Tamil Nadu

South Chennai

181/2011

V.Ranganathan - Complainant(s)

Versus

Kingfisher Airlines Ltd & Others - Opp.Party(s)

A.Neelakantan

05 Jul 2016

ORDER

                                                                        Date of Filing :  20.06. 2011

                                                                        Date of Order :  05.07.2016.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

           DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.181/2011

TUESDAY THIS  5^ST  DAY OF JULY  2016

 

1.  Ranganathan,

S/o. S. Vijayaraghavachari,

A4, Kumara Vijayam,

No.99, Royapettah High Road,

Next to Vidya Mandir School,

Chennai 600 004.  

 

2. Sujatha Ranganathan,

W/o. V. Ranganathan,

A4, Kumara Vijayam,

No.99, Royapettah High Road,

Next to Vidya Mandir School,

Chennai 600 004.                                            .. Complainants

 

                                      ..Vs..

1.  Kingfisher Airlines Limited,

Rep. by its Managing Director,

12^th Floor, “UB Tower”,

UB City, No.24, Vittal Mallya Road,

Bangalore 560 001.

2. Kingfisher Airlines Limited,

Rep. by its Managing Director,

C/o. Spencers Travels Limited,

Raja Annamalai Building, 1^st Annex,

18/3, Rukmani Laxmipathy Salai,

Egmore,

Chennai 600 008.

 

 

3. Kuoni Business Travel

India Private Limited,  

Rep. by its Manager,

Branch Office,

Muthu Ameena Center,

No.134, 2^nd Floor,

Valluvar Kottam High Road,

Nungambakkam, Chennai 600 034.             ..Opposite parties 

 

 

For the Complainants                :   M/s. A.Neelakantan  

For the opposite parties 1 & 2     :   M/s. V. Manohar.

For the opposite party-3            :   M/s. Sampathkumar & Associates.     

 

        Complaint under section 12  of the Consumer Protection Act 1986.  The complaint is filed seeking direction against  the opposite parties to pay a sum of Rs.11,300/- towards reimbursement and also to pay a sum of Rs.50,000/- as compensation for mental agony and to pay cost a sum of Rs.30,000/- towards cost of the complaint to the complainant.   

ORDER

THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II      

 

1.The case of the complainant is briefly as follows:

            The  complainants submit that they had booked three tickets to travel by Kingfisher Air lines on 29.9.2010 to and fro journey from Chennai to Bangalore via Bangalore by Jet Airways konnect and return journey from Mangalore to Bangalore by Kingfisher Airlines and from Bangalore to Chennai by Jet Airways konnect and complainants departed from Chennai on 7.10.2010  through the opposite party-3  for the journey to be scheduled on 11.10.2010 from Mangalore to Bangalore on the schedule departure time is 3.15 p.m. and expected to arrive by 4.15 p.m.    The complainants further states that the return journey from Bangalore to Chennai where the connect flight Jet Airways scheduled departure time of 5.30 p.m and arrive Chennai at 6.15 p.m.   The 1^st and 2^nd opposite parties delayed the departure of the flight from Mangalore to Bangalore by one hour.   Despite of repeated enquires no clear reasons were given by the opposite parties’ representative at Mangalore airport for the delay in departure.   After enormous and efforts and hardship, the complainants managed to get booked in another Jet Airways flight leaving at 7.25 p.m. from Bangalore.  However the 1^st complainant had to incur an additional fare of Rs.11,300/- for the three tickets.    As such the act of the opposite parties amounts to deficiency in service.   As such the complainant sought for claim of to pay a sum of Rs.11,300/- towards reimbursement and also to pay a sum of Rs.50,000/- as compensation for mental agony and to pay cost a sum of Rs.30,000/- towards cost of the complaint to the complainant.     Hence the complaint.

Written version of opposite parties 1 & 2 are briefly as follows:-

2.     The opposite parties deny all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The opposite parties  states that  the complainants booking with the opposite party Airline was for travel from Mangalore to Bangalore and that no part of the alleged cause of action has arisen within the territorial jurisdiction of this forum.    Hence it is respectfully submitted that the Forum has not territorial Jurisdiction to try the present complaint.    That the complaint of the complainants is misconceived, frivolous and not maintainable against the answering opposite party.  That there is no cause of action against the answering opposite party or in favour of the Complainants and the complaint is liable to be dismissed.    The flight disruptions in the aviation industry are not uncommon and bad weather conditions, air traffic congestion, technical snags, or operational exigencies are some of the reasons for the same.   Thus disruptions in the flight schedule are at times, unavoidable and therefore it is clearly mentioned in the terms and conditions of the answering opposite party, that flight times are subject to change and do not form a part of the contract of carriage and that the Airline shall not be liable for the same.       Hence there is no negligence or deficiency in service on the part of the  opposite parties.     Therefore this compliant is liable to be dismissed with exemplary cost.

 

Written version of 3^rd opposite party is briefly as follows:-

3.     The 3^rd opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The 3^rd opposite party  states that  the three tickets were booked on 29^th September 2010 on behalf of the complainant on the basis of request made by the complainant in Kingfisher Airlines, the 1^st and  2^nd opposite parties herein for their Mangalore to Bangalore leg of the journey scheduled for 11.10.2010.  Three tickets for onward journey on same day from Bangalore to Chennai on the Jet Airways India flight was also made on the basis of request made by the complainant.   The 3^rd opposite party is an IATA approved travel agent.    Therefore the 3^rd opposite party cannot be held responsible for the delay in operating the flight by the opposite parties 1 & 2 since the function of the 3^rd opposite party is very limited to the issue of the tickets as requested by the complainant.  Hence this complaint is liable to be dismissed as against the 3^rd opposite party.     

4.   Complainants have filed their  Proof affidavit and Ex.A1 to Ex.A18 were marked on the side of the complainant.   Proof affidavit of Opposite parties  filed  and Ex.B1 to Ex.B5 were marked on the side of the  opposite parties.    

5.      The points that arise for consideration are as follows:-

1)   Whether there is any deficiency in service on the part of the opposite party?

 

2. Whether the complainant is entitled to the  reliefs sought for?.

6.     POINTS 1 & 2 :

           Perused the complaint filed by the complainants and their proof affidavit and documents Ex.A1 to Ex.A18  were marked on the side of the complainants.  Written version and proof affidavit filed by the opposite parties and Ex.B1 to Ex.B5 were marked on the side of the opposite parties  and also considered the both side arguments.

7.     The complainants had booked three tickets to travel by Kingfisher Air lines on 29.9.2010 to and fro journey from Chennai to Bangalore via Bangalore by Jet Airways konnect and return journey from Mangalore to Bangalore by Kingfisher Airlines and from Bangalore to Chennai by Jet

Airways konnect and complainant departed from Chennai on 7.10.2010  through the opposite party-3  for the journey to be scheduled on 11.10.2010 from Mangalore to Bangalore on the schedule departure time is 3.15 p.m. and expected to arrive by 4.15 p.m.    The complainant further states that the return journey from Bangalore to Chennai where the connect flight Jet Airways scheduled departure time of 5.30 p.m and arrive Chennai at 6.15 p.m.     The contention of the complainant that  the opposite parties 1 to 2 had not responded properly and not accommodated the passengers in time.  The complainant’s allegations were the opposite parties’ representative at Mangalore Air port were not properly guided the passengers and refused to accommodate the complainant and his family.    Moreover, the allegation raised by the complainant that he had incurred an extra fare charges by paying Rs.11,300/- for three tickets and rescheduled his departure from Bangalore to Chennai on his own decision.  His allegations were the deficiency of service on the part of opposite parties 1 & 2 where his prayer is to get reimbursement of additional expenditure incurred by complainants Rs.11,300/- and the complainants states that at Mangalore they are not given any receipt for the excess amount paid by him and on 11.10.2010.  

8.     The cause of action arose in Chennai on 29.9.2010 where the complainant booked the ticket. The opposite party-3 who booked the ticket is in Chennai hence its satisfy territorial jurisdiction.   The cause of action arose on 25.9.2010 and the complainant filed this complaint on 20.6.2011 whereby it’s satisfied the limitation. 

9.     Pursuant on the documents filed by the complainant, it is true that he bought a ticket on 29.9.2010 and on travel on 7.10.2010 through Jet Airways from Chennai Airport to Bangalore International Airport (Ex.A1 to Ex.A3).     It is proved that a travel from Bajpe Airport to Bangalore International Airport on 11.10.2010 Ex.A4 to Ex.A6.    It is proved that the complainant travelled through Jet Airway konnect from Bangalore International Airport to Chennai Airport on 11.10.2010.  i.e. Ex.A7 to Ex.A9.   It is not disputed that he had paid Rs.35,703/- for Air ticket vide Ex.A10.    The Itinerary filed from Ex.A11 to Ex.A13 the time schedule of departure on arrival.   On the same day he had sent a letter to the opposite party Ex.A14 and there was a delay of 60 minutes on 11.11.2010 and complaining that the staffs got the assignments and also he was informed to the complainant there is another flight schedule to depart at 19.00 hours to Chennai and it was informed by the opposite parties’ representative that the cost of the tickets was quite high.    The opposite party had sent the reply under Ex.A16 and the complainant her seeking remedies for refund of excess amount paid by him.    The opposite party had responded to the complainant that when operational exigencies or infrastructural constraints push things beyond airline control and delayed due to technical reasons the Airlines are not liable  for any losses or expenses arising out of the failure to board a planned connection.   

10.    The opposite parties 1 & 2 had submitted “the regulation of Kingfisher Airlines” Ex.B1 and in which it is mentioned under para-5 of important note Page No.29, “the Airline will also not liable to pay any compensation in respect of cancellations and delays that clearly attributable to Air Traffic Control (ATC), meteorological conditions, security risks, or any other causes that are beyond the airline control but which affect its ability to operate flights on schedule.  Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft or several aircrafts on a particular day, gives rise to a long delay or delays,  an overnight delay, or cancellation of one or more flights by that aircraft, and which could not be avoided even though all reasonable measures to avoid or overcome the impact of the relevant factor has been taken by Kingfisher Airlines.”     The circular dated 15.8.2010 of office of the Director General of Civil Aviation Part IV, issue-1 clearly explains u/s 1 (4) “the operating airline would not have the obligation to pay compensation in cases where the cancellations and delays have been caused by an events of force majeure i.e. extraordinary circumstances 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 aircrafts, strikes and labour disputes causing cessation, slowdown or interruption of work or any other factors that are beyond the control of the airline.  

11.    Under sec.3.4.2. of Civil Aviation Depart circular it is stated that “ When the reasonably expected time of departure is more than 24 hrs. after the scheduled time of departure previously announced, the airline shall provide facility to the passengers in accordance with the provisions of para 3.6.1(b) hereunder. 

12.    The opposite parties deny the allegation raised by the complainant and the burden of proof lies with the complainant to substantiate the deficiency and the cause of action within jurisdiction and it was misconceived by the compliant and the complainant had got presented true material facts the disruption of the flight Air traffic condition, technical condition are operation exigencies or uncommon.  Hear the delay of the flight is only 35 minutes and it was technical engineer requirement and 5 minute due to air traffic congestion.  

13.    The opposite party contended that by referring the land mark Judgments as follows:

                              1.          Air India Limited & 2 Ors.

. .VS..

Prabhas Chandra Das & 2 ors

in FA NO.737 / 2007 dated 24.11.2008,

 

 

 

                  2.              Sonic Surgical

..Vs..

National Insurance Company Limited

2010 C.T.J-2

 

 

 3.                                1991 CPJ 686

Indian Airlines Corporation

..Vs..

Consumer Education and Research Society, Ahmedabad. 

 

4.                          2000 (1) CPJ 1 (NC)

American Express Banks Ltd Travel Related Services

..Vs..

Rajesh Guptha

 

 

The opposite parties also contended that they are not liable to pay any compensation it is the delay is arise out of technical snag and as per the opposite parties guide lines and Civil aviation pertaining delay in flight can be allowed upto 24 hours reason  behind natural calamity technical snag and other reason within its limitation.

14.    On perusal of the said copy of the regulation in Ex.B1 under para 5   the airlines could not be liable to pay any compensation in respect of   such delay in travel of the flight caused due to unavoidable circumstances attributable to Air Traffic Controls metrological conditions, security  risks, or any other causes that are beyond the control of the airlines but which affect their  ability to operate flights on schedule.   Therefore we are of the considered view that the alleged act of opposite parties towards the complaint mentioned in the complainant are all within the provision mentioned in the Order of the Office of the Director General of Civil Aviation, Government of India, New Delhi  and not amounts to deficiency of service and the opposite parties are not made liable for compensation is acceptable.   Therefore we are of the consider view that the complainant is not entitled for any relief sought for in the complainant and the complaint is liable to be dismissed.  Considering the facts and circumstances the parties are ordered to bear their own costs.  Accordingly the points 1 and 2 are answered.

        In the result, the complaint is dismissed.  No cost.

               Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  5^th  day  of  July  2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 29.9.2010  - Copy of E-ticket.

Ex.A2- 29.9.2010  - Copy of E-ticket.

Ex.A3- 29.9.2010  - Copy of E-ticket.

Ex.A4- 29.9.2010  - Copy of e-ticket.

Ex.A5- 29.9.2010  - Copy of E-ticket.

Ex.A6- 29.9.2010  - Copy of e.ticket.

Ex.A7- 29.9.2010  - Copy of e.ticket.

Ex.A8- 29.9.2010 - Copy of e.ticket.

Ex.A9- 29.9.2010  - Copy of e.ticket.

Ex.A10- 29.9.2010 – Copy of invoice.

Ex.A11- 11.10.2010- Copy of e.ticket.

Ex.A12- 11.10.2010- Copy of e.ticket.

Ex.A13- 11.10.2010 – Copy of e-ticket.

Ex.A14- 12.10.2010 – Copy of e-ticket.

Ex.A15- 12.10.2010 – Copy of cheque No.692068, for Rs.37,703/-

Ex.A16- 13.10.2010 – Copy of reply email from the 1^st opposite party.

 

Ex.A17- 19.10.2010 – Copy of reply email from 1^st complainant to the

                               1^st opposite party.

 

Ex.A18- 19.10.2010 - Copy of email by the 1^st opposite party to

                               1^st complainant.

 

 

Opposite parties’ Exhibits:-   

 

Ex.B1- 23.5.2011 –  Copy of the Board Resolution passed by the Board of

                             Director of opposite parties 1 & 2.

 

Ex.B2-   -           -  Copy of Terms and conditions of carriage of opposite

                             Parties 1 & 2.

 

Ex.B3- 6.8.2010   -   Copy of Civil Aviation Requirement prescribed by

                              Director General of Civil Aviation.

 

Ex.B4- 11.10.2010 –  Copy o email from System operations Control Centre

                              Of opposite parties 1 & 2 to other Departments of

                              Opposite parties 1 & 2.    

 

Ex.B5- 19.10.2010 -  Copy of email from Guest Commitment Team of

                              Opposite parties 1 & 2 to the first complainant.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.