Tamil Nadu

North Chennai

159/2012

N.Authinathan, - Complainant(s)

Versus

Manager, Gay Travels Pvt Ltd, - Opp.Party(s)

S.Natarajan

17 Feb 2016

ORDER

 

                                                           Complaint presented on  :  09.07.2012

                                                              Order pronounced on  :  17.02.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

WEDNESDAY THE  17^th   DAY OF FEBRUARY 2016

 

C.C.NO.159/2012

 

 

Mr.N.Authinathan,

Principal District Judge,

Combined Court Building,

Government Arts College Road,

Coimbatore – 18.

                                                                                            ..... Complainant

 

..Vs..

	1.Manager Gay Travels (P) Ltd., #:96/16 Uthamar Gandhi Salai, Nungambakkam Chennai – 34.   2.Managing Director, Spice Jet Limited, #319, Udyog Vihar Phase IV, Gurgaon Haryana.   3.Managing Director, Jet Airways (India) Limited, Siroya Centre, Sahar Airport Road, Andheri (East) Mumbai – 99.         4.Jet Airways (India) Limited, Thaper House, #43/44, Montieth Road, Egmore Chennai - 8
	...Opposite Parties

Date of complaint                                  20.07.2012

Counsel for Complainant                      :S.Natarajan

Counsel for  1^st Opposite party                :S.Janarthanan

 

Counsel for 2^nd Opposite Party                     :Party in person

 

Counsel for 3^rd & 4^th Opposite Party       : M/S. Gupta & Ravi       

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant working as a Principal District Judge at Coimbatore District, was nominated by the Honb’le High Court Madras, to participate in the “National Conference of Senior District Judges on Court Management for enhancing quality responsiveness and timelines of Justice”, Organized by the National Judicial Academy  at Bhopal from 21.04.2012 to 23.04.2012. On 15.04.2012 the Complainant had contacted the 1^st Opposite Party, booked his air tickets for travel to  Bhopal and return to Coimbatore. Accordingly the 1^st Opposite Party had issued confirmed air tickets to the Complainant as per following itinerary

Date	Flight#	Departure	Arrival
Friday 20.04.12	SG264 Spicejet	Cbe 15.10 hrs	Mumbai 16.55 hrs
Friday 20.04.12	9W2043 Jet Airways (Jet Konnect)	Mumbai 18.50 hrs	Bhopal 20.25 hrs
Tuesday 24.04.12	9W2042 Jet Airways (Jet Konnect)	Bhopal 08.45 hrs	Mumbai 10.20 hrs
Tuesday 24.04.12	SG 109 Spicejet	Mumbai 12.50 hrs	Cbe 14.40 hrs

 

After reaching Mumbai the Complainant approached the Duty Manager of Jet Airways who directed the counter personnel  and who gave a Boarding pass to the Complainant  without Seat number. On completion of regular security check the Jet Airways staff took the  Complainant to aircraft point made him to wait for sometime expecting a “No Show”. Sadly all the seats were filled and the Complainant who had a confirmed ticket was left in the lurch unable to board his flight, preventing him from attending an important judicial conference. The Complainant was denied comfortable night stay at Mumbai by the Jet Airways personnel, who were wholly unmindful of Complainant’s  plight, became very rough and abusive in their behavior. The Complainant an aged diabetic individual suffered largely due to lack of contact in Mumbai at night left to fend for himself, stayed in the airport lounge with great agony and pain.  The Complainant has to be compensated for the resultant mental agony and pain as well. The Opposite Parties who failed to perform as per their glossy ads portraying comfortable travel have committed unfair trade practice as well and hence this Complaint.

2. WRITTEN VERSION  IN THE 1^st OPPOSITE PARTY IN BRIEF:

          As a travel agent the 1^st Opposite Party has booked the air ticket and they have raised the invoice. The 1^st Opposite Party submits that the tickets are confirmed one and the 1^st Opposite Party delivered the air tickets for Rs.23,308/- by way of cheque,  it was the confirmed ticket and the Complainant also admitted that it was the confirmed ticket. The 1^st Opposite Party has not committed any Deficiency in Service to the Complainant, hence the 1^st Opposite Party is not liable to compensate as claimed by the Complainant.

3. WRITTEN VERSION IN THE 3^rd  & 4^th  OPPOSITE PARTY IN BRIEF:

          The true and correct facts are flight 9W 2043 was marginally overbooked and by the time, the Complainant reached the counter for boarding the flight, it was already full. Overbooking of flights is an internationally accepted practice amongst all airlines which is done to curb the possibility of flights departing with unoccupied seats  because  of ‘No Show’ passengers i.e. non arrival of the passengers at the check-in counter who do not present themselves at the check-in counter before its closure. The practice of overbooking is followed by almost all the airlines worldwide as each airline operates in a competitive environment. The reason why this is done is that there are  invariably some last minute cancellations as a result of which, an airline may have to carry vacant seats. The procedure of overbooking has been upheld by Civil Aviation Requirement (CAR) issued by DGCA having force of law. However, in the said Car, it is also mentioned to compensate passengers appropriately due to overbooking situation and accordingly, the Opposite Party tried to compensate the Complainant with an amount of Rs.3,000/- as indicated in clause 3.5.1 of the said CAR circular. However, the same was rejected by the Complainant for the best reasons known to him.. The Complainant  was also provided lounge access which is the Opposite Party company provides to its premier passengers where the Complainant was servied with hot and cold beverages, dinner and other food stuff which made him feel comfortable. The lounge access facility is available only to the business class passengers.  However, keeping in mind customer satisfaction the Opposite Party permitted the Complainant to utilize the services of the lounge facility. Apart from providing complimentary snacks and beverages, as a gesture of good behaviour, he was also offered facility such as access to internet, LCD television, magazines and news papers etc. to pass time until the Complainant was put in the next available flight. Hence 3^rd & 4^th Opposite Parties have not committed any Deficiency in Service and prays to dismiss the Complaint.

4. POINTS FOR CONSIDERATION:

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

          2.Whether the complainant is entitled to any relief? If so to what relief?

5.POINT:1

          It is an admitted fact that Complainant while working as Principal District Judge at Coimbatore as  he has  to attend the National Conference at National Judicial Academy, Bhopal from  21.04.2012 to 23.04.2012 he booked flight ticket through the 1^st Opposite Party for his onward journey on 20.04.1012 and return journey on 24.04.2012  and the said E-tickets were marked Ex.A1 and the Complainant travelled on 20.04.2012 from Coimbatore to Mumbai through the  2^nd Opposite Party flight  and to board at Mumbai at 6.50.p.m connecting flight of the 3^rd  and 4^th  Opposite Party  and he also contacted the  3^rd and 4^th  Opposite Party staff  and the Jet Airways also boarding pass from Mumbai to Bhopal without assigning seat number and however the Complainant was informed that  due to overbooking he could not be accommodated and the Complainant was forced to stay in the airport lounge itself and on the  next day morning the Complainant travelled the Jet Airway to Bhopal.

6. The Complainant argued that  he should in the queue  for his boarding pass nearly an  hour and later the Complainant contacted the duty manager of Jet Airways and on his direction the counter personal issued boarding pass and after   regular security check the Jet Airways staff took the Complainant to Air craft boarding point  and after waiting some for time he was informed that all  seats were  filled and thereby preventing the Complainant attending Judicial Conference  and further the Complainant was not taken care of by the Jet Airways and inspite of that  the Complainant has booked the confirmed ticket and not allowing him to travel from Mumbai to Bhopal proves that the Opposite Parties committed Deficiency in Service.

 7. The 1^st Opposite Party argued that he only issued a ticket to the Complainant and therefore he has not committed any Deficiency in Service and the 2^nd Opposite Party also argued that the travel for the Complainant was refused only by the Jet Airways and not by the 2^nd Opposite Party and therefore they have not committed Deficiency in Service.

 8. The 3^rd  & 4^th   Opposite Party  argued that the Module of those Opposite Parties was not functioning on the day and hence   they could not ascertain and retain seats for confirmed tickets and further in Ex.B1  CAR issued by the Director General of Civil  Aviation, New Delhi provides for to issue over booking tickets and since the Complainant was holding a confirmed ticket, he was offered for a sum of Rs.3,000/- as compensation as per Ex.B1 and however he refused to receive the same and if at all compensation can be awarded the same could be only to the extent of Rs.3,000/- and therefore  the 3^rd & 4^th Opposite Party have not committed any Deficiency in Service and prays to dismiss the Complaint.

9. Admittedly the 1^st Opposite Party booked tickets to the Complainant and  the same was delivered to him. The Complainant travelled in the 2^nd Opposite Party flight from Coimbatore to Mumbai. Problem arose to the Complainant when he was to board at Mumbai Airport to Bhopal he was not accommodated in the 3^rd and 4^th Opposite Party flight. Therefore as argued by the 1^st and 2^nd Opposite Party they have committed any Deficiency in Service towards the Complainant.

10. It is not in dispute that the Complainant purchased confirmed tickets to travel in the Jet Airways from Mumbai to Bhopal and the said flight to leave at Mumbai  at 18.50 hours. According to the Complainant  he  stood in the queue for his boarding pass for nearly an hour and he was not issued with boarding pass and he contacted duty Manager of the Jet Airways and on his direction he was issued with a boarding pass and after security check  he was taken to  the aircraft and after some time he was informed that all the seats were filled and he was made to return to the lounge of the Airport.  The reason stated by the 3^rd and 4^th Opposite Parties  that due to over booking  those who came first, they were issued with boarding pass and that is why the Complainant could not be accommodated. In Ex.A2 Jet Airways boarding pass it was mentioned that boarding gate closes 25 minutes prior to departure. The Complaint was having the confirmed ticket and he specifically alleged in the Complaint that he stood in the queue nearly an hour and thereafter he was denied boarding pass. As per itinerary he should have reached Mumbai Airport at 16.55 hrs and the 3^rd & 4^th Opposite Parties flight Mumbai to Bhopal as scheduled to start at 18.50 hrs. It means that more than one hour to 1½  hour  prior to departure the Complainant is in the Airport to get his boarding pass. Further he was also escorted to the Aircraft itself. Therefore in the circumstance when the Complainant is available in the Airport prior to  1½  hour  departure of the flight  and he  was having the confirmed ticket. The   ticket counter personal should have waited till  25 minutes prior to departure of the flight as noted in Ex.A2 boarding pass and till such time confirmed ticket passenger have not  come then  the wait listed passengers can be accommodated. If they could have waited as stated above certainly the Complainant would have   got his boarding pass  with allotment of seat number to travel in the 18.50 flight itself on 20.04.2012 .

11. The 3^rd and 4^th  Opposite Party counsel relied on the judgments of the National Commission  reported in 1991 (1) CPR 46 (INDIAN AIRLINES VS. RAJESH KUMAR UPADHYAY) and 1994 (1) CPR 23 (K.JAYARAMAN VS. THE POONA HOSPITAL & RESEARCH CENTRE & ORS.) and contended that they have not committed Deficiency in Service.  The ratio in the first judgment  reported in 1991 (1) CPR 46 is that  “mere fact that a flight is operated late will not ipso facto  render the Airline liable for payment of compensation to the passengers unless there is a proof of negligence on the part of the Airlines”.  As per the ratio merely a flight operated late compensation cannot be awarded to the passengers. Whereas in the case in hand the Complainant was having confirmed ticket and he was denied travel for the day and time fixed in his ticket  and he was made to wait for one night in the airport and therefore the above ratio will not apply to the facts of the case in hand. The facts in the 2^nd judgment reported in 1994 (1) CPR 23  relates to medical negligence and such a facts has no relevance to the facts of the case in hand.

12. The counsel for the 3^rd and 4^th Opposite Party specifically argued that module did not function and they could not ascertain and retain seats for confirmed tickets and that is why the Complainant could not be accommodated on that day and further over booking is allowed as per Ex.B1. The module not functioning has not been pleaded in the written version of the 3^rd and 4^th Opposite Parties. If really the module is not functioning certainly the same could have been pleaded in the written version and failure to plead the same  shows that it is only on after thought at the time of  arguments. No doubt Ex.B1 provides for over booking  to  a limited extent in order to reduce of the possibility of flights departing with unoccupied or empty seats. This over booking can be accommodated only against the cancellation of tickets and not against the passengers who have confirmed tickets and also arrived in time to undertake the journey. This Complainant very well in time arrived  in the Airport  and was having confirmed ticket and he was denied boarding pass with a allotment of seats for this travel, it is held that the Opposite Parties 3 & 4 have  committed Deficiency in Service and the 1^st and 2^nd Opposite Party have not committed any Deficiency in Service.

13. POINT:2

                The counsel for Opposite Party 3 & 4 argued that they have offered compensation of Rs.3,000/-  as per Ex.B1 CAR clause 3.5 and the same was refused by the Complainant. Further the counsel argued that if at all compensation to the maximum 3,000/- only can be ordered. The Complainant arrived the Airport very well within the time and was having confirmed ticket and instead of issuing boarding pass to this Complainant, they have issued wait listed passengers. Further nowhere the 3^rd & 4^th Opposite Parties alleged that the Complainant committed any fault and not reached the airport in time.  Further as per Ex.A1 his flight should have arrived 16.55 hours at Mumbai Airport i.e.  more than 1½  hour prior to departure of the Bhopal flight from Mumbai. Therefore the clause 3.5 in Ex.B1 is not applicable for the deficiency committed by these Opposite Parties and therefore the Complainant is entitled for compensation more than what is specified in Ex.B1 CAR, since the Complainant was made to wait in the Airport throughout the night from 6.50.p.m till his departure next day and 5.45a.m certainly caused intolerable mental agony to him. Further, the Complainant was having confirmed ticket and he was denied boarding pass to travel. Therefore it would be appropriate to order a sum of Rs.50,000/- towards compensation for mental agony and also to order a sum of Rs.5,000/-  as litigation expenses and accordingly this point is answered.         

In the result the complaint is partly allowed. The 3^rd  & 4^th opposite parties are ordered to pay a sum of  Rs.50,000/-  (Rupees fifty thousand only) towards compensation for mental agony to the complainant and also to pay a sum of Rs.5,000/-(Rupees five thousand only) towards litigation expenses. The above amounts shall be payable to the complainant within 6 weeks from the date of receipt of copy of this order failing which the amounts shall carry 9%  interest till the date of payment. The complaint in respect of the 1^st and 2^nd opposite parties is dismissed.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 17^th day of February  2016.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex. A1 dated 15.04.2012                  E-tickets

 

Ex.A2 dated 21.04.2012                   Boarding Passes

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

Ex.B1 dated 06.08.2010                   Civil Aviation Requirement (CAR) issued by

                                              Director General of Civil Aviation, New Delhi

 

 

Ex.B2 dated 15.02.2011                   Power of Attorney

Ex.B3 dated 16.04.2012                   Invoice for AIR Ticket

Ex.B4 dated 03.05.2012                   Receipt for the payment

 

                  

 

MEMBER – II                                                               PRESIDENT