OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM, KAMRUP,GUWAHATI

C.C. 1/2013

Present:-

                             1)Md.Sahadat Hussain, A.J.S.  -   President

                             2)Sri U.N.Deka                         -   Member

Sri Krishna Kumar Agarwalla                                - Complainant

S/o.Late P.M. Agarwalla,

C/o Glacier Technologies Pvt. Ltd.

Kamala Marketing Point,

Opp.Guwahati Commerce College                       

R.G.Baruah Road, Guwahati-781003

          -vs-

1)      M/S Omkara Travels,                                  - Opp. parties

Agency IATA No. 14369806                                                                     

G.S.Road, Jana Path,                                        

Near Bora Service, Guwahati.

2)      Air India

Represented by its Chairman-cum-

Managing Director, Air India Building,

1^st Floor, Nariman Point, Mumbai-400021.

Appearance-        

Ld advocate for the complainant                       - Mr.P.K.Baruah

Ld advocate for the Opp.Party No.2                  - Mr.Tapan Kr.Borah

Date of argument-  14.6.2016   

Date of judgment-  12.8.2016                                           

This is a complaint u/s 12 of the Consumer Protection Act, 1986.

1.  The complaint filed by Sri Krishna Kumar Agarwalla against M/S Omkara Travels and AIR INDIA     was admitted on 3.10.13 as a case u/s 12 of the Consumer Protection Act, 1986 and notices were served on both opp.parties, but opp.party No.1 had defaulted to take step and accordingly the case against the opp.party No.1 vide this forum order dtd.6.2.2014, is proceeding on exparte. Opp.Party No.2 filed the written statement. The complainant side filed his evidence on affidavit on 5.6.14 and he was also cross examined by opp.party No.2 side. Thereafter, one Sri Nitish Ch.Barooah filed evidence on affidavit on behalf of opp.party No.2 and he was also cross examined by ld counsel of the complainant. Thereafter, ld counsel of complainant as well as Opp.Party No.2 filed respective written argument. On 28.7.16 we have heard oral argument of ld advocate Mr.P.K.Baruah for the complainant and of ld advocate Mr.Tapan Kr.Borah for Opp.Party No.2 and today we delivered the judgment.2.
2.           The gist of the pleading of the complaint is that the complainant, Sri Krishna Kumar Agarwalla , the owner of M/S Glacier Technologies Pvt.Ltd. doing business in selling and servicing Air Conditioner, stabilizers  at Guwahati, had purchased to confirmed air ticket through M/S Omkara Travels, Guwahati (Opp.Party No.1) on 26.9.2013 for himself and his son Sri Veideck Agarwal for travelling from New Delhi to Guwahati in Air-India vide ticket   No.   0982065559042  and   0982065559043  dtd. 26^th Sep, 2012 in flight  No.  889 of Air India from Delhi to Guwahati on  10^th  Nov,  2012 at 7.55 A.M. and they arrived terminal No. 3 of Delhi Indira Gandhi International   Airport  at 6-40 a.m. and approached the counter for boarding  pass,  but they  were  informed  that  no  seat  was  available  due to  overbooking  of tickets,  but Air India counter allotted their seats in another  Air India  Flight  scheduled   on   that   day  at  1.55 p.m.   withoutconsidering his urgency of reaching Guwahati early on his committed business engagementbeing a businessman and having no alternative, he agreed to avail the said alternative flight, but the said flight was also rescheduled to 3 p.m. from 1.55 p.m., and thereby they had to spend whole day in the Airport wasting their valuable time and they reached Guwahati by 6.30 p.m. and thereby wasted their valuable time due to negligence by opp.parties. Air India issued surplus tickets beyond limited seats available deceiving valued customers thereby causes loss and damage apart from mental agony and harassment. For their negligence, he has incurred considerable business loss.The opp.parties are liable to pay him compensation of Rs.1,07,000/- u/s 14( c ) (d) of Consumer Protection Act, 1986.
3. The gist of the pleading of Opp.Party No.2 is that the complaint petition is totally misconceived and without appreciation of law in force and as such it is liable to be dismissed. There is no deficiency in service on their part as alleged by complainant. They, being statutory corporation established under law and also legal entity, have its own Rules and Regulation for providing smooth service and transportation of the customers and thereby they have power to make rules and regulations and bring the executive instruction by notification being Official Gazette in conformity with the prescribed law for administration of their business affairs and carrying out their functions and being empowered they introduced executive instruction namely “ CIVIL AVIATION REQUIREMENTS SECTION 3- AIR TRANSPORT SERIES ‘M’ PART IV ISSUE I DATED 6^th AUGUST, 2010” ( hereinafter referred to as CAR in short ) in order to provide facilities to the passengers in case of flights disruptions and in particular, denied boarding, cancellation of flights and delay in flights which is  the relevant for the purpose of the instant case. As Sec.3 of Consumer Protection Act ,1986 provides that the “Act not in derogation of any other law- the provisions of this Act shall be in addition to not in derogation of provisions of any of the law for the time being in force, if there is any inconsistence between the Regulations and the Consumer Protection Act, 1986 in the matter of adjudication of any dispute by Hon’ble Court/Forum, Regulation being a law shall be prevailed over the provision of Consumer Protection Act ,1986 . On 10^th Nov, 2012, due to reason of overbooking the complainant and his son were denied boarding in flight No. AI-889 for the sector Delhi / Guwahati despite they had confirmedtickets. Overbooking of ticket is a standard norms and established industry practice, and it is carried out so as to ensure optimum utilization of seats in case of last minutes drop out /cancellation of the confirmed tickets by the passenger at the last moment. On 10^th Nov, 2011 overbooking was only two in respect of flight No. AI-889, which is on other date and flight would have been adjustedby means of last minute drop out, in cancellation , but on that day unfortunately the overbooking could not be adjusted and that lead denial boarding to the complainant and his son in the said flight, but they were accommodated in flight No. AI-9611 of the same day as agreed by them. But they deny the statement of the complainant to the fact that the said flightwas also rescheduled at 3.00 p.m. and they became compelled to spend the whole day in the Airport wasting their valuable time which affected badly his business engagement . It is not true that they were callous and negligence attitude towards the complainant and gave least importance to him on that day. It is not true that they issued surplus ticket beyondlimited seats deceiving valued customers thereby causing the loss and damages to them. As per provision of Section 3 “AIR TRANSPORT SERIES ‘M’ PART IV ISSUE I DATED 6^th AUGUST, 2010” by Director General of Civil Aviation, Technical Centre which was given effect on 15.8.2010 prescribed with the facilities to be provided to passenger in case of denial boarding. If the boarding is denied to the passenger against their will, the Airline shall as soon as practicable compensate them in accordance to the passenger of Para No. 3.5 in addition to refund of Air ticket, and Para No.3.5 provides that ,

         “ The financial compensation indicated below shall be given only if the amount of ticket cost is higher than the  compensation amount.

1. Rs.2,000/- or the value of the ticket whichever is less for flight having a block time of upto and including one hour b)   Rs.3,000/- or the value of the ticket whichever is less for flights having  a block time of more than one hour and upto and including two hour. c) Rs.4,000/- or the value of the ticket whichever is less for flights having a block time of more than two hour.”

As the complainant have opted for alternative mode of journey by Flight No.9611 to his final destination, as prescribed under 3.5.3 is not entitled to any compensation except compensation prescribed in under Para 3.5.1 of aforesaid CAR. The complainant is not entitled to any compensationfrom them as per provision of CAR and the complaint is liable to be dismissed.

4. We have perused the argument of both sides ld counsels. We have also perused the pleading as well as evidence of the parties.

i) From the pleading of the parties it transpires that the complainant Sri Krishna Kumar Agarwalla had purchased two e.tickets vide ticket No. 0982065559042 and 0982065559043 dtd.26^th Sep, 2012 from M/S Omkara Travels, Guwahati (Opp.Party No.1), the agent of Air India (Opp.Party No.2) for him and his son to travel from Delhi to Guwahati in Air India Flight No. 889 on 10^th Nov, 2012 and the scheduled time of departure from Delhi was 7.55 a.m. and the both the tickets were confirmed tickets. It is also both sides’ admitted fact that the complainant and his son arrived Indira Gandhi International Airport terminal No. 3 on 10.11.2013 at 6-00 a.m. to board Air India Flight No. 889 , but they were not allowed to board the said flight telling them that the capacity of the seats of the said flight  was already filled up and then they approached the Ground Officer of Air-India and the latter allotted their seat in another Air India Flight (Flight No.9611) which was scheduled at 1.55 P.M. to fly from Delhi to Guwahati and as a result the complainant’s son had to stay back at the Airport to fly in the said flight , but Air India rescheduled the said flight at 3 p.m. and finally they arrivedGuwahati at 6.30 p.m. in the flight No. A-19611. It is also admitted fact that during the stay of the complainant and his son at the Indira Gandhi International Airport from 6 a.m to 3 p.m., Air India authority had not provided any special rest facility to them, nor made any arrangement of food for them. Admittedly, the complainant is a businessman having business at Guwahati and he deals in selling and servicing of Air Conditioner, Stabilizer  etc. in the name and style M/S Glacier Technologies Pvt. Ltd. As a businessman if he could have arrived Guwahati at fore-noon by travelling in flight No.889, he could have been engaged in his business and could have earned certain amount through business, but due to alteration of flight he arrived Guwahati at 6-30 p.m missing a full working day and hence due to preventing him to travel in flight No. 889 which was scheduled to flight 7-55 a.m. he missed one full working day resulting in loss of business for the whole day.

ii) In this case the Opp.Party No.2 states that issuing surplus tickets beyond the limit of the seat capacity he states that it is their business policy to ensure optimum utilization of seats in case of last minute drop out /cancellation of confirmed tickets of the passengers of the last moment and therefore, there is no wrong on their part issuing surpass tickets in flight No. AI 889 . But Opp.Party No.2 fails to show any law authorizing them to surplus tickets. Hence, in such situation , we are constrained to hold that there is no law authorizing  Opp.Party No.2 to issue surplus tickets , and the very act of issuing surplus tickets is an illegal act and for such illegal act they have to face the consequence and so, for issuing surplus tickets if any of passangers felt harassed, they are to compensate him properly. The opp.party side further states that as per Civil Aviation Requirement Section 3 Air Transport Service ‘M’ Part IV issue I Dated 6 August, 2010, they are not liable to pay any compensation to the complainant for loss business as well as for harassment etc. It is found that denying the complainant and his son toboard in flight No. 889 which was scheduled to fly at 7-5 a.m. on 10.11.2013 amounts       to causing harassment to the complainant and his son and putting them in mental agony. Opp.Party No.2 side submits that as per provision of point 3.5.1 of CAR they are not liable to pay compensation for causing harassment to the complainant and his son and putting them in mental agony. The complainant had admitted that  they accepted the offer of sending them in flight No. AI 9611 which took off from Delhi Airport at 3 p.m.. This acceptance , according to us, does not amount to liquidate the claim for compensation for the harassment and the mental agony, they had suffered while they had not been allowed to board Flight No. 889 at 6 A.M. on that day. The very act of taking accommodation in the Flight No. 9611 is only the adjustment of the act of fly from Delhi to Guwahati and it cannot be said as a adjustment of harassment and mental agony they faced. Therefore, we are of opinion that the Opp.Party No.2 must have to pay certain amount for causing such harassment and mental agony which includes not providing refreshment facility to the complainant and his son during their stay at the Delhi Airport. We are of opinion that the provision of point 3.5.1 of the CAR does no way dis-entitle the complainant from such compensation. On that count, we hold that the Opp.Party No.2 side must have to pay at least Rs.10,000/- to the complainant as compensation for causing harassment and mental agony to him and his son.

iii) We have already found that due to negligence of Opp.Party No.2 the complainant had to face loss of business for one day. Although the complainant does not show the loss of business specifically in terms of money, we are of opinion that he had suffered business loss at least Rs.10,000/- having he is an established businessman at Guwahati. Henceforth, the Opp.Party No.2 is liable to pay at least Rs.10,000/- to the complainant in the head of loss of business caused to him.

5. It is also found that the opp.party No.2 side has not shown good attitude towards the complainant nor offered him any compensation for causing harassment and mental agony to him and his son and loss of business to him by their act of denying them to fly in the flight No. 889, and in result the complainant was compelled to come to knock the door of this forum to get redressal of his grievances against the opp.parties and in that pursuit he had to spend a good sum in payment of fees to his counsel and also in incurring expenditure in his visits to this forum. Therefore, we are of opinion that Opp.Party No.2 is liable to pay at least Rs.10,000/- as cost of the proceeding.

6) Because of what has been discussed as above , the complaint against Opp.Party No.1 is dismissed, but against Opp.Party No.2 namely Air India is allowed on contest and Opp.Party No.2 is directed to pay Rs.20,000/- (Rupees twenty thousand)only to the complainant as compensation and Rs.10,000/- (Rupees ten thousand)only as cost of the proceeding, and they are directed to make payment of the said amount within two months, in default of which, it will carry interest @ 12 % per annum from the date of filing of this complaint (3.1.2013).

Given under our hands and seal of this forum on this day 12^th August, 2016.

            Free copies of judgment be delivered to the parties.

        (Mr U.N.Deka)                            (Md.S.Hussain)

               Member                                      President