BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 304/2003 Filed on 07/08/2003

Dated: 31..07..2010

Complainants:

1. Deepak Thampi, S/o Dr. S. Harindran, Dhanu Sree, PLRA.No.F1, Sasthamangalam, Thiruvananthapuram. Represented by his Power of Attorney Holder and father, Dr. S. Harindran, of ..do.. ..do..

2. Dr. S. Harindran, ..do.. ..do..

3. Prof. K.J. Rema Bai, W/o Dr. S. Harindran ..do..

    

   (By Adv. K.R. Krishna Pillai)

Opposite parties:

1. M/s. AEROFLOT, AEROFLOT, R.M.N.I, Tolstoy House, 15-17, Tolstoy Marg, New Delhi – 110 001.

(By Adv. Mahesh. S. Cheppallil)

2. The Manager, M/s. COZY Travels, T.C.15/180, Vellayambalam, Thiruvananthapuram – 695 010.

(By Adv. Mridul John Mathew)

This O.P having been heard on 22..12..2009, the Forum on 31..07..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The case of the complainants is that, 1^st complainant purchased a confirmed flight ticket of the 1^st opposite party for Delhi-Moscow-Sophia, scheduled on 27/08/2002 for flight No. SU 536 and SU 179 at 1.50 hrs and 9.10 hrs respectively from 2^nd opposite party, the Travel Agency, that on 27/8/2002 early morning the 1^st opposite party denied the boarding of the 1^st complainant on raising the ground that the flight was overloaded due to over booking, that 1^st complainant informed the officials concerned of the 1^st opposite party regarding the expiry of his Visa on 28/8/2002, that the opposite parties did not care to have a patient hearing from the complainant, that the 2^nd and 3^rd complainants, the parents of the 1^st complainant tried to contact the officials of the opposite parties, they could not succeed in their attempts, that the 1^st complainant had to attend his examination soon after reaching at Sophia and the mental strain, agony and sufferings had also affected his studies and results of his examinations adversely. Opposite parties committed a breach of trust and deficiency in service. Complainants sent an advocate notice to opposite parties on 18/9/2002 demanding Rs. 3,50,000/- as compensation from the 1^st opposite party for the deficiency in services from their part, though both the opposite parties accepted the notices they did not care to settle the matter nor did they care to send a reply for the same. Hence this complaint for granting compensation for an amount of Rs.3,50,000/- and cost.

2. 1^st opposite party filed version contending that there is no privity of contract between the 1^st opposite party and the complainants and complaint is liable to be dismissed on that ground, that the 1^st opposite party has not rendered any services to complainants 2 & 3, that passenger to be off loaded because of the technical reasons beyond the control of the 1^st opposite party, that the off loading was done keeping in view of the safety and security of the passengers travelling in the Airlines. The 1^st opposite party assured the 1^st complainant that the message has been sent to Moscow to take care of his journey from Moscow to Sophia, that complainant himself admitted that he was offered flights for 28/8/2002 he followed the suggestion of the 1^st opposite party he would have reached Sophia safely without any problem. Opposite party had not acted negligently on the other hand they acted promptly to ensure that the complainant reaches Sophia in time, that the complainant is not entitled to get compensation as there was no sort of deficiency in service or unfair trade practice on the part of the 1^st opposite party.

3. 2^nd opposite party filed version contending interalia that 2^nd complainant has reserved an Air ticket for the journey of the 1^st complainant to Sophia through the 2^nd opposite party, that 2^nd opposite party has issued a ticket with confirmed status, that no sort of deficiency in service or unfair trade practice is alleged against 2^nd opposite party, that complainant has claimed refund of the purchase price of the ticket and as such the 2^nd opposite party forwarded the ticket to 1^st opposite party and with the direction of the 1^st opposite party refunded the fare and complainant has endorsed his signature in the refund receipt while accepting the same and 2^nd opposite party is not liable for any sort of deficiency in service. Hence 2^nd opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:

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

    

2. Whether the 1^st complainant is entitled to compensation, If so, at what amount?

    

3. Whether the complainant is entitled to cost, If so, at what amount?

In support of the complaint, the Power of Attorney Holder of the 1^st complainant has filed affidavit and has marked Exts. P1 to P9. In rebuttal, 1^st opposite party has filed affidavit along with the copy of refund receipts (Ext. D1).

Points (i) to (iii) : Admittedly, 1^st complainant had purchased a confirmed flight ticket of the 1^st opposite party for Delhi-Moscow-Sophia scheduled on 27/08/2002 for flight No. SU 536 and SU 179 at 1.50 hrs and 9.10 hrs respectively from 2^nd opposite party, the Travel Agency. There is no point in dispute that 1^st opposite party denied the boarding of the 1^st complainant on 27/08/2002. According to 1^st complainant, he was denied the boarding on raising the ground that the flight was overloaded due to over booking. While according to 1^st opposite party, off loading was due to the circumstances beyond the control of the 1^st opposite party. It has been the very case of the 1^st complainant that when he was denied the boarding, he informed the officials of the 1^st opposite party regarding the expiry of his Visa on 28/8/2002 and the consequences thereof. It has also been the case of the 1^st complainant that 1^st opposite party did not care either to accommodate him in the booked flight or to accommodate him in a suitable hotel and that though he was given an alternate accommodation in 1^st opposite party's flight on 28/8/02, which was not with a confirmed status. It has also been the case of the 1^st complainant that his parents, (2^nd and 3^rd complainants) with great efforts and strains managed to accommodate him in Kerala House till 2/9/2002 and managed to extend the Visa which caused them huge expenses for the accommodation and telephone conversations. It has also been contended by the 1^st complainant that he had to fly back to Mumbai and from there he could fly to his destination – Sophia on 3/09/02 Al Italia Airlines, incurring huge expenses and inexplicable strains. Ext. P1 is the copy of the Aeroflot ticket. Ext. P2 is the letter dated 7/10/02 acknowledging the receipt of Aeroflot Ticket from the complainant by 2^nd opposite party. Ext. P3 is the certificate issued by 1^st opposite party dated 27/08/2002 stating that passenger Deepak Thampi who were booked to travel by flight SU 536 dated 27/08/02 due to over booking and now is booked to travel by flight SU 536 dated 28/08/2002. Ext.P4(a) is the copy of the advocate notice dated 18/09/2002 addressed to opposite parties. Ext. P4(c) is the postal receipt. Ext. P4(d) is the postal receipt and Ext.P4(e) is the acknowledgment card. Ext. P5 is the Baggage Ticket and Baggage Check of Al Italia, Ext. P6 is the Air ticket of Indian Airlines. Ext. P7 is the Boarding Pass of Indian Airlines dated 26/07/2002 from Trivandrum to Delhi. Ext. P8 is the passenger ticket of Indian Airlines from Delhi to Mumbai. Ext. P9 is the boarding pass of Indian Airlines. It has been contended by the 1^st opposite party that there is no privity of contract between 1^st opposite party and the 1^st complainant, that the passenger was off loaded because of the technical reasons beyond the control of the 1^st opposite party. It has been the contention of the 1^st opposite party that had the 1^st complainant accepted the flight for 28/8/2002, he would have reached Sophia safely without any problem, that the problem arose because the complainant did not use the seat offered by the 1^st opposite party. It is contended by 2^nd opposite party that complainant has claimed refund of the purchase price of the ticket and as such 2^nd opposite party forwarded the ticket to the 1^st opposite party and with direction of the 1^st opposite party, refunded the fare of Rs. 18,400/- and complainant has endorsed his signature and address in the refund receipt while accepting the same. Ext. D1 is the copy of the refund receipt dated 11/11/2002. On perusal of Ext. D1, it is seen acknowledged by the 2^nd complainant on 11/11/2002 the receipt of Rs. 18,400/- from the 3^rd opposite party on account of refund of ticket. It is pertinent to point out by Ext. P3 certificate issued by 1^st opposite party that 1^st complainant, who was booked to travel by flight SU 536 dated 27/8/02 could not travel on 27/8/02 due to overbooking, whereas in the version filed by 3^rd opposite party it is seen submitted that the passenger had to be off loaded because of the technical reasons beyond the control of the 1^st opposite party. What has been stated in Ext. P3 is quiet contradictory to what is stated in the version.

Admittedly, boarding was denied to 1^st complainant by 1^st opposite party. In this context, it is worthwhile to mention that any person who would go to Airport after spending money and having his seat confirmed would certainly be got upset for not only that the entire programme had been fizzled out but it would also cause certainly mental agony. Herein on perusal of Ext. P3 it is apparent that the reason of off loading was not due to circumstances beyond the control of the 1^st opposite party. It is to be pointed out, that if the journey of a confirmed ticket holder unexpectedly interrupted by the action of the Airlines it is the duty of the Airlines to provide accommodation and conveyance to the affected passenger. In this case, 1^st opposite party has no case that they have offered any accommodation and conveyance to the 1^st complainant. The stand of the 1^st complainant is that his Visa was to expire on the next day of the date of the scheduled travel, that due to denial of boarding he had to seek accommodation and conveyance on his own cost. The 1^st complainant claimed that he was to attend his examination soon after reaching at Sophia which he could not perform sufficiently well due to the mental strain, pain and suffering that lasted a week due to denial of boarding, in addition to other economic loss incurred to him. The facts mentioned herein above clearly show that 1^st opposite party has been deficient in rendering service for denial of boarding on a confirmed ticket. We can certainly visualise that in such a circumstance at least for liability for breach of contract would arise in addition to liability otherwise 1^st opposite party being deficient in rendering by denying boarding would therefore be liable. Taking into consideration of the totality of circumstances, we are of the considered opinion that justice will be well met if 1^st opposite party is directed to pay Rs.25,000/- towards compensation.

In the result, complaint is allowed. 1^st opposite party shall pay the 1^st complainant a sum of Rs. 25,000/- towards compensation within two months from the date of receipt of this Order, failing which the said amount will carry interest @ 12% from the date of expiry of the said two months till payment or recovery. 1^st opposite party shall also pay Rs. 2,000/- as cost.

A copy of this order as per the statutory requirements be 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 31^st day of July, 2010.

G. SIVAPRASAD PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No. 304/2003

APPENDIX

I. Complainants' witness:

PW1 : Dr. S. Hareendran

II. Complainants' documents:

P1 : Copy of the Aeroflot ticket

P2 : Letter dated 7/10/2002 acknowledging the receipt of Aeroflot ticket from the complainant.

P3 : Certificate issued by 1^st opposite party dated 27/8/2002

P4(a) : Copy of the advocate notice dated 18/09/2002 addressed to opposite parties.

P4(b) : Copy of advocate notice dated 18/9/2002

P4(c) : The Postal receipt

P4(d) : "

P4(e) : Acknowledgement card

P4(f) : "

P5 : The Baggage tikcket and Baggage check of Al Italia

P6 : The Air ticket of Indian Airlines

P7 : The Boarding pass of Indian Airlines dated 26/7/02 from Thiruvananthapuram to Delhi.

P8 : The passenger ticket of Indian Airlines from Delhi to Mumbai

P9 : The boarding pass of Indian Airlines.

III. Opposite parties' witness: NIL

IV. Opposite parties' document:

D1 : Acknowledged by the 2^nd

complainant on 11/11/2002 the receipt of Rs. 18,400/- from the 3^rd opposite party on account of refund of ticket.

PRESIDENT