BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. P. SUDHIR : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C. No. 19/2013 Filed on 15.01.2013
ORDER DATED: 23.08.2017
Complainant:
Nahas Abdul Manaf, Kokattil Veedu, TKMC P.O, Kollam.
(By Adv. Nisa Fasil)
Opposite parties:
- M/s Kuwait Airways represented by its Chairman and Managing Director through authorized signatory at Branch Office of Kuwait Airways, Terminal-2, Trivandrum International Airport, Thiruvananthapuram Room No. 15/47, Diamond Hill, Vellayambalam, Thiruvananthapuram-10.
- Chief Executive Officer, M/s Kuwait Airways, represented through its authorized signatory ..do.. ..do..
- The Trivandrum Branch Chief Executive Officer, Branch Office of Kuwait Airways, ..do.. ..do..
(By Adv. A. Abdul Kharim & R. Ranjit)
This case having been heard on 15.06.2017, the Forum on 23.08.2017 delivered the following:
ORDER
SRI. P. SUDHIR: PRESIDENT
Complainant’s case is that complainant is employed at gulf country Saudi Arabia. Complainant got annual leave from the company in which he is working and decided to return to his native place for vacation. Complainant took air ticket from the opposite parties for journey from Riyadh to Trivandrum. After making proper enquiries at various airways regarding safety measures provided by them and after making much consultation with the opposite parties and being attracted by the service rendered by them as stated by them during discussions with them and also going through the propagations made in the website the complainant chose the service of the opposite parties. It is agreed by the opposite parties that they will ensure the safe and timely journey of complainant from Riyadh to Trivandrum Airport. It is agreed by the opposite parties that if there is change in the flight’s status is a cancellation, diversion or delay or more than 30 minutes the opposite parties will notify the passengers and general public of any such changes within 30 minutes. They also agreed to provide to complainant frequent updates concerning additional changes if they occur. Believing the aforesaid representation made by the opposite party that the complainant joined in a group ticket of 8 persons and obtained ticket for his journey from Riyadh to Trivandrum in flight No. KU 331 from Riyadh to Trivandrum via Kuwait on 29.12.2012. As per the conditions in the ticket the departure of flight from Riyadh airport is scheduled to be at 6.55 pm on 29.12.2012 and it will reach at Kuwait Airport at 8.30 pm and from there they arranged a connection flight to Trivandrum which is scheduled to be departed at 8.55 pm. The complainant and all other passengers arrived at the airport in time and they were boarded into the flight in time. There were no circumstance which existed at that time in delaying the departure of the flight. But it is learnt that the flight was waited to board one of the superior officer working with the opposite party and there were some scuffle between the employees of the opposite party in this respect. The passengers got agitated and protested and the employees of the opposite parties consoled them by stating that the connection flight is also owned by them and it will depart only after reaching of flight in which the complainant is boarded. A delay of 35 minutes caused in taking off the flight from Riyadh airport and the aforesaid fact was not informed to the complainant previously and thereby they defeated the opportunity of the complainant to cancel his ticket. Due to the willful latches and negligence committed by the opposite party, the flight was delayed about 35 minutes in taking off and flight departed from Riyadh airport only at 7.30 p.m. Consequently the flight reached at Kuwait airport only at 9.30 pm and in the meantime the connection flight was departed against the assurance made by the opposite party. When the complainant reached at Kuwait airport the complainant came to know about the departure of connection flight. Such kind of negligence was never expected or heard of from a company engaged in airways. Even though the complainant tried to contact the officials of the opposite party there was no proper reply and nobody was there to answer the complainant properly. Complainant and co-passengers made much hue and cry and thereafter the employees of the opposite party agreed to provide a connection flight going to Bombay and from there they also agreed to provide flight to reach Trivandrum as an alternate arrangement. During the stay at Kuwait Airport no safety measures were provided to complainant and the office bearers declined to provide food and resting place to the complainant. On 30.12.2012 at 1.15 am the complainant was boarded in a Bombay flight bearing No. KU 301. As an alternative to reach at Trivandrum airport the opposite party agreed to board complainant in domestic airlines run by Jet Airways which is to be departed at 10.55 am and informed the complainant that the flight will reach at Trivandrum airport at 12.55 pm. Accordingly the opposite party took complainant to domestic airport. The Jet Airways authorities declined to board the complainant in their airways on the ground that in domestic airlines baggage of 20 kg alone is permissible and they will provide extra baggage if the complainant is willing to provide an additional amount of Rs. 40,000/-. The complainant was not keeping cash with him and he could not afford such a huge amount. The complainant was again thrown into a very precarious and helpless situation. Complainant tried to contact the opposite party at 10.55 am but the reply received from the office of the opposite party was that their staff will be available only after 2 am next day on 31.12.2012 as the staff were on new year celebration. All these times opposite party declined to provide any kind of amenities to the complainant and they even declined to give food, medicine or resting place to the complainant. Complainant was too unsafe at Mumbai airport. After making much havoc in the office of the opposite party, complainant was taken to Air India terminal. Complainant was boarded in Air India flight at 6.30 am on 31.12.2012. The complainant was put to suffer due to the negligence committed by the opposite parties. The mental agony and suffering sustained by the complainant during the course of aforesaid journey can never be compensated in terms of money and complainant approached this Forum for getting Rs. 2 lakhs as compensation.
Notice sent to opposite parties. Opposite parties appeared and filed version. As per the version, the contention taken by opposite parties are that the complainant along with 7 others purchased Kuwait Airways tickets for their travel from Riyadh to Kuwait on 29.12.2012 in Flight No. KU 774 at 6.40 pm and to arrive Kuwait at 7.50 pm and from Kuwait-Thiruvananthapuram in Flight No. KU 331 at 8.55 pm on 29.12.2012 which is scheduled to arrive at Thiruvananthapuram at 4.30 am on 30.12.2012. Due to technical snag, the departure of Flight No. 774 from Riyadh was delayed for about half an hour and when the said flight reached Kuwait, the flight to Thiruvananthapuram took off and hence the complainants could not travel in the said flight. The delay occurred as above is due to unforeseen circumstances and it was beyond the control of the opposite party. The opposite party however made all possible alternate arrangements and accordingly provided food and accommodation in a star hotel in the Kuwait Airport and rerouted the complainant via Mumbai for onward travel to Thiruvananthapuram on 30.12.2012. This was discussed and agreed to by the complainant and other similarly placed passengers. The complainant and others accordingly boarded Kuwait Airways Flight to Mumbai on 30.12.2012 at about 1 am in Flight No. KU 301. Opposite party booked for travel of the complainant from Mumbai to Thiruvananthapuram by way of Jet Airways Flight Interruption Manual Booking. But the Jet Airways authorities off loaded the passengers on the ground of their excess baggage and claiming extra charge in the Mumbai-Thiruvananthapuram Sector. The off loading of passengers was a Jet Airways decision, without intimating the fact to Kuwait Airways and without making any claims or charges. The passengers were offloaded by Jet Airways at Mumbai as aforesaid, the opposite party immediately made alternate arrangement by transferring the complainant and others to Air India Airlines Flight to Thiruvananthapuram and the excess baggage charges were borne totally by Kuwait Airways. The opposite parties in their website has clearly stated that they will provide their services to the best of their ability and thereby ensure safe and timely journey of all the passengers. It was also notified that if there occur any unforeseen contingencies like technical snag, bad weather, fog conditions, security problems etc. which are beyond the control of Airlines, there is possibility of flight delays, cancellation or diversions etc. In such circumstances, the Airlines will notify the same to the passengers and will make alternate arrangements abiding by the Carriage by Air Act. This fact is also mentioned in the ticketing itineries and all the passengers were well aware of the same. The Airlines in these unforeseen circumstances can act only as per the above arrangement. The allegation that the flight was delayed consciously as the Airline wanted to board one senior officer of Airlines and there was some scuffle between the employees of the opposite parties are all false, imaginary and unwarranted. It is only a crooked up an invented story by the complainant to support the complaint and also to tarnish the goodwill of the opposite parties. It is submitted that the flight was delayed only due to the fact that the aircraft was having technical problem and that problem was rectified within half an hour. Technical snag was cured for the safety of passenger only. This unforeseen flight delay is beyond the control of airlines and it is a bonafide act and it can never be termed as negligence or deficiency in service. The Airlines never ensured that the flight No. KU 331 from Kuwait will wait for flight No. KU 774 from Riyadh arrives at Kuwait and the allegations to the contrary are incorrect and hence denied. These are two separate flights and passengers in one flight cannot be inconvenienced due to any delay occurred in respect of the flight in one sector. The opposite party only assured that the complainant and other passenger will be rerouted to Mumbai in another flight of Kuwait Airways and from Mumbai to Trivandrum on Jet Airways on booking made by Kuwait Airways at Kuwait. This was agreed to by the complainant and hence he is stopped to raise any allegation to the contrary. These opposite had taken all precautionary measures possible to safeguard the interest of all the passengers. This was done as per the standard norms. Due to misconnection passengers were re-routed via Mumbai for onward travel to Trivandrum on Flight Interruption Manual booking made by Kuwait Airways at Kuwait. Airlines had made all possible efforts to avoid discomfort to the passengers. It may be noted that the entire re-routing of passengers were a result of unforeseen flight delay which is beyond the control of the Airline. There is no willful negligence, latches or deficiency of service on the part of opposite parties. All measure as provided under Carriage by Air Act was done by the opposite parties and hence the opposite parties are not liable to pay any compensation to the complainant.
Issues:
- Whether there is deficiency of service on the part of opposite parties?
- Whether the complainant is entitled for the reliefs sought for?
- What is the order as to costs?
Complainant filed chief examination affidavit and examined as PW1. Exts. P1 to P3 marked. Opposite parties filed chief examination affidavit and examined as DW1 and Ext. D1 marked.
Issues (i) to (iii):- In cross of PW1, PW1 deposed that “യാത്ര പുറപ്പെടുന്നതിനു മുമ്പ് website നോക്കിയ പ്പോള് അതില് delay പല കാരണങ്ങള് കൊണ്ട് ഉണ്ടാകാം, അതില് technical problem ഒരു reason ആണ് എന്ന് പറഞ്ഞിട്ടില്ലേ (Q) ഉവ്വ് (A). Ext. D1 shows there is technical problem. Complainant has failed to prove that deficiency was not due to technical snag but opposite party waited for their superior officer to board the flight. Opposite party draw the attention of this Forum to the decision of Hon’ble Supreme Court reported in 2011(3) CPJ T (SC) in Inte Globe Aviation Ltd. Vs. N. Satchidanandan that the circumstances beyond the control of Airline cannot be held deficiency of service. The Hon’ble National Commission in the ruling reported in 2012 CPJ (IV) 87 (NC) in Arun Sangwan Vs. Indian Airlines & another had held that ‘mere fact that a flight is operated late, will not ipso facto’ render the Airlines liable for payment of compensation to passengers, unless there is proof of negligence on the part of Airlines. The Punjab State Consumer Commission reported in 2010(11) CPJ 342 in Air India Ltd. Vs. Gurdip Singh & others had held that technical snag is not a deficiency in service. Hence we are of the opinion that complainant failed to prove deficiency of service on the part of opposite parties and we are constrained to dismiss the complaint without cost.
In the result, complaint is dismissed without 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 23rd day of August 2017.
Sd/-
P.SUDHIR : PRESIDENT
Sd/-
R. SATHI : MEMBER
Sd/-
LIJU B. NAIR : MEMBER
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C.C. No. 19/2013
APPENDIX
I COMPLAINANT’S WITNESS:
PW1 - Nahas
II COMPLAINANT’S DOCUMENTS:
P1 - Copy of advocate notice dated 08.01.2013
P2 - Postal receipts
P3 - Copy of eTicket Receipt
III OPPOSITE PARTY’S WITNESS:
DW1 - Sudhir Mehta
IV OPPOSITE PARTY’S DOCUMENTS:
D1 - Copy of Daily Report (Saturday) -29 December 2012
Sd/-
PRESIDENT
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