OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.66/2006
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Sri U.N.Deka - Member
1.Smti Proniti Sarmah -Complainants
W/o.Sri Nalinaksha Sarmah,,
R/o Kacharibasti,Ulubari
District: Kamrup(Metro),Assam
2. Sri Debajit Upamanyu
S/o.Sri Nalinaksha Sarmah,,
R/o Kacharibasti,Ulubari
District: Kamrup(Metro),Assam
3. Smti Joyshree B.Hazarika
Wife of Sri Ajay Hazarika
Saurav Nagar,Beltola,Ghty,Assam.
-vs-
1. Kingfisher Airlines Ltd. - Opp. parties
U.B.Tower,Level=12
U.B.City,Vittal Malilpa Road,Karnataka,India
Banglore-560001
2. NCS Travels & Tours Private Ltd.
Head Office at 225-F,A.J.C.Boseo Road,1st floor,
Kolkata-20,and place of business
at S.R.C.B.Road,Fancy Bazar,Guwahati-781001.
Appearance-
Learned advocate Mr.Sanjib Kr.Deka for the complainant
But none for the opp.parties.
Date of argument- 18.11.2015
Date of judgment- 18.12.2015
Judgment
This is a proceeding u/s 12 of Consumer Protection Act,1986
1) One Smti Praniti Sarmah ,Sri Debajit Upamanyu and Smti Joyshree B.Hazarika , by filing application u/s 12 of Consumer Protection Act,1986, pray to this forum to direct AIR DECCAN (now Kingfisher Airlines Ltd.,Bangalore) (Opp.Party No.1) and NCS Travels & Tours Private Ltd. Kolkata (Opp.Party No.2) to pay them compensation for committing deficiency of service towards them on a air journey on 7.6.05 to 8.6.05. The complaint was registered and admitted on 20.7.06 and notices were issued to the opp.parties and accordingly opp.party no.1 M/S Deccan Aviation Ltd. (AIR DECCAN), Banglore filed their written statement in the form of counter affidavit on 16.11.06, and Opp.Party No.2 filed a written statement separately. Thereafter, the complainant side filed the affidavit of Smti Joyshree B.Hazarika and she was cross examined by Ld. Advocate Mr.Rajesh Mazumdar on 5.9.08 on behalf of the opp.parties. Thereafter, on 18.12.08, Opp.Party No.1 side by filing petition No.1168/08 prayed for changing the name of Opp.Party No.1 stating that the AIR DECCAN’s name was changed to Kingfisher Airlines, and this forum allowed the said petition and substituted the name of Opp.Party No.1 (AIR DECCAN) with KingFisher Air line Limited,U.B.Tower, Level=12 U.B.City, Banglore (Karnataka). Thereafter, Kingfisher Airlines Limited filed their evidence through an affidavit of one Abdul Hamid on 30.4.09 but opp.party side failed to produce D.W.1 for cross examination, and being compelled, this forum, vide order dated 26.9.14, closed the evidence of the opp.party side and fixed the day of 17.12.14 for filing written arguments, but opp.party side defaulted to take step in all subsequent dates however learned advocate Mr.J.Deka filed written argument on behalf of the complainant side on 2.6.15. Finally, we, after finding the opp.parties absent without step, on 18.11.15 heard the oral argument of learned Mr.Jadav Deka for the complainant and fixed the day of 3.12.15 for delivery of judgment, but failed to deliver judgment on that day owing to pending of over-works on that day and deliver the judgment today which is as below.
2) The gist of the pleading of the complainants is that they had purchased air tickets of AIR DECCAN to travel from Bangalore to Guwahati on 7.6.05 from Opp.Party No.2 at Guwahati (the agent of Opp.Party No.1) for an amount of Rs.31,065/-(Rupees thirty one thousand sixty five) only and at the time of collecting the tickets from Opp.Party No.2, the reservation of tickets were confirmed by Opp.Party No.2. On 7.6.05,they reached Bangalore Airport to board the scheduled flight to Delhi at 2.30 p.m. but to their utter surprise they were informed by the authority of AIR DECCAN at Bangalore Airport that there was no reservation against their tickets, but they could board the flight on the next date (8.6.05) to travel to Delhi, and they were assured by them that they could also board the flight from Delhi to Guwahati on 8.6.05 itself. The authority had not made any alternative arrangement for their travel from Bangalore to Guwahati on 7.6.05 nor made arrangement for their stay for the day of 7.6.05, but an officer of AIR DECCAN at Bangalore Airport, Ms. Radha Nair informed them that they could travel to Guwahati from on 8.6.05 and to that effect she put endorsement on the tickets as “valid to travel on 8th June on DN 619(Delhi -Guwahati) - authority Ms.Radha Nair” with her signature and seal and corrected the date of journey. They boarded the scheduled flight from Bangalore to Delhi on 8.6.05, and after arriving Delhi they contacted the authority of AIR DECCAN at Delhi airport to check up the status of the tickets to travel from Delhi to Guwahati and showed the tickets to them. But they were restrained from boarding the aircraft of AIR DECCAN to travel from Delhi to Guwahati on that day also without assigning any cogent reason thereof, and they were also not provided any accommodation for stay. Then they requested them to refund ticket fare but they refused to refund the same and by that act they traumatized them and they become helpless having they have no friend there to help them in such situation; and being compelled they took a personal loan from a resident of Delhi and purchased tickets for Rs.36,300/- from Jet Airways India Pvt.Ltd. and travelled to Guwahati on 9.6.05 after staying one more day at Delhi at their own cost. These short falls on the part of the Opp.Party No.1 and Opp.Party No.2 caused heavy financial loss to them and put them in mental agony. At Guwahati they sent legal notice to Opp.Party No.1 & 2 to pay them compensation of Rs.2,28,775/- and after receiving that legal notice Opp.Party No.1, vide latter dated 10.8.05 written to them advocate, asked them to collect Rs.11,250 + Rs.663/- from Opp.Party No.2 against air-tickets from Delhi to Guwahati. Thereafter Opp.Party No.2 sent a cheque No. 636836 to the tune of Rs.11,913/- only as being refund of value of air tickets from Delhi to Guwahati but they returned the same to Opp.Party No.2 and the latter again sent the said cheque, on 7.4.06 with a letter which was received by the husband of complainant No.1 writing a note “Received without prejudice- N.Sarma for P.Sarma dated 8.4.06” on the body of the letter. The opp.parties caused financial loss to them and also put them in mental agony. They are entitled to the balance of air ticket from Delhi to Guwahati Rs.562/- (12,475-11,913) against the ticket bought from Opp.Party No.2; the fare from Delhi to Guwahati in Jet Airways Rs.36,300/-(Rupees thirty six thousand three hundred)only ;
accommodation and miscellaneous expenses made at Bangalore on 7.6.05 and at Delhi on 8.6.05 Rs.30,000/- ; compensation for mental agony and business loss to complainant No.1 –Rs.70,000/-; mental agony and harassment to complainant No.2-Rs.30,000/- ; professional loss and mental agony of complainant No.3-Rs.50,000/- ; cost of legal notice Rs.5,000/- and some amounts as punitive damage and cost of the proceedings.
3) The gist of the pleading of the Opp.Party No.1 is that the complainants had booked two tickets for Bangalore to Delhi and Delhi to Guwahati to travel on both tickets on 7.6.2005 by flight No. DN-601 (Bangalore to Delhi) and DN-619A(Delhi to Guwahati) respectively, but due to technical defect which was beyond control of them, Flight No.DN-601 was cancelled on 7.6.2005 and the complainants were sent in the flight of 8.6.05 and they travelled from Bangalore to Delhi on 8.6.2005 and hence the complainant have no grievance as to their journey from Bangalore to Delhi. The complainants, as per commitment of Ms. Radha Nair, were offered seats for Delhi to Guwahati on 9.6.2005, but they denied to travel on 9.6.2005 and preferred refund and accordingly Rs.11,250/- was refunded to them 22.6.2005 and Rs.663/- was refunded on 27.7.05 but demand of Rs.567/- was to be replied by Opp.Party No.2 and so they have no grievance against them. They did not commit any deficiency of service towards the complainant. The complainants are not consumers. The complaint is not maintainable. Air Deccan , as per terms and condition of contract between them and passengers, has right to delay, cancel the flight without notice in the case of circumstances beyond its control (including meteorological condition, mechanical failure, act of nature, force majeure, strikes, riot, civil commotion, embargoes, wars, hostilities, disturbances, government regulations, orders, demands or requirement, shortage of labour, fuel on facilities, or labour difficulties of carriers on others all actual,threatened or reported). Air Deccan, as per terms and conditions, is strictly a point to point airline and does not take any obligation responsibility for transfer of passengers or their bagges to other flight, whether operated by Air Deccan or another carrier and does not assume any responsibility to ensure the connections for onwards flight of Air Deccan Service or any other airlines and is therefore not liable for any loss or expenses arising out of any failure to board a planned connection. As per terms and condition, they,on cancellation of the flight due to unforeseen circumstances, will not provide for accommodation, refreshment nor will they provide or arrange for alternative mode of travel. The complainants were well informed that the flight was fully booked in advance and the Airline could not deny boarding for passengers who had booked tickets much in advance . The fare of Delhi to Guwahati was refunded. So there is no deficiency or negligence on their parts. The complainants are not entitled any relief from them.
4) The pleadings of Opp.Party No.2 is that there was no deficiency of service on the part of them. They are not authorized agent of Opp.Party No.1, but they provide for the facility of booking in different airline through internet on payment and for booking the tickets, the complainant paid them Rs.562.50 as service charge. The complainant paid the amount of charge of ticket to them when the ticket was booked in the internet. They have no knowledge about the allegation. On receiving the legal notice from the complainant, they took up the matter with the Opp.Party No.1 and then Opp.Party No.2 refunded the ticket amounts of Delhi to Guwahati journey. Their service is to provide booking of ticket through internet for which they change their payment and have nothing to do thereafter, and as such there is no deficiency on their part.
5) We have perused the pleading of the parties, the evidence adduced. We have also perused the argument forwarded by the counsel of the complainant Mr.Sanjeeb Kr.Deka. We have found that it is both sides admitted fact the complainants on 25.5.2005 purchased two tickets from opp.party no.2, (Guwahati, Branch) to travel from Bangalore to Guwahati on 7.6.05 in Air Deccan and both tickets were confirmed and valid.
It is also both sides admitted fact that the complainant on 7.6.05 arrived Bangalore Airport and attempted board Delhi bound AIR Deccan aircraft, but they were debarred from boarding the said aircraft telling them that there was no reservation against their ticket, but they could board the flight on the next date i.e. on 8.6.2005 and accordingly they had to stay.
6) After perusing the pleading as well as evidence of the parties it is found that the complainant No.1 Smti Praniti Sarma had purchased two tickets from Opp.Party No.2 N.C.S.Travels and Tours Private Ltd. from their Guwahati office for herself and complainant No.2 Sri Debajit Upamanyu and complainant No.3 Smti Joyshree B.Hazarika on 25.5.2005 one for travelling from Bangalore to Delhi and another from Delhi to Guwahati in Air Deccan flight on 17.6.2005, and this is also admitted by both the opp.parties.
7) Both sides also admit that on 7.6.2005 while complainant had arrived Bangalore airport and tried to board the flight of Air Deccan to go to Delhi they were not allowed to board the flight by the authority of Air Deccan in Bangalore airport telling them there is no reservation against that ticket but they may travel on the next day and on the next day, (8.6.2005) they were allowed to board Air-Deccan to travel to Delhi and accordingly they reach Delhi Airport. Admittedly, the tickets for journey from Bangalore to Guwahati were confirm tickets . The ground of debarring the complainants by AIR Deccan to travel from Bangalore to Delhi on 7.6.2005 in their flight is that the passengers, who had booked tickets before they booked the ticket, already filled up the seats. We have gone through the terms and conditions of the contract of Air Deccan, we have not found that the passengers of confirm tickets can board in the scheduled flight provided vacant seats are available. Secondly as per terms and conditions of the contract with the passenger the confirmed tickets mean seats are properly reserved. In the instant case the tickets were confirmed one and hence they were entitled to travel in the scheduled flight on 7.6.2005. So debarring the complainants by Opp.Party No.1side to travel in the said flight is an act of deficiency of service towards them. It is admitted fact that on 7.6.2005 complainants had to stay at Bangalore and Opp.Party NO.1 side did not arrange for their stay for that day and in result they had to stay in hotel spending money from their own purses. It is found that the circumstances of changing the schedule of journey of the complainants from Bangalore to Delhi as shown by Opp.Party No.1 are not circumstances beyond the control of them. Hence, it was the duty on their part to give accommodation to the complainants to stay at Bangalore on 7.6.2005 and to bear the charge of the accommodation, but Opp.Party No.1 did not discharge that duty. Hence, that conduct of Opp.Party No.1 amounts to deficiency of service. So, it is found for such deficiency and negligence on the part of opp.party No.1, the complainants had to incurr an expenditure in arranging their stay at Bangalore on7.6.2005.So, that expenditure must be reimbursed by Opp.Party No.1.
8) Another admitted fact is that the complainants were persuaded Smti Radha Nair, the ground officer of Opp.Party No.1 at Bangalore to travel the flight of 8.6.2005 giving surety to them they could travel from Delhi to Guwahati in their flight (flight No. DN 619) on 8.6.2005 through their tickets(Exhibit 2) and to that effect Radha Nair gave endorsement in the said ticket validating the same ticket which was originally of the flight of 7.6.2005, to travel on 8.6.2005; but when the complainant after arriving Delhi again on 8.6.2005,tried to board the scheduled Flight of Air Deccan at Delhi airport on the strength of the said ticket they were again debarred from travelling in the said flight; and being compelled, they, after borrowing an amount from a resident of Delhi, purchased tickets to travel to Guwahati in the flight of Jet Airways(India) Pvt.Ltd.on 9.6.2005 paying Rs.36,300/- as charges of three tickets and stayed at Delhi for the day of 8.6.05. It is already proved that Opp.Party No.1 refunded Rs.11,250/- basic fare amount and Rs.663/- as tax amount of the travel from Delhi to Guwahati through a cheque on 7.4.2006 which was received by the husband of complainant No.1 on her behalf without prejudice giving note in the body of the letter (Ex17) through which Opp.Party No.2 had sent the cheque on behalf of Opp.Party No.1. Thus, it is found that Opp.Party No.1 refunded Rs.11,913/- to the complainants against the value of the ticket (Ex2) for travelling from Delhi to Guwahati in their flight, which the complainant had purchased from Opp.Party NO.2 on 25.5.2005 and it was received under objection. It is seen that the complainant purchased the said ticket at a price of Rs.12,475/-, hence, the Opp.Party No.1 is liable to refund the balance amount of Rs.562.
9) It is found from the evidence of the parties that for the negligence of Opp.Party No.1 the complainant had to travel from Delhi to Guwahati on 9.6.2005 purchasing ticket in Jet Airline at a charge of Rs.36,300/- and to stay at Delhi for the day of 8.6.2005 at their own cost. Hence, Opp.Party No.1 is liable to reimburse the price of the ticket of Jet Air line purchased by the complaiant which is Rs.36,300/- and also the expenditure made by them for staying at Delhi on the day of 8.6.2005, to the complainant . It is found that Opp.Party No.1 has already refunded Rs.11,913/- to the complainants. Therefore, Opp.Party No.1 is liable to pay the balance amount Rs.24,387/- (36,300-11,913) to the complainants.
10) The complainant states that they spent Rs.30,000/- as a cost of staying at Bangalore on 7.6.2005 and at Delhi on 8.6.2005. It is well known to all that hotel charges in Bangalore and Delhi are higher than other state capital as well as charge on food is also exorbitant in both the cities. Therefore, it shall be presumed that the complainant had to incur an expenditure of at least Rs.15,000/- for their stay at Bangalore on 7.6.2005 and at Delhi on 8.6.2005. Therefore, we are of opinion that Opp.Party No.1 is liable to reimburse said amount to the complainant.
11) From the record, it is seen that the complainants state in their pleadings that complainant No.1 is a businessman, Complainant No.2 is a student and complainant No.3 is a professional . This plea of the complainants is not disproved by opp.party side rather admitted. Hence, it shall be presumed that the said statement of the complainants is true. So, it is held to have been established that complainant No.1 is a businessman, Complainant No.2 is a student and complainant No.3 is a professional. It must also be held that due over stay of two days, one day at Bangalore and another day at Delhi, Complainant No..1 and 3 suffered certain profession loss and Complainant No.2 suffered loss of study for two days and they faced that loss for the deficiency of service on the part of Opp.Party No.1. Therefore Opp.Party No.1 is liable to compensate the complainants for such loss. Therefore we hold that the Opp.Party No.1 is liable to pay Rs.5,000/- each to complainant No.1 and 3 as compensation for causing business and professional loss to them and Rs.2,000/- to Opp.Party No.2 for causing loss of study to him.
12) The complainant had to spend a good sum in prosecuting the opp.parties. Therefore, Opp.Party No.1 is held to be liable to pay at least Rs.10,000/- to the complainants as cost of the proceeding.
13) Opp.Party No.2 is found in no way involved in causing such inconvenience to the complainant, and hence Opp.Party No.2 found not guilty of deficiency of service towards to the complainant. So Opp.Party No.2 is not liable to share the above quoted compensation.
14) As Kingfisher Airlines Ltd purchased AIR DECCAN and got it merged with them, they are held to have put in the shoe of AIR DECCAN (the original Opp.Party No.1). Hence, Kingfisher Airlines Ltd. is liable to pay all the amounts entitled to the complainants.
15) Because of what has been discussed as above, the complaint against Opp.Party NO.1(Kingfisher Airline Ltd.) is allowed on contest, but against Opp.Party No.2 is dismissed. Accordingly Opp.Party No.1 is directed to pay Rs.24,387/- with interest at the rate of 12 % per annum from the date of filing of the case to the complainant as balance amount of price of the tickets they had purchased from Jet Airways to travel from Delhi to Guahati on 9.6.2005; Rs.15,000/- with interest at the rate of 12% per annum from the date of filing of the case in the head of cost of over-stay of the complainants in Bangalore and Delhi; Rs.5,000/- each to Complainant No.1 and 3 as compensation for causing professional loss to them and Rs.2,000/- to Complainant No.2 as compensation for causing study loss to Complainant No.2, and to pay Rs.10,000/- to all the complainants as cost of the proceeding within three months and in default other amounts will also carry interest at the rate of 12% p.a.
Given under our hands and seal of this forum on this day 18th Dec,2015.
Free copies of judgment be delivered to the parties.
(Md.S.Hussain)
President
(Mr.U.N.Deka)
Member
