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

Dr. Soma Kaushik, M.B.B.S., M.D., D.A.R.C.S. (London), M.N.A.M.S. Former Prof. and H.O.D. (Department of Anaesthsiology and Critical Care Medicine) C/o Dr. Robin Kaushik, Reader in Surgery, G.M.C.H. Sector 32, Chandigarh.

                                                                   ---Complainant

Vs

[1]          Kingfisher Airlines through its Managing Director/ Operational Manager, Kingfisher House, Western Express Highway Vila Parle (E), Mumbai – 400057.

[2]      Amrit Airlinks, through its Marketing/ Air ticket Booking Manager IATA Number 14337540, SCO No. 10-11-12, Sector 17-B, Chandigarh.

---- Opposite Parties

BEFORE:          SH.LAKSHMAN SHARMA                PRESIDENT

MRS.MADHU MUTNEJA              MEMBER

                    SH.JASWINDER SINGH SIDHU                    MEMBER

Argued By:       Sh. Vinod Chaudhari, Advocate for the Complainant.

Sh. Y.S. Dhillon, Advocate for Opposite Party No.1.

Sh. Rajwant Singh, Agent O/o Opposite Party No.2.

PER MADHU MUTNEJA, MEMBER

1.                 The Complainant had purchased two confirmed air tickets of Kingfisher Airlines from Opposite Party No. 2 for 26.12.2010. The flight was from Chandigarh to Delhi with scheduled departure at 3:25 PM and from Delhi to Lucknow. The Complainant had booked the tickets as she was to chair a prestigious scientific session at the annual conference of Indian Society of Anaesthsiology, which was scheduled to be held on 27.12.2010. 

                    Unfortunately, the flight scheduled to leave Chandigarh at 3:25 PM left only after 5:30 PM, due to which reason the Complainant was not able to board the flight from Delhi to Lucknow. Though two boarding passes one for Delhi and the other for Delhi – Lucknow flight had been issued to her. The flight landed at Delhi at 6:45 PM, by which time the flight for Lucknow had already left. The Complainant has attached boarding passes and luggage tags regarding her flights from Annexure C-2 to C-6 respectively.  When the Complainant enquired about her luggage, she was told that it would be available to her within half an hour. However the Complainant kept waiting for two hours for the luggage and at 9.00 O’clock she was told that the luggage would be arranged to be sent to Lucknow.  The Complainant thus tried her luck at catching the Lucknow mail, so as to reach for the scheduled meeting the next day. However, the Complainant could not book a berth in the Train, due to non-delivery of baggage to her by the Opposite Party No.1. The Complainant thus had to stay at Delhi, but the Opposite Party No.1 even failed to provide transit accommodation for her stay at Delhi, due to which reason she had to hire a taxi and stay with a relative.

                    The next morning, the Complainant re-booked the flight to Lucknow but as her luggage was still untraceable and all papers concerning the seminar were in the baggage, there was no point in attending the meeting without the relevant papers and proper clothing. Ultimately, the CISF personnel traced the luggage to Bangalore and it was delivered to her 3 days later on 29.12.2010 at 12:30 at night. The Complainant has thus, filed this complaint stating that the deficiency, inaction and callousness demonstrated by the opn1 in dealing with the situation is evident. The Complainant has prayed for a compensation of `3.00 lacs, besides `25,000/- for expenses and `30,000/ for costs of litigation.

2.                 After admission of the complaint, notices were sent to the Opposite Parties.

3.                 Opposite Party No. 1 in reply has taken the preliminary objection that M/s Kingfishers 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. As such it can be represented by a representative authorized by its Board of Directors. Further, it is also the well settled position of law that the officers of a Company can’t be arrayed as Respondent/ Defendant unless there is any specific allegation leveled against them in their individual capacity and any specific relief has been claimed against them. In the present case there is no allegation and no specific relief has been claimed against the Chairman and Managing Director of M/s Kingfisher Airlines Limited and as such the Company is being represented by its authorized representative Mr. Abdul Hamid, Dy. General Manager – Legal, duly authorized by its Board of Directors. A copy of the Board Resolution is enclosed and marked as Annexure RW-1. 

                    Opposite Party No.1 has further contended that the contention of the Complainant that she was to travel from Chandigarh to Delhi and from there to Lucknow on the same aircraft operating two different flights is not correct.  The Complainant was scheduled to travel from Chandigarh to Delhi by flight no. IT 4638, which was operated on an aircraft bearing registration no. VT-KAD and from Delhi to Lucknow by flight IT 3672, which was operated by another aircraft bearing registration no. VT-KAN. The scheduled time of departure of both the flights IT 4638 and IT 3672 were delayed due to bad weather conditions at Delhi Airport.  The report from the System Operations Control Centre (SOCC) vide their e-mails dated 22.4.2011 and 25.4.2011 detailing the aircrafts operated, the cause of delay and the original and delayed departure and arrival timings of the aforesaid flights have been attached at Annexure RW-2.

                    Opposite Party No.1 has further submitted that as per terms & conditions which form part of the contract of carriage between passengers and airlines in case of delay caused by force majeure, the airline shall not be responsible and no compensation shall be paid.  Further, as per the directions and specific Regulations of civil Aviation Requirements under section 3 – Air Transport, from the Director General of Civil Aviation (DGCA) with regard to liability of the Airlines in case of cancellation of the flight or denied boarding to a passenger, the Airline is liable to only refund the ticket price to the passenger. In the present case, the Complainant was given intimation of the delay in departure of flight from Chandigarh to Delhi and she was also told that she would not be able to catch her Delhi-Lucknow flight, so she was given the option to travel by next day’s flight from Delhi to Lucknow. But, as she was not willing to travel by the next available flight on the next day, her refund was processed and made through the booking agency on 27.12.2010. 

                    Opposite Party No. 1 has further stated that reason for delay in the departure of flight IT 4638 fro Chandigarh was due to the late arrival of the aircraft from Delhi, due to bad weather conditions at Delhi. The delay so caused was due to a condition completely beyond the control of the Opposite Party No.1 and, therefore, Opposite Party No.1 cannot be penalized or made liable for any deficiency in service. The relevant extract of the Complainant’s PNR History (Annexure RW-V) has been placed on record, which shows that as the flight was delayed from Delhi, the connection to the next flight from Delhi to Lucknow was not possible. Even though the Opposite Party No. 1 had made an effort for re-accommodation of the Complainant in another flight, the Complainant refused and disconnected the phone. 

                    Opposite Party No.1 has further stated that the complaint’s contention that her baggage was traced and delivered to her by the CISF is not correct. The CISF (Central Industrial Security Force) is an armed force of the Union for providing protection and security at the Airports. It is not their duty to trace misrouted baggage or deliver the same to passengers. Copies of the baggage tags annexed by the Complainant herself with the complaint suggests that the Complainant’s baggage was misrouted to Bangalore and the same was traced and transported back to Lucknow and delivered to Complainant as admitted by the Complainant herself.  A perusal of the baggage tags attached by the Complainant herself shows that the baggage was transferred by flight IT 214 .

                    On merits, Opposite Party No. 1 has admitted that the Complainant had booked tickets operating  with them. The flight IT 4638 operating the Chandigarh – Delhi sector was delayed from its scheduled time of departure due to bad weather conditions at Delhi. The Complainant had received intimation regarding the same from the Call Centre of the Opposite Party No. 1 and he had been advised to take a refund of her tickets, as there was no availability of seat on the other Airline also.  Initially the Complainant refused to accept the refund, but later the refund was processed and made to the Complainant on 27.12.2010. Opposite Party No.1 has admitted that the Complainant was issued boarding passes for her travel on the aforesaid flights. However, the copies of baggage tags annexed by the Complainant at Annexure C-4 to C-6 were for the baggage booked on 27.12.2011 on flight IT 214. A perusal of the baggage tags at Annexure C-6 shows that it is for  baggage booked on IT 4638 and IT 205. Opposite Party No.1 has reiterated that the flights were delayed due to bad weather in Delhi and the Complainant was informed well in advance that there was a possibility of her missing her connecting flight.   Opposite Party No.1 had even checked with Jet Airways on the possibility of accommodating the Complainant. However, the same could not be possible as no seat was available. Denying all other allegations, Opposite Party No.1 has prayed for dismissal of the complaint. 

4.                 Opposite Party No.2 in reply has stated that they have issued confirmed tickets to the Complainant. The husband of the Complainant Dr. S.P. Kaushik was informed on the Phone on the number provided on 26.12.2010 at 2.00 PM that Mrs. Kaushik missed her Flight No. IT 3672 dated 26.12.2010 due to late arrival of her flight from Delhi. He asked Opposite Party No.2 to issue a fresh ticket for Delhi for 27.12.2010 which was arranged by Opposite Party No.2 and sent to Dr. S.P. Kaushik through e-mail and SMS. It was only later that they came to know that the Complainant could not board this flight as one piece of her baggage had been mishandled by Opposite Party No.1.  Opposite Party No. 2 then took up the matter with Opposite Party No.1  to the best of their ability.

5.                 Parties led evidence in support of their contentions.

6.                 We have heard the learned counsel for the parties and have perused the record.

7.                 The Complainant had booked two tickets on Opposite Party No. 1 Airline, through Opposite Party No.2. The grievance of the Complainant is that as the first flight from Chandigarh to Delhi was delayed, she was not able to board the second flight from Delhi to Lucknow. Also her luggage was not handed over to her in time at Delhi, so that she could continue her onward journey. The luggage having been misrouted was delivered to her after 03 days. Annexure RW-II (Pg.10-11) placed on record by the Opposite Party No. 1 are communications dated 22.4.2011 and 25.4.2011 from System Operations Control Centre (SOCC), wherein it has been explained as under:-

“Please note IT-4638 and IT-3672 both the flights operated on different aircrafts and both the lights delayed due to bad weather conditions at DEL.”

8.                 The allegations by the Complainant, and the liability of Opposite Party No.1 in such a situation has been adequately discussed by the Hon’ble Supreme Court of India in case titled as INTERGLOBE AVIATION LIMITED VS. N. SATCHIDANAND, (2011) 7 Supreme Court Cases 463, wherein the Hon’ble Apex Court has held as under: -

“…….Held, where delay is for reasons beyond control of airline, as in this case, due to bad weather and want of clearance from ATC, in the absence of proof of negligence or deficiency in service airline cannot be held responsible for inconvenience caused to passengers on account of the delay – Compensation cannot be granted merely because there was inconvenience or hardship or on grounds of sympathy – What is relevant is whether there was any deficiency in service while providing facilitation/ facilities to passengers who were onboard the flight, but waiting in plane waiting to takeoff on tarmac – If airline and its crew have acted reasonably and in a bona fide manner, airline cannot be made liable to pay damages even if there has been some inconvenience or hardship to a passenger on account of delay.”

                    In the cited case, the Hon’ble Apex Court has further held as under: -

“There is no dispute that in this case, the delay was for reasons beyond the control of the carrier. The guidelines (Rule 19 of the Second Schedule to the Carriage by Air Act) show that the operating air carrier would not be liable to pay compensation to a passenger, in respect of either cancellation or delays attributable to meteorological conditions (weather/ fog etc.) or air traffic control directions/ instructions, which are beyond the control of the air carrier. (Para 44).”

                    The Hon’ble Apex Court has also held as under: -

“Where the delay is for reasons beyond the control of the airlines as in this case, due to bad weather and want of clearance from ATC, in the absence of proof of negligence or deficiency in service the airlines cannot be held responsible for the inconvenience caused to the passengers on account of the delay. The justification for damages given by the High Court does not find support either on facts or in law. (Para 67).”

9.                 In the cited case also a delay has been caused in the flight due to bad weather and the flight could not take off. The Hon’ble Supreme Court held that the delay was not on account of any negligence or want of care or deficiency in service on the part of the airlines, but due to bad weather conditions and want of ATC clearance, which were beyond the control of the Airlines and, therefore, it was not liable to pay any compensation. In the instant complaint, as well as in the cited case, the passenger was given the option of either re-booking in a different flight or receive refund of the air fare. In the present complaint, the Complainant choose to take a refund which was given to her the very next day. The compensation claimed by the Complainant for the alleged deficiency in service and the mental agony & harassment caused to the Complainant cannot be given  in terms of the cited case.  The Complainant has not produced any documentary proof about the expenses incurred by her either. 

10.               The Opposite Party No. 1 in support of their averments have also placed reliance on the terms & conditions of the airlines for carrying passengers, which are reproduced below: -

“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 also reserves to itself the right to refuse to carry any Passenger whom it considers unfit to travel or who in the opinion of the Airline may constitute risks to the aircraft or to the persons on board.”

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

“Kingfisher Airlines shall not be liable in any manner whatsoever and No compensation will be paid/ provided to Guest, if the cancellation and delay 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 the flight/s. Such extraordinary circumstances may in particular, occur due to political instability, natural disaster, civil war, insurrection of riot, flood, explosion, government regulation or order affecting the aircraft, strikes and labour disputes causing cessation, slow down or interruption of work or any other factors that are beyond the control of Kingfisher Airlines.”

“We do not accept responsibility for your connection with onward flights with us or with any other airline and we do not accept any liability for any losses or expenses arising out of any failure to board a planned connection.”

They have also attached conditions of general terms and conditions framed in accordance with the Carriage by Air Act, 1972 at Annexure RW-III.  Opposite Party No. 1 has also stated that the Director General of Civil Aviation (DCGA) has laid down specific regulations with regard to liability of Airlines in case of cancellation of the flight or denied boarding to a passenger.  As per Clause 3.3.2 (ii) of the aforesaid Regulations the Airlines is liable to refund the ticket price in the event the passenger do not wish to travel instead on an alternate or subsequent flight of the carrier concerned or on another carrier’s flight. In the present case, the Complainant was given prior intimation of the delay in departure of flight from Chandigarh to Delhi and she was informed that she would not be able to catch the Delhi – Lucknow flight. She was given option to travel by the next day’s flight, but not willing to take up the flight, her refund was processed and made to her through Opposite Party No. 2 on 27.12.2010. 

                    The baggage tags annexed by the Complainant with the complaint suggests that the Complainant ‘s baggage was misrouted to Bangalore and the same was traced and transported back to Lucknow and delivered to the Complainant on 29.12.2010 by Opposite Party No.1.  A perusal of the boarding pass as well as baggage tag show that the flight no. of the flight from Chandigarh to Delhi and Delhi to Bangalore is the same  i.e. IT 4638. It is thus, evident that the flight left Chandigarh with the bags but at Delhi due to some miscommunication/ discrepancy the baggage instead of being off loaded and handed over to the passenger at Delhi was sent further to Bangalore.  The air craft was probably the same.  This fault by the officials of Opposite Party No.1 has caused immense harassment and tension to the Complainant who was not able to travel by alternate transport to reach her destination without her luggage which obviously contained important material, even though the railway ticket placed on record by the Complainant is a wait listed ticket.

11.               Hence taking view of the totality of the situation as well as the mandate of the Hon’ble Supreme Court of India, given above, we feel that the allegations about the Complainant regarding delay/ unable to board flight cannot be compensated for. However, the allegation regarding delayed delivery of luggage are accepted and we feel that the airline is responsible and accountable to compensate the Complainant for this deficiency in service.  We accordingly partly allow this complaint against Opposite Party No.1 only and order a compensation of `5,000/- for the harassment caused to the Complainant for late delivery of her luggage.

                    The Complainant against Opposite Party No.2 is however dismissed as no deficiency in service or harassment has been proved against them.

12.               This order be complied with by the Opposite Party No.1 within 30 days from the date of receipt of this order, failing which they shall be liable to pay the awarded amount along with an interest @12% per annum from the date of this order, till the date of payment.

13.               Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

07^th March, 2012.                                                

        Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)