the complainant by the opposite parties instead of Rs.50,000/-.   In the facts and circumstances of this case the order of the District Forum is modified to the effect that the quantum of compensation would stand reduced to Rs.15,000/- instead of Rs.50,000/-.

In the result, this appeal is partly allowed.  The amount of compensation is modified to Rs.15,000/- instead of Rs.50,000/-.  The  parties to suffer their respective costs.

The complainant/respondent shall be entitled to release of Rs.15,000/- ordered as compensation from the amount of Rs.25,000/-, the statutory amount deposited by the appellant, on filing proper application. The balance amount of Rs.10,000/- is to be refunded to the appellant on filing proper application.

 

JUSTICE K. SURENDRA MOHAN : PRESIDENT

 

T.S.P MOOSATH : JUDICIAL MEMBER

 

RANJIT .R : MEMBER

 

RADHAKRISHANAN K.R: MEMBER

 

VL.