BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 162/2005 Filed on 27/05/2005

Dated: 28..02..2011

Complainant:

Renjith, S/o. Bhuvanendran Thulasi, House No.8/332, Kulakkottukonam, Varuvila Veedu, Kalliyoor, Punnamoodu – P.O., Thiruvananthapuram.

(By Adv. P. Sasidharan Nair)

Opposite parties:

1. Kuwait Airways Corporation, 86, Veer Nariman Road, Church Gate, Mumbai – 400 020.

   (By Adv. A. Abdul Kharim)

    

2. Akbar Travels of India(P) Ltd., Vellayambalam, Thiruvananthapuram.

   (By Adv. Narayan. R)

    

3. The National Insurance Company Ltd., Division XII, Mumbai – 400 023.

   (By Adv. Swapna. V.S)

This O.P having been heard on 15..01..2011, the Forum on 28..02..2011 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant booked Air ticket of the 1^st opposite party – Kuwait Airways Corporation for travel from Mumbai to Kuwait through 2^nd opposite party, Akbar Travels of India (P) Ltd., that opposite parties 1 & 2 arranged air ticket on 4/08/2004 vide ticket No: 3251006053, that at the time of booking the complainant had clearly disclosed that he had to report her duty on 4/08/2004 itself in Kuwait, that it was due to the negligent act of the 1^st opposite party Flight No. KU-302 (Mumbai – Kuwait) was delayed and subsequently cancelled on 4/08/2004, that complainant requested the officials of the 1^st opposite party for alternative arrangement, but opposite parties failed to take any action, that officials had failed to render necessary assistance to the complainant who was stranded in the Airport on 5/08/2004, that 2^nd opposite party purposefully delayed the issuance of the ticket though he booked in advance, that opposite parties 1 & 2 adopted dubious means to exploit the complainant and are instrumental in breaking his legitimate expectation of getting a job in Kuwait, that the acts of the opposite parties amount to deficiency in service, that complainant sent an advocate notice on 8/09/2004 for a sum of Rs.8,00,000/- but no reply was received from the opposite parties. Hence this complaint to direct opposite parties to pay Rs. 8,00,000/- as compensation to the complainant along with cost.

2. Opposite parties 1 & 2 filed version contending inter alia that complaint is not maintainable, that on 4/08/2005 the flight KU 302 for Mumbai to Kuwait was delayed by 25 hours due to technical reasons beyond the control of the Airlines, that as such there was no negligence or deficiency in service on the part of the 1^st opposite party, that complainant had not disclosed any details regarding the necessity for his joining duty on 4/08/2004, that opposite party had not made any assurance as alleged in the complaint, that complainant itself is totally wrong and baseless, that 2^nd opposite party is an IATA approved travel agent of the 1^st opposite party, that 2^nd opposite party has no idea whether the 1^st opposite party is insured with the 3^rd opposite party – The National Insurance Company Ltd., that complainant was free to purchase ticket on any flight of his choice and convenience depending upon the validity of his Visa, that it is the complainant who took the risk to travel on the last day on 4/08/2004, that 2^nd opposite party is not responsible for his mishap and no deficiency in service could be attributable to opposite parties 1 & 2, that complainant is not entitled to get Rs. 8,00,000/- as compensation. Hence opposite parties 1 & 2 prayed for dismissal of the complaint.

3. 3^rd opposite party filed version contending inter alia that 3^rd opposite party had no agreement with 1^st or 2^nd opposite parties, that 1^st opposite party is not insured with the 3^rd opposite party, that the complainant has been betrayed by the false assurances given by 1^st & 2^nd opposite parties for which the 3^rd opposite party can never be held liable, that 3^rd opposite party had no agreement with opposite parties 1 & 2, that therefore complainant is not entitled to get any compensation on the strength of the policy by name Pravasi Bharatiya Bima Yojana Policy. Hence 3^rd opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is negligence and deficiency in service on the part of opposite parties?

    

2. Whether the complainant is entitled to compensation?

In support of the complaint, complainant has filed affidavit in lieu of chief examination and has marked Exts. P1 to P6 (b). In rebuttal, opposite parties 1 & 3 have filed affidavit.

4. Points (i) & (ii) : Admittedly, complainant booked Air ticket of the 1^st opposite party through 2^nd opposite party for travel from Mumbai to Kuwait and opposite parties arranged Air ticket on 4/8/2004 vide ticket No.3251006053. It has been the case of the complainant that at the time of booking the complainant has clearly disclosed that he has to report for duty on 4/8/2004 itself in Kuwait, that due to negligent acts of the 1^st opposite party, the said Flight (No.KU-302 Mumbai – Kuwait) was delayed and subsequently cancelled on 4/8/2004. It has also been the case of the complainant that opposite parties failed to render necessary assistance to him who was stranded in the Airport on 5/8/2004. It has been contended by the complainant that he took the next flight on 5/8/2004 on account of assurance given by opposite parties, that on landing Airport in Kuwait he was not allowed to go out of the Airport as the validity of Visa issued by the Company had already expired and that had to return and his expectation of getting a job has been lost for no fault of his. His evidence consist of oral testimony of PW1 and Exts. P1 to P6 (b). Ext. P1 is the copy of the passport. Ext. P2 is the copy of the Air ticket of the 1^st opposite party issued by 2^nd opposite party. A perusal of Ext. P1 reveals passage from Mumbai to Kuwait on 4^th August 2004. Ext. P3 is the copy of the Pravasi Bharatiya Beema Yojana Policy. Ext. P4 is the copy of the boarding pass. Ext. P5 is the copy of the entry visa issued by state of Kuwait. Ext. P6 is the copy of the Advocate notice dated 7/9/2004. Ext. P6(a) is the copy of the postal receipts and Ext. P6(b) is the copy of the acknowledgenment cards. Opposite parties evidence consist of proof affidavit filed by opposite parties 1 & 3. Though 3^rd opposite party has been in party array, complainant himself submitted that he never sought any relief from the 3^rd opposite party and hence 3^rd opposite party was exonerated from any liability to complainant. 1^st opposite party is the Kuwait Airways Corpoation and 2^nd oppostie party is the Travel Agent of the 1^st opposite party. It has been contented by opposite parties 1 & 2 that complainant had approached them for the purchase of a ticket for his journey from Mumbai to Kuwait and as he preferred the ticket was arranged on 4/8/2004 and the same was confirmed to him upon his request. 2^nd opposite party resisted the complaint by submitting that it is the complainant who had decided to travel on the last day of expiry of his visa, that means he took the risk to travel on the last day on 4/8/2004. It is argued by 2^nd opposite party that complainant ought to have travelled much early to avoid any contingency. It is the stance of the 2^nd opposite party that 2^nd opposite party is not at all responsible for the delay of flight nor its subsequent events which was beyond the control of the 2^nd opposite party. It is further stated by 2^nd opposite party that as per conditions of ticket it was complainant’s responsibility to hold a valid travel document, that no Airport Authority will allow a foreign stay without a valid visa. It is the say of the 1^st opposite party that on 4/8/2004 the Flight KU 302 for Mumbai to Kuwait was delayed by 25 hours due to technical reasons beyond the control of the Airlines and as such there was no negligence or deficiency in service on the part of the 1^st opposite party. It is further submitted that if the complainant had to report for duty on 4/8/2004 in any sense of precaution he ought to have booked the ticket for travel on a sufficiently prior date in view of the possibility for cancellation or delay of the flight which is not unusual due to reasons of security etc. It has also been contented by 1^st opposite party that complainant is not entitled to invoke the territorial jurisdiction of this Forum. In this context it is to be noted that complainant had purchased Air ticket from the 2^nd opposite party at Thiruvananthapuram, for the travel in 1^st opposite party’s flight from Mumbai to Kuwait. As part of the cause of action has arisen at Thiruvananthapuram, we find complainant is entitled to invoke territorial jurisdiction of this Forum. Admittedly, on 4/8/2004 Flight No. KU 302 was delayed by 25 hours. According to 1^st opposite party delay was due to technical reasons beyond the control of the Airlines. 1^st opposite party has not furnished any materials to show that on 4/8/2004 the aforesaid flight was delayed due to technical reasons and subsequent cancellation. Undoubtedly complainant could not travel on 4/8/2004, while he could travel only on 5/8/2004. 2^nd opposite party has nothing to do with the expiry of visa and subsequent events happened on 5/8/2004 at Kuwait Airport. As 2^nd opposite party is the agent of the 1^st opposite party and issue herein is in regard to delay and cancellation of Flight No. KU 302 on 4/8/2004 which was beyond the control of the 2^nd opposite party we find no deficiency on the part of 2^nd opposite party. 1^st opposite party has filed proof affidavit, 1^st opposite party has not been cross examined by the complainant. Complainant has been cross examined by 1^st opposite party. In his cross examination he has deposed that he has no knowledge regarding cancellation of Flight due to technical snag. Complainant has deposed that he was informed about the delay of the flight only. It is not clear from version whether necessary arrangements were made to complainant on other facilities were given to complainant. The burden is on the part of the 1^st opposite party to show that the said flight was delayed due to technical snag and flight was cancelled which was beyond the control of the 1^st opposite party - 1^st opposite party failed to prove it with cogent evidence. To the extent of which, we find there is deficiency in service on the part of 1^st opposite party for which 1^st opposite party cannot escape liability to compensate the complainant.

In the result, complaint is partly allowed. 1^st opposite party shall pay the complainant a sum of Rs.10,000/- towards compensation within two months from the date of receipt of this order. Parties are left to bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 28^th day of February, 2011.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A,

MEMBER.

S.K. SREELA,

MEMBER.

ad.

O.P.No: 162/2005

APPENDIX

I. Complainant’s witness:

PW1 : Renjith

II. Complainant’s documents:

P1 : Copy of the passport

P2 : Copy of the Airticket of the 1^st opposite party issued by 2^nd opp. Party

P3 : " Pravasi Bharatiya Beema Yojana Policy

P4 : " Boarding Pass

P5 : " entry visa issued by State o Kuwait

P6 : " advocate notice dated 7/9/2004

P6(a) : " postal receipt

(b) : " acknowledgement cards

III. Opposite parties’ witness : NIL

IV. Opposite parties’ documents : NIL

PRESIDENT