ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 12 of the Consumer Protection Act, 1986 for the deficiency  in service, for payment of Rs,3,50,000/- towards damages for causing mental agony and tension, and Rs.50,000/- being the cost of purchasing the train ticket at Cologne station and Rs.50,000/- as damages for the damage caused to his suitcase and  for  such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; the complainant an employee in IBM India Pvt. Ltd working in Bangalore was to attend business meeting with his client at Cologne at Germany on 28.11.2016 at 8.00 am local time.  He booked the flight ticket from Bangalore-Frankfurt flight run by Op-1 to travel on 27.11.2016 the same in economy class in the aircraft managed by OP-1 and 2 and the flight to commence its flight at 3.00 am and return flight on 04.12.2016.  When he tried to web check-in, it was informed that the flight was cancelled. He tried to reach the customer care of OP-1 over phone but the lines were engaged for about 2 hours. At last, he could make a contact with the customer care and the executive informed him that they cannot do anything as the flight was cancelled due to the employees strike. When he contacted OP-3. They also informed that they also cannot do anything due to the strike. When he requested and insisted for alternate arrangement and also the customer care of OP-2, they suggested that they can arrange another alternate flight operating through Bangalore-Mumbai-Munich-Cologne which will be reaching cologne 10.00 am Monday, 2 hours late to the scheduled time of meeting and it was the best available alternative and he accepted the said offer.

3.     He changed the ticket accordingly. He was to board the Jet airways flight to Mumbai from Bangalore and from Mumbai to Munich and Cologne in Lufthansa flight. The Jet airways flight to Mumbai from Bangalore was schedule to start at 9.45 p.m on 27.11.2016. He waited at Lufthansa counter in the Airport. The executives of OP-3 did not help him in any and did not even offer a bottle of water and did offer to help. He himself spent money for food and beverages out of his pocket. 

4.     When he went to the Jet airways counter to get boarding pass to Mumbai, he was told that his ticket to Mumbai is cancelled, but from Mumbai to Cologne is confirmed.  When enquired further, with the Jet Airways, he was told to contact the Lufthansa office or its customer care. When he contacted them, they did not offer any help to him and directed to contact the Lufthansa Customer or the counter at the airport. When he approached them, they offered reschedule of the flight which would reach Cologne on Wednesday 30.11.2016 which was not acceptable to him, as he was travelling on a business negotiation for a meeting scheduled on 28.11.2016.  When he tried to contact the Lufthansa executive at the airport counter, he was informed that the counter would be opening at 9.00 pm only and after waiting for 3 hours there, it was informed to him, that his ticket to Mumbai was confirmed with Jet Airways, but were not sure as to why it was not showing in the Jet airways system, after 30 minutes of investigation, it was found that his ticket was cancelled. He tried to convince the authorities regarding his meeting with the client at Germany and impressed them that he would loose the job if he misses the schedule flight and the meeting.

5.     The executive arranged one ticket for him in a different flight which schedule to fly from Bangalore to Frankfurt-Cologne that would start Bangalore airport on 29.11.2016 Monday morning at 3 am and reach cologne at 11.00 am with no alternative, he accepted the said offer. Though he would be late for few hours to the meeting.  He missed a day of business meeting which affected his carrier at his work place. 

6.     It is contended that as per the return journey the ticket were issued by the 1^st Op from Cologne to Frankfurt in the train service of DB Banh and when he went to collect the boarding pass at the Lufthansa Kiosk at Cologne station to board the train to Frankfurt, the Lufthansa Kiosk could not issue the boarding pass. It was showing an error whenever he tried fetch to get the boarding pass. Then he approached the DB Banh counter. He was told that he cannot be issued the boarding pass for Lufthansa counter in the station.  He was advised to contact the customer care and when he tried to call them, he could not get in contact and waited for hours together and his international roaming limits hit the upper limit, and he could not make any call.

7.     With no internet facility, and no Lufthansa counter around, he was left in lurch. He bought a ticket to travel in train by paying 67 Euros and travel to Frankfurt and in the ticket counter at airport, he explained the situation and he was told to contact the customer care to get the reimbursement of the train ticket. His repeated attempts failed to take the reimbursement of the ticket. After reaching Bangalore, when he went to collect the baggage there was again a shock for him. The checked in bag suitcase was seen broken and when enquired, they told to approach the office at Frankfurt.  He has taken the photographs of the broken suitcase. The entire episode is the shaddy deficiency service rendered by the Ops  due to which, he suffered mental, physical strain and financial loss. His reputation in his company got a beating as he could not negotiate with clients because of the delay in reaching the destination and late in the business meeting.  Several email and correspondences were done with the Ops, whereas simply replied that the matter will be taken care of but no action was taken by them. Legal notice was also issued to that effect, demanding a compensation of Rs.7,00,000/- for causing mental agony, tension spending money for food items at airport and toiletries the train fare and damage caused to the suit case. OP.No.1 though received notice did not bother to reply nor paid the amount as claimed. Notice sent to OP.3 returned with an endorsement that no such address available. The act of OP amounts to deficiency in service and hence the complaint.

8.     Upon the service of notice, OPs appeared before the commission. OP-1 and 2 together have filed version and OP.No.3 filed its separate version.

9.     In the version filed by OP-1 and 2, it is contended that the complaint is not maintainable in law or on facts. It is filed on false and misleading facts. The same is liable to be dismissed. This forum has no territorial jurisdiction as Op has no branch office in Bangalore. The allegation that while returning from Cologne to Bangalore via Frankfurt he could not get the boarding pass at Cologne and hence he has to purchase a fresh flight ticket and hence the cause of action arose at Cologne, Germany and not in Bangalore or anywhere in India.  Further as it has no branch office or regd. Office at Bangalore. There is only and operational counter at the Bangalore International Airport. The Lufthansa German airlines operates from Gurgaon and OP-2 is working from New Delhi and OP-3 is also working from New Delhi and hence there is no territorial jurisdiction in that respect to file the complaint before this Forum. The question raised by the complainant required full-fledged trail and cannot be decided on oral testimony and hence matter to be referred to civil court for adjudication.

10.   It is contended that OP-1 and 2 were operating the flight Lufthansa German airlines and admitted that the complainant booked to and from tickets from Bangalore to Frankfurt on OP-1 flight No.LH-755 on 27.11.2016 and from Frankfurt to Cologne flight LH 3608 with special  train with Deutschebahn AG on 28.11.2016 from Frankfurt on flight No.LH 3611 on 04.12.2016 and from Frankfurt to Bangalore with flight No.LH 754.  Due to the strike of pilot, flights on 27.11.2016 the outbound flights from Bangalore to Frankfurt i.e. flight No.755 was cancelled.  With a view to assist the complainant in a best possible manner proactively rebooked the complainant free of cost on an alternate flight from Bangalore to Mumbai in Jet airway flight No.9449 on 27.11.2016 and Mumbai to Munich in flight No.LH 765 on 28.11.2016 and Munich to Cologne on flight LH 2206. The same was informed by OP-1 to the complainant regarding rescheduling to the email provided by the complainant to the OP-1 through OP-3. However, the said email failed to be delivered  due to either the email ID was incorrect or not functional. However prior intimation was given to complainant and OP-3 before 27.11.2016. The said intimation was given to OP-3 and to complainant over the telephone number given by him and also regarding rebooking to the complainant in the alternate flight and requesting OP-3 to issue the tickets in time prescribed by OP-1 so that the same do not get cancelled. However OP-3 the travel agent, of complainant for the reasons best known to it neither issued the ticket to the complainant nor informed the complainant regarding the cancellation, though OP-3 was categorically explained informed regarding the cancellation of the flight to Frankfurt on 27.12.2016. When the complainant reported at Bangalore airport, he was informed cancellation and rebooking. The complainant tried to contact the travel agent to get it confirmed.

11.   It is contended that, afterwards he proceed to Jet airway counter to collect his boarding pass for his rebooked itinerary, wherein, he was informed his flight ticket to Mumbai was cancelled . It is only due to the negligence and inaction on the part of the OP-3 in not issuing the ticket for the changed itinerary. Complainant again approached OP-1 customer care helpline in order to get ticket rebooked. Since there were no flights available for the requested sector and only option available was for 28.11.2016, the complainant did not express his inability and wanted to explore the possibility with OP-3. Again complainant approached the customer care requesting to provide him a ticket for the flight on 28.11.2016 and a fresh ticket was booked from Bangalore to Frankfurt on flight No.LH-5755 on 28.11.2016 and from Frankfurt to Cologne in flight No.LH-3608. When such being the case, after rescheduling the complainant, without any protest or demur, travelled from Bangalore to Cologne in Lufthansa flight and also there was no grievance from the complainant. He returned from cologne to Bangalore as scheduled earlier.

12.   It is further contended that, while returning, approached Cologne railway station in order to board the train from Cologne to Frankfurt. He was unable to procure the boarding pass, OP-1 KIOSK. Since the reschedule ticket was not properly issued by OP-3 there was an error and he had to purchase fresh ticket by paying the requisite fee. It has admitted the receipt of the legal notice and before issuing a reply by collecting the necessary information, the complainant rushed to the consumer forum by filing this complaint.

13.   It is stated that the main contention of the complainant grievance seem to be change in the travel schedule caused due to the strike of the pilots due to which flight from Bangalore to Frankfurt was cancelled for which he has incurred the expenses and while returning he had to purchase fresh ticket to board the train as he could unable to procure boarding pass for his travel at OP-1 KIOSK.

14.   It is further contended that complainant has not reported to the authorities at Bangalore regarding damage to his suitcase while receiving the suit case. Further it has contended that as per the moneteral convention the OP-1 and 2 are not liable to pay any compensation to the complainant as sought to be alleged, or at all. The complainant flight was cancelled owing to the strike of the pilots at the Frankfurt airport, which was out of the control of the staff of the OP.1 and no liability can be fastened against the OP.1 and 2 for the same, as alleged, or at all. In any event, the staff of OP-1 rebooked the complainant not once but twice on an alternate flight absolutely free of cost as a goodwill gesture so as to enable him to reach Cologne despite the cancellation of his transit flights, which the complainant accepted without any protest and/or demur.

15. Further contended that no liability can be fastened on OP1 and 2 and hence the complaint is liable to be dismissed. The strike called by the pilots at Frankfurt airport is an industrial action due to which it was impossible to operate the flight and hence the same was cancelled.  The strike was out of control of the staff of OP-1 and 2.  It could not have taken any forcible measure to avoid the same. Hence as per the monitorial convention no liability could be fixed against the Op.1 and 2. Further Their staff assisted in every possible manner by booking ticket in another flight free of cost well in advance as a goodwill gesture and inspite of it, the complainant has filed this complaint. It is the mistake of OP-3 in not booking a proper ticket was the alternate flight due to the cancellation of the flight to which the complainant had booked. For the reasons best known to OP.3 it neither informed the complainant regarding rescheduling the itinerary nor issued new tickets to the complainant which caused inconvenience to the complainant for which OP1 and 2 cannot be held responsible. 

16.   Even in respect of  non-issuance of boarding pass at Cologne railway station by OP-1 KIOSK was due to OP-3 not issuing proper and correct ticket for the changed itinerary Hence no negligence can be attributable to OP-1 and 2 whereas, there is a sheer negligence on the part of OP-3 who failed to issue the ticket for the changed itinerary. Hence Op.1 and 2 are not liable to pay any of the claim made in the complaint in respect of mental agony strain, tension and for the inconvenience and for the consequential damages. Further under general condition of carriage which is mentioned as:

“14.1.7

Our liability shall not exceed the amount of proven damages under any circumstances. We are only liable for indirect or consequential damages when such damage was caused by our gross negligence or willful misconduct; the provisions of the Convention shall continue to be applicable without change.”

 17.  Since the complainant has not reported in the airport regarding irregularity report in respect of damage to the baggage, failure to give a complaint as soon as he became aware of the alleged damage gives rise to the plausible inference that there was no damage  and it is an afterthought.  Through an email dated 08.12.2016, the complainant has informed the customer care regarding damage to the suitcase clearly establishes that it is an afterthought one.

18.   It is contended that, though the complainant has claimed Rs.7,00,000/- lakhs as damages in his legal notice, he has claimed Rs.3,50,000/- in his complaint and further though he has spent 57 Euros i.e Rs.4,824/- (Conversion rate 1 euro equal to Rs.72/-  complainant has sought Rs.50,000/- as cost of purchasing the ticket at railway station in cologne and further claimed Rs.50,000/- towards damages for the damaged baggage whereas it could have been repurchased by paying Rs.500 to Rs.1,000. The very intention of the complainant in claiming exorbitant damages clearly shows the intention of the complainant which is fanciful and seeking bonanza from the OP 1 and 2 and it is an attempt to extort money from them. Denying all the allegations made in each and every para of the complaint, prayed the forum to dismiss the same by imposing exemplary cost.

19.   OP-3 filed its version contending that the complaint is not maintainable is frivolous, filed with an intention to enrich himself at the OP-3’s cost. The complaint clearly demonstrates his grievance is against OP-1 and 2 and no specific allegation of deficiency of service has been made against it. Hence the complaint against it is misconceived, frivolous, and liable to be dismissed.

20.   OP-3 is an agency engaged by IBM company to book tickets on behalf of its staff. Hence there is no direct relation between the complainant and OP-3 and there is no privity of contract and complainant is not a consumer and it is not a service provider in respect of the complainant’s transaction and hence complaint is not at all maintainable.

21.   Further it is contended that the reason for the complainants to book the ticket to go to Cologne is for business transaction and hence under Consumer Protection Act it cannot be a dispute under the Act and hence liable to be dismissed. The complainant has no locus standi to file this complaint against OP-3 as it is booked by his company and not in its personal capacity. The complaint is bad for misjoinder of parties as OP-3 has been unnecessarily dragged to this litigation and it is not a proper party to the proceedings.

22.   The main contention of the complaint seeking damages is due to the cancellation of the flight on 27.11.2016 and damage to his baggage and not getting the boarding pass at the Cologne railway station. The cancellation of the flight for the reasons mentioned is beyond its control and so also not getting the boarding pass at Cologne and damage to the baggage. It has no role to play in that respect. There is no cause of action against it and hence there is no deficiency in service on its part. The complaint has made a concocted fixture and sequence of event to demonstrate loss, mental agony suffered. It is a motivated mala fide intention, to file the complaint to get himself enriched.  Further this complaint cannot be adjudicated in a summary proceeding whereas, it required evidence and cross examination and the matter is liable to be dismissed on that ground. Denying all the allegations made in each and every para of the complaint prayed to dismiss the complaint with exemplary cost.

23.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

24.   Our answers to the above points are:-

POINT NO.1 & 2:     Partly in the Affirmative.

                                For the following.

REASONS

POINT No.1:-

25.   It is not in dispute that OP-1 and 2 were operating the flight from Bangalore to Frankfurt Germany . Op.3 is a travel agent who booked the ticket for the complainant to travel from Bangalore to Cologne via Frankfurt on 27.11.2016.  It is also not in dispute that the said flight got cancelled due the strike by the pilots at Frankfurt and they could not operate the flight on that day.  It is also not in dispute that inconvenience was caused to the complainant due to the cancellation of the flight for which OP-1 and 2 made efforts to accommodate the complainant via Mumbai to Frankfurt by booking a ticket through JET airway from Bangalore to Mumbai and thereafter. For the reasons best known to the authorities, the flight ticket booked as an alternate by OP-1 and 2 to accommodate the complainant, the ticket from Bangalore to Mumbai got cancelled. 

26.   The complainant has failed to prove the deficiency in service in that respect by OP-1 to 3. Further OP-1 and 2 have stated that the complainant himself made request for an accommodation in the flight from Bangalore to Frankfurt on 29.11.2016 in their flight and made arrangement free of cost and have not charged extra money to the complainant. OP-1 and 2 have taken pain to accommodate the customer, the complainant in this case. When such being the case, it cannot be held that there is deficiency in service as the strike by the pilots were not within the hands of OP-1 and 2 and it was beyond the controls of OP-1 and 2. OP-1 and 2 relied  Clauses 14.1.7 of General Conditions of carriage(passenger and Baggage) and Clause No.14.1.7 are as:-

“(14) As under the Montreal Convention, obligation on operating air carrier should be limited or excluded in cases where an event has been caused by extraordinary circumstances which culd not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.” And

“14.1.7

Our liability shall not exceed the amount of proven damages under any circumstances. We are only liable for indirect or consequential damages when such damage was caused by our gross negligence or willful misconduct; the provisions of the Convention shall continue to be applicable without change.”

27.   When such being the case, it cannot be held that the cancellation of the flight on that day is deficiency of service. It is beyond the control of OP-1 and 2 for which, they cannot be held liable. Whereas for the inconvenience caused and for the mental agony, strain, mental strain put, they have to compensate the complainant. Further it is admitted by OP that the complainant could not get the pass in Cologne railway station as there due to mistake/negligence made by OP3 in not updating the itinerary of the rescheduled flight tickets. Whereas, no proof for the same has been placed by OP-1 and 2 in that respect. Hence there is deficiency  in service on part of OP-1 and 2 in not making the complainant to get the pass in the cologne railway station  and which made the complainant to purchase the ticket by paying Rs.67/- Euros.  Further the complainant has produced the photographs to show the suitcase has been damaged.  It is true that there is a breakage in the suitcase and hence we find there is deficiency in service on the part of OP-1 and 2. Hence we answer POINT NO.1 PARTLY IN THE AFFIRMATIVE against OP-1 and 2 only.

POINT No.2:

28.   Absolutely there is no allegation of whatsoever nature either in respect of deficiency in service, negligence, unfair trade practice or imperfection on the part of OP-3 in the complaint.  It is also not made clear by the complainant in the complaint as to why he has impleaded OP-3 and what is the relief claimed against OP-3. 

29.   In view of our answers to Point No.1 above partly in the affirmative, OP-1 and 2 bound to compensate the complainant and the complaint against OP-3 is liable to be dismissed.

30.   Complainant has sought damages of Rs.3,50,000/- towards mental agony, physical hardship, and further Rs.50,000/- towards purchasing the ticket from Cologne to Frankfurt and Rs.50,000/- towards as damages caused to the suit case. There is no concrete evidence placed in that respect. It is the cardinal principle of awarding damages that it should not be bonanza or a lottery for the complainant in getting the compensation. On the other hand, it should be just, proper and reasonable and proportionate to the damage that the complainant has suffered.

31.   In this case, the complainant has not placed any materials to show that what is the real monetary damage he has suffered other than mental agony, physical hardship. Even though he has claimed that he has spent money for purchasing water bottle, food and toilatary materials,  he has not placed any vouchers or receipts to that extent, to claim the same. In view of the same we are of opinion that for the mental agony, stress and physical hardship, he was placed due to the cancellation of the flight and thereafter postponing his travel itinerary to 28.11.2016, we are of the opinion if a sum of Rs.25,000/- if awarded to the complainant to be payable by OP-1 and 2 would be just, proper and reasonable under the circumstances.

32    Further the complainant has sought Rs.50,000/- towards purchase train ticket at Cologne station. On the other hand, he has just spent 67 Euros  at the rate of Rs.72/- per Euro which works out to be Rs.4,824/-. In view of the this we direct OP to pay a sum of Rs.5,000/- towards the said cost of the railway ticket and further Rs.5,000/- towards damages caused to the suitcase as there is no concrete proof and valuation for the damage caused to the  suit case and further we direct the OP 1 and 2 to pay Rs.10,000/- towards cost and litigation and incidental expenses. And hence we answer POINT NO.2 ALSO PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1.  The complaint is allowed in part with cost.

2.  OP-1 and 2 are jointly and severally to pay a sum of Rs.25,000/- as compensation for causing mental agony, stress and physical hardship to the complainant and further Rs.5,000/- towards train ticket charges (i.e 67 Euros at the rate of Rs.72/- per Euro) to the complainant.

3. Further OP-1 and 2 are hereby directed to pay a sum of Rs.5,000/- towards  damages caused to the suitcase and Rs.10,000/- towards litigation expenses.

4. Complaint against OP-3 is hereby dismissed.

4. OP-1 and 2 are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this day the 30^th day of June 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the letter from complainant.

Ex P2: Copy of the Air ticket dt:27.11.2016

Ex. P3: Copy of the Air ticket dt.27.11.2016.

Ex P4: Copy of the Air ticket dt: 28.11.2016.

Ex P5: Copy of Train  ticket dt.04.12.2016.

Ex P6: Copy of the display shown at the checking counter at cologne Railway station.

Ex P7: Copy of the email sent to OPs

Ex P8: Copy of the legal notice dt:18.1.2017.

Ex P9 & P10: Postal receipt and acknowledgments.

 2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Sukhdeep Singh Pannu, Director of OP-3.

RW-2: Sri Lalit Bhagwanani, Senior Account Manager and Authorized Representative of OP-1 and 2.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the letter of authority.

Ex R2: Copy of the pass port.

Ex R3: Copy of the details of power delegated.

Ex R4: Copy of the authority letter dt:23.05.2015

Ex R5: Copy of the Passenger number record of complainant.

Ex R6: Copy of the European commission Regulation 261/04 and of the council.

Ex R7: Copy of the General Conditions of carriage of Lufthansa German Airlines.

MEMBER                        PRESIDENT

*RAK