KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 527/2009

                                 JUDGMENT DATED: 22-09-2010

PRESENT

SMT. VALSALA SARANGADHARAN                : MEMBER

SRI. M.V. VISWANATHAN                                    : JUDICIAL MEMBER

The Manager,

Akbar Travels of India,                                          : APPELLANT

K.M.Complex, Near Muncipal Bus Stand,

Tirur, Malappuram District.

(By Adv.Sri.V.P.A.Rahman & Maria Antoinet)

            Vs.

1.         Kunhammed Kutty Paruthikkunnan,

S/o Komu Hajee,   Paruthikkunnan-

House, Klari Kolambil Paramba,

Edarikkode.P.O, Malappuram Dist.

R/by Komu Alias Bava Paruthikkunnan,: RESPONDENTS

S/o Muhammed Haji,

Paruthikkunnan-

House, Klari Kolambil Paramba,

Edarikkode.P.O, Malappuram Dist.

2.         The Commercial Manager,

Air India, Eroth Centre,

Bank Road, Calicut.

(R2 by Adv.M.s Menon & Pai)

                                               JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

Appellant was the 2^nd opposite party and respondents 1 and 2 were the complainants and 1^st opposite party respectively in CC.42/08 on the file of CDRF, Malappuram.  The complaint was filed alleging deficiency of service on the part of the 1^st opposite party, the Commercial Manager, Air India, Calicut in not providing facilities to the complainants 1 to 3 during their journey from Jeddah to Calicut in connection with the Haj pilgrimage.  It was also alleged that there occurred long delay of more than 24 hours in operating the flight which was scheduled on 26^th December 2007 at 10.10.am local time.  Thus, the complainants (3 in number) claimed compensation of Rs.1.lakh each from the 1^st opposite party, the Commercial Manager, Air India, Calicut.

2. Originally there was only one opposite party, viz, Commercial Manager, Air India, Calicut who entered appearance and filed written version denying the alleged deficiency of service.  The 1^st opposite party challenged the very maintainability of the complaint.  It was also contended that the complainants who were on Haj pilgrim group operated by the travel company known as M/s Akbar Travels of India and that the aforesaid M/s Akbar Travels of India, Tirur is a necessary party to the proceedings.  It was also contended that the travel company which operated the travel was responsible for affording facilities to the Haj pilgrim group.  The Air India discharged their duties as contemplated under Laws of Air Carriage Act and there was no deficiency of service or negligence on the part of Air India.  The management of passengers carried on the additional flight was the sole responsibility of the Haj operator; that the flight No.AI 5524 of 25^th December operated on a delayed basis by 23 hours and that the rescheduled time was informed to the travel operator in time for informing all concerned as it was the duty of the travel operator to inform its passengers regarding the time, etc.  Thus, the opposite party, Commercial Manager, Air India prayed for dismissal of the complaint filed against him.

3. On the basis of the contention of non joinder of necessary party raised by the opposite party, the complaint in CC.42/08 was amended by impleading the Manager, Akbar Travels of India, Tirur as additional 2^nd opposite party.

4. The 2^nd opposite party, Akbar Travels of India filed written version (counter) contending as follows:-

The complaint is not maintainable either in law or on facts.  The complaint as framed is not in the proper form and the same is liable to be dismissed.  As per the pleadings in the complaint, the alleged negligence was committed by the 1^st opposite party and that there is no allegation against the additional 2^nd opposite party.  The complainant was a member of the Haj pilgrimage group.   There was no deficiency of service as alleged by the complainant.  The airlines are compelled to change their schedules and the same is permitted by International Carriage of Passenger Regulation.  The claim put forward by the complainants is fanciful and speculative in nature.  Additional 2^nd opposite party is not liable to compensate the complainants in any manner, since no negligence is attributed against Akbar Travels of India Limited.  Thus, the 2^nd opposite party prayed for dismissal of the complaint in CC.42/08.

5. Before the Forum below, the 1^st complainant, Kunhahammed kutty Paruthikunnan filed proof affidavit in support of the case of the complainants.  Opposite parties 1 and 2 also filed proof affidavits.  On the side of the complainants Exts.A1 to A28 documents were also produced and marked.  No documentary evidence was adduced from the side of the opposite parties 1 and 2.  On an appreciation of the evidence on record, the Forum below passed the impugned order dted:10/8/2009 directing the 1^st opposite party/The Commercial Manager, Air India Calicut to pay Rs.10,000/- each to the three complainants and that the 2^nd opposite party, the Manager Akbar Travels of India, Tirur is directed to pay compensation of Rs.25,000/- each to the 3 complainants and that the opposite parties 1 and 2 are made jointly and severally liable to pay Rs.2000/- as cost to each of the 3 complainants.  Aggrieved by the said order the present appeal is filed by the additional 2^nd opposite party/The Manager, Akbar Travels of India, Tirur, Malappuram district.

6. When this appeal was taken up for final hearing, there was no representation for the 1^st respondent/complainant.  We heard the learned counsel for the appellant/2^nd opposite party and the 2^nd respondent/1^st opposite party.   Learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal and argued for the position that the complainant has not succeeded in establishing the alleged deficiency of service on the part of the 2^nd opposite party.  He pointed out the pleadings in the complaint and submitted that there was no allegation in the complaint regarding deficiency of service on the part of the 2^nd opposite party.  Thus, the appellant/2^nd opposite party prayed for setting aside the impugned order passed against the 2^nd opposite party, Akbar Travels of India, Tirur.

7. The opposite parties 1 and 2 filed proof affidavits in lieu of examination in chief.  The proof affidavit of the 1^st opposite party/Air India Bank Road, Calicut  was filed by one Yogesh Mundhwa, the Manager of Air India, Calicut and the proof affidavit for the 2^nd opposite party, Akbar Travels of India, Tirur was filed by one Sahadevan, the Branch Manager Akbar Travels of India, Tirur.  In the proof affidavit dated:16^th October 2008 filed by the Manager. Air India, Calicut categorically admitted the fact that the complainants were on  Haj pilgrimage and that the complainants were in the Haj pilgrim group operated by M/s Akbar Travels of India, Tirur.  It was further averred that the complainants being the members of the aforesaid Haj group had availed flight tickets in private Haj flights and in those flights no extra privileges and special facilities were provided to the passengers; that the Haj pilgrims in the said group were under the control and management of the travel operator, M/s Akbar Travels of India, Tirur and all the facilities were being provided by the travel operator, M/s Akbar Travels.  It was also stated that the private hajj flight scheduled for the return journey of the pilgrims group including the complainants were delayed and the aforesaid delay was informed the 2^nd opposite party in advance.  It was specifically contended by the 1^st opposite party that the 2^nd opposite party Akbar Travels of India, Tirur was bound to inform the pilgrims/passengers about the rescheduling of the flight and also about the aforesaid delay in operating the flight.  The aforesaid contentions adopted by the 1^st opposite party in their written version and in their proof affidavit have not been denied or disputed by the additional 2^nd opposite party (appellant).  Thus, the evidence adduced by the 1^st opposite party in the form of proof affidavit would establish the fact that the 2^nd opposite party, Akbar Travels of India, Tirur had the responsibility to provide the facilities like accommodation, food etc to the pilgrims including the complainants.  It would also make it clear that the 2^nd opposite party being the tour operator who collected necessary fees and charges from the complainants was bound to provide the necessary facilities like accommodation, food etc.  It was also the duty of the 2^nd opposite party/tour operator to inform the complainants about the rescheduling of the flight and also the delay of about 24 hours in operating the flight which was scheduled for departure from Jeddah to Calicut on 26^th December 2007 at about 10.am (local time).  Thus, the evidence adduced by the 1^st opposite party would establish the deficiency of service and negligence on the part of the 2^nd opposite party, Manager, Akbar Travels of India, Tirur.

8. Opposite parties 1 and 2 had adopted the contention that the complaint as framed and filed is not maintainable in law.  It is true that the complaint in CC.42/08 was filed by 3 complainants.  It is also true that the said complaint was not in specific form; but it was filed in the form of a letter.  The Forum below considered the way and the manner in which the complaint has been preferred by the 3 complainants.  The Forum below has rightly come to the conclusion that the purpose of the enactment viz. Consumer Protection Act is to give prime importance to consumer complaints and that the strict principles or rules regarding pleadings cannot be looked into in the matter of filing consumer complaints.  A reading of the complaint filed by 3 complainants would make it clear that the complainants are not fully aware of the form in which a complaint is to be filed before consumer Fora.   It is a settled position that technicalities regarding pleadings cannot be taken as a ground to negative the legitimate claim of a consumer.  Prime importance is to be given to the intention and the purpose for which the Consumer Protection Act has been formulated and enacted.  The way in which the forum below considered the complaint in CC.42/08 deserves appreciation.  We do not find any sustainable reason or ground to interfere with the impugned order passed by the Forum below in accepting the complaint in CC.42/08.

9. The appellant/2^nd opposite party in their written version or in the proof affidavit has not denied the case of the complainant that they traveled from Calicut to Jeddah on 12^th November 2007 in Hajj pilgrim group operated by Akbar Travels of India, Tirur and that they returned from Jeddah to Calicut in the Air India Flight on 26^th December 2007.  It is also not disputed that there occurred a delay of about 24 hours in operating the flight from Jeddah to Calicut and that the complainants as passengers of the said flight suffered inconvenience, hardships and difficulties.  It is also to be noted the appellant/2^nd opposite party has not disputed the aforesaid allegations raised by the complainants.  At the very same time, the 1^st opposite party, Air India, Calicut admitted the fact that there occurred delay of about 23 hours in operating the flight scheduled on 26^th December 2007 at 10.10.am (local time).  Thus the admission made by the 1^st opposite party and the silence kept by the 2^nd opposite party would make it clear that there occurred deficiency of service on the part of opposite parties 1 and 2.

10. The appellant/2^nd opposite party has no case that they informed the complainants about the rescheduling of the return flight and the delay of about 24 hours in operating the return flight.  At the same time the 1^st opposite party/Air India, Calicut categorically averred that there occurred delay of about 23 hours and the aforesaid delay was informed the 2^nd opposite party, Akbar Travels in advance.  It is also specifically stated by the 1^st opposite party/Air India, Calicut that it was the duty of the 2^nd opposite party/Akbar Travels of India, Tirur to inform the passengers including the complainants about the rescheduling of the return flight and also about the delay of about 23 hours.  Thus, the available materials on record would establish the deficiency of service on the part of the appellant/2^nd opposite party, Akbar Travels of India, Tirur.  So, the Forum below has rightly made the appellant/2^nd opposite party liable to pay compensation to the complainants for the inconveniences, hardships and difficulties suffered by the complainants.

11. The 1^st complainant filed proof affidavit in support of the case of the complainants.  The authorized representative of the complainants has also filed proof affidavit in support of the case of the complainants.  From the side of the complainants, A1 to A28 documents have also been produced.  The materials available on record would prove the case of the complainants regarding deficiency of service.  It is true that the Forum below has relied on A4 report published in a Malayalam daily.  It is true that report or news in a media cannot be taken as evidence to substantiate the case of the complainants.  A4 cannot be taken as a piece of evidence to prove the case of the complainants.  But the facts admitted by the opposite parties would make it clear that there was deficiency of service on the part of opposite parties 1 and 2.  The averments in the proof affidavit filed from the side of the complainants stands unchallenged.  The acceptable materials available on record are sufficient enough to find deficiency of service on the part of opposite parties 1 and 2.  It is also to be noted that the 1^st opposite party/Air India, Calicut has not challenged the impugned order passed by the Forum below.  Thus, the impugned order passed by the Forum below finding deficiency of service on the part of the opposite parties 1 and 2 is to be upheld.

12. The Forum below directed the 1^st opposite party, Air India Limited to pay compensation of Rs.10,000/- each to the complainants 3 in number. But at the same time, the 2^nd opposite party was made liable to pay compensation of Rs.25,000/- each to the 3 complainants.  We are of the view that the appellant/2^nd opposite party cannot be given a differential treatment.  The facts and circumstances of the case would also show that the compensation of Rs.25,000/- each awarded against the 2^nd opposite party is on the higher side.  This State Commission is of the view that Rs.10,000/- each will be sufficient compensation to be paid by the 2^nd opposite party, Akbar Travels of India.  So, the impugned order passed by the Forum below directing the 2^nd opposite party to pay Rs.25,000/- each to the 3 complainants is modified and thereby the said compensation is reduced to Rs.10,000/- each.  In all other respects the impugned order passed by the Forum below is confirmed.

In the result the appeal is allowed partly and thereby the impugned order dated:10/8/2009 passed by CDRF, Malappuram in CC.42/08 is modified.  The compensation of Rs.25,000/- each to the 3 complainants is reduced to Rs.10,000/- each and thereby the 2^nd opposite party (appellant), the Manager, Akbar Travels of India, Tirur is directed to pay compensation of Rs.10,000/- each to the 3 complainants.  In all other respects, the impugned order passed by the Forum below is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

                                            M.V. VISWANATHAN  : JUDICIAL MEMBER

VALSALA SARANGADHARAN   : MEMBER

VL.