BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P.V.JAYARAJAN                      : PRESIDENT

SMT. PREETHA G. NAIR               : MEMBER

SRI. VIJU V.R                                   : MEMBER

C.C. No. 245/2017 Filed on 27.06.2017

ORDER DATED: 30.11.2020

Complainant:

Dr.A.Sampath,

Member of Parliament, Frace Cottage,

Anirudhan Road, Thycadu.P.O.,

Thiruvananthapuram.

        (By Adv. Ravikrishnan.N.R & V.S.Sunilkumar)

Opposite party:

The Managing Director,

Spice Jet Airlines, MIA terminal,

Mangaluru, Kenjar, Karnataka – 574 142.

The order delivered on 30/11/2020

ORDER

SRI. P.V.JAYARAJAN

This complaint coming on 23/09/2020 for final hearing before the Commission in the presence of Sri.Ravi Krishnan.N.R Advocate for complainant and Sri.Baby Abraham Advocate for opposite party and having stood over to this day for consideration.  After hearing, the District Commission passed the followings.

1. The complainant presented this complaint under Section 12 of Consumer Protection Act 1986.  The averment in the complaint is to the effect that the complainant who is a Member of Parliament, purchased an Air ticket for himself and  for his daughter for traveling on 26/06/2015 in the opposite party’s Airline by fight No.SG 1032 which was scheduled to depart from Mangalore air port at 17.15 hrs. and reach Bangalore at 18.15 hrs. on the same day.  The complainant’s scheduled program was to reach back to Thiruvananthapuram from Bangalore by Indigo airline flight No. 6E 561 which was scheduled to depart from Bangalore at 20.05 hrs. and reach Thiruvananthapuram at 21.20 hrs., for which the complainant has purchased the ticket form Indigo Airline.  The complainant had to reach Thiruvananthapuram for attending political discussion scheduled to be shot and telecasted live on various television networks on the early morning of 27/06/2015 in connection with the bye election results of the Aruvikkara Assembly constituency which is a part of Attingal Parlimentary Constituency represented by the complainant, as the presence of the complainant was inevitable for the discussion which schedule to be telecasted on 27/06/2015.   At the time of the reserving the ticket from the office concerned of the opposite party, the complainant specifically intimated his intended schedule of travel and the concerned staff assured that there will be no delay for the flight and the same will reach Bangalore in time so that the complainant could board the Indigo flight from Bangalore in order to reach Thiruvananthapuram.  The complainant further contended that he along with his daughter reached the Mangalore airport on 26/06/2015 at 16.30hrs,   and boarding pass were also issued to them and the opposite party’s staff assured that the flight will depart on time and will reach Bangalore without delay.  The complainant further alleged that till 17.30 hrs. there was no announcement for boarding the flight and when the complainant enquired with staff, they assured that the flight will be announced shortly and the same will reach Bangalore before 19.45hrs.   The opposite party’s staff also assured that necessary arrangements will be made by the staff of the opposite party at Bangalore air port to assist prompt boarding of the complainant in the scheduled Indigo Flight.  The complainant further alleged that after long 3 hrs. of waiting, the complainant demanded to meet the customer relationship Manager of the opposite party’s Airline at Mangalore airport for lodging a complaint.  The complainant further alleges that, at that time, to the surprise of the complainant, it was informed that the flight in which the complainant has to board from Mangalore is yet to take off from Bangalore and the complainant is to wait till its arrival at Mangalore and the same flight will fly back to Bangalore.  Then the complainant realizes that if he could not reach Bangalore in time, he will miss the Indigo connection flight and cannot reach Thiruvananthapuram in time.  Though the complainant made enquiries for an alternative mode of conveyance to reach Thiruvananthapuram, it was learnt that all the 3 trains scheduled to Thiruvananthapuram were already left from Mangalore before 18.30 hrs. and the complainant has no other go than to wait for the arrival of the flight of the opposite party.  The complainant further stated that the flight of the opposite party arrived Mangalore Airport at 20.00 hrs, and it reached Bangalore air port by 22.00 hrs.  As the opposite party’s flight delayed by about 4 hrs. from the scheduled time the connected flight by which the complainant has to reach Thiruvananthapuram has left Bangalore airport hours ago.  The complainant further alleged that the opposite party has not made any alternative arrangements to reach Thiruvananthapuram so as to attend the scheduled program at Thiruvananthapuram.  The complainant further alleged that the staff of the opposite party at Bangalore there not arranged accommodation in the night as the complainant felt that it was not safe to travel with his daughter at that night.  Hence the complainant was forced to arrange a taxi to hostel of complainant’s daughter which is situated 42kms away from the airport.  As they reach the hostel by 23.30hrs., the complainant had to check in at a nearby hotel so as to go back to airport to board the flight to Thiruvananthapuram scheduled at 6.00hrs. on the next day.  The complainant contended that he had to spend lot of money for making alternative arrangements for his accommodation at Bangalore, travel by road and to fly back to Thiruvananthapuram.  He also contended that he lost his goodwill and popularity among the public, which cannot be quantified in terms of money.  The complainant further submitted that the opposite party is legally bound to compensate the complainant for their short comings which cost mental agony and hard ships to the complainant.  Hence for seeking the legal remedy, the complainant approached this Commission with this complaint for appropriate relief.
2. The opposite party filed version contending that the complaint is not maintainable before this Commission in view of the provisions of the Carriage by Air Act.1972.  The opposite party denied all the averment in the complaint and contended that they are not responsible to pay compensation to the complainant.  The opposite party further contended that flight has been postponed due to the operational and technical reasons (on account of technical Snag) in the aircraft and the same was regularly intimated to the complainant.  The opposite party contended that on account of technical snag in the air craft of the opposite party, which has to come from Bangalore and to reach back to Bangalore from Mangalore, there was delay in operation of the said flight.  Due to that reason some delay caused in take off of the flight and the same took off at 19.05hrs. and hence there was a delay of only 1hrs. and 50 mins., and further contended that no compensation is payable to the passengers,  as the delay is less than 2hrs. and that too on account of technical Snag, bad weather and other reasons and circumstances beyond the power and control of the operating airline, for which the opposite party could not be made liable.  The opposite party further contented that in the instant case the flight has been postponed due to the technical reasons and the same was intimated to the complainant and hence there is no deficiency of service, what so ever, in the service provided by the opposite party to the complainant.  Opposite party also contended that the complaint is barred by limitation.  Opposite party further contented that this commission has got no territorial jurisdiction to entertain this complaint.
3. The issues that arise for consideration are:

1. Whether the complaint is barred by limitation.
2. Whether this Commission has got territorial jurisdiction to adjudicate this complaint.
3. Whether there is deficiency in service on the part of opposite party. 
4. Whether the complainant is entitle to get the relief claimed in the complaint. 
5. Order as to cost.   

4. The evidence in this case consists of PW1 Ext.P1 to P8 on behalf of the complainant and DW1 Ext.D1 to D3 on behalf of the opposite party.
5.  Issue No.1: Whether the complaint is barred by limitation:

One of the preliminary objections raised by the opposite party is that the complaint is barred by limitation.According to the opposite party the cause of action as per the complaint took place on 26/06/2015.The complaint was filed only on 27/06/2017 and hence for reasons of this complaint is to be dismissed. 24(A).(1) of Limitation Period of Consumer Protection Act.1986 is as follows:                                                      

 “The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National commission, the state Commission or the District Forum, as the case may be, records its reasons for condoning such delay”.

6. On verification on the complaint the date of cause of action is not seen mentioned.  The allegation of the complainant is that as he missed the connection flight from Banagalore to Thiruvananthapuram due to the delay of the fight operated by the opposite party, he could not attend many functions including television discussion scheduled to be held on 27/06/2017.  The complaint allegation is that due to the delayed arrival at Thiruvananthapuram on 27/06/2017 he could not attend those functions by which he lost his goodwill and popularity among the people. From these averments in the complaint the alleged cause of action is on 27/06/2015.  Now the point to be considered is, for the cause of action dated 27/06/2015 if a complaint is filed on 27/06/2017, whether it is barred by limitation or not.  Section.12 of Limitation Act deals with exclusion of time in legal proceedings.  Section 12 of Limitation Act 1963 provides that:

1. “In Computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.”

7. In the case on hand, the date from which such period is to be reckoned is 27/06/2015 hence as per the provision of section 12(1) of Limitation Act, that day i.e., 27/06/2015 is to be excluded.  So the computation starts from 28/06/2015 and filing of the complaint on 27/06/2017 will be well within the limitation period.  Hence we find this complaint is not barred by limitation and the same is maintainable before this Commission.  Thus issue No.1 is found in favour of the complainant.

Issue No.2: Whether this Commission has got territorial jurisdiction to adjudicate this complaint:

8. Another preliminary objection raised by the opposite party is with regard to the lack of territorial jurisdiction of this Commission to consider this complaint.  The opposite party would say that this Commission is not having jurisdiction to adjudicate on this complaint because the flight was for the travel between Mangalore and Bangalore, and hence, as per 11(2) of Consumer Protection Act, this complaint is not maintainable.  Section 11(2) of Consumer Protection Act reads  as follows:

“a complainant shall be instituted in a District Forum within the local limits of whose jurisdiction,- (a) 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.

(b) 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 is given, or the opposite parties who do not reside, or (carry on business or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or

(c) The cause of action, wholly or in part, arises”.

9. According to the opposite party, no cause of action arise within the jurisdiction of this Commission and to substantiate that aspect the judgment of the National Commission in revision petition No. 2193 – 2194 of 2012 was also cited.  The opposite party further contended that a booking of ticket on internet does not give the cause of action or a part of action to that city.  To substantiate that contention, a decision of Andrapradesh State Commission Rajendra Kumar Vs. Polskeiline Lotnicze, Polish Airlines, Reported as III (1998) CPJ 407 (AP) was also produced.  While going through the records available with this Commission, it is found that one Aneesh.S.S is examined before this Commission on behalf of the opposite party.  The affidavit filed in lieu of chief examination sworn by the said Aneesh as DW1 shows that he is the Security Supervisor of Spice jet Ltd., Terminal One, Thiruvananthapuram International Airport, Vallakkadavu Post, Thiruvananthapuram.  Form this,  it is evident that the opposite party air line is having a branch office at Thiruvananthapuram air port for their business purpose and hence we find that as per section 11(a) of the Consumer Protection Act 1986 this Commission has got territorial jurisdiction to adjudicate this complaint.  The dictum laid down in 2 judgments submitted by the opposite party to substantiate their contention is not applicable to the facts of this complaint.  Hence we have got no hesitation to find that this Commission has got territorial jurisdiction to adjudicate this complaint.  Thus issue No.2 also found in favour of the complainant.   

Issue No 3: Whether there is deficiency in service on the part of opposite party: 

10. In para 5 of the complaint the complainant contended that the complainant and his daughter reached Mangalore Airport on 26/06/2015 at 16.30hrs. and boarding pass was also issued by the staff of the opposite party, but till 17.30hrs,  the announcement for boarding was not received from the staff of the respondent.  Complainant further contended that he enquired with the staff concerned and they assured that the flight will be announced shortly and same will reach Bangalore before 19.45hrs.  It is further claimed that the staff of the opposite party has assured that necessary arrangements would be made by the staff of the opposite party at Bangalore airport to assist prompt boarding of the complainant in the scheduled Indigo flight to Thiruvananthapuram.  To substantiate his case the complainant himself was examined as PW1 and give evidence in tune with the allegations mentioned in the complaint.  The complainant also produced Ext.P1 to P8.  Ext.P1 is the Air ticket issued for Indigo Flight No.6E-561 dated 26/06/2015 from Bangalore to Thiruvananthapuram.  Ext.P2 is the boarding pass for Indigo Flight No.6E-561 dated 26/06/2015.  Ext.P3 is the original boarding pass for Spice jet (opposite party’s flight) Flight No.SG 1032 dated 26/06/2015 from Mangalore to Bangalore.  Ext.P4 is the original boarding pass for Indigo flight No.6E 379 dated 27/06/2015 from Bangalore to Thiruvananthapuram.  Ext.P5 and P6 are the receipt issued by the taxi services.  Ext.P7 is the original bill and receipt of Savory Hotel Bangalore and P8 is the air ticket issued by the opposite party for spice jet flight No.SG 1032 dated 26/06/2015 from Mangalore to Bangalore.  In para 5 of the written version of the opposite party it is stated that the flight has been postponed due to the operational and technical reason (on account of technical snag in air craft of the opposite party) and the same was regularly intimated to the complainant.  The opposite party further contended that there was a delay of 1hr. and 50mins. only and as per Rule 1.4 and 1.5 of Ext.D3 i.e., Civil Aviation Requirement (CAR), no compensation is payable to the passengers where the delay is less than 2 hrs and that too on account of technical delay.  On the other hand the complainant’s case is that the opposite party’s air craft arrived at Mangalore airport only at 20hrs. and it reached Bangalore at 22hrs. and according to the complainant delay of more than 3hrs.  Now the point to be decided is what is the actual delay.  Whether it is more than 3hrs. as alleged by the complainant or 1.50hrs. as contended by the opposite party.  Likewise another point to be considered is, whether the delay of the flight was properly announced or not.  The complainant deposed before this Commission that the opposite party’s flight reached Mangalore airport at 20hrs. and the complainant and other passengers reached Bangalore at 22 hrs.  and the complainant also deposed before this Commission that his connection flight from Bangalore  to Thiruvananthapuram was missed.  After arriving at Bangalore airport he managed to get a ticket in Indigo flight on the next day morning.  And after that he has traveled about 42 kms. by road in taxi to reach the hostel of his daughter and by the time it was 23.30 hrs. and hence he had to check in at a  nearby hotel.  Ext.P3,P5,P6 and P7 were produced and marked by the complainant in evidence to substantiate his contention.  Ext.P3 shows that the schedule departure time of opposite party’s flight from Mangalore is 17.15 hrs. and the arrival time at Bangalore is 18.15 hrs.  Ext.P4 is the boarding pass which show that the departure time of flight No. 6E-379 on 27/06/2015 at 8.20 hrs. and arrival at Thiruvananthapuram is 9.05 hrs.  Ext. P5 receipt issued by the taxi services namely Mega Cabs shows that the trip started at 22:34:43 hrs. and the trip end time at 23:23:54 hrs. on 26/06/2015.  The Ext.P7 hotel bill shows that the check in time is 23.27 hrs. so from Ext.P5 and P7 it is clear that the complainant has left Bangalore airport only after 10.30pm.  On the other hand, the opposite party through DW1 would say that the delay was only 1.50hrs.  Now to ascertain the actual departure time of the opposite party’s flight on 26/06/2015 no document is available before this Commission.  The best evidence to show the actual departure time of the opposite party’s flight on 26/06/2015 are the Flight Dispatch Log Book maintained by the opposite party’s air lines and the details of departure shown in the airport display.  The airport authority displays schedule of the flight as per the information supplied to them from the flight Dispatch Log Book maintained by the respective air lines.  So to ascertain whether the delay was 1.50 hrs. as contended by the opposite party or more than 3 hrs. as alleged by the complainant, proof would have been available if the opposite party produced the above referred flight Dispatch Log Book.  It is admitted fact that the flight was delayed and the connection flight of the complainant has took off from the Bangalore airport to Thiruvananthapuram before the arrival of the opposite party’s flight at Bangalore.  So non-production of the best evidence with in the custody of the opposite party, before this Commission is very important in this case, as one of the dispute is with regard to the duration of delay.  Hence an adverse inference can be drawn against the opposite party. 
11. The complainant deposed before the Commission that up to 17.30 hrs. there was no announcement regarding the boarding of the opposite party’s flight.  On the other hand the opposite party contended that the delay was properly announced and intimated to the passengers including the complainant.  Now the question is regarding the burden of proof with regard to the announcement of the delay.  Rule 3.4.4 of Ext.D3 says that

“the Burden of proof concerning the question as to whether and when the passengers have been informed of the delay of the flight shall rest with the operating airline”. 

12. So, the document Ext.D3, relied on by the opposite party,  it is shown that the burden is on the opposite party to prove that there was proper announcement informing the delay of the flight and that burden is not fulfilled by the opposite party in this case.  Hence, in the absence of any evidence such a flight dispatch log book, airport display details of departure time of the flight, we find that the contention of the complainant with regard to the delay of the flight is more probable.  The judgment of Hon’ble National Commission (Spiceject V/s.Himadri Sharma) submitted by the opposite party is not applicable to the facts of the case on hand, because in that case the only deficiency attributed on the part of the Air line company was regarding non providing of boarding and lodging.

Section 2(1)(g) of Consumer Protection Act 1986 defines “deficiency” Section 2(1)(g) reads as follows:

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”. 

Likewise section 2(1)(o) defines the term “service” as follows:

“service” means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facility in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.” 

13. The Hon’ble apex court held that the rendering of deficiency in service has to be considered and decided in each case, according to the facts of that case for which no hard and fast rule can be laid down.   Inefficiency, lack of care, absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering services.  Quoting the provision of carriage by Air Act a question was put to PW1 which is recorded in the cross of PW1 page.2 answer to that question, PW1 deposed that:            

   “deficiency in service Dw \ncp¯chmZXz]camb kao]\hpamWv Fsâ tIkn\v Bkv]Zamb kwKXn”. 

So the pleadings and the evidence of PW1 with regard to careless attitude of the opposite party in not informing passengers with regard to delay of flight in time and the irresponsible attitude by the opposite party’s staff at Bangalore airport are sufficient to constitute the ingredients of the definition ‘deficiency’.

14. As the burden of proof is on the opposite party as per the provision under Rule 3.4.4 of Ext.D3, we find that no material evidence were seen put forward by the opposite party to discredit the evidence put forward by the complainant.  On the other hand the complainant himself was examined as PW1 and deposed before this Commission in tune with the allegations raised in the complaint which is supported by documentary evidence also regarding which discussions were made in the earlier paragraph.  Hence we find clear deficiency in service within the meaning of section 2(1)(g) and (o) of the consumer Protection Act 1986.  Thus issue No.3 also found in favour of complainant. 
15.   No doubt that the complainant has suffered mental and financial sufferings due to the irresponsible attitude on the part of the opposite party.  The complainant had to incur expenditure for staying back in a hotel at Bangalore for a night.  The complainant also has mental agony suffering and frustration.  Likewise the complainant being a member of parliament has committed some assignments and all his scheduled programs for the next day were either absented by himself or inordinately delayed as a result of which the complainant might have lost his goodwill and popularity among the public.  As all these sufferings were due to the deficiency in service on the part of the opposite party the opposite party cannot escape from the liability to compensate the complainant.  Hence we find that the opposite party is liable to compensate the complainant. 

In the result complaint is allowed.  The opposite party is directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) as compensation to the complainant along with Rs.2500/- (rupees Two thousand Five hundred only) towards the cost of the proceedings within one month from the date of receipt of this order failing which the entire amount except cost carries interest @ 8% per annum from the date of default till realization.          

A copy of this order as per the statutory requirements is forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th  day of November, 2020.    

          Sd/-

                                                             P.V.JAYARAJAN                  : PRESIDENT

                                                                      Sd/-

PREETHA G. NAIR              : MEMBER 

         Sd/-

                                                                VIJU V.R                             : MEMBER 

R      

C.C.No.245/2017

APPENDIX

I       COMPLAINANT’S WITNESS:

        PW1 : A.Sampath.           

II      COMPLAINANT’S DOCUMENTS:

         P1–Air ticket issued for Indigo Flight No.6E-561 dated   26/06/2015 from Bangalore to Thiruvananthapura

         P2–boarding pass for Indigo Flight No.6E-561 dated 26/06/2015.

         P3 –original boarding pass for Spice jet (opposite party’s flight) Flight No.SG 1032 dated 26/06/2015 from Mangalore to                                   Bangalore.

          P4- original boarding pass for Indigo flight No.6E 379 dated 27/06/2015 from Bangalore to Thiruvananthapuram.                               

          P5 &P6 - receipt issued by the taxi services. 

          P7-original bill and receipt of Savory Hotel Bangalore.

          P8- air ticket issued by the opposite party for spice jet flight No.SG 1032 dated 26/06/2015 from  Mangalore to Bangalore.

III     OPPOSITE PARTY’S WITNESS:

        DW1: Aneesh.S.S                    

IV     OPPOSITE PARTY’S DOCUMENTS:

        D1: Authority Letter dated 15/01/2019.

        D2:  Terms of Carriage.

        D3:  Civil Aviation requirements dated 6/8/2010.          

                                                                                                      Sd/-    

                                                      PRESIDENT

R