BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 22nd day of August 2017
Filed on : 22-11-2013
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.799/2013
Between
Dr. Manzoor Ahmed, : Complainant
S/o. Mytheen Kunju, (By Adv. George Kuruvilla, Kerala
Chungasseri Manzil, High Court Advocates Chamber
Pada North, Complex, Room No. 122, High Court
Karunagappally Post, Jn., Banerji road, Cochin-31)
Kollam – 690 518
And
1. M/s. Indigo Airlines, : Opposite parties
Inter Globe Aviation Ltd., (By Adv. Madhu Radhakrishnan,
Level 1, Tower C, Radhakrishnan & Co. Door No.
Global business park, 39/4275-A, Manikkiri cross road,
DLF City, Phase -III, Near Pallimukku, Kochi-682 016)
Gurgaon 122002,
Haryana State,
rep. by its Managing Director.
2. M/s. Riyas Travels and Tours (2nd O.P. By Adv. Shibu Joseph, )
Pvt. Ltd. Cok, Bab Chambers,
39/5956-C, Atlantis,
M.G. Road, Ernakulam,
rep. by its Managing
Director-682 016.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant's case
2. The complainant is a doctor working as Anesthetist at A.M. Hospital, Karunagappally. He along with his family members planned for a vacation trip to Kashmir during May 2013 and booked Air ticket on 27-04-2013 through the 2nd opposite party, to fly with the 1st opposite party Air lines. As per the trip schedule the complainant and his family members were took fly on 16-05-2013 from Kochi to Delhi by flight No. 6E516 and from there to Srinagar by flight No. 6E435 on the same day. The return trip was by Flight No. 6E554 from Srinagar to Delhi and by flight number 6E515 from Delhi to Cochin. The complainant paid Rs. 2,82,000/- to the 1st opposite party through the 2nd opposite party on 02-05-2013 from out of the bank account maintained in the ICICI Bank. However, while coming back from Srinagar to Cochin on 22-05-2013 the complainant and his family were denied boarding in the Delhi Cochin flight by the 1st opposite party on the ground that the complainants had reported late for check-in. Srinagar flight which was supposed to arrive in Delhi at 12.35 hours landed at Delhi airport in time and the complainant and his family had checked-in at Delhi-Cochin flight which was to depart Delhi at 13-50hrs. But they were refused to board in. At the same time, they allowed other passengers, who later than the complainant to check-in for the same flight. Since the complainant had a pre-scheduleld urgent hospital case to be attended on 23-05-2013 morning, he tried for tickets in other flight and he could get only one ticket by air India flight to Cochin at a price of Rs. 31,700/- for single ticket. the remaining family members who were all ladies and minor children had to stay back in Delhi on 22-05-2013 night and had to catch two different flight of Air India on the next day from Delhi to Chennai and from Chennai to Trivandrum which costed them Rs. 1,58,659/- towards flight charges. In addition to that they had to spent money for hotel accommodation. The action of the 1st opposite party in not allowing the complainant and his family members to board the flight was purposeful and with ill-motives. The opposite party was accommodating other passengers charging higher fare, after denying boarding to the complainant and his family. The attempt of the complainant to get details of the number of passengers accommodated in the flight in which the complainant had booked his tickets failed, as the Director General of Sitting Aviation refused to divulge those details to the complainant. The complainant was informed by the opposite party that, that flight was a full flight with 180 passengers booked for it, but 10 passengers reported post to the counter closure time and hence not accepted for the flight. The complainant and his family were denied check-in for accommodating people of their choice. The said action of the 1st opposite party is a clear case of deficiency in service and the complainant is entitled to get compensated. The complainant suffered actual monetary loss to the tune of Rs. 1,58,659/- towards the extra flight charges and around Rs. 15,000/- towards hotel and other accommodation charges apart from the mental agony and hardships caused to them. The opposite parties are jointly and severally liable to pay the said amount with compensation to the complainant. Hence the complaint.
3. The 1st opposite party appeared and resisted the complaint contending inter-alia as follows:
4. The complaint is vexatious and untenable. The complainant along with 9 other passengers who were supposed to report for the connecting flight from Delhi to Cochin have reported later than the last check-in time for the flight i.e. 45 minutes prior to scheduled departure time of the flight. As per the conditions of the carriage which are binding on the complainant customers are required to report to the check-in counters latest by 45 minutes prior to the scheduled departure failing which the customer would be denied boarding and the same will be considered as a case of "no - show". In such cases the customer will be entitled only to the refund of the PSF charges levied by Government of India. The incoming flight from Srinagar to Delhi was on time and therefore the delay in reporting to the check - in counter for the connecting flight was solely on the part of the complainant and for reasons best known to him. It was specifically stated in condition 7.3 that indiGo will not be liable to the customers for any loss or expense incurred due to their failure to comply with the above said time limit for check-in. The complainant had suppressed the fact that he reached the check - in counter at New Delhi only at 1.15p.m. whereas the complainant and other passengers ought to have reported before 1.05 p.m. i.e. 45 minutes prior to the scheduled departure time. The complainant has not approached the forum with clean hands. The details such as time of departure of the concerned flight its total passenger capacity, the number of passengers carried on board etc. are of no relevance of consequence to the present complaint, as the complainant and his family had reported only 35 minutes prior to the scheduled departure time. The opposite parties justified in its action of not permitting them to board the air-craft. The complainant did not produce any documents in support of his contention. The amount of compensation claimed is not rational. The complaint is sought to be dismissed with costs.
5. The 2nd opposite party also appeared and filed their version contending that the opposite party has no information regarding the allegations made in the complaint.
6. On the above pleadings the following issues were settled for consideration.
i. Whether the complainant has proved that here was deficiency in service on the part of the opposite parties as alleged?
ii. If so, is the complainant entitled to get any compensation and the quantum thereof?
ii. Reliefs and costs.
7. The evidence in this case consists of the oral evidence of PW1 and Exbts. A1 to A11 documents on the side of the complainant and the oral evidence of DW1 and Exbts. B1 to B3 on the side of the opposite party.
8. Issue No. i. The complainant had filed this complaint alleging deficiency in service in not permitting the complainant and his family members to board the flight in which they have reserved their tickets which were confirmed. According to the complainant he reported before the check-in counter on time and there is no laches or delay on their part. In spite of the fact that the opposite party had allegedly refused to allow the complainant and his family members to check-in. It was further alleged in para 4 of the complaint that the opposite parties allowed certain other passengers who came later than the complainant to check-in for the same flight. This allegation of the complainant that the opposite party had permitted other passengers who came subsequent to the complainant and his family, to board the flight, is not seen specifically denied the the opposite party in their version. In the absence of a specific denial of this important fact in the version we find no reason to disbelieve the statement of the complainant that they had reached the check-in counter on time . The complainant had no claim that he reached the counter before time or after time. The pleadings is very clear to the effect that the complainant and his family reached on time. It was the opposite party who asserted that the complainant and his family reached the check-in counter at 1.15 p.m. to board in the flight which was scheduled to depart at 1.05 p.m. We are at a loss to understand as to why the check-in counter of the opposite party had kept open to receive the passengers until 1.15p.m. while it was supposed to be closed at 1.05p.m. The very fact that the check-in counter was kept open even after the deadline of the 1.05 p.m. would go to show that the opposite parties were expecting passengers to board in, even after the permitted time for boarding. This factual situation would give assurance and support to the contention of the complainant that passengers who came subsequent to the complainant and his family in the check-in counter were permitted to board-in to the flight. According to the complainant, the flight was overbooked and the passengers who were charged higher fare were let in after avoiding the complainant and his family members from boarding-in. In order to make undue enrichment by resorting to illegal means.
9. It was the definite case of the complainant that he and his family members had purposely denied boarding in flight No. 6E515 Delhi-Cochin flight on 22-05-2013, in order to accommodate persons of their choice charging higher fares. The complainant had given evidence that he sought information from the opposite parties before the initiation of this complaint , as to the actual number of passengers travelling in that flight from Delhi to Cochin on that day. The reply given to the complainant was that "it was a full flight with 180 passengers booked for it but 10 passengers reported post the counter closure time and hence not accepted for the flight." This answer would lead to an inference that the passengers capacity of the flight was 180 and the flight carried its full capacity of 180 passengers despite denial of boarding of the complainant and his family to the flight. We failed to understand as to how the flight could be a "full flight with 180 passengers" even after denial of boarding of the complainant and his family. Naturally after denial of boarding, the flight would have been taken off with only 170 passengers. In view of the admission of the opposite party that the flight was a full flight we had no hesitation to uphold the contention of the complainant that additional passengers of their choice of the opposite party were accommodated by charging higher fares.
10. Exbt. A7 and A8 documents were marked on the side of the complainant, though it was produced by the 1st opposite party . Exbt. A7 is the details of passengers who travelled in the flight concerned, as per the records of the 1st opposite party. Without giving reference to the condense of those list a certificate purportedly U/s.65 B of Evidence Act was also produced along with it to support the authenticity of the accompanying document. As per the attached document of Exbt. A7 though a list of 171 passengers with an additional list of the 10 passengers including the complainant are seen shown the subsequent statements being the list would go to show that there were zero no-shows on this flight. We therefore refused to accept the authenticity of this document.
11. We have yet other circumstances to come to the above conclusion in this case. The complainant had filed I.A. 309/2014 for a direction to the opposite party to produce the authenticated documents or flight chart showing the list of passengers travelled on board on 22-05-2013 in Delhi-Cochin flight No. 6E515 and also the time of checking in by the last passenger from Delhi in the said flight and the actual time of departure of the flight from Delhi. This petition was filed on 28-3-14 and it was allowed directing the opposite party to produce those documents on before 23-05-2014. The opposite parties however did not produce any such documents pursuant to the said order. However, DW1 produced a true copy of the screen short of the sky port dated 22-05-2013 for flight number 6E515 DELHI-COCHIN as Exbt. B2 (a) which shows that the complainant and his companions have reported at 13.15 hrs for the flight which is scheduled to be departed at 13.15 hrs. Exbt. B2 is a certificate purportedly under Section 65 B of the Evidence Act certifying that the data given by the opposite party were reproduced from the original records in the computer. It is interesting to note that Exbt. B2 has not shown any reference or even a mention of Exbt. B2 (a) which is a separate sheet of paper. We therefore are not inclined o believe he authenticity of Exbt. B (2) a which was produced to prove that the complainant and his family had reported at 13.15 hrs only. Exbt. B2 (b) would go to show that the charges collected as PSF and UDF for one person was refunded to Mr. Manzoor, the complainant at 13.37 hrs. It is not clear as to why such refund of other persons were not made. Shri. Sinish C.S., a manager of the 1st opposite party who had no direct knowledge with regard to the incident was examined as PW1 as a witness of the 1st opposite party. He gave evidence that the 12.59 p.m. 3 persons came to the check-in counter along with a child. The fare of the child was additionally collected and that group were permitted to check-in 1.13 hours . According to the learned counsel for the complainant, the complainant and his family who were positioned in the queue behind the above said group of three who were permitted to check - in at 1.13 p.m. could have naturally been received by the staff only after 1.13 p.m., for no fault of the complainant. When the complainant had given evidence that he reached the counter on time he could have only been attended by the counter staff in the check-in counter only after disposing the other 3 persons who were standing in front of them in the queue. The non-reception of the complainant and his family in the checking in counter without delay has to be found as a serious deficiency in service on the part of the 1st opposite party. It only shows that the 1st opposite party were not able to provide sufficient check-in counters to accommodate the needs of all the passengers in the queue for boarding. The complainant can not be found fault for the delay occasioned by the counter staff in disposing of the 3 passengers in front of the complainant. It is seen that 14 minutes ( from 12.59 to 1.15 p.m. ) were consumed by the counter staff to dispose of the 3 persons in the group who were standing in front of the complainant. We therefore find that these circumstance also would support our finding that there was clear deficiency in service on the part of the 1st opposite party. The issue is accordingly found in favour of the complainant.
12. Issue No. ii. The complainant is an anesthetist at A.M. Hospital, Ernakulam. He gave evidence that he had pre-scheduled surgery case to be attended on the next day of his traveling. Therefore he was forced to catch an Air India flight of the same day to Cochin by paying a huge amount of Rs. 31,700/- for his single ticket. The rest of the family members who were ladies and children had to stay back in Delhi on the night of 22-05-2013 and had to catch two different flights of Air India on the next day to reach Kerala, one from Delhi to Chennai and thereafter from Chennai to Trivandrum. For that the complainant had to spent another Rs. 1,58,659/- towards flight charges apart from hotel accommodation charges at Delhi. Exbt. A2 series are the flight ticket so purchased and Exbt. A3 (a) and A3 (b) are the bank account details of the complainant showing the aforesaid payments. It is an admitted fact that the 1st opposite party did not refund the amount of flight charges to the complainant when the boarding was denied. Not even the admissible amount of refund is seen to have been made by the opposite party to the complainant so far. By the action of the 1st opposite party the complainant had suffered an actual monetary loss towards additional ticket charges of Rs. 1,90,359/- (1,58,659/- + 37,700/-) for Extra flight charges and around Rs. 15,000/- towards hotel and other accommodation charges, apart from the mental agony and hardships caused to them. By the action of the 1st opposite party in not permitting the complainant and his group to board in the flight had caused severe mental agony to the ladies and children who were accompanying in the complainant in the group. Considering he entire aspects of the case and the circumstances under which the opposite party had put the complainant and his family members in hardships. We find that the complainants are entitled to get a total compensation of Rs. 5,00,000/- with interest thereon from the date of cause of action. The issue is accordingly found in favour of the complainant.
13. Issue No. iii. Having found issue number 1and 2 in favour of the complainant and against the 1st opposite party we make the following directions for compliance within one month from the date of receipt of a copy of this order.
i. the 1st opposite party shall pay Rs. 5,00,000/- towards compensation to the complainant with interest @ 9% p.a. from 22-05-2013 till the date of realization, if paid within one month from the date of receipt of a copy of this order and if not so paid, the rate of interest will be at 12% p.a.
ii. the complainant is found entitled to realize a costs of this proceedings which we estimate at Rs. 10,000/-.
Pronounced in the open Forum on this the 22nd day of August 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent
Appendix
Complainant's Exhibits:
Exbt. A1 : Copies of confirmed air tickets
series 6 in nos.
A2 : Copy of E-ticket Itinerary and
reservation Details
series
A3 : Detailed statements
series
A4 : Letter dt. 27-05-2013
series
A5 : Letter dt. 04-07-2013
Series
A6 : Letter dt. 24-0802013
A7 : Certificate under Section 65 B,
Evidence Act
A8 : Screen shot of the Skyport
A9 : Certificate under Section 65 B,
Evidence Act
A10 : Copy of certificate dt. 23-06-2015
A11 : Copy of case sheet of Akhila
Opposite party's Exhibits :
Exbt. B1 : Copy of letter of Authority
B2 : Certificate under Section 65B,
Evidence Act
B3 : Conditions of Carriage
Deposition:
PW1 : Dr. Manzoor Ahmed
DW1 : Sinish C.S.
Copy of order despatched on:
By Post : By Hand:
