BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 15th of February 2012
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.305/2010
(Admitted on 12.11.2010)
- Sri Bhujanga V. Shetty,
S/o Late Venkappa Shetty,
- Smt. Santhosha Shetty,
Both are residing at “Shree Durga Niwas”,
Bajpe – Kateel Road,
Bhatrakere, Bajpe,
Mangalore – 574 142. ……..COMPLAINANTS
(Advocate for the Complainant: Sri Guruprasad K.).
VERSUS
Jet Airways India Ltd.,
S.M. Center,
Andheri-Kurla Road,
Andheri (East),
Mumbai – 400 059.
Represented by its C.M.D.
Having its Branch office at
Rama Bhavan Complex,
Kodialbail,
Mangalore – 575 003.
Represented by Branch Manager…. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri. K. Gangadhar
Hegde)
* * * *
ORDER DELIVERED BY HON’BLE PRESIDENT SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainants stated that, they had booked air tickets from the opposite party at Rs.4,094/- each from travelling from Bangalore to Mangalore on 26.08.2010. It is stated that the flight was cancelled and the opposite party was unable to take the complainants to the destination. They were told that the flight was cancelled due to inclement weather. It is stated that the complainants were left stranded in the airport and the staff of the Opposite Party did not have the courtesy of informing them about the alternative arrangement. Though the opposite party’s next flight to Mangalore had sufficient number of vacant seats, the complainants were not at all assured of accommodation in the said flight. On the other hand, the opposite party’s staff members were keen on refunding the amount of the ticket inspite of the protests of the complainants. The complainants were forced to accept the refund voucher of ticket charges, which they later understood, was a shrewd ploy to avoid the responsibility of making suitable and proper alternative arrangements for the complainants on the next available flight and to coerce the complainants to buy ticket at more than double the original rate.
It is stated that, the complainants had to find the availability of seats in the immediate next flight through their own agents and the seats were provided for charges of Rs.9,934/- each. The complainant No.1 was confirmed a seat in the next morning flight and the complainant No.2 was in waiting list. It is stated that the complainants had to hire a taxi to go back to Bangalore City by spending about Rs.1,500/- and avail accommodation for the overnight stay in lodging by spending Rs.1,300/- and again they had to hire a taxi to come back to airport by spending Rs.1,500/-. It is further stated that, the scheduled flight was cancelled, the opposite party has taken advantage of the helpless situation of complainants and charged an additional amount on the flight ticket and thereby they had suffered monetary loss as well as uncomfortable and mental agony. The above situation was arisen solely due to the insufficiency of the opposite party in handling the entire situation. Because of the cancellation of the flight, the complainants were put to inconvenience as stated supra and feeling aggrieved by the above, the complainants issued a legal notice to the opposite party demanded damages, but the opposite party failed to comply the demand made therein. Hence, the above complaint came to be filed, the Complainant filed above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay in total a sum of Rs.28,288/- along with compensation and costs of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version stated that, the complainant was travelling on fling No.9W 2737 on 26.08.2010 from Bangalore to Mangalore, the flight took off and was rerouted to Bangalore due to bad weather. It is stated that, their staff informed the complainant about the alternative arrangement and also offered full refund of the air ticket fare. It is also stated that, the next available flight was fully booked and there was no vacant seat and hence, the complainant opted for full refund of ticket without any dispute and therefore, the opposite party’s staff was keen to refund the air tickets. It is further stated that, the complainant booked ticket on the next available flight and complainant No.1 seat was confirmed and the complainant No.2 seat was in waiting list. It is stated that once a passenger opts for a refund, it is not the responsibility of the carrier to arrange for any accommodation or transfer facilities of the passenger. It is stated that the complainants again approached the opposite party for booking fresh tickets that there was only one ticket available on 27.08.2010, which was duly booked for complainant No.1 and due to fully booked flight complainant No.2 was on a waiting list and that the same was confirmed at the very last moment, at the counter closer time that is 30 minutes prior to departure of the flight. It is stated that the opposite party is not liable to pay any damages and contended that there is no deficiency and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Mr. Bhujanga V. Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C5 and C5(A) were marked for the Complainant as listed in the annexure in detail. One Sri. Gangadhar Hegde (RW1) – Manager Sales of the Opposite Party filed counter affidavit and answered the interrogatories served on him. The Complainant and the Opposite Party have produced notes of arguments.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainants prove that the Opposite Party has committed deficiency in service?
- If so, whether the Complainants are entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i):Affirmative.
Point No.(ii) & (iii):As per the final order.
REASONS
5. Points No. (i) to (iii):
The facts which are not in dispute is that, on 26.08.2010 the complainants obtained air ticket from Bangalore to Mangalore as per Exs.C2 and C3 i.e., the Air Ticket Nos.ETKT 589 3751790808 and ETKT 589 3751790809 issued by the opposite party. It is also admitted that, on 26.08.2010 the flight was cancelled and the complainants were unable to travel on the said day.
Now the allegations of the complainants are that, they had booked the air tickets from the opposite party on 26.08.2010 by paying Rs.4,094/- each for travelling from Bangalore to Mangalore. Because of the cancellation of the flight, they were unable to travel on 26.08.2010 and they were forced to stay back overnight in Bangalore by spending Rs.1,300/- for lodging and also hired a taxi to go back to airport to Bangalore. Further it is stated that, because of the cancellation, they had to purchase air tickets by paying Rs.9,934/- each for the very next day and spent an additional amount of Rs.11,688/- on the flight tickets. The above monetary loss as well as uncomfortable and mental agony caused because of deficiency on the part of the Opposite Party because they have not made any alternative arrangement nor they have no courtesy of informing to the complainants. Hence, came up with this complaint.
On the other hand, the opposite party has vehemently contended that, due to bad weather, the flight took off on 26.08.2010 and was rerouted to Bangalore and also contended that there was no available flight on the same night which was fully booked flight and therefore it was not possible for the opposite party to accommodate the complainants on the same day and the complainants opted for full refund of the tickets without any dispute and the opposite party refunded the air tickets amount and therefore, they are not responsible for any accommodation and other damages.
The complainant filed affidavit by way of evidence and produced documents, which are marked as Exs.C1 to C5 and C5 (A). Opposite Party has also filed affidavit by way of evidence. No documents were produced.
However, we gave anxious consideration to the submission made by the complainants, that the entire evidence and the documents produced by them goes to show that the complainants have booked two air tickets, the scheduled time was 26.08.2010 at 8.15. Both the tickets were confirmed and the complainants reached the airport and the complainants were accommodated in the aircraft in this case. But the evidence of the opposite party shows that the flight was took off and because of the bad weather, the flight was rerouted to Bangalore. On perusing the above available evidence on record, it is seen that, the complainants were about to transfer at night hours and because of the cancellation of the flight, whatever may be the reason, the complainants were forced to stay back at overnight in a lodging by spending some amount. Apart from the above, it is to be noted that, the travelling from Bangalore to Mangalore on the particular day especially at night is so important than the refund of the amount or whatever may be the expenditure. It is admitted by the opposite party in their version as well as in their affidavit evidence that due to some bad weather which were beyond the control of the opposite party, the scheduled flight was rerouted and thereby cancelled. But there is no credible evidence produced before this FORA to show that due to the bad weather, the aircraft was rerouted by the concerned which is beyond their control. It appears that, due to some reasons which best known to the opposite party, the aircraft might have rerouted, but the opposite party ought to have made or arranged rerouting to his final destination at the earliest. But in the instant case, the opposite party failed to make any arrangement on the same day, but the complainants were travelled on the very next day by spending additional amount of Rs.11,688/- for the air tickets and also they have spent for accommodation and hiring taxi from airport to Bangalore which cannot be denied by the opposite party.
Before discussing the point in issue, our attention was drawn towards the land mark decision in a case Dr. Arun Jain V/s Thai Airways International Ltd., the Hon’ble National Commission has referred Europeon Union Council Regulation (EEC) No.295/4th February 1991 in the judgement of Dr. Arun Jain’s case, article of Regulations i.e., article 4(1), in the event of boarding being denied, a passenger shall have the choice between the reimbursement without penalty of the cost of the ticket for the part of journey not made or rerouting to his final destination at the earliest opportunity or rerouting at the later date at the passengers convenience. Irrespective of the passenger’s choice mentioned in the air ticket referred in the complaint, the air carrier shall, immediately after cancelling the flight or boarding has been denied, the air carrier shall offer rerouting to the final destination on a alternative flight.
But in the instant case, the opposite party not arranged the alternative flight. It is seen that the complainant travelled by spending additional amount and travelled on the very next day. The same is not denied by the opposite party. But the only contention is that, the air ticket amount was refunded and thereby they are not responsible for any accommodation or other arrangements pertaining to the complainants. The contentions raised by the opposite party is not justifiable because as we have discussed in the preceding paras, the complainants already booked the ticket and reached the airport and because of the cancellation of the aircraft, the complainants were forced to stay back on the overnight and put them uncomfortable other than the monetary loss. Since there is no other option, the complainants were forced to take the air ticket charges and the travelling was postponed on the very next day. All these were happened due to the cancellation of the aircrafts by the opposite party. In other words, due to the negligence on the part of the Opposite Party, the complainants had to incur financial loss and other expenses for boarding and travelling etc., But in the instant case, the complainants were managed to get the air ticket on the very next day by paying additional sum of Rs.11,688/-. They had to pay more because the earlier aircraft was cancelled.
It is a settled position of the law that, under Civil Aviation Act, in case of cancellation of flight, in order to reduce inconvenience to the passengers as a result of the cancellation of the flights on which they have booked to travel, whenever possible, airlines should endeavour to invariably inform the passengers of cancellations of their flight 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 i.e., telephone number etc., as requested by the airline. Incase, the cancellation is occurred due to extraordinary circumstances, beyond the control of the airline even if all reasonable measures had been taken by the airline, then ofcourse, the opposite party is not liable to pay any compensation.
But in a given case, as we discussed herein above, the opposite party failed to produce any tangible evidence before this Authority to show that they have taken all reasonable measures and the cancellation was occurred due to extraordinary circumstances beyond the control of the airline. No report has been produced by the opposite party. In the absence of the same, we hold that, the opposite party is certainly liable to pay damages / compensation. The air carrier in case of cancellation shall offer free of charge to passengers, who are denied boarding, the expenses for the telephone call, telex fax message to the point of destination, meals and refreshment in a reasonable price and hotel accommodation in case whether an additional stay of one or more nights is necessary. But in the instant case, admittedly the complainants stayed overnight for the cancellation of the flight. Under that circumstances, we are of the clear opinion that, the opposite party is held liable to pay the damages to the complainant towards monetary loss as well as mental agony undergone by them in this case.
The complainants claimed Rs.11,688/- towards the additional sum spent for air tickets to travel from Bangalore to Mangalore and also claimed Rs.1,000/- for hotel accommodation for overnight stay and Rs.3,000/- towards the taxi to go back to Bangalore City and again to come back to airport other than miscellaneous expenses. By considering the above aspect, we are of the opinion that, the complainant was not told about the cancellation of the flight at the earliest only after reaching the airport, the flight was suddenly cancelled for the reasons best known to the opposite party. Under that circumstances the complainant is therefore entitled of compensation for breach of the promise made by the opposite party. By taking into consideration of the monetary loss as well as mental agony suffered by the complainants, we hereby directed the opposite party to pay Rs.25,000/- towards mental agony and uncomfortable caused to the complainants and Rs.15,000/- towards the additional air fare, lodging and transport facilities spent by the complainants (in total Rs.40,000/-) and Rs.1,000/- awarded as cost of the litigation. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party i.e., Jet Airways India Ltd., is hereby directed to pay compensation of Rs.40,000/- (Rupees: Forty thousand only) to the complainants and also pay Rs.1,000/- (Rupees: One thousand only) as cost of the litigation expenses.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is directed to pay interest at the rate of 12% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 13 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 15th day of February 2012.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 – Sri Bhujanga V.Shetty – Complainant.
Documents produced on behalf of the Complainants:
Ex C1 – 25.8.2010: Air Ticket.
Ex C2 & C3 – 26.8.2010: Air tickets (2 Nos).
Ex C4 – 13.9.2010: Legal Notice on behalf of Complainant.
Ex C5 & 5(a) – 21.09.2010: Reply Notice of Opposite Party & Postal cover.
Witnesses examined on behalf of the Opposite Party:
RW1 – Mr.Gangadhar Hegde, Manager Sales of the Opposite Party.
Documents produced on behalf of the Opposite Party:
- Nil -
Dated:15.2.2012 PRESIDENT
