DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.280 of 16-06-2011

Decided on 11-01-2012

Major PP Singh (Retd.), aged 53 years, son of Sh. Ajmer Singh, Resident of H.No.1362. H.I.G. Model

 Town, Bathinda.

.......Complainant

Versus

1. Kingfisher Airlines Limited, 12^th Floor, UB Tower, UB City No.24, Vital Mallya Road, Banglore,

    

   560001, through its Authorized Representative.

    

2. Kingfisher Airlines Limited, Kingfisher House, Western Express Highway, Vile Parle (E), Mumbai

   400099, through Chairman.

    

3. Dr. Vijay Mallya, Chairman & CEO, Kingfisher Airlines Limited, Kingfisher House, Western Express

   Highway, Vile Parle (E), Mumbai 400057.

    

4. R.K.Travels, Indirapura Extn., Loni, Ghaziabad (U.P.), through its Prop./Partner.

......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt. Sukhwinder Kaur, Member

Present:-

For the Complainant: Sh. Rajneesh Rampal, counsel for the complainant

For Opposite parties: Sh. Vishavdeep Singh, counsel for opposite party Nos.1 to 3

Opposite party No.4 exparte

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The present complaint has been filed by the complainant under Section 12 of the Consumer

Protection Act, 1986 as amended up-to-date (Here-in-after referred to as an 'Act'). The brief facts of the

complaint are that the complainant has to go to attend the Happy Re-Union Evening Party which was

held at 7.00 P.M. on 15.06.2009 at Alma Mata i.e. Officers Training School, Madras/Chennai. For this,

he booked four tickets for himself, his wife Sukhwinder Kaur and sons Shahbaaz Singh and Gurnaaz

Singh vide tickets bearing No.0902463986062 to 0902463989065 for visiting from Delhi to Chennai on

15.06.2009 and tickets No.0902465317004 to 0902465317007 for returning back from Chennai to

Bathinda on 17.06.2009 vide PNR No.GCOJJX through travel agent M/s R.K.Travles, Ghaziabad (U.P.)

i.e. opposite party No.4. The complainant has alleged that he booked the Luxury Class of the Airline

called Kingfisher Class instead of no fills which is called as Kingfisher Red. The Class tickets purchased

by him were costlier by Rs.1,500/- per ticket from the ordinary tickets which was worth Rs.10,000/-

each, in this way he spent Rs.11,500/- per ticket and paid a total sum of Rs.46,000/- to the opposite

party No.4 for booking the tickets from Delhi to Chennai and back from Chennai to Delhi. The

complainant has further alleged that he and his family had to board the flight No.232 at 08:50 hours on

15.06.2009 as per the tickets issued by the opposite party No.4 and they had to return back by flight

No.233 which was to depart from Chennai at 16:55 hours on 17.06.2009. Thereafter, the complainant

reported at the IGI Airport in time on the scheduled date but he and his family were told at 08:15 hours

that the flight has been cancelled due to some technical reasons so the complainant requested for

 refund of money or to transfer them to some other matching flight but the opposite parties did not listen

to the requests of the complainant. He and his family were lodged at Lower Class Hotel (Hotel Lohmod)

and asked them to wait and were told to report at the airport at 9:15 P.M. and were put on flight No.234

which was Kingfisher Red (Class lower than the one for which the complainant had paid i.e. which the

complainant had booked). The complainant has further alleged that the plane reached Chennai at 24:00

hours and he requested the opposite parties to refund the amount of difference between the cost of

Kingfisher Red and Kingfisher Class i.e. Rs.1,500/- per ticket but to no effect. Further, the function was

to be held at 7.00 P.M. but the complainant reached Chennai at 2400 hours but by that time, the function

was over and the purpose of journey could not be achieved. The complainant has further alleged that

they were to return back from Chennai to Delhi at 16;55 hours but same ordeal was repeated by the

opposite party Nos.1to3 and the complainant was sent an SMS at about 14:00 hours that the flight was

late by one hour and for further inquiry, the complainant should visit the Airline Counter at Airport. The

complainant reached the Airport at 1500 hours and requested the Airline that he and his family have

connecting railway booking of Punjab Mail which departs from New Delhi at 9.40 P.M. and the delay in

flight would again put them at loss as they would not be able to board the train and cancellation of

railway tickets would cost them very dearly but the officials of the opposite party Nos.1 to 3 did not

listen to the complainant. Since the Airport was near to Madras Cantt., many of the friends of the

complainant turned up to help the complainant and his family and vehemently protested in front of the

Airline counter. The Kingfisher officials took the complainant and his family to Jet Airline counter and put

them on a Jet Airline flight No.0830 which departed Chennai at 17:05 hours which was again a No Frill

Flight and not a Class Flight for which the complainant had paid for, as such he had paid excess amount

for the said travel. He again requested the opposite parties to refund the excess amount but again to no

effect. Hence, the complainant has filed the present complaint for seeking directions of this Forum to

refund the amount received by the opposite parties in excess along with cost and compensation.

2. Notice was issued to the opposite parties. The opposite party Nos.1to3 after appearing before this

Forum, have filed their joint written statement and pleaded that M/s Kingfisher Airlines Limited is a body

Corporate incorporated under the provisions of the Companies Act, 1956 and it enjoys the status of a

 legal person and it has a right to sue and be sued in its own name. The tickets of the complainant for

traveling, were booked on 29.05.2009 and the complainant had availed the journey against the tickets.

The present complaint has been filed on 16.06.2011 i.e. after more than 2 years of the booking as such

the same is an attempt by the complainant to misuse the process of law and he has filed the said

complaint beyond the limitation period prescribed under the 'Act'. The opposite party Nos.1 to 3 have

further pleaded that the complainant's booking was from Delhi to Chennai, Chennai to Port Blair and

return from Port Blair to Chennai and Chennai to Delhi so no part of the said cause of action has arisen

within the territorial jurisdiction of this Forum. The Registered office of the opposite party Nos.1to3 is in

Bangalore and its Corporate office is in Mumbai. The office of the opposite party No.4 as given in the

complaint itself is in Ghaziabad, U.P. The opposite party Nos.1 to 3 have taken the support in case titled

Air India Limited & 2 Ors Vs. Prabhas Chandra Das & 2 Ors in FA No.737 of 2007, decided by Hon'ble

Orissa State Commission vide order dated 24.11.2008, case titled Sonic Surgical Vs National Insurance

Company Ltd. 2010 CTJ 2 (Supreme Court), case cited in 1991 CPJ 686 Indian Airlines Corporation Vs

Consumer Education and Research Society, Ahmedabad and 2000 (1) CPJ 1 (NC) American Express

Banks Ltd. Travel Related Services Vs Rajesh Guptha. The opposite party Nos.1 to 3 have further

pleaded that the opposite party No.4 is not their authorized agent. There is no Principal – Agent

relationship between the opposite party Nos.1 to 3 and opposite party No.4. The complainant's tickets

were issued by Kafila Air Service, Karol Bagh, NCR, Delhi which is an IATA approved agent. The

opposite party Nos.1to 3 are not aware of the understanding between the complainant and opposite

party No.4. Further, they have not received any amount against the booking of the complainant directly

from either the opposite party No.4 or the complainant. The opposite party Nos.1 to 3 have further

pleaded that the terms and conditions of the opposite party Nos.1to3 with regard to booking and

cancellation are very clear and are easily available for all passengers to view at their website:

www.flykingfisher.com. The opposite party Nos.1 to 3 have denied that the complainant booked the

tickets No.0902465317004 to 0902465317007 from Chennai to Bathinda. Kingfisher Airlines does not

have any flight to Bathinda (Punjab) rather the complainant booked the tickets for travel from Delhi to

 Chennai and Chennai to Port Blair. The flight IT 232 was cancelled due to operational reasons and the

travel agent was informed about the same on 14.06.2009 telephonically on the mobile number

9810000954 available in the complainant's PNR. They have further pleaded that the entire ticketing and

reservation system of the opposite party Nos.1 to 3 is computerized and all details pertaining to a

passenger's booking, is recorded in said passenger's PNR. The complainant then approached the Airline

on 15.06.2009 by which time, it was too late to make arrangements for their travel on another Airline but

on his insistence, he and his family were accommodated on flight IT 234 of the opposite party Airline

operating from Delhi – Chennai sector and scheduled for departure at 9:15 pm and arrival at Chennai at

11:45 pm and were also given Hotel Accommodation for the day. The rescheduling of the complainant's

ticket for the next flight and Hotel accommodation was done without any charges to the complainant. It is

denied that IT 234 was a Kingfisher Red (low cost/no frills) flight. Kingfisher Red flights consist of four

digits starting from 3000 to 4999 with the common IATA designated alphabets “IT” prefixed i.e. IT 4542

(Agartala – Kolkata) and IT 4310 (Amritsar – Delhi) etc. The complainant's booking with the opposite

party Airline was for travel by Economy Class and not any Luxury Class. It is further denied that the

flight IT 234 of the opposite party Airline was a low cost/Kingfisher Red flight. The opposite party Nos.1

to 3 have admitted that the complainant was accommodated on Jet Airways flight 9W 830 and he and

his family have comfortably travelled by the said flight. The opposite party Nos.1 to 3 have further

denied that the flight 9W 830 of Jet Airways was a No Frill Flight and not a Class Flight.

3. The opposite party No.4 despite service of summons/notice has failed to appear before this Forum.

Hence, exparte proceedings are taken against the opposite party No.4.

4. Parties have led their evidence in support of their respective pleadings.

5. Arguments heard. Record alongwith written submissions submitted by the parties perused.

6. The complainant had booked four tickets for himself and his family bearing No.0902463986062 to

0902463989065 for visiting from Delhi to Chennai on 15.06.2009 and ticket No.0902465317004 to

0902465317007 for returning back from Chennai to Bathinda on 17.06.2009 vide PNR No.GCOJJX

through opposite party No.4. The complainant booked Luxury Class of the Airline called Kingfisher Class

instead of no fills which is called as Kingfisher Red. The Class tickets were costlier by Rs.1,500/- per

ticket from the ordinary tickets which was worth Rs.10,000/- each. He paid Rs.11,500/- per ticket and in

total he paid an amount of Rs.46,000/- to the opposite party No.4. The complainant and his family had to

board the flight No.232 at 08:50 hours on 15.06.2009 as per the tickets issued by the opposite party

 No.4 i.e. an authorized agent of the opposite party Nos.1 to 3. They had to return back by flight No.233

which was to depart from Chennai at 16:55 hours on 17.06.2009. He reported at the IGI Airport in time

on the scheduled date but he and his family were told at 08:15 hours that the flight has been cancelled

due to some technical reasons. The complainant and his family requested for refund of amount or to

transfer them to some other matching flight so that they may be able to reach Chennai in time to attend

the Re-Union Evening party but the opposite parties did not pay any heed to their requests. The

complainant and his family were lodged at Lower Class Hotel (Hotel Lohmod) and asked them to wait.

Thereafter, the complainant along with his family reported at the airport at 9:15 P.M. and were put on

flight No.234 which was Kingfisher Red. The Plane reached Chennai at 24:00 hours and the complainant

requested the opposite parties to refund the amount of difference between Kingfisher Red and

Kingfisher Class of Rs.1,500/- per ticket but the opposite parties did not refund the same. The

complainant has further submitted that the function was at 7.00 P.M. but they reached Chennai at 24.00

hrs by that time, the function was over and the purpose of journey could not be achieved. The

complainant and his family were to return back from Chennai but the same incident was repeated by the

opposite party Nos.1 to 3 and the complainant was sent SMS at about 14:00 hours regarding that the

flight was late by one hour. He visited the Airline Counter at Airport and requested the Airline that he and

his family have connected railway booking of Punjab Mail which departs from New Delhi at 9.40 P.M.

and the delay in flight would again put them at loss as they would not be able to board the train but the

opposite party Nos.1 to 3 did not again pay any heed to his requests. Thereafter, the Kingfisher officials

took the complainant and his family to Jet Airline counter and put them on a Jet Airline flight No.0830

which departed Chennai at 17:05 hours which was again No Frill Flight and not a Class Flight and he

paid excess amount for the said travel. The complainant paid for the Class seats but they were forced to

travel in Cheap Class by the officials of the opposite party Nos.1 to 3.

7. The opposite party Nos.1to3 have submitted that the complainant had booked the seats on

29.05.2009 and has filed the present complaint on 16.06.2011 after more than 2 years of the booking of

the tickets and as such the complaint is an afterthought and is barred by limitation. The other legal

objection taken by the opposite party Nos.1 to 3 is that this Fora has no jurisdiction to try and entertain

 the present complaint as the complainant has booked the tickets through a travel agent from Delhi to

Chennai, Chennai to Port Blair and return from Port Blair to Chennai and Chennai to Delhi. No cause of

action has arisen within territorial jurisdiction of this Forum and has taken the support of various

authorities. The opposite party Nos.1 to 3 have further submitted that the opposite party No.4 is not an

authorized agent of the opposite party Nos.1to3. The complainant's tickets were issued by Kafila Air

Service, Delhi which is an IATA approved agent and the opposite party Nos.1 to 3 have no relation with

the opposite party No.4. The opposite party Nos.1to3 have not received any sum against complainant's

booking, directly from either the opposite party No.4 or the complainant. This complaint is bad for non

-joinder of necessary parties. The opposite party Nos.1 to 3 have further submitted that some times

flight disruptions in the Aviation Industry become unavoidable for different reasons. Though the opposite

party Airline to adher to published schedules, operational exigencies, technical problems, air traffic

congestion etc do at times lead to flight disruption. The opposite party's Airline specifically advised all

the passengers in its terms and conditions of carriage that the flight times are subject to change and to

provide their contact information so that in the event of any delays or cancellations the passenger may

be informed about the same. The opposite party Nos. 1 to 3 in para No.13 of preliminary objections of

their written statement have submitted that the complainant has submitted in para No.2 of his complaint

that the ticket Nos.090246531704 to 0902465317007 were booked from Chennai to Bathinda which is

absolutely false. Kingfisher Airlines does not have any flight to Bathinda (Punjab) and the complainant

has made this statement to mislead this Forum for the purpose of invoking the territorial jurisdiction. The

complainant's booking with the opposite party Nos.1 to 3 was for his travel from Delhi to Chennai and

Chennai to Port Blair and back as per the details mentioned as under:-

The flight IT 232 was cancelled due to operational reasons and the travel agent was informed about the

same on 14.06.2009 telephonically and provided the following options against cancellation:-

i. Rebooking free of cost for another date;

ii. Full refund on their tickets;

iii. Accommodation on Jet Airways flight 9W 829 for Delhi to Chennai scheduled for departure on

15.06.2009 from Delhi at 10:25 am and arrival at Chennai at 1:00 pm. The opposite party Nos.1 to 3

have received no response from either the travel agent or the complainant. The entire ticketing and

reservation system of the opposite party Nos.1to3 is computerized and all details pertaining to a

passenger's booking, is recorded in said passenger's PNR. The above transaction is recorded in the

 complainant's PNR GCOJJX. The relevant portion of this, is reproduced as under:-

“A5H H-Informed TA Singh of 9W 829 Re-accomodation

A5H H-****** Manish HML PNQ 14 Jun******

S-PNQ PNQ 5HML 1036 2009/06/14

A9 XXX9810000954”

The complainant approached the opposite party's Airline on 15.06.2009 by which time, it was too late to

make arrangements for their travel on another Airline but on the complainant's insistence, he and his

family were accommodated on flight IT 234 of the opposite party Airline operating the Delhi – Chennai

sector and scheduled for departure at 9:15 pm and arrival at Chennai at 11:45 pm and were also given

Hotel Accommodation for the day. The rescheduling of the complainant's ticket for the next flight and

Hotel accommodation was done without any charges to the complainant. The opposite party Nos.1 to 3

have denied that IT 234 was a Kingfisher Red (low cost/no frills) flight. Kingfisher Red flights consist of

four digits starting from 3000 to 4999 with the common IATA designated alphabets “IT” prefixed i.e. IT

4542 (Agartala – Kolkata) and IT 4310 (Amritsar – Delhi) etc. The Kingfisher Red Flights were

introduced effective from 05.09.2008 and the same was widely published for the information of

thegeneral public. All flights offering Kingfisher Class and Kingfisher First (Economy and Business Class

respectively) seating are three digit flights with the common IATA designated alphabets “IT” prefixed for

i.e. IT 302(Delhi – Mumbai); IT 102 (Bangalore – Mumbai); IT 608 (Kolkata – Delhi) etc. The

complainant's booking with the opposite party Airline was for travel by Economy Class and not any

Luxury Class. The opposite party Nos.1 to 3 further denied that the flight IT 234 of the opposite party

Airline was a low cost/Kingfisher Red flight. The complainant has mentioned his sole reason for travel to

Chennai was to attend a reunion party which was scheduled on 15.06.2009 in the evening. He had

failed to mention about his plans for onward travel the very next day to Port Blair at by Kingfisher Red

Flight IT 3631 at 4:45 am. When provided with the opportunity to travel at 10:00 am by Jet Airways to

Chennai on 15.06.2009, the same was not accepted. If the complainant was required to attend a

reunion party on that time, then the opposite party Nos.1 to 3 are at loss to understand why they

accepted travel on IT 234 which was scheduled for departure at 9:15 pm”. The complainant has not

produced any evidence to support of his allegation. The opposite party Nos.1 to 3 have sent SMS

regarding that the flight IT 233 was delayed and the complainant was informed about the same.

8. A perusal of record placed on file by the complainant shows that the tickets were purchased for

economy class. Ex.C-2 to Ex.C-5 are very much clear to the effect that these tickets have been

purchased for economy class.

9. The allegation of the complainant as he has to attend the reunion party at Chennai but due to delay in

 the flight, he was unable to attend the reunion party at Chennai but no record regarding the reunion

party, has been placed on file by the complainant. Mere verbal allegations are not tenable until and

unless these are supported by documentary evidence. The complainant himself has admitted that an

SMS has been sent by the opposite parties with regard to delay in the flight. He asked the opposite

parties to accommodate him for the flight which was to depart at 9:45 PM. If he has to attend a reunion

party at 7.00 pm on 15.06.2009, then why he had opted for flight at 9:45 pm. Further, during delay of

flight, the complainant and his family was duly accommodated in the Hotel Lohmod without taking any

charges. The allegation of the complainant regarding changing of class that he has booked his ticket in

Kingfisher Class and he had paid Rs.1,500/- extra per seat for that class, the opposite parties have

accommodated him in Kingfisher Red i.e. lower class which has been booked by the complainant, this

allegation is not tenable as a perusal of his tickets shows that he has purchased the tickets for economy

class vide Ex. C-2 to Ex.C-5, not for the luxury or business class. The complainant was duly informed by

the opposite parties regarding the delay in the flight. On returning also, he and his family was duly

accommodated by the opposite parties. If there was any negligence or deficiency in service on the part

of the opposite parties, they should not have been accommodated by the opposite parties. Moreover,

the family of the complainant was accommodated in flight IT 234 of the opposite parties Airline.

10. The contention of the complainant, that he was accommodated in the lower class hotel, is not

tenable as he has not mentioned or produced any documents that in which hotel he was to be

accommodated by the opposite parties according to his tickets. Further, the complainant had purchased

economy class tickets and accordingly, he was accommodated in Jet Airway flight which is no frill flight.

The flight No.9W 830 was full service flight and the complainant and his family were accommodated to

the seats which were parelleral to economy class seats, thus there was no difference of fare.

11. As per clause 1.4 of Civil Aviation Requirements Section 3 – Air Transport Series 'M' Part IV issue I,

dated 06.08.2010, effective on 15.08.2010:-

“The operating airline would not have obligation to pay compensation in cases where the cancellations

and delays have been caused by an event(s) of force majeure i.e. extraordinary circumstance(s)

beyond the control of the airline, the impact of which lead to the cancellation/delay of flight(s) and which

could not have been avoided even if all reasonable measures had been taken by the airline. Such

extraordinary circumstances may in particular, occur due to political instability, natural disaster, civil

 war, insurrection or riot, flood, explosion, government regulation or order affecting the aircraft, strikes

and labour disputes causing cessation, slowdown or interruption of work or any other factors that are

beyond the control of the airline.

The case of the complainant is covered under any other factors that are beyond the control of the

airline. The judgments relied upon by the complainant are distinguishable on facts and circumstances.

12. Therefore, in view of what has been discussed above, this Forum is of the considered view that

there is no deficiency in service on the part of the opposite parties. Hence, this complaint is dismissed

without any order as to cost.

A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '

Pronounced in open Forum

11-01-2012 (Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member