Delhi

StateCommission

FA/12/572

SAMIR KAPAHI - Complainant(s)

Versus

KUWAIT AIRWAYS - Opp.Party(s)

21 May 2015

ORDER

 IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision :  21.05.2015

First Appeal No.572/2012

(Arising out of the order dated 15.05.2012 in Complaint Case No. 72/2006 passed by District Consumer Disputes Redressal Forum,VI, ‘M’ Block, Ist Floor, Vikas Bhawan, I.P.Estate, New Delhi-110001)

       

 

Samir Kapahi

S/o Sh. Sudhir Kapahi

R/o K-16, South Extension

Part-II

New Delhi-110048 ……Appellant

                                                      

VERSUS

Kuwait Airways

401-404, IV Floor

Ashoka Estate

New Delhi-110001      …..Respondent

 

CORAM

N P Kaushik, Member (Judicial)

S C Jain, Member

1.     Whether reporters of local newspaper be allowed to see the judgment? Yes

2.      To be referred to the reporter or not? Yes

N P Kaushik, Member (Judicial)

Judgment

Cases Referred:

1. Katikara Chintamani Dora and Ors. Vs Guntreddi Annamanaidu and Ors, Civil Appeal No. 1936 of 1967 decided by the Supreme Court on 11.12.1973.
2. Ravneet Singh Bagga Vs KLM Royal Dutch Airlines and Anr. Civil Appeal No. 8701 of 1997 decided by the Supreme Court on 02.11.1999.
3. Interglobe Aviation Limited Vs N. Satchidanand, Civil Appeal No. 4925 of 2011 decided by the Supreme Court on 04.07.2011.

1.       The appellant Sh. Samir Kapahi has impugned the orders dt. 15.05.2012 passed by Ld. District Forum-VI Vikas Bhawan New Delhi. Vide impugned orders the Ld. District Forum has awarded damages for harassment (including litigation expenses) to the tune of Rs. 50,000/-. Before proceeding further, it may be mentioned here that the Ld. District Forum in its order dt. 24.04.2012 observed: “settlement achieved with mutual consent of the parties”. On the next date i.e. 15.05.2012, Ld. District Forum in a handwritten order awarded the abovesaid sum of Rs. 50,000/- in favour of the appellant. Para 1 of the orders is reproduced below:-

“The complainant has appeared as well as the OP, who has appeared with a cheque of Rs. 50,000/- which was indicated to OP for which proper reasoned order are being given today. We have gone through the complaint in the light of reply of OP, the complainant is to respect of inconvenience facing by complainant on reaching Delhi from London on 18.12.2004. He had a confirmed ticket. The grievances are detailed in complaint the OP has to reply explained that it was for various reasons, and all efforts were made to keep the complainant. We are of the view that there may be numerous reasons which may be explained by OP, but the fact of the matter is that complainant was inconvenienced and harassed in the process and reached Delhi with difficulties the anxiety of your student is appreciated. We value the entire damages for harassment including litigations expenses of Rs. 50,000/-, lump sum, keeping in view the reasons shown by OP. The cheque is given to complainant in pursuance of the order. File be sent to RR.”

2.       Appellant has made an endorsement at the bottom of the abovesaid order which reads as under:-

“Accepted without prejudice to any rights to appeal whatsoever.”

The endorsement bears the signatures of the appellant alongwith the date ‘15.05.2012’.

3.       Arguments have been addressed at length by the appellant (in person) and the counsel for the respondent/OP Sh. Harshveer Advocate.
4.       In brief the complainant’s case is that he was a student of Electronics & Satellite Engineering in University of Surrey, London in the year 2004. After taking admission in the university, he planned to visit his home in India for winter vacation. He purchased a return ticket of Kuwait Airways (hereinafter referred to as the OP) in September 2004 and paid Rs. 30,000/- for this purpose. He was given a confirmed ticket status from London Heathrow to Delhi via Kuwait for 18.12.2004.  Appellant reached London Airport on 18.12.2004 before the scheduled time of check in. He was denied boarding by the staff of the OP. He was informed that the smaller Aircraft had come from Kuwait. Appellant along with eleven more passengers was denied boarding in the said flight. OP asked the appellant to travel by British Airways upto Kuwait and from there to Delhi by Kuwait Airways. Appellant agreed to the proposal but wanted to send his baggage by Kuwait Airways so as to avoid inconvenience. Request was declined. Later on the appellant was not allowed to fly by British Airways stating that he was not got booked by the OP.  It was also stated that the British Airways was to fly via Riyad and not via Kuwait. Appellant had to walk back from terminal 4 to terminal 3 with his baggage. Appellant was however allowed to make a call to his parents in India but one Mr. Ron of the OP did not allow him to complete the call and snatched the phone from him, saying, ‘Indians and dogs are not allowed to make calls’. Appellant wanted to lodge a complaint but was not permitted to meet senior officials of the OP. After sometime, appellant was put on to Virgin Atlantic Flight to Delhi. His ticket was again cancelled on the orders of the station manager of the OP. The appellant was asked to fly to Kuwait the next day. Appellant waited for two hours to meet the station manager in his outside room. He was not allowed to do so.
5.       Next contention of the appellant is that he was put on to Virgin Atlantic Flight for the next day i.e. 19.12.2004. He was given a ticket with the departure time of 10:30 pm written on it.   In the waiting period, he was accommodated in hotel named Radission Heathrow. The appellant had to pay for his taxi fare from London Airport to the said hotel. On reaching Virgin Atlantic Counter at 8:45 pm, the appellant found the counter closed. The said flight was actually scheduled for 10:00 pm and not 10:30 pm as recorded on the ticket. Counter of the OP (Kuwait Airways) was also lying closed. The appellant had to go back to his hotel after paying the taxi fare of 20 pounds. He paid for his Breakfast in the hotel. He went to the airport in London the next day i.e. 20.12.2004 and contacted the staff of the OP. He requested for British Airways flight to Delhi in the evening. Superintendent of the OP rudely denied the arrangements. He was sent to Kuwait by Kuwait Airways flight on 20.12.2004. Vegetarian Food was not available in the said flight. He had to wait for 9 hours at Kuwait Airport as the flight to Delhi was at 4:30 am on the next day i.e. 21.12.2004. Appellant boarded the said flight.  Due to some technical fault, the flight landed at Karachi International Airport. No food or water was given to him by the OP. Ultimately, the appellant approached the senior officials of the Kuwait High Commission. The appellant alongwith other passengers was taken to Pakistan International Airport Hotel. Indians were segregated from British or American Nationals. He had to wait for two hours before he was allotted a room alongwith other nationals. The room was dirty, furniture broken, bed sheets stained. Beef and chicken were served. Appellant requested for vegetarian food. He was finally given dal and rice which too was of sub-standard quality. He was informed that the time of departure of the flight was 3:30 am. He waited at the Airport upto 9:00 am, the next day i.e. 22.12.2004 without breakfast and no access to phone. The flight took off at 9:00 am. After the flight landed in Mumbai, the senior officials of the OP misbehaved and manhandled him. Appellant alongwith other passengers was told that they would fly to Delhi in Air Sahara at 1:30 pm. They were taken to domestic Airport NTB. The passengers were stuck in the bus which was overcrowded. They were not allowed to get out of the bus. The aforesaid Air Sahara flight took off from Mumbai at 9:00 pm instead of 1:30 pm. On landing in New Delhi, the appellant found that the new golf set being carried by him had been damaged. Appellant suffered headache, high fever and skin related problems. He was at bed rest. He developed severe depression and flight phobia. Appellant sent legal notice dt. 05.10.2005 to the OP but did not receive any reply.
6.       OP has admitted that the complainant had bought his ticket for his flight from London to Delhi. OP also admitted that it was a confirmed ticket from London to Delhi via Kuwait Airways for 18.12.2004. Contention of the OP is that due to ‘technical reasons’ a lower capacity aircraft was operating that day. Efforts were made to accommodate the complainant on the other carriers that were flying to New Delhi including the British Airways. Plea of the OP is that due to heavy passenger traffic, the complainant could not be accommodated on 18.12.2004.  The next submission of the OP is that the complainant was booked in alternative flight of Virgin Atlantic Airlines for Delhi on the next day i.e. 19.12.2004. OP submitted that it was due to the late arrival of the complainant at the airport on 19.12.2004 that he was not allowed to board the flight. Passengers of international flights are required to check-in at least three hours prior to the departure time.  OP however submitted that the complainant alongwith other passengers was provided accommodation in Hotel Hoopa along with transportation.
7.       In response to the denial of the request of the complainant to allow him to keep his luggage with the OP, OP submitted that the request was politely declined. Passengers are required to keep their luggage in their custody in the event of change of their flight schedules.
8.       In reply to denial to complete the call with his family by the complainant, OP admitted having disconnected the line stating that the complainant exceeded the time limit and the line was required by Mr. Ron Hoogland.
9.       OP submitted that the complainant was made to board its flight No. KU104 on 20.12.2004 but due to a technical snag, an emergency landing had to be done at Karachi Airport. OP denied the allegation of the denial of food to the complainant. OP submitted that all passengers were given food coupons to procure eatables. OP also denied having segregated the passengers from the British and American passengers. OP denied if the complainant had to wait in a common room for two hours and being an Indian was discriminated against, on racial grounds. In response to the allegations of the damage to the golf set of the complainant, OP submitted that the complainant has not lodged a mandatory Property Irregularity Report (PIR). No bill or invoice for the golf set and a medical certificate supporting his health condition was provided.
10. With the aforesaid submissions and counter submissions, question arises as to whether the OP was ‘deficient in service’.
11. There is no dispute with the proposition that the complainant had purchased a confirmed ticket of the OP airlines from London to Delhi via Kuwait for 18.12.2004. OP took a stand that it was due to ‘technical reasons’ that a lower capacity aircraft was operating that day. Complainant alongwith eleven other passengers was denied boarding. The term ‘technical reasons’ is highly vague. OP operated a lower capacity aircraft in place of the aircraft meant for the flight in question. What stopped the OP from using the actual aircraft? Nothing has been disclosed in evidence by the OP to justify its failure to take the appellant on the scheduled flight when he had a confirmed ticket. OP stated that it made efforts to accommodate the complainant on a flight of British Airways.  For this purpose, the complainant had to proceed to terminal 4 from terminal 3. Clearly, there was no booking for the complainant on British flight. A ‘flight interrupt manifest’ for British Airways was however issued to the complainant. OP took a stand that due to heavy passenger traffic, the complainant could not be accommodated in British Airways.  It is also an admitted case that the complainant was not allowed to send his baggage by Kuwait Airways.
12. OP has admitted that a call being made by the complainant to his family, was disconnected by Mr. Ron Hoogland who has since left the services of the OP. An affidavit of Mr. Pran Sathiadasan was filed. Mr. R.F. Hoogland allegedly hurled racial abuses at the complainant. Now coming to the booking of the complainant in the general flight via Atlantic Airline on 19.12.2004, OP raised a plea that the complainant arrived late at the airport. Contention of the complainant is that the details of the said flight were written at a sticker by pen and the sticker showed the departure time as 10:30 pm and not 10:00 pm as alleged. OP has not placed on record any computer generated ticket as alleged by him to show that the actual time of departure of the flight was 10:00 pm and the complainant arrived late. OP had provided a bus to the passengers who were accommodated outside the airport. It was the bus provided by the OP which reached the airport late. There was no lapse on the part of the complainant. OP contended that the passengers were provided accommodation in hotel Hoopa alongwith transportation.  On the contrary, complainant contended that hotel Hoopa was a mode of transport and not a ‘hotel’. It was a bus shuttling from Airport to the place where passengers were accommodated in a hotel named Radission Heathrow. The OP has not countered the contention of the complainant.
13. Complainant had to go to his hotel and pay for to and fro taxi fare. He had to pay for his breakfast. Finally, he was allowed to board Kuwait Airways flight on 20.12.2004. The complainant was allegedly denied veg-food. The flight was scheduled to depart from Kuwait Airport the next morning i.e. on 21.12.2004 at 04:30 am. Due to a technical snag, it had to forceland at Karachi International Airport. In a waiting period of 13 hours, the complainant was not given any food and water. After going out of waiting lounge, complainant alongwith other passengers was taken to P.I.A. Airport hotel. Indians were allegedly segregated from rest of the British and American passengers. Indian passengers had to wait for more than two hours before two rooms were allotted to them. Beef and chicken was served. Complainant refused to accept the food. Finally he was served with daal and rice. Complainant had to get up early as the time schedule for boarding the flight was given as 03:30 am. Uptil 09:00 am the next day, complainant had to wait. After reaching Mumbai airport, the complainant tried to contact Sh. Syed Naqvi a staff of Kuwait Airways. Sh. Naqvi misbehaved with the complainant and threatened him with arrest. The complainant and other passengers after landing at Mumbai airport were told to fly to Delhi by Air Sahara flight at about 01:30 am. Passengers were stuck in the bus in the airport compound. They remained in the bus for about 2 hours.
14.  Interrogatories were served upon the complainant and a co-passenger named Sh. Swaranjeet Singh. Sh. Swaranjeet Singh supported the version of the complainant.
15. Perusal of the ‘flight interrupt manifest’ shows that the same had to be issued as the tickets were ‘oversold’. Clearly the OP had oversold the tickets for the flight which was to take off from London on 18.12.2004. It was not a case of a smaller aircraft flying on that day. It was also not a case of any ‘technical’ snag occurring in the aircraft. Factum of overselling of the tickets has not been disclosed by the OP in its pleadings. Fact has been conveniently concealed by the OP.  The reason for overselling the tickets is obvious.  OP oversold the tickets presuming that certain passengers may not turn up for boarding.  Admittedly 11 more passengers had be turned away due to this ‘overselling of tickets’. There was clearly a commercial factor involved in the matter, at the cost of convenience of the passengers, OP wanted to earn as much as he could.  Passengers who were turned away from the flight in question clearly had a confirmed ticket as in the case of the complainant.  Undoubtedly the OP was ‘deficient in service’.
16. Section 14(1)(hb) of the Consumer Protection Act 1986 provides for giving directions to the OP amongst others to pay for the injury suffered by a large number of consumers.  Such an amount has be not less than 5% of the value of services provided to the consumers.  In the present case 11 more passengers were denied boarding.  OP is, therefore, directed to pay to the complainant an amount of Rs. 5 Lakhs for harassment, inconvenience and mental agony suffered by the complainant. OP is also directed to deposit an amount of Rs. 5 Lakhs in ‘Consumer Welfare Fund’ of the State maintained by this Commission for the inconvenience caused to 11 other passengers who were denied boarding in the OP’s flight that took off on 18.12.2001. OP is accordingly directed to pay/deposit the aforesaid amounts to the complainant within a period of thirty days from today failing which the OP shall be liable to pay interest @ 18% p.a. on the amount accruing after the expiry of the period of thirty days. Since there is no conclusive evidence of racial discrimination, complainant is not entitled to the compensation of Rs. 5 Lacs as claimed by him on this count. Likewise there is no evidence to show that the golf set got damaged during the journey, no compensation on this score is admissible. The amount of Rs. 10 Lac claimed towards medicines and treatment by the complainant is also not allowed for lack of evidence.
17. Appeal is accordingly disposed of.
18. Copy of the order be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
19. FDR, if any, deposited by the appellant be released as per rules.