BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    30^th DAY OF OCTOBER 2019

Complainant/s: -                           

1. Smt.Guna Thantry

W/o Sri.Rajeev Singh Patial, Aged about 44 years,

2. Sri.Rajeev Sing Patial

S/o Late Harnam Singh

Aged about 55 years

Both R/at Flat 18,

Vaibhava Residency,

1^st Main, G.M.Palya, Bengaluru-75.

By Adv.Sri.Nataraja Ballal

V/s

Opposite party/s:-    

1. The Managing Director Lufthansa German Airlines Building No.10, Tower B,

12^th Floor, DLF City,

Phase-II, Gurgaon,

Haryana-122002.

2. The Managing Director

Miles & More

Building No.10, Tower B,

12^th Floor, DLF City,

Phase-II, Gurgaon,

Haryana-122002.

By Adv.Smt.Chethana Deepak

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant No.1 & 2 (hereinafter called as Complainants) has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1 & 2 (herein after called as OPs) to pay Rs.5 lakhs being the compensation towards the hardship suffered by the Complainants; to pay Rs.39,000/- being the cost of ticket; to pay cost of Rs.5,000/-  and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainants submit that, OP.1 is an international passenger carrier having operations to various destinations around the world. For the benefit of frequent fliers, like any other airlines, the OP.1 offers the customers to accumulate miles and redeem the accumulated miles against flights, hotels etc., subject to their conditions. This offer of OP.1 is called Miles & More/OP.2 which comprise of “Star Alliance” a conglomerate of 26 airlines. The Complainant no.1 had accumulated miles from her frequent international travels and OP.2 had allotted the number 992009788230861. The Complainants decided to redeem the same for a ticket to Istanbul from Bengaluru and the OP.1 had issued two tickets to the Complainants redeeming the required miles with the Ticket reference No.2JDHLH; 28.03.2014 onward; return 01.04.14 – BLR-Istanbul-BLR (Ref.220-2339443830/220-233944829) via Frankfurt on flight to Istanbul from Bengaluru for the travel on 28.03.14 and return on 01.04.14 from Istanbul and OP.1 had charged in advance as follows for each ticket miles in lieu of base fare and taxes as indicated against their codes and the following:

Taxes-Steuern and Gebuhren:

INR 29952 YQ + INR 1481JN + INR 1070IN + INR 225WO + INR 3534RA + INR 1126DE + INR 942TR = Total: INR 38330A

The Complainants further submit that, as required under law, the Complainants being Indian citizens, had obtained Turkish visa to travel to Turkey on their own and the Complainant No.1 had electronic Turkish visa and Complainant No.2 had Turkish visa from the Turkish embassy in Delhi and on the travel date they boarded the flight from Bengaluru to Istanbul. At the time of boarding the flight at Bengaluru, the employees of OP.1 never insisted on the transit visa to Germany though the flight was travelling via Frankfurt and issued them the boarding pass and the Complainants reached Istanbul via Frankfurt with a layover in Frankfurt from 9am to 12:45pm without any hiccups. The Complainants further submit that, their ordeal started on their return journey on 01.04.14 from Istanbul (Ataturk airport) when they were asked to give their passports for verification at the boarding counter of the OP.1. The verifying personnel at the counter informed the Complainants that only people with Schengen visa or with German Transit visa can board the flight and Indians who do not have the said visas cannot board the flight to Bengaluru via Frankfurt. Thus the Complainants were informed that the Complainant no.1 can board as she had Schengen visa and that the Complainant no.2 cannot board as he did not have either Schengen visa or German transit visa. Further they were asked to change the Complainant no.2’s ticket to some other airline that will directly fly to India/Bengaluru and hence the OP.1 denied boarding pass to the Complainant no.2 thus forcing the Complainants to be separated at the Istanbul airport. But the same was not insisted upon during their onward flight to Istanbul from Bengaluru since they boarded the flight from Bengaluru to Istanbul via Frankfurt and no one insisted them on the transit visa/Schengen visa either at the boarding counter of OP.1 at Bengaluru, Immigration officer at Bengaluru and for that matter at Frankfurt airport also. Complainants further submit that, the Complainant no.1 went to the ticket counter of OP.1 at Istanbul airport requesting their help to change the ticket but was denied assistance from the personnel at the ticket counter stating that they cannot change the tickets and the Complainants need to do it themselves online or talk to OP.2 over the phone which was not possible since there was no access to telephone lines or to internet during the wee hours (early morning 3am) and also the Complainants were not equipped in terms of the phone connection in a foreign country and to the utter shock of the Complainants they were informed that the office of the OP.2 would open only by 9am in the morning to attend to any passenger. The OP.1 did not offer any assistance in providing telephone or internet access nor did they help them to change the tickets to any other Star alliance service provider from Istanbul like Turkish airlines or Austrian airlines and were denied any sort of service to the Complainants as though ‘Miles and More’/OP.2 customer is not the customer of the OP.1 and treating the Complainants as though they did not hold a valid ticket. Complainants further submit that, the Complainant no.1 was constrained to board the flight (LH1305) due to her Shengen visa leaving behind her husband, the Complainant no.2 stranded at Istanbul who had to fend for himself in the airport getting to understand ways to come to Bengaluru. At Frankurt, Complainant no.1 went to the service centre of OP.1 hoping that they will be able to assist as Frankfurt was the main hub of the OP.1 and explained to the service centre personnel before entering the security at Gate 20-63, about the situation in Istanbul regarding her husband/Complainant no.2. The service centre personnel insisted that there is no need for any transit visa and was surprised that Complainant no.2 was denied boarding in Istanbul. The Complainant no.1 requested the personnel to send a note to this effect to Istanbul Lufthansa boarding counter so that the Complainant no.2 could be boarded in the next flight using the same ticket. However to the utter shock the personnel denied that assistance presuming the Complainant no.2 had a defective passport which was factually incorrect and was not even ready to verify the same from her counterpart at Istanbul. When the OP.1 personnel failed to assist the Complainant no.1 with her request to send the intimation to Istanbul, Complainant no.1 again requested her if she can cancel the ticket as Complainant no.2 had been denied boarding and may not travel back via Lufthansa. But to Complainant no.1’s chagrin the service centre personnel denied that service too and told Complainant no.1 that she should contact service centre of OP.2 which was possible only via internet or via telephone since they did not have any representative office at Frankfurt. The OP.1 personnel denied any other help of transferring the ticket to other Star alliance member as well stating that only service centre of OP.2 can assist thus shutting all avenues of assistance. In the meantime, Complainant no.2 tried his best to have the ticket transferred to other Star alliance member with Istanbul Lufthansa ticket counter and was denied help there as well which is evident from the remarks by Lufthansa ticket staff behind the ticket. Therefore he then had to book a new one way ticket from Istanbul to Bengaluru via Emirates shelling out TL 1445 (approx INR 39,000/-). The Emirates flight was late in the evening at 7.35pm and thus Complainant no.2 had to spend the whole day in the airport without water/food/money as there was nothing available in the airport boarding area.  The experience of the Complainants shattered their holiday travel which constrained them to issue a legal notice after landing at Bengaluru to the OP.1 & 2. OPs have given untenable reply to their notice. Hence this complaint.

3. After issuance of notice, OP.1 & 2 did appear and filed version.  OPs in their version submits that, admittedly the Complainants booked two tickets using the miles accumulated in the Complainant no.1’s Miles and More account for their travel from Bengaluru to Istanbul via Frankfurt on 28.03.14. That admittedly, pursuant to booking the tickets, the Complainants as per law, obtained Turkish visas for themselves on their own and travelled from Bengaluru to Istanbul via Frankfurt on 28.03.14 as per schedule and they have not grievances with respect to their onward journey. At this stage, the Complainants did not contact the OPs to seek any assistance regarding the visa requirements. That the Complainants were allowed to travel during the onward journey as they had valid travel documents for the said travel sector and the staff of the OPs was not obligated to check the valid travel documents for the Complainants return flight at that stage.  That the Complainants were scheduled to return from Istanbul to Bengaluru via Frankfurt on 01.04.14. Accordingly, when the Complainants presented themselves for check-in at Istanbul airport, the OP’s staff verified their itinerary and travel documents. Upon a perusal of the same, the Complainants were informed that although the Complainant no.1 could travel back to Bengaluru, India, the Complainant no.2, her husband would not be allowed to board the flight to Bengaluru via Frankfurt since he did not have a valid Schengen transit visa since the 5½ hours stay at Frankfurt necessitated a transit visa in view of the TIMATIC rules. The OPs further submit that, the Complainants were told at this stage that although both of them did not have a valid Schengen transit visa, the Complainant no.1 would not be denied boarding since she had a valid visa issued by the United States (a country mentioned in Timatic guidelines which exempt a passenger from requiring a transit visa. The other countries mentioned in the said guidelines in this regard are Bulgaria, Canada, Croatia, Cyprus, Republic of Ireland, Japan, Romania and the United Kingdom). However, since the Complainant no.2 did not have a valid visa for any of the above mentioned countries, he was required to possess a valid Schengen transit visa to transit through Germany and in the absence of a valid visa, the Complainant no.2 could not be allowed to board his flight to Bengaluru via Frankfurt. At this stage, the OP’s staff further informed the Complainants that since the reservation of Complainant no.2 was restricted in view of the tickets being partially used award tickets, they would have to contact the Miles and More department or rebook the Complainant no.2’s ticket online on their own as the staff of the OPs at Istanbul were not authorized to access the Miles and More account of any passenger at the check-in counter.  That the staff of the OPs, with a view to assist the Complainants in every possible manner, provided them with the contact details of the Miles and More helpline at Istanbul and also informed them that since it was early morning they could rebook the ticket of Complainant no.2 online on the Miles and More website accessible at the airport helpdesk, if the ticket restrictions permit so. That the Complainants for reasons best known to them chose to not rebook their tickets online. That in these circumstances, it is manifest that the staff of the OPs took all measures within their realm to assist the Complainants at all times, and it was due to their own negligence that the Complainant no.1 was denied boarding on account of not possessing a valid travel document. That despite the impeccable service and assistance rendered to the Complainants by the staff of the OPs, the Complainants issued a legal notice to the OPs on 30.04.14 lebeling frivolous and vexatious allegations of deficiency of service against the OPs, which were vehemently denied and issued proper reply. OPs further submit that, as per Article 13, the obtaining and carrying a valid travel document is solely the responsibility of the passenger and not that of an airline. With a view to facilitate the travel and assist its customers in all possible manner, puts the information of visa requirements on its website for every country and it was the duty of the Complainants to check the website of the OPs before their ravel as the tickets were booked online and the Complainants could have reviewed the same before their travel. Even the electronic tickets clearly mention that the Complainants carriage with the OPs was subject to its Conditions of Carriage and other conditions. Further in view of clause 7.1.7 the OP’s staff was within its rights to refuse carriage to the Complainant no.2 on account of him not possessing a valid travel document for his journey. Clause 2.3 of Miles and More programme clearly specifies that the route of any booking cannot be changed once an award ticket is generated and subject to a re-booking fee, only the date and time of an unused ticket can be changed. Clause 2.5 makes it manifest that the rebooking etc., could only be done online and the staff of the OPs was right in communicating the same to the Complainants. Hence, OPs submit that there has been no deficiency of service on their part. Hence on these grounds and other grounds OPs pray for dismissal of the complaint.

3a. OPs filed an application dtd.01.05.15 U/s.11 CP Act seeking for rejection/dismiss of the complaint for want of territorial jurisdiction. To which the Complainants filed objections on 10.07.15. In support of the said IA, OPs filed written arguments along with citations. On 03.03.16, this forum ordered that the question of territorial jurisdiction is a mixed question of law and facts which cannot be determined at this stage, in the absence of the evidence. Hence, forum feels that it appropriate to take up this IA for disposal along with main complaint. Hence, we considering this IA along with this main order.

4. To substantiate the case, Complainant no.1 filed affidavit evidence and produced the documents. OP.1 filed affidavit evidence and produced the documents.  Both filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the application dtd.01.05.15 filed by OPs U/s.11 of CP Act to dismiss the complaint for want of territorial jurisdiction is liable to be allowed ?

2. Whether the Complainants prove the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

3. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- Does not survive for consideration

Point No.3:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OPs. The Complainants in their complaint at para 10 & 11 submits that, the tickets were booked within the jurisdiction of this forum and the OPs have their branch office at Bengaluru and therefore this forum has jurisdiction to try this complaint, so also, the cause of action for filing this complaint commenced from the date of booking the tickets by the Complainants i.e. on 12.01.14 and continuously thereafter.

8. After issuance of the notice, OPs did appear and filed common objections stating that none of the branches of the OPs are at Bengaluru. Further the cause of action was arose at Istanbul where the boarding of flight was denied by the OP.2 for want of necessary visa and also better particulars of the passport. Hence, further submits that, even though the tickets were booked online, the Complainants have not produced better particulars that the tickets were booked online from Bengaluru. On this ground, prays for dismissal of the complaint holding that, this forum has no territorial jurisdiction. In addition to take such contention, OPs also filed an IA dtd.01.05.15 U/s.11 of CP Act to dismiss the complaint holding that this forum has no territorial jurisdiction. To which the Complainants filed objections on 10.07.15. My Learned Predecessor in the office ordered to consider the said IA along with main case. Hence, the findings recorded on point no.1 also touches the findings on the said IA. Accordingly, the said IA taken for consideration.

9. Based on the rival contention taken by the OPs and the Complainants on the territorial jurisdiction issue, we placed reliance on the following decisions cited by the parties to the lis. The decisions cited by the OPs are:   

1) Hon’ble High Court, New Delhi, reported at 2010 (42) PTC 361 (Del) in the case of Banyan Tree Holding (P) Ltd., vs. A.Murali Krishna Reddy & Anr.

2) Hon’ble Punjab State Commission in the case of Lufthansa German Airlines vs. Baljit Kaur & Ors., R.P.No.58/2013 dtd.24.02.14

3) Hon'ble Supreme Court in the case of Sonic Surgical vs. National insurance company ltd., Civil Appeal No.1560/2004 dtd.20.10.09.

Per contra, the decisions cited by the Complainants are:  

1) Hon’ble U.T. Chandigarh State Commission in the case of Spicejet Ltd., vs. Ranju Aery in F.A.No.347/2015, dtd.29.12.15

2) Hon'ble Supreme Court in the case of Lucknow Development Authority vs. M.K.Gupta reported at (1994) 1 SCC 243

10. According to the case of the Complainants, the Complainant no.1 had accumulated miles from her frequent international travels and OP.2 had allotted the number 992009788230861. The Complainants being husband and wife decided to redeem the same for a ticket to Istanbul from Bengaluru and the OP.1 had issued two tickets to the Complainants redeeming the required miles with the Ticket reference No.2JDHLH. This fact is not disputed. The real dispute is that, the return journey of the Complainants was from Istanbul to Bengaluru and denial of the boarding was at Istanbul, where the Complainant no.2 was not allowed to board the flight.

11. The Complainants submit that, as required under law, the Complainants being Indian citizens had obtained Turkish visa to travel to Turkey on their own and the Complainant No.1 had electronic Turkish visa and Complainant No.2 had Turkish visa from the Turkish embassy in Delhi and on the travel date they boarded the flight from Bengaluru to Istanbul. At the time of boarding the flight at Bengaluru, the employees of OP.1 never insisted on the transit visa to Germany though the flight was travelling via Frankfurt and issued them the boarding pass and the Complainants reached Istanbul via Frankfurt with a layover in Frankfurt from 9am to 12:45pm (3hrs 45 minutes) without any hiccups. The contention of OPs is that, they have denied the Complainant no.2 for boarding the flight at Istanbul for want of necessary documents.

12. In the instant case, before embarking on the detail facts of this case, we wanted to know, whether this forum has got the territorial jurisdiction to try this case. The decision of Hon’ble U.T. Chandigarh State Commission in the case of Spicejet Ltd., vs. Ranju Aery cited by the Complainants are in respect of the email correspondence to fix the territorial jurisdiction. But the said judgment will not through any light on the contention taken by the Complainants on territorial jurisdiction. With regard to the another decision of Hon'ble Supreme Court in the case of Lucknow Development Authority vs. M.K.Gupta, wherein it is held as:

A. Consumer Protection Act, 1986 – Ss.17, 21, 11 & 2(o) & (d) (as stood prior to 1993 amendment) – service rendered – jurisdiction to entertain complaints of consumers – complaint against whom can be entertained – test is nature of duty or function performed – if it is service, then the provider of the service, irrespective of whether the same is a private body or a statutory or public authority, would be amendable to the provisions of the Act.

We placed reliance on the said decisions. But the facts of the said decisions are not applicable to the case on hand. Hence, with due regard, the said decisions are not applicable.

13. In the instant case, the cause of action starts at the time of denial of boarding the flight at Istanbul to Bengaluru to the Complainant no.2 but not to the Complainant no.1. In this context, we directly placed reliance on the decision cited by the learned counsel for the OPs is of the Hon'ble Supreme Court in the case of Sonic Surgical vs. National insurance company ltd., wherein at para 9 it is held as under:

9. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]

14. We find there is considerable force in the contention taken by the OPs with reference to the decision cited supra, as in the instant case, the cause of action was arose to the Complainant no.2 only at the time of denial of boarding pass was at Istanbul. The expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen i.e. at Istanbul. Hence, the Complainants ought to have been file the complaint other than this forum having got territorial jurisdiction to try and dispose the case. The another decision cited by the OPs is also similar in nature, wherein also it is specifically held as under:

1. Consumer Protection Act, 1986 – Sec.17(2) – consumer complaint – jurisdiction – insurance claim – fire broke out in godown of appellant/Complainant at Ambala – insurance policy also taken at Ambala – claim for compensation also made at Ambala – hence, no part of cause of action arose in Chandigarh – and Consumer Commission of Union territory, Chandigarh had no jurisdiction to entertain and adjudicate upon complaint.
2. Consumer Protection Act, 1986 – Sec.17(2) (as amended w.e.f 15.03.03) – Jurisdiction of State Commission – Expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as in this case) to avoid absurdity.

15. The said decision is also applicable to the contention taken by the OPs. Hence, we come to the conclusion that, complaint filed by the Complainants before this forum is liable to be dismissed holding that this forum has no territorial jurisdiction to try and dispose the complaint. Hence, the complaint is dismissed without any prejudice to the Complainants’ rights to file the fresh complaint before the competent forum having got territorial jurisdiction taking the assistance of the decision of Hon'ble Supreme Court in the case of Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) on the question of limitation. Accordingly, we answered the point no.1 in the negative.

 16. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

17. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainants is dismissed holding that this forum has no territorial jurisdiction to try and dispose this complaint. Consequently, the IA dtd.01.05.15 filed by OPs U/s.11 of CP Act is allowed.

2. Anyhow, an option is left open to the Complainants to file the fresh complaint before the competent forum having got territorial jurisdiction to get redress their remedy.   

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 30^th day of October 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainants dated.26.04.16

Smt.Guna Thantry, Complainant No.1

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OPs dated.16.06.16

Smt.Sarika Gandhi, Attorney holder of OP.1   

Copies of Documents produced by OP.1

            MEMBER                                           PRESIDENT