Haryana

Panchkula

CC/254/2015

ANISH SHEORAYAN. - Complainant(s)

Versus

M/S RIDDHI SIDDHI TRAVELS. - Opp.Party(s)

COMPLAINANT IN PERSON.

08 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                            

Consumer Complaint No	:	254 of 2015
Date of Institution	:	10.11.2015
Date of Decision	:	08.03.2016

                                                                                          

Anish Sheorayan s/o Sh.Rajinder Singh, R/o H.N.o 405, Sector 46-A, Chandigarh.

                                                                                          ….Complainants

Versus

 

1.       M/s Riddhi Siddhi Travels, SCO No.46, 1^st Floor, Cabin No.108, Sector-11, Panchkula (Haryana), through its proprietor.

2.       Etihad Airways, 2^nd Floor, Narayan Manzil, 23, Bara Khamba Road, New Dehi-110001 through its Managing Director.

                                                                                        ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.S.P.Attri, Member.

 

For the Parties:     Complainant in person alongwith Mr.Mandeep Kumar, Mr.Surjit Bhaduand and Mr.Veer Singh, Advocate. 

Mr.Vivek Arora, Adv., for the Op No.1.

Mr.Harsh Nagra, Adv., for the Op No.2.

ORDER

(Dharam Pal, President)

1. The complainant-Anish Sheorayan has filed this complaint against the opposite parties (in short the Ops) with the averments that he is a business man and dealt with machines for earning his livelihood by way of self-emplyment and also attended in different Seminars as well as in India and abroad. One event namely i.e. Hanover Messe 2015 (Trade Fair) was organized by one German Manufacturer in Hanover, Germany and the complainant was invited to participate in the same. For the participation in the seminar, the complainant booked Air Ticket from OP No.1 for up and down and also paid the consideration amount of Rs.50,500/- to the Op No.1. After receiving the amount, the Op No.1 booked the ticket of with the Op No.2 i.e. Etihand Airways for 15.04.2015 i.e from New Delhi to Abu Dhabi to Munch and further Munich to Hamburg. The arrival time at the flight of the complainant at Hamburg was 3:45 PM on 15.04.2015. In this regard, the complainant had already booked Taxi service for him with his 13 crew members and has already paid the amount for taxi service. The complainant is a paraplegic patient as he has metallic implants in his spine and due to the paraplegic, the complainant could not walk properly and in this regard, the complainant requested the Op No.1 to arrange a wheel chair alongwith attendant which was arranged by the Ops and the fact also showed in the boarding passes issued by the Op No.2. The complainant alleged that when he reached from Abu Dhabi to Munich Airport, no wheel chair alongwith attendant was provided to the complainant by the Op No.2 and from the Munich to Hamburg. Due to the non-availability of the wheel chair alongwith attendant, the complainant could not board the connecting flight from Munich to Hamburg and he was also forced to walk alone with his handbag luggage without any attendant about 1 km because the difference between both the terminals of the connecting flight was about 1 km. Due to non-availability of wheel chair alongwith attendant, the complainant missed the connecting flight which was on time. Thereafter, the Op No.2 rescheduled the connecting flight from Munich to Hamburg which was after two hours from the missed flight. After rescheduling the connecting flight, the complainant did not reach Hamburg within time. Due to that reason, his crew members left for the hotel in a taxi which was already booked by the complainant from Hamburg Airport to the hotel. After reaching the Airport, the complainant enquired about his luggage at the airport and the official of Op No.2 informed the complainant that the luggage of the complainant was missing and also no explanation was given by the Op No.2 regarding the missing of the luggage. Then, the complainant lodged a Luggage Missing Report before the authorities vide reference No.V1259250 and also raised voice against the poor service provided by the OP No.2 as his medicine and dress code  suit was in the luggage bag. The official of OP No.2 requested the complainant that they would pay the taxi fare and also felt sorry for their poor service. The official of Op No.2 further requested the complainant to go to the hotel and assured that his missing luggage would be sent to the hotel. Thereafter, the complainant hired another taxi and paid 280 Euro for taxi fare. But the Op No.2 did not send the luggage of the complainant within time and due to that reason, the complainant had not taken his medicines within time nor attended the Trade Fare in a dress code on 15.04.2015 and the complainant felt very embarrassed in the Trade Fair. After many requests made by the complainant, the Op No.2 sent the luggage in the evening on 16.04.2015. Thereafter, the complainant sent an email for refund of taxi fare of 280 Euros and poor service of Ops but later on they flatly refused to reimburse the amount rather made a discount of 50 Euros. Thereafter, on 13.05.2015, the Ops sent an email in which they assured the complainant that they would investigate the feedback thoroughly and would take appropriate action as soon as possible. On 20.05.2015, the complainant received an email from M/s Air Berlin PLC and Co Luftverkehrs KG who has tie up with the Op No.2 in which they apologized for inconvenience caused and asked to give his international bank detail as the Ops were ready to refund 50% of the taxi fare i.e 140 Euros. On 25.05.2015, the OP No.2 sent an email to the Op No.1 in which they made a wrong excuse that the wheel chair service was there but the complainant did not report to them neither at the Etihad Counter and they were waiting with a sign for the guest. The complainant replied through email dated 02.06.2015 that there was no wheel chair at Munich Airport and that fact could be verified from the CCTV footage of Airport. Further the complainant requested the Ops to send the CCTV footage to him but to no avail. Thereafter, the complainant requested the Ops through mail dated 15.06.2015 to refund the loss and pay the compensation to him due to deficiency in service but to no avail. This act and conduct of the opposite parties amounts to deficiency in service on its part. Hence, this complaint.
2. In reply, the OP No.1 filed written statement and submitted that the complainant approached the Op No.1 to book the air tickets. It is submitted that the Op No.1 booked the Air ticket to Op No.2 but the purpose of the same was neither asked nor told to the Op No.1. It is submitted that wheel chair was requested and the same was done by the Op No.1 and there was no mention that the same was not booked. It is submitted that there is no fault against the Op No.1 as the duty of Op No.1 was to book air ticket and nothing else. Thus, there is no deficiency in service on the part of Op No.1 and prayed for dismissal of complaint.
3. In reply, the OP No.2 filed written statement by taking some preliminary objections and submitted that all claims against Airlines are governed by the carriage by Air Act, 1972 and that jurisdiction in case of carriage by air is governed by Rule 29 of Schedule II to the Carriage By Air Act, 1972 which reads as under:-

Rule 29

“29 (1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.

(2) Questions of procedure shall be governed by the law of the Court seized of the case.”

It is submitted that last sector i.e. Munich to Hamburg was travelled by the complainant on Air Berlin and not on OP No.2. It is further submitted that Air Berlin, with whom the Property Irregularity Report (PIR) was lodged at Hamburg has not even been a party. It is submitted that the luggage was not delivered to the complainant at Hamburg upon arrival but was delivered to him the next day and the complainant has claimed Rs.1,00,000/- towards damages which is not maintainable against the Op No.2 as no written notice was served upon Op No.2 within 21 days in accordance with Schedule 2 Rule 27 of the Carriage By Air Act, 1972 which is as under:-

                                           Rule 27

“27 (2)  In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty one days from the date on which the baggage or cargo have been placed at his disposal.”

It is submitted that as per Articles 16.1 and 16.2 of the conditions of carriage of the OP in respect of delay in delivery of baggage if no written notice of the same is given to the airline within 21 days of receipt of the baggage is as follows:-

              “16.1 NOTICE OF CLAIMS

Acceptance of Baggage by the bearer of the Baggage Check without complaint at the time of delivery is sufficient evidence that the Baggage has been delivered in good condition and in accordance with the contract of carriage, unless you prove otherwise.

If you wish to file a claim or an action regarding Damage to Checked baggage, you must notify us forthwith after you discover the damage, and at the latest, within seven (7) days of receipt of the Checked Baggage or in the case of lost baggage within seven (7) days of the date the checked baggage should have arrived. If you wish to file a claim or an action regarding delay of checked baggage, you must notify us within twenty-one (21) days from the date the checked baggage has been placed at your disposal. Every such notification must be made in writing.

16.2  LIMITATION OF ACTIONS.

Any right to damages shall be extinguished if an action is not brought within two (2) years of the date of your arrival at destination, or the date on which the aircraft was scheduled to arrive, or the date on which the carriage stopped. The method of calculating the period of limitation shall be determined by the law of the court where the case is heard.”

It is submitted that the wheel chair waiting for the complainant at the point of arrival, which unfortunately the complainant did not notice. It is submitted that at Munich, Germany, as per EU Regulations, it is the airport authority that is responsible for providing the wheelchair and not the airline. It is submitted that as per the applicable law in counties falling with the European Union, the airline is required only to pass on a passenger’s request to the airport authority who are responsible for providing wheel chair assistance at the airport to passengers. It is submitted that the complainant missed his connecting flight from Munich to Hamburg and the complainant was put on to another flight from Munich to Hamburg and the same reached Hamburg at about 5.55 pm on 15.04.2015 only after delay of 2 hours. It is submitted that the complainant was booked as a wheel chair passenger in the category ramp wheelchair (WCHR) as could be seen from his boarding passes. It is submitted that a passenger who cannot walk a long way on the ramp but can climb stairs and can walk in the cabin is marked as WCHR but the complainant was not a passenger who was not unable to walk at all or could not climb stairs and needed total assistance at the time. It is denied that a request for wheel chair assistance was made by the complainant. It is submitted that the complainant was travelling with 13 crew members who left the complainant unassisted upon arrival at Munich and did not help him even with a carriage of his hand bag so as to such the complainant missed his connecting flight. It is denied that the complainant met with any official of Op No.2 at Hamburg as the same was operated by Air Berlin. It is submitted that the PIR was lodged with Air Berlin and not with the Op No.2. It is submitted that the first communication received by the Op No.2 from the complainant was on 11.05.2015 through a mail forwarded by Op No.1 which duly responded by the Op No.2 vide its mail dated 13.05.2015. It is submitted that it is the Air Berlin who offered an amount of 140 Euros towards transport costs on account of delayed delivery of baggage. It is submitted that every airport has pharmacies from where the complainant could purchase his medicines on producing a doctor’s prescription. It is denied that vide letter dated 11.05.2015, any admission of any mistake was made by the Op No.2. It is denied that any wrong excuse was made by the Op No.2 in their email dated 25.05.2015. It is submitted that as per procedure an airline is only required to pass on a wheel chair request of a passenger to the airport authority of any airport governed by EU Regulations. It is submitted that the CCTV footage if at all available at the airport, is in the custody of the airport authorities and not the airlines and therefore, the Op No.2 did not have access to any such footage. Thus, there is no deficiency in service on the part of Op No.2 and prayed for dismissal of complaint.

4. Rejoinder to the written statement of Ops No.1 and 2 has been filed by the counsel for the complainant.
5. The counsel for the complainant has tendered in evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-12 and closed the evidence. On the other hand, counsel for the Op No.1 has made a separate statement in which he stated that his written statement might be read as his evidence and he did not want to file any more evidence and closed the evidence. The counsel for the Op No.2 has tendered in evidence by way of affidavit Annexure R2/A alongwith documents Annexure R2/1 to R2/5 and closed the evidence.
6. We have heard learned counsel for the parties and have also perused the case file carefully and minutely.
7. Perusal of the case file reveals that there was metallic implants in the spine of the complainant as is evident through certificate Annexure C3 issued by the Dr.Ashwani Soni, Assistant Professor, Department of Orthopedics, Chandigarh. The complainant was issued airline tickets (Annexure C4) by OP No.2 wherein Wheel Chair Facility was agreed to be provided but the grievance of the complainant is that no Wheel Chair Facility was provided to him. Learned counsel for the complainant has argued that the Ops were deficient in providing service to the complainant as his luggage was missing and regarding this the complainant had lodged Luggage Missing Report with the concerned authorities vide reference No.V1259250. Due to missing of luggage the complainant could not take the medicines in time and even failed to attend the Trade Fare in Dress Code.  The contentions put-forth by the complainant are convincing as the Ops failed to rebut the same by leading cogent and reliable evidence. Though the Op No.2 in an email Annexure C10 has mentioned that Wheelchair service was waiting for the guest, but he did not report to them neither Etihad counter. They were waiting with a sign for the guest, his name was shown. According to the records, they left 30 minutes after actual arrival. Learned counsel for the OP No.2 has further argued that as per EU Regulations the airport authority is responsible for providing wheel chair assistance and not the airline. We do not find any merit in the contention of the Ops as the tickets issued to the complainant clearly show that once of the services which the Op No.2 had agreed to offer to him was to provide wheel chair. Even if the wheel chair was to be provided at ramps, it cannot be said that the carrier was not responsible for providing wheel chair at the airport. The alleged obligation of the Airport Authority to provide wheel chair in terms of EU Legislations does not absolve the airline of its contractual obligations to provide the said service to the complainant.  If the OP No.2 was not in a position to provide wheel chair facility to the passenger at the destination, it should not accept the request of the complainant. But once the request was accepted, it had to provide the wheel chair either through the airport authority or the agency engaged by it. Moreover, there is no indication in the tickets issued by the Op No.2 that the responsibility to provide wheel chair at the airport will be of the airport authority and not of the airlines. The OP No.2 has also failed to produce any evidence/affidavit of the official who stood at airport with Wheel Chair to assist the complainant. Hon’ble National Commission in case titled as Satya Prakash Gupta & Anr. Vs. M/s British Airways and others 2015 (3) CPR 570 has held that Consumer Protection Act, 1986, Sections, 15,17,19 & 21 Deficiency in service- Instant case, complainants were issued airline tickets wherein British airlines had agreed to provide wheel chair service- Hence, if passengers particularly those are old and unable to walk are made to wait on an open platform, which is extremely cold, that by itself would be an act of deficiency in rendering services to the passengers. Compensation of One Lakh each awarded to the complainants.
8. Another grievance of the complainant is that while reaching at airport it came to his knowledge that his luggage, containing his dress which he was to wear during Trade fare as Dress code and medicines, was missing and he also made complaint regarding this to the concerned authorities. On the other hand, the OP No.2 had contended that for the late delivery of luggage 140 Euros were offered by the Air Berlin to the complainant. It is strange that on one hand the OP No.2 has admitted its mistake and on the other hand vide Annexure C9 after apologizing the same offered refund of 50 % of the incurred taxi costs amounting to 140 Euros. The act and conduct of the OP No.2 is quite depreciable as instead of compensating the complainant for mental agony and harassment it has offered 50% of the incurred amount. The complainant had entrusted the luggage to the airline for keeping in safe custody but the airline failed to do so. The Consumer Protection Act has been enacted to give relief to the consumers for deficiency in service, unfair trade practice etc. by the service provides, traders, manufacturers etc. Hon’ble Supreme Court of India in The Consumer & Citizens Forum Vs. Karnataka Power Corporation (1994) (1) CPR 301 has held that The provisions of this Act give the consumer an additional remedy besides those that may be available under other existing laws. In the instant case, no doubt the Appellant Airlines had sought to settle the consumer’s grievance purely in terms of the notional monetary loss suffered by him as per the relevant provisions of Carriage by Air Act, 1972.  On this ground reliance can also be taken from case law titled as Emirates (M/s Emirates Airlines) Vs. Dr.Rakesh Chopra 2013 (2) CLT page 581. It is settled principle of law that admission is best piece of evidence and it needs no evidence to prove, therefore, we have no hitch to reach at a conclusion that the present complaint deserves acceptance.  Accordingly, we allow the present complaint. The Ops are directed as under:

1. To pay the Rs.1,00,000 (one lac) to the complainant alongwith interest @ 9 % from the date of filing of compliant i.e. 10.11.2015 till its actual realization.
2. To pay an amount of Rs.15,000/- as compensation for harassment, mental agony and cost of litigation.

Let the order be complied with within the period of 30 days from the receipt of certified copy of this order.  A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

Announced

08.03.2016       S.P.ATTRI        ANITA KAPOOR        DHARAM PAL

                         MEMBER         MEMBER                               PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                                          

                                                         DHARAM PAL

                                                          PRESIDENT