(1) Appeal case No.273/2010 Khanna Enterprises, Travel Services, SCO 94-95, First Floor, Sector-17-C, Chandigarh. …Appellant Versus - Manjit Kaur W/o Joginder Singh Toor, resident of H.No.530, Sector-33-B, Chandigarh.
- Aero Svit Air Lines, R-301, N-1, B.M.C , House Middle Circle, Cannaught Place, New Delhi.
--Respondents Appeal U/s 15 of Consumer Protection Act,1986 against order dated 8.7.2010 passed by Consumer Disputes Redressal Forum-II, U.T. Chandigarh. Argued by : Sh.G.S.Ahluwalia, advocate for appellant Sh.Gurdial Singh, advocate for respondent No.1 Sh.Abhineet Taneja,advocate for respondents NO.2 (2) Appeal case No.274/2010 Khanna Enterprises, Travel Services, SCO 94-95, First Floor, Sector-17-C, Chandigarh. …Appellant Versus - Joginder Singh Toor, resident of H.No.530, Sector-33-B, Chandigarh.
- Aero Svit Air Lines, R-301, N-1, B.M.C , House Middle Circle, Cannaught Place, New Delhi.
. . ..Respondents Appeal U/s 15 of Consumer Protection Act,1986 against order dated 8.7.2010 passed by Consumer Disputes Redressal Forum-II, U.T. Chandigarh. Argued by : Sh.G.S.Ahluwalia, advocate for appellant Sh.Gurdial Singh, advocate alongwith respondent No.1 Sh.Abhineet Taneja, advocate for respondents NO.2 (3) Appeal case No.281/2010 Aerosvit Airlines, R-301, N-1, B.M.C , House Middle Circle, Cannaught Place, New Delhi. ……Appellant Versus 1. Manjit Kaur W/o Joginder Singh Toor, resident of H.No.530, Sector-33-B, Chandigarh. 2. Khanna Enterprises, Travel Services, SCO 94-95, First floor, Sector-17-C, Chandigarh. ….. Respondents. Appeal U/s 15 of Consumer Protection Act,1986 against order dated 8.7.2010 passed by Consumer Disputes Redressal Forum-II, U.T. Chandigarh. Argued by: Sh. Abhineet Taneja, advocate for appellant Sh.Gurdial Singh,advocate for respondents NO.1 Sh. G.S.Ahluwalia,advocate for respondent No.2 (4) Appeal case No.282/2010 Aerosvit Airlines, R-301, N-1, B.M.C , House Middle Circle, Cannaught Place, New Delhi. ……Appellant Versus - Joginder Singh Toor, resident of H.No.530, Sector-33-B, Chandigarh.
- Khanna Enterprises, Travel Services, SCO 94-95, First floor, Sector-17-C, Chandigarh.
….. Respondents. Appeal U/s 15 of Consumer Protection Act,1986 against order dated 8.7.2010 passed by Consumer Disputes Redressal Forum-II, U.T. Chandigarh. Argued by: Sh. Abhineet Taneja, advocate for appellant Sh.Gurdial Singh,advocate alongwith respondents NO.1 Sh. G.S.Ahluwalia,advocate for respondent No.2 (5 ) Appeal case No.341/2010 Manjit Kaur wife of Joginder Singh Toor, resident of H.No.530, Sector-33-B, Chandigarh. ……Appellant Versus 1. Khanna Enterprises, Travel Services, SCO 94-95, First Floor, Sector 17-C, Chandigarh. 2. Aerosvit Airlines, R-301, N-1, B.M.C , House Middle Circle, Cannaught Place, New Delhi. ….. Respondents. Appeal U/s 15 of Consumer Protection Act,1986 against order dated 8.7.2010 passed by Consumer Disputes Redressal Forum-II, U.T. Chandigarh. Argued by: Sh. Joginder Singh Toor, advocate, husband of appellant alongwith Sh.Gurdial Singh, advocate for appellant Sh.G.S.Ahluwalia,advocate alongwith respondents NO.1 Sh.Abhineet Taneja,advocate for respondent No.2 (6 ) Appeal case No.342/2010 Joginder Singh Toor, resident of H.No.530, Sector-33-B, Chandigarh. ……Appellant Versus - Khanna Enterprises, Travel Services, SCO 94-95, First Floor, Sector 17-C, Chandigarh.
- Aerosvit Airlines, R-301, N-1, B.M.C , House Middle Circle,
Cannaught Place, New Delhi. ….. Respondents. Appeal U/s 15 of Consumer Protection Act,1986 against order dated 8.7.2010 passed by Consumer Disputes Redressal Forum-II, U.T. Chandigarh. Argued by: Sh. Joginder Singh Toor, advocate, appellant alongwith Sh.Gurdial Singh, advocate for appellant Sh.G.S.Ahluwalia,advocate alongwith respondents NO.1 Sh.Abhineet Taneja,advocate for respondent No.2 BEFORE : Hon’ble Mr.Justice Pritam Pal, President Mrs.Neena Sandhu, Member Mr. Jagroop Singh Mahal, Member JUDGMENT 1.12.2010 Justice Pritam Pal, President 1. The aforementioned six appeals arise out of one and the same order dated 8.7.2010 passed by District Consumer Forum- II, U.T. Chandigarh whereby two complaints bearing No.537 of 2009 & 538 of 2009 filed by Manjit Kaur and Joginder Singh Toor who are husband-wife, were allowed with costs of Rs.5000/- each and Khanna Enterprises and Aerosvit airlines jointly and severally were directed to pay to the complainants Rs.10,000/- as compensation in each complaint. The order was directed to be complied within 45 days from the date of receipt of copy of the order, failing which Opposite parties were held liable to pay penal interest @ 18% p.a. from the date of complaint i.e. 20.4.2009 till its realization. 2. In fact Appeal Nos.273/2010 & 274/2010 have been filed by Khanna Enterprises (OP No.1) and Appeal Nos.281/2010 & 282/2010 have been filed by the Aerosvit Airlines- (OP No.2) for setting aside the impugned order whereas Appeal Nos.341/2010 & 342/2010 have been filed by complainants for enhancement of compensation. Since, in all these appeals common questions of law and facts are involved, so, we are deciding these appeals by this common judgment. 3. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 4. In nutshell, the facts culminating to the commencement of these six appeals may be recapitulated thus ; The complainants who are husband-wife had purchased two air tickets bearing No.8703171386920 and 8703171386921 from Khanna Enterprises- OP NO.1 for travel from Delhi to to Toronto on AeroSvit Airline (VV) 152 for 14.12.2008. The flight was to commence at 5.55 a.m. on 14.12.2008 from Indira Gandhi International Airport, Delhi and was to arrive at Toronto at 17.00. The status of both tickets was confirmed. On 14.12.2008 when complainants visited the Airport to board the flight, they were informed by the staff of OP-2 that the flight was cancelled many days ago and information to this effect was sent to OP-1. It was alleged that due to cancellation of the flight, complainants had to suffer harassment as they had made arrangements for their departure on 14th and they had certain engagements at their destination. The rescheduling of the journey was done on 16.12.2008 which did not suit them. The complainants had no option but to stay at Delhi for two days and suffered inconvenience, loss of money, mental pain and agony and ultimately had to board flight No.VV-152 on 16.12.2008. Thereafter, the complainants served a legal notice upon OPs which was replied by both OPs. OP NO.2 admitted in its reply to the legal notice that the flight dated 14.12.2008 was cancelled and journey had been rescheduled for 16.12.2008, intimation of which was sent to OP NO.1. However, OP NO.1 mentioned in its reply that no information was provided by OP NO.2 regarding cancellation of flight and change of schedule. Alleging deficiency in service on the part of OPs, both complainants filed their separate complaints before the District Forum seeking compensation of Rs. one lac each. 5. On the other hand, the case of OP No.1 before the District Forum was that it had sold the confirmed air tickets to the complainants for 14.12.2008 which had been cancelled by OP-2 on its own and it had nothing to do with the same. It was pleaded that cancellation of flight was unilaterally decided by OP-2 airline and there was no communication to OP NO.1. The rescheduling was done by OP No.2 for 16.12.2008 which the complainants had utilized. It was pleaded that it was a mere ticket agent and sold confirmed tickets to the complainants, so there was no deficiency on its part. A prayer was made for dismissal of the complaint. 6. OP-2 in its reply before the District Forum stated that the tickets of flight in question were purchased by the complainants through its travel agent Khanna Enterprises, the authorized IATA agent for the flight scheduled on 14.12.2008 from Delhi to Toronto. There was a schedule change of Aerosvit Airlines VV 152 and the tickets of the complainants were re-scheduled for 16.12.2008 on the same flight and the change of schedule was communicated by electronic means to the complainants through its agent OP-1 on 06.11.2008 and therefore, it was the duty of OP-1 to inform the complainant regarding the change of schedule. It was pleaded that as per resolutions of Warsaw Convention, Condition of Carriage 1937 and Aerosvit Airlines Rules as well as the resolution of IATA, OP-2 reserves its right to make schedule changes without notice and for change of schedule, the consent of the complainant was not required. It was pleaded that as the schedule change was intimated to the ticket agent almost one and a half month in advance of the schedule date and OP No.1 was well aware about the schedule change of the said fight ,so it was under obligation to inform the complainant. Non-performance of obligation by OP No.1 does not amount to deficiency in service on the part of OP No.2. A prayer was made for dismissal of the complaint. 7. The District Consumer Forum after going through the evidence and hearing the counsel for parties, allowed both the complaints vide common order dated 8.7.2010 as indicated in the opening part of this judgment. Aggrieved against the said order, Opposite parties as well as complainants have come up in their respective appeals. 8. We have heard learned counsel for the parties and gone through the file carefully. In the appeal filed by Khanna Enterprises , its learned counsel contended that the information about the cancellation of flight scheduled for 14.12.2008 could not be intimated by the Airlines as well as Khanna Enterprises to the complainants as they had not left their correct contact address with the OP NO.1. In the appeals filed by Aerosvit airlines, it was contended that no liability whatsoever could be fastened upon it for paying compensation to the complainants, more particularly, when it categorically did whatsoever was required to be done. There was no mailing address or contact number of complainants was given to OP No.2 either by complainants or by OP No.1. It was submitted that OP No.1 was informed well in advance about the re-scheduling of the flight of complainant from 14.12.2008 to 16.12.2008, so it was the sole responsibility and liability of OP no.1 to further inform the complainants about the change of schedule. Further, Khanna Enterprises was not an agent of Airline but an agent approved/authorized by International Air Transport Association (IATA) and OP No.2 Airlines had authorized it to issue tickets through Billing and Settlement Plan (BSP)India system as an Airline could sell tickets only through IATA approved agent as such OP Airlines had no option but to accept ticket sales through IATA approved agent and there was no agency agreement and agent-principal relationship with Khanna Enterprises, as such Airline could not be held vicariously liable for the negligence of ticket agent when there was no finding of deficiency or negligence on its part. It was further contended that the learned District Forum awarded exorbitant compensation to the complainant and litigation costs which were not even prayed for in their complaints. The award of interest @ 18% from the date of filing the complaint was also stated to be exorbitant. In the appeals filed by complainants, it was stated that the compensation awarded by the learned District Forum is inadequate and it requires to be enhanced as complainant Joginder Singh Toor is a practicing lawyer in the Punjab & Haryana High court and he had to forego his professional work, loose contacts with the clients and put the persons waiting for him on the destination in distress and harassment. 9. We have given our thoughtful consideration to the above submissions put forth on behalf of the parties. Before we proceed further, it would be pertinent to mention here that the factual matrix of this case pertaining to the cancellation of the flight on 14.12.2008 and its rescheduling on 16.12.2008 are admitted. Not only that, it is also established that complainants were not intimated about the cancellation and rescheduling of the flight by either of the OPs. It was obligatory on the part of OPs to give information regarding cancellation and rescheduling of the flight to every person who had bought tickets for the said flight. Failure to do so on the part of OPs certainly amounts deficiency in service on their part. It is true that Airline reserves its right to cancel or reschedule the flight without assigning any reason but it is its bounden duty to inform each passenger about this well in advance so as to enable him to make alternative arrangement to fly. It is so held by Hon’ble National Commission in Indian Airlines Vs Femina Zai III(2007)CPJ 284. It was further observed that all Airlines secure the contact telephone number while issuing tickets with the object of informing the passenger about the change in flight and non-securing of telephone number and then non-supply of information amounts to deficiency in service. Once the airlines or for that purpose any agency dealing in the business of travel engages the services of its agent for sale of tickets, any lapse, shortcoming or imperfection on the part of agent in not informing the consumer renders the principal vicariously liable as the control over the agent is that of the principal and the principal cannot escape from its liability merely by taking the plea that it had already informed its agent. The contractual duty of the principal is to ensure particularly in such type of matters that their agents duly inform the consumers about the change in schedule of the flight on their behalf. Thus, the District Forum rightly held liable both OPs jointly and severally to pay the compensation. There was nothing wrong in awarding the costs as it was the prerogative of the District Forum to see as to whether the cost was awardable or not. It can be awarded even if not prayed for by the complainant. The interest awarded @ 18% p.a. was penal interest in case of default of payment within the stipulated period by the OPs, so the same is not required to be interfered. 10. As regards enhancement of compensation, complainants reached the Airport on 14.12.2008 to board the flight after making arrangement for the same but they had to incur extra expenditure for boarding and lodging upto 16.12.2008 as the flight was rescheduled for that date instead of 14.12.2008. The complainant Joginder Singh Toor who is a practicing advocate in the Punjab & Haryana High court had to suffer pecuniary loss as he had to stay at Delhi two days extra for which he lost his clientele. Keeping in view the totality of facts and circumstances of the case, the compensation in the case of Joginder Singh Toor is enhanced from Rs.10,000/- to Rs.20,000/- whereas compensation in the case of Manjit Kaur is enhanced from Rs.10,000/- to 15,000/-. There would be no change in the costs awarded by the learned District Forum. 11. In the result, Appeal Nos.273/2010 & 274/2010 filed by Khanna Enterprises and Appeal Nos.281/2010 & 282/2010 filed by Aerosvit Air lines are dismissed and that of complainants bearing Nos.341/2010 & 342/2010 are partly allowed as indicated above. The parties shall bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
