IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

                                                                                                                                                                                                                                                         Date of filing :  06.06.2015

                                                                                              Date of order : 28.03.2023

          PRESENT:

                    Shri.D.B.Binu                                                         President

          Shri. V.Ramachandran                                           Member

                    Smt. Sreevidhia T.N                                                Member

                                               C.C.No.350/2015

COMPLAINANT

Jomon T.J., S/o.Johny, Thottiparambil House, Keerithod PO, Keerithodu, Idukki.

(By Adv.T.G.Rajesh, C.K.Vidyasagar & Associates, Temple Road, Thodupuzha)

Vs.

OPPOSITE PARTIES

1. Managing Director, Air India, Air India Building, Nariman Point, -400 021

2. The Regional Manager, Air India, M.G.Road, Ernakulam

3. The Station Manager, Air India Express, Gandhi Square, Kochi

(Adv.M.Gopikrishnan Nambiar, Menon and Pai, I.S.Press Road, Cochin-18)

F I N A L   O R D E R

Sreevidhia T.N., Member

1)     A brief history of the complaint is as stated below:

        The complainant had taken a ticket from the opposite party for the journey from Sharjah to Kochi which is scheduled on 26.03.2014.  The opposite party entity is an entity operating national and international air services.  The ticket was taken for the journey on the A1 934 flight which operates from Sharjah to Kochi.  The flight will depart from Sharjah at 1.30 UAE time and will arrive Kochi at 7 pm Indian time.  The complainant arrived at Sharjah international Airport on 26.03.2014 at 10.00 am.  At 10.30 am the counter at the airport of the opposite party firm was opened.  As soon as the counter opened the complainant had handed over the ticket and trolley bag in his possession to the employees of the opposite party establishment.  The opposite party firm immediately issued a boarding pass to the complainant to enter the aircraft.  Thereafter the complainant completed his immigration clearance and security check up.  After completing the immigration checkup and security check up to enter the flight, around 12.30 the complainant entered the gate No. 4 of the airport to board the flight and the complainant took one of the seats provided for the passengers.

        The flight which was supposed to take off at 1.30 pm did not take off even after 2.45 pm.  The complainant enquired about the reason for the delay on the departure of the flight to the staff of the opposite party.  They told the complainant that the flight has an engine problem and to wait for it to be fixed soon.  The passengers were constantly asking the staff of the opposite party why the flight did not take off.  Finally at 3.30 pm the crew announced that the flight is cancelled.  The complainant and the other passengers requested the opposite party to provide an alternative arrangement for the travel to Kochi that day itself.  As the complainant was on a visiting visa, the visa of the complainant was cancelled immediately after immigration clearance.  The opposite party did not do anything to the complainant travel to Kochi the same day.  

        At about 4.30 pm the staff of the opposite party intimated that the complainant and other passengers had go to Hotel Transit inside the airport.  The hotel staff demanded passport of the complainant and other passengers.  The experience of the complainant at that hotel was much horrible and it caused several hardships and mental agony to the complainant.  The opposite party authorities did not provide any alternative arrangement to the complainant for his journey to Kochi that day itself.  The complainant reached Kochi at 27.03.2014 7.30 pm.  It is stated that the complainant was scheduled to reach Kochi at 7.30 pm on 26.03.2014.   Due to the cancellation of the flight of the opposite party and travelling by another flight arranged by the opposite party the complainant arrived Kochi at 7.30 pm on 27.03.2014 and consequently he was late in reaching Kochi.  The complainant alleged that he had to face some difficulties at the Transit Hotel and subsequently at CAFEMED Restaurant by the hotel staff due to the action of the opposite party in not providing proper alternate arrangement to the complainant to travel Kochi.  The complainant alleges that the personnel of the 1^st opposite party had insulted and threatened the complainant when he enquired about his baggage.  Hence the complainant filed this consumer complaint seeking orders from the Commission directing the opposite party to refund the ticket amount Rs.8,500/-. The complainant also demanded Rs.3,00,000/- as compensation for the deficiency in service of the opposite parties, Rs.1,50,000/- towards mental agony, pain and harassment along with cost of litigation.

2)     Notice

        Notices were issued to the opposite parties from this Commission on 03.07.2015 and the opposite parties 1 and 2 appeared before the Commission.  Opposite party 1 filed version in response to the notice received by them.  The 2^nd opposite party has no separate version.

3. Version of the opposite parties.

The opposite parties stated in their version that the above complaint is not maintainable either in law or on facts.No part of the cause of action for filing the above complaint has arisen within the jurisdiction of this Commission. It is submitted that the 1^st opposite party is not aware of the purpose of travel of the complainant or the profile of the complainant.Flight AI934/26MAR14 was scheduled to depart from Sharjah at 13.30 hours.The incoming aircraft AI 933 from Kochi to Sharjah was late and estimated to arrive at 13:15 hours and accordingly the departure from Sharjah was fixed at 14:00 hours for AI 934.The delay of the flight was locally announced through P.A system in Gate 4.It was brought to the notice of the passengers that the flight had been re-scheduled to 14.15 hours due to the late arrival of the flight.It is submitted that the flight had only arrived at Sharjah at 13:28 hours.On arrival of the aircraft, the commander had noted technical snags with respect to the performance of the aircraft.The engineering personnel were requested by the 1^st opposite party to inspect the flight.After inspection, the departure clearance was not given by the personnel of the engineering department attending to the issue of the aircraft.At 14:30 hours, the flight was declared as cancelled and immediately the passengers who were scheduled to travel on the flight were informed of the same.The 1^st opposite party after cancellation of the flight, were exploring options for offering alternate travel arrangements to the complainant and the other passengers.Alternative arrangements for all the passengers were made through other flights departing from Sharjah and Dubai as per the availability of seats.The complainant was on visiting visa and the same got cancelled after immigration. Since the visa of the complainant got cancelled, after immigration, he could not leave the airport. Due to the fact that the visiting visa of the complainant got cancelled he was provided accommodation at Transit Hotel which is located in the Departure Area by 16:00 hours.The further averment that the requests for alternative arrangements made by the complainant were overlooked by the 1^st opposite party is not correct and hence denied.Since the Transit Hotel does not have a kitchen, the food for the disrupted passengers of the 1^st opposite party is served at CAFEMED Restaurant which is located at the food court. The personnel of the opposite party merely brought to the notice of the complainant that his bag was under the custody of the customs and that the opposite party was not in a position to return the same.

On 20.08.2016 complainant filed I.A 575/2016 to impleade Station Manager, Air India Express Gandhi Square, DH Road, Kochi as 3^rd opposite party.I.A allowed.Notice sent to the additional 3^rd opposite party.On 30.12.20163^rd opposite party appeared and filed their version.

4. Version of the 3^rd opposite party.

It is same as the version of the 1^st opposite party.

5. Evidence

Evidence in this case consists of the documentary evidence filed by the complainant which are marked as Exbt.A1 and A2.Complainant is cross examined by the counsel of the 1^st and 2^nd opposite parties and his depositions are recorded as PW1.

Opposite party No.3 filed two documents which are marked as Exbt.B1 and B2.No oral evidence from the side of the opposite parties.

Evidence closed and Heard both parties on 03.02.2023.

  The issues came up for consideration in this case are as follows:

1)     Whether the complaint is maintainable before this Commission having territorial jurisdiction?

2)     Whether any deficiency in service or negligence or unfair trade practice is proved from the side of the opposite party towards the complainant?

3)     If so, reliefs and costs?

For the sake of convenience we have considered issue Nos. (1), (2) and (3) jointly.

As per Consumer Protection act, 1986, Section 11 (2) [A complaint shall be instituted in a District Forum/ Commission within the local limits of whose jurisdiction,-

1. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

2. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum/ Commission is given or the opposite parties who do not reside, or carry on business [or have a branch office] or personally works for gain, as the case may be, acquiesce in such institution; or

3. the cause of action, wholly or in part, arises]”

Here the complainant had purchased the ticket from the opposite party for his journey from Sharjah to Kochi. Hence, a part of cause of action occurs within the jurisdiction of this Forum/Commission.Moreover, the opposite party has a branch office within the territorial jurisdiction of this Commission. Hence issue No. (1) is proved in favour of the complainant.

The case of the complainant is that he had taken a flight ticket for his journey from Sharjah to Cochin which is scheduled on 26.03.2014.The complainant had reported at the Sharjah airport on the same day at 10.30 am.The flight scheduled to ply on 26.03.2014 from Sharjah at 1.30 pm and will arrive at Kochi at 7.00 pm The opposite parties issued boarding pass and check in was also completed.But the flight did not take off even after 2.45 pm.

The complainant and other passengers were enquired the reason for the delay to take off the flight.At 3.30 pm the opposite party announced that the flight was cancelled.The opposite party did not reveal the reason for cancellation of the flight.The complainant and other passengers wanted to make alternate arrangement for his journey on 26.03.2014 itself.On the next day ie., on 27.03.2014 opposite parties arranged another flight and the complainant landed at Kochi at 7.30 pm.

In the written version filed by the opposite parties, it is contented that “there was some technical snags with respect to the performance of the aircraft and at 14.30 the flight was declared as cancelled and immediately the passengers who are scheduled to travel on the flight were informed the same.The 1^st opposite party after cancellation of the flight were exploring options for offering alternate travel arrangements to the complainant and other passengers.Alternative arrangements were made to the passengers through other flights departing from Sharjah and Dubai as per the availability of flights”

The opposite party filed two documents.Exbt.B1 produced by the opposite parties are the facilities to be provided to passengers by airlines due to denied boardings, cancellation of flights and delays in flight published by the office of the Director General of Civil Aviation dated 06.08.2010.Exbt.B2 is the passenger charter published by the Ministry of Civil Aviation dated February 2019.

The opposite party argued that as per para 1.4, 1.5 and 3.3.4 of Exbt.B1 the opposite parties would not be liable to pay any compensation to passengers in case of cancellation of flight due to extra ordinary circumstances.But here the opposite parties have not produced any evidence to prove that there was technical snag, which was beyond the control of the opposite parties.

In the version by the opposite parties it is stated that they had made alternate arrangements for all the passengers as per the availability of the flight.With respect to the cancellation of flight opposite parties argued that the cancellation of the flight was not under the control of the opposite party since there was technical snag and subsequently all the passengers were intimated the same and hence there is no deficiency in service from their part.

But the opposite party has not produced any cogent evidence to prove that there was technical snag.The opposite party has not produced any document to prove that the matter has intimated to the passengers as soon as the technical snag is reported by the engineering personnels of the opposite party.

The complainant’s another allegation is that after the cancellation of the proposed flight the treatment at Transit Hotel and subsequently at CAFEMED Restaurant was substandard.The complainant also alleges that the opposite parties staff failed to provide the complainant’s baggage.

From the available documents and evidence in this case it is observed that the cancellation of the flight was only due to some technical issues.  But here the opposite parties have not produced any evidence to prove that there was technical snag and that was not under the control of opposite parties.  Unexpectedly, the proposed flight from Sharjah to Kochi scheduled to ply at 1.30 p.m on 26.03.2014 was cancelled by the opposite party and the matter was informed to the passengers only at 14.30 hrs.  Obliviously the complainant had to suffer some inconvenience, mental agony, pain and other hardships due to the cancellation of the flight.  The opposite parties have not provided proper alternate arrangements to the complainant. The complainant could not reach Kochi at the same day.  The flight was scheduled to arrive Kochi at 7.30 pm on 26.03.2014.  Due to the cancellation of the flight he could arrive Kochi at the next day ie., on 27.03.2014 at 7.30 pm.

          Exbt.B1 produced by the opposite parties pertains to facilities to be provided to passengers, by airlines due  to  the cancellation of flight and delays in flights.  Here the opposite parties have not produced any evidence to prove that the flight was cancelled due to some extra ordinary circumstances which was not under the control of the opposite parties.  Hence opposite parties are liable to compensate the complainant for inconvenience, mental agony, pain and other hardships suffered by the complainant due to the deficient action of the opposite parties.

The Consumer Protection Act was envisaged as a special social legislation to protect consumer rights other legislation that create dispute resolution between consumers and large corporations.  The following observations of the Hon’ble Supreme Court in Luknow Development Authority V.M.K Gupta –MANU/Sec/1078 (1994) 1 SCC 243 clearly and finally delineate the objective behind the enactment of the Consumer Protection Act.

The consumer For a is entitled to award not only the value of the goods or services but also to compensate a consumer for the injustice suffered by him due to deficiency in service in sale of goods or rendering of service as the case may be.

The complainant reached at Kochi on the next day on a flight arranged by the opposite party.  Since he has travelled in the flight arranged by the opposite parties, he is not entitled for the refund of the flight ticket amount Rs.8500/-.

In the result, the complaint is partly allowed and the following orders are passed.

1. The opposite parties shall pay an amount of Rs.25,000/- as compensation towards the hardships and inconvenience caused to the complainant by cancelling the proposed flight by the opposite parties.
2. The opposite parties shall pay an amount of Rs.6000/- as cost of the proceedings to the complainant
3. The liability of the opposite parties shall be jointly and severally.

Pronounced in the Open Commission this 28^th day of March  2023.

                                                                                         Sd/-

                                                                            Sreevidhia T.N., Member

                                                                                                                                                                                                                                                                                                                                                                                                                                                     Sd/-

                                                                            D.B.Binu, President

                                                                                      Sd/-

                                                                            V.Ramachandran, Member

                                                                                     Forwarded by Order

                                                                                     Assistant Registrar

APPENDIX

Complainants Exhibits

Opposite party’s Exhibits      :      

Depositions :

          PW1  ::  Jomon T.S

                                                                          C.C.No.350/2015

                                                                                         Order dated 28.03.2023