KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.350/2006 JUDGMENT DAED 29.3.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER M/s.Sahara Airlines Ltd. 3rd floor, Dr.Gopaldas Bhavan, Barkamba Road, Connaught Place, -- APPELLANT New Delhi – 110 001, rep. by its Managing Director, (By M/s.Sheriff Associates) Vs. 1. K.Ramkumar, Advocate, “Sumthrupthi” Kalathiparambu Cross Road, -- RESPONDENTS Valanjambalam, Ernakulam, Cochi-16. 2. Mr.Neil, Traffic Assistant, Sahara Airline Ltd., 9-6 Maker Camber 221 Nariman Point, Mumbai. 3. Ms.Rashmi Salve Sahara Airline Ltd., 9-6 Maker Camber 221 Nariman Point, Mumbai. 4. Ms.Manjusha, Sahara Airline Ltd., 9-6 Maker Camber 221 Nariman Point, Mumbai. 5. M/s.Royal Tours and Travels rep. by its Managing Director, Chandrika Buildings, MG Road, Ernakulam. JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The appellant was the 1st opposite party and respondents 1 to 5 were the complainant and opposite parties 2 to 5 respectively in OP.No.307/05 on the file of CDRF, Ernakulam. The said complaint was filed against opposite parties 1 to 5 alleging deficiency in service by causing delay for the flight and also for causing inconvenience, hardship and financial loss to the complainant during his journey from Kochi to Delhi on 2.2.05. Thus, the complainant claimed compensation of Rs.2 lakhs with interest for deficiency in service on the part of the opposite parties. 2. The 1st opposite party entered appearance. The opposite parties 2 to 4 remained absent. The first opposite party filed the version on behalf of the opposite partied 2 to 4 also. The first opposite party denied deficiency in service alleged by the complainant. It was contended that the flight was delayed because of the reasons beyond the control of the opposite party. The allegation that the opposite parties 2 to 4 behaved in a rude manner has also been denied by the first opposite party. Thus, the opposite party prayed for dismissal of the complaint. 3. 5th opposite party entered appearance and filed version contending that the 5th opposite party has no liability to pay compensation to the complainant and that the 5th opposite party had only issued Air ticket for the complainant and there was no deficiency in service on the part of the 5th opposite party in issuing the Air ticket to the complainant. 4. Before the forum below the complainant was examined as PW1 and witness on his side as PW2. Exts. A1 to A3 were marked on the side of the complainant. From the side of the first opposite party DW1 was examined and B1 document was also marked. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 13.2.06 directing the opposite parties to pay compensation of Rs.50,000/- to the complainant with cost of Rs.2,000/-. Aggrieved by the said order, the present appeal is filed by the first opposite party/Sahara Air lines Ltd. 5. When this appeal was taken up for final hearing, there was no representation for Respondents 2 to 5. We heard the learned counsel for the appellant/first opposite party and the first respondent/complainant. The appellant filed IA.509/07 to get the respondents 2 to 4 deleted from the party array. But, no specific ground is stated to delete the respondents 2 to 4 from the party array. More over, the respondents 2 to 4 were parties before the forum below in OP.307/05. By the impugned order the opposite parties 2 to 4 were also made liable. The respondents 2 to 4 have not filed any appeal from the aforesaid order passed by the forum below in OP.307/05. So, the request of the appellant to delete the respondents 2 to 4 (opposite parties 2 to 4) from the party array cannot be allowed. Hence the said prayer is disallowed. 6. The learned counsel for the appellant/first opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He relied on the terms and conditions incorporated in B1 passenger ticket and baggage check (photo copy) and submitted that the appellant/fist opposite party Sahara Air lines Ltd, cannot be made liable for the delay caused for the journey from Kochi to Delhi on 2.2.05. He also relied on the admission made by PW1, the complainant that reason for the delay was announced by the opposite party. It is further submitted that the delay was due to technical problem and it was beyond the control of the first opposite party. He also challenged the quantum of compensation of Rs.50,000 ordered by the forum below. On the other hand, the learned counsel for the first respondent/complainant supported the impugned order passed by the Forum below. The first respondent/complainant much relied on the testimony of the complainant as PW1 and A1 letter dated 18.2.05 issued by the appellant/first opposite party. It is further submitted that the admission made by the first opposite party regarding the delay would prove the deficiency in service on their part, and that the rude behavior of opposite parties 2 to 4 has also been proved by the evidence of PW1 supported by the oral testimony of PW2. Thus, the first respondent prayed for dismissal of the appeal. 7. The points that arise for consideration are:- 1. Whether there was any deficiency in service on the part of the opposite parties 1 to 4 as alleged by the complainant in OP.307/05 on the file of CDRF, Ernakulam? 2. Whether the forum below can be justified in awarding compensation of Rs.50,000/- with cost of Rs.2,000 to the complainant in the said OP.307/05? 8. POINTS 1 & 2:- For the sake of convenience we will refer the parties to this appeal according to their rank and status before the forum below in OP.307/05. 9. There is no dispute that the complainant (first respondent herein) purchased Air ticket for his journey on 2.2.05 from Kochi to Delhi. The said Air ticket was purchased from the 5th opposite party M/s.Royal tours and Travels. The aforesaid Air ticket was purchased for the Air journey by the complainant in the Air craft of the first opposite party Sahara Air lines Ltd. Admittedly, opposite parties 2 to 4 were the staff of the first opposite party on the relevant date ie; on 2.2.05. The scheduled departure time for the said flight was at 3 P.M and there occurred delay of 2 hours and 45 minutes. Thereby, the said flight took off only at 5.45 P.M. The complainant purchased the air ticket for his journey from Kochi to Delhi and there was no information regarding change of flight at Mumbai Air port. It is also to be noted that as per the schedule, the flight ought to have reached Delhi before 7 PM. But, on 2.2.05 the flight reached Bombay Air port late in the night and at Mumbai Air port the complainant and other passengers were asked to change the flight and the passengers were directed to travel in another flight. The said flight to Delhi was also delayed and the flight took off at 11.45 PM. Thus, the complainant and other passengers in the flight had to wait at the Mumbai Air port for 6 hors. The said flight landed at Delhi Air port on 3.2.05 early hours. The aforesaid delay in reaching DelhiAirport has been admitted by the first opposite party/Sahara Air lines Ltd. The reason for the said delay is stated as technical problem and it was beyond the control of the first opposite party/Sahara Airlines Ltd. It is pertinent to note at this juncture that the opposite party never explained the technical reasons. It is true, that there was an announcement that the flight is delayed due to technical reasons. Before the forum below the opposite party reiterated the very same statement that the delay was due to technical reasons. But the first opposite party was not prepared to disclose the so called technical reasons. No document is forthcoming from the side of the first opposite party or its officials stating the actual reasons for the delay. The mere statement of the first opposite party that the delay was caused due to technical reasons and which were beyond its control cannot be taken as such. It is for the first opposite party to explain the reasons. It is for the first opposite party to explain as to how the said delay was beyond their control. The absence of explanation would amount to willful suppression of the real cause. It would give an inference that the said delay could have been avoided by the fist opposite party/Sahara Air Line Ltd. The aforesaid delay would amount to deficiency in service on the part of the first opposite party/Sahara Air lines Ltd. and its officials. 10. The first opposite party relied on conditions of carriage incorporated in B1 passenger ticket and baggage check. There is nothing on record to show that the said conditions were binding on the complainant who was an air passenger in the flight from Kochi to Delhi on 2.2.05. There is nothing on record to show that the complainant accepted the aforesaid conditions of carriage incorporated on the counter foil of the air ticket. It is the case of the complainant that no such conditions were incorporated in his air ticket. It is the definite case of the first opposite party that the aforesaid conditions were printed on the counter foil of the air ticket. It is also contended by the first opposite party that the said conditions were printed on the air ticket which was purchased by the complainant for his journey from Kochi to Delhi. Nowhere it is stated that those conditions were made known to the complainant being the passenger who purchased the air ticket in advance. There is also nothing on record to show that the complainant purchased the air ticket for his journey from Kochi to Delhi after understanding and accepting the so called conditions of carriage. So, the conditions incorporated in B1 document cannot be relied on. It is to be noted that B1 is the counter foil of an air ticket issued to some other person for his journey from Kochi to Hydrabad. It may be correct to say that the very same conditions were incorporated in the counter foil of the air ticket issued to the complainant. The complainant has also not produced the counter foil of his air ticket. There is no evidence to show that those conditions were accepted by the complainant. It can be concluded that the conditions incorporated in B1 counter foil of air ticket will not bind the complainant. The first opposite party cannot be permitted to take shelter under the conditions of carriage printed on the counter foil of their ticket. So, it can very safely be concluded that there occurred undue delay for the flight from Kochi to Delhi on 2.2.05 and that the said delay could not be reasonably explained by the first opposite party/Sahara Air lines Ltd. The aforesaid delay has caused inconvenience to the complainant. The complainant as PW1 has deposed about the inconvenience caused to him by the said delay. So, the forum below can be justified in holding that there was deficiency in service on the part of the first opposite party/Sahara Air lines Ltd. 11. The complainant as PW1 has deposed about the rude and indifferent behavior and attitude of opposite parties 2 to 4 who were deputed as the staff of the first opposite party/Sahara air Lines Ltd. at the Mumbai Air port. PW1 has categorically deposed in support of the allegation regarding the rude behavior of opposite party 2 to 4. There is no reason or ground to doubt the testimony of PW1. The evidence of PW1 is supported by the evidence of PW2. There is no contra evidence forthcoming from the side of the opposite parties to discard the testimony of PW1 and 2 regarding the rude behavior of opposite parties 2 to 4. It is to be noted that the opposite parties 2 to 4 have not filed any written version. The first opposite party has not taken any step to get opposite parties 2 to 4 examined on its side. The persons who witnessed and who were subjected to the rude behavior of opposite parties 2 to 4 have deposed in clear terms. But the persons who behaved in rude manner to the complainant have not denied the said testimony of the complainant as PW1 and co-passenger PW2. It is to be noted that the complainant was worried about the delay caused. Instead of pacifying complainant for the said delay, the staff of the first opposite party namely opposite party 2 to 4 behaved in a rude manner. They were expected to be friendly with the customers (passengers) like the complainant. Thus, the improper behavior of the opposite parties 2 to 4 added injury to the complainant. The aforesaid indifferent behavior of the opposite parties 2 to 4 would amount to deficiency in service. The forum below is perfectly justified in making opposite parties 2 to 4 also liable for deficiency in service. No doubt that the first opposite party being the employer of the opposite parties 2 to 4 is answerable and responsible for the unfriendly behavior of opposite parties 2 to 4. 12. The complainant has also got a case that the opposite parties failed to make suitable transport facility to the passengers at Delhi. It is to be noted that the complainant and other passengers in the flight reached at Delhi in the early hours of 3.2.05. There can be no doubt about the fact that the delay was caused not due to the fault on the part of the passengers. The available circumstance would give an indication that the said delay was caused due to the negligence of the first opposite party and its officials. In such a situation it was the duty of the first opposite party and its officials to provide suitable transport facility to the complainant and other passengers who arrived at DelhiAirport in the early hours of 3.2.05. It is to be noted that the flight was delayed by more than 9 hours. The case of the first opposite party that they made transport facility to the passengers cannot be believed or accepted. If any such transport facility was provided to the complainant and other passengers there will be document evidencing the same. It is the case of the first opposite party that by the time the first opposite party made arrangements for transport the complainant had left the airport. It is to be noted that it was the bounden duty of the first opposite party and its officials to make the transport arrangements in advance and there would not have any delay in providing transport facility. So, there was also deficiency in service on the part of the first opposite party and its officials in providing suitable transport facility to the complainant and other passengers at DelhiAirport. 13. The foregoing discussions and findings thereon would make it abundantly clear that the Forum below considered all the relevant aspects of the case and the evidence on record and rightly held that there was deficiency in service on the part of the opposite parties. The forum below awarded a compensation of Rs.50,000/- to the complainant with cost of Rs.2000/-. The complainant claimed compensation of Rs.2 lakhs. He has got a case that his reservation for accommodation at Kerala House was cancelled because of the delay and he got his accommodation in a private hotel. But the complainant has not adduced any documentary evidence other than his interested version regarding the advance reservation made at Kerala House and the subsequent cancellation of that accommodation due to the delay. There is also no evidence forthcoming from the side of the complainant for the alleged financial loss he suffered due to the change of his accommodation at Delhi. PW1 has deposed about the inconvenience he suffered due to the said delay of more than 9 hours. There can be no doubt that the complainant being a senior citizen had to suffer a lot because of the delay of more than 9 hours in reaching Delhi and that the complainant being an Advocate by profession had to cancel his appointments because of the late arrival of the flight at Delhi. Complainant lost his precious time because of the said delay in reaching Delhi. Considering all those aspects, the opposite parties have to be made liable to pay compensation to the complainant. It is to borne in mind that in quantifying damages there will be an element of guess work. It is rather difficult to prove quantum of damages for mental agony and inconvenience. It is to be noted that the complainant had to face some uncertainties in getting transport facility and accommodation. There can be no doubt that the first opposite party and its officials did not make any deliberate attempt to cause delay. It may be true that there occurred some technical reasons or problems which caused the delay. The late arrival of the flight at Delhi could not be taken as a deliberate or calculated attempt on the part of the first opposite party and its officials. But the first opposite party and its officials could have avoided unreasonable delay if they were little more vigilant and diligent in the matter of making suitable arrangements. Considering all these aspects, the compensation of Rs.50,000/- awarded by the forum below can be treated as unjustifiable. The compensation of Rs.50,000/-ordered by the forum below is on the higher side. This Commission is of the view that considering all the relevant aspects of the case a compensation of Rs.25,000/- can be treated as just and reasonable. The cost of Rs.2000/- ordered by the forum below is reasonable. The impugned order passed by the forum below is modified accordingly. In the result, the appeal is allowed partly. The impugned order dated 13.2.06 passed by CDRF, Ernakulam in OP.307/05 is modified and thereby the compensation of Rs.50,000 ordered by the forum below is reduced to Rs.25,000/-. The cost of Rs.2000/- ordered by the forum below is upheld. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA-- MEMBER | 
