BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt. Case No : 1213 of  2009

Date of Institution:    26.08.2009

Date of Decision  :    09.11.2010

[1]        Nancy Aggarwal w/o Sanjeev Aggarwal r/o H.No.1170, Sec.11, Panchkula.

[2]        Sanjeev Aggarwal s/o Gian Chand  Aggarwal r/o H.No.1170, Sector 11, Panchkula.

……Complainant

V E R S U S

[1]        Kingfisher Airlines Ltd., through its Managing Director having its registered office at SCO 59-60, Sector 9, Madhya Marg, Chandigarh.

[2]        Branch Head/ Authorized representative, Kingfisher Airlines Ltd., SCO No.59-60, Sector 9, Madhya Marg, Chandigarh.

[3]        Makemytrip.com through its Branch Manage/ Authorized representative having its registered office at SCO No.43-44, Sector 8-C, Chandigarh. 

.…..Opposite Parties

CORAM:        SH.LAKSHMAN SHARMA                     PRESIDENT

                SH.ASHOK RAJ BHANDARI          MEMBER

                MRS.MADHU MUTNEJA                    MEMBER

PRESENT:    Sh.R.S.Randhawa, Adv. for the Complainant.

Sh.Gaurav Bhardwaj, Adv. for Sh.Y.S. Dhillon, Adv. for OPs No. 1 & 2.

OP No.3 already exparte.

PER MADHU MUTNEJA, MEMBER

                The instant complaint have been filed by Mrs. Nancy Aggarwal w/o Sanjeev Aggarwal, and Sanjeev Aggarwal s/o Gian Chand  Aggarwal alleging deficiency in service by Kingfisher Airlines Ltd. & Ors, under Section 12 of the Consumer Protection Act, 1986.  The Complainants have demanded compensation of Rs.5,00,000/- for mental and physical harassment, deficiency in service and inconvenience caused.

1]             The facts of the case are as under:-

                The Complainant No. 1 booked a seat with Kingfisher Airlines through OP No. 3 at Chandigarh in Flight No.605.  She was issued a confirmed ticket for herself and her one year old son for 06.10.2008. The flight was scheduled to depart from Chandigarh Airport at 17.40 hrs. and reach Delhi at 18.30 hrs.

                The Complainants had also booked another connecting flight from Delhi to Ahemdabad with Spice Jet Airlines vide Flight No. SG-113. The scheduled departure of this flight was 8.45 P.M. with arrival in Ahemdabad at 10.00 P.M.

                Unfortunately, the flight from Chandigarh, instead of departing at 5.40 P.M., departed at 7.20 P.M., without any plausible explanation and reached Delhi Airport at 8.10 P.M. The luggage of the Complainant was handed over to her after 8.40 P.M.  In the process, the Complainants were unable to board the Spice Jet flight to Ahemdabad. 

                The Complainant No. 2, who is a Chartered Accountant by profession, had fixed various meetings with his prospective clients in Ahemdabad at 10.30 P.M. He was unable to attend these meetings, because he was not able to board the Spice Jet flight, The complainants have alleged that this delay in flight amounts to deficiency in service by the Kingfisher Airlines.  The Complainants were, thus, forced to book fresh tickets of Kingfisher Airlines, scheduled to leave Delhi at 10.25 P.M. with arrival at 11.45 P.M. Astonishingly, this flight also got delayed and reached Ahemdabad at only 12.45 A.M. This continuous delay obviously caused great mental and physical harassment to the Complainants and their one year old child. Complainant No. 2 also suffered great financial loss, because he could not attend meetings with his prospective clients. Spice Jet Airlines with whom the onward tickets were booked by the Complainants, refused to refund the ticket amount, saying that they were not responsible for the delay caused by other Airlines.

                The Complainants then served a legal notice on the OPs to compensate for deficiency of service and financial loss caused. When no response was received, the Complainants filed the instant complaint, with prayer for compensation as already mentioned above.

2]             After admission of the complaint, notice was sent to all the OPs.  Summons sent to OP No.3 were duly served. However, neither the Manager, nor any authorized attendant appeared on their behalf before this Forum, therefore, OP No. 3 was proceeded against ex-parte on 30.09.2009. 

3]             OP Nos. 1 and 2 have filed a joint reply. Besides taking the preliminary objection that there is no deficiency in service or any unfair trade practice on the part of OPs, the OPs have submitted that there was delay in departure of the flight, due to late arrival of the incoming aircraft. Reasons for delay were purely beyond the control of the answering OPs.

                On merits, the OPs have contended that the Flight No. IT-605 from Chandigarh to Delhi had to come from Mumbai. The scheduled arrival time of the said aircraft was 17.05 hrs (5.05 P.M.). However, due to heavy air traffic congestion at Mumbai, the flight arrived in Chandigarh only at 18.43 hrs (6.43 P.M.).  As soon as the aircraft arrived and boarding was complete, the flight was immediately released for take off. The flight actually departed from Chandigarh at 19.15 hrs (7.15 P.M.) instead of 17.40 hrs., as alleged by the Complainant. The OPs have contended that it must be appreciated that air traffic controlling is not within the control of the OPs and they are under obligation to follow instructions of Air Traffic Controlling Authorities. An aircraft cannot land or depart from the airport unless instructions are received from the Air Traffic Controlling Authorities at the airport. In the present case, delay was caused due to late arrival of the incoming aircraft due to air traffic congestion in Mumbai. In this regard a copy of the e-mail dated 27.11.2009 from the System Operations Control System (SOCC), Mumbai Airport is attached as Annexure A to the complaint.  As per this report, the flight was 01 hr. 18 minutes late.  Another e-mail dated 03.12.2009  has also been placed on record as Annexure A, which also corroborates the earlier mail.

                The OPs have submitted that it is pertinent to mention that in various judgments delivered by the Hon’ble National Commission and State Commission, it has been observed that airlines is responsible for deficiency in service only, if

(1)       there is delay of more than 2 hours, and

(2) the said delay is due to reasons attributable to the carrier.

                In the present case, the delay is less than 2 hrs. and the reason of delay are not attributable to the answering OPs, but the same were due to the reasons already explained.

                The OPs have further contended that they are not responsible towards the averments pertaining to the booking of tickets of Spice Jet. The Complainants had never disclosed the fact to the OPs that they had any connecting flight. OPs were also not responsible for the subsequent consequences caused due to delay in the flight. They have denied all other allegations made in the complaint.

4]             The OPs have again reiterated that functioning of the aircraft depends purely on air traffic control clearance. The OPs have also attached rules framed under “The Carriage by Air Act, 1972”, which are as under:-

“………………..The ticket issued by the Airline shall be subject to rules of cancellation made by the Airline for the time being in force, which may be seen at this website or any reservation office of the Airline or the Airline’s approved travel agent on request.

The Airline reserves to itself the right, without assigning any reason, to cancel or terminate or delay the commencement or continuance of the flight or to alter the stopping place or to deviate from the route of the journey or to change the type of aircraft in use without incurring any liability in damages or otherwise to the passengers or any other person for any reason whatsoever.

The Airline is not liable for any delay or loss or damage occasioned by delay in the carriage by air of passengers or baggage.

In case of circumstances beyond our control (including, but without limitation, meteorological conditions, mechanical failures, acts of nature, force majeure, strikes, riots, civil, commotion’s, embargoes, wars, hostilities, disturbances, government regulations, orders, demands or requirements, shortage of labour, fuel or facilities, or labour difficulties of Kingfisher Airlines or others all actual, threatened or reported) we may without notice cancel or delay a Flight”  

        In view of the above averments, the OPs have prayed for dismissal of the complaint.

5]             We have heard the ld.Counsel for the parties and have also perused the evidence & documents led by the parties in support of their contentions. OP No.3 already ex-parte.

6]             The Complainants have also submitted written arguments. In the written arguments, the Complainants have reiterated that the Complainant No.1, along with her minor son aged about one year was greatly harassed by OP No.1, due to delay in flight. Further, the Complainant was also not informed about the delay and the flight finally, took off after a delay of 01 hr. 40 minutes.  This delay has been admitted by the OPs in their written statement. 

                The learned counsel for the Complainant kept on emphasising at the time of argument that the delay caused by the OPs caused great mental harassment to the Complainant and her young minor son and she was left helpless without any help from the OPs. They not only delayed the flight without informing her, but also did not kept her well informed about the cause of delay or even provide any help to her.

                The learned counsel for the OP kept emphasising on the point that the departure of flight was delayed from Chandigarh only because the flight arrived late from Mumbai.  The cause of delay in departure of the flight from Mumbai was air traffic congestion in Mumbai, due to which the clearance from ATC was delayed.

7]             The e-mails received from Mumbai confirm the cause of delay. It seems that the Complainants are not frequent flyers. Otherwise, they would have ensured sufficient time gap between their two flights. Frequent travellers by airlines are very aware that flights often get delayed due to no fault of either the airlines or ATC. Traffic congestion on the airport, runaways and the air space above the landing area, can be a cause for delay. Sometimes, a flight may have landed, but would be standing in line, waiting to get space to be taxied into the area of arrival.

                Again, luggage to be loaded and unloaded from flights is a very systematic and specified process and would obviously, need time. It is very natural for travellers to be waiting to receive their luggage even half an hour after they have stepped down from the flight. The allegations of the Complainants, thus, seem very hollow and unrealistic. The time interval between the two flights was too tight and the delay caused was not due to any apparent fault of either the airlines or the ATC. The flight came late from Mumbai, where there was traffic congestion and the subsequent delays were just a natural consequence. It is unfortunate that the Complainants missed their connecting flight for Ahemdabad. It is also unfortunate that their subsequent flight of Kingfisher Airlines also got delayed, but it may again be reiterated that the blame cannot be fostered on either the airlines or the ATC.

8]             From the above facts and discussion, it is clear that there is no deficiency or unfair trade practice made out against the OPs.  Therefore, we deem it appropriate to dismiss the complaint as the complainants have not been able to make out any case of deficiency or harassment by the OPs. 

9]             In view of the above findings, we dismiss this complaint.  Both parties may bear their own costs.

10]            Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced                                                                   

09^th Nov., 2010                                                 

Sd/-

LAKSHMAN SHARMA)

PRESIDENT

                                                                   Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                                Sd/-

                                                    (MADHU MUTNEJA)

MEMBER

‘Dutt’