Versus
- M/s. Spice Jet Ltd., 319, Udyog Vihar-4, Gurugram, 122016 (Haryana) through its Managing Director.
- M/s. spice health Care Pvt. Ltd., Corporate Office: 320, Udyog Vihar, Phase IV, Gurugram 122016 (Haryana) …..Opposite parties
Complaint Under Section 35 of the Consumer Protection Act, 2019.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainants : Sh. Rajeev Abhi, Advocate.
For OPs : Sh. Sudhir Gakhar, Advocate.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. In brief, the facts of the case are that complainant No.1 is resident at Dubai and is working as a Class Teacher in UAE (Dubai) on salary of AED 5500/- per month whereas her minor son complainant No.2 Gurpartap Singh Anand is also studying at Spring Dales School, Dubai. On 21.10.2021 at 10.15 Hrs., the complainants booked air tickets vide PNR No.TDM2GG/SG with OP1 with confirmed status of flight SG712 of Spice Jet from Amritsar to Dubai scheduled on 01.01.2022 at 19.35 P.M. The complainant stated that they came to India on Saturday December 11, 2021 through Spice Jet flight SG 711 from Dubai TN1 to Amritsar. The complainants stated that as per requirements of OP1, they got their RT-PCR done on 31.12.2021 from a reputed ICMR approved Lab SPS Apollo Hospital, Ludhiana which resulted in “COVID-19 negative”. The complainants further got second RT-PCR done at Amritsar Airport through OP2 on 01.01.2022 but surprisingly it resulted as ‘Positive’ for complainant No.1 and ‘Negative’ for complainant No.2 due to which they were not allowed to board the flight and their luggage was off loaded.
The complainants further stated that complainant No.2 is aged 14 years, even though his result was negative, he could not board the flight alone as he was minor. The complainants faced lot of harassment by the staff of Spice Jet at Amritsar Airport. Even after repeated requests to OP2 by the complainants to re-test them the officials of OP2 did not take the re-test due to which the complainants had to face great difficulty and harassment in procuring Taxi for coming back to Ludhiana. After coming back on 02.01.2022, complainant No.1 again gave the sample for RT-PCR in another reputed ICMR approved lab i.e. SRL Diagnostics, Ludhiana and surprisingly, she was again tested ‘Negative’ for Covid-19 which validates the previous negative report dated 31.12.2021 done from SPS Apollo Hospital, Ludhiana. Both the reports dated 31.12.2021 of SPS Apollo Hospital, Ludhiana and 2.1.2022 of SRL Diagnostics. Ludhiana contradicts the test reports of OP2 Spice Health Care. According to the complainants, there were so many complaints against OP2 as many other passengers were also given wrong reports by OP2 which were highly published in the different newspapers. Punjab Health Authorities also probed the testing mechanism of OP2. All the passengers who were tested positive by OP2 were being re-tested by the District Administration and they were found with ‘Negative’ Covid-19 reports and as such thereafter laboratory run by OP2 from Guru Ram Dass Ji International Airport, Amritsar was closed and it was also published in various newspapers. The complainants further stated that complainant No.1 is working as Teacher in UAE and she had to join back the school on 02.01.2022. Even complainant No.2 is studying in grade 9th and he had to join his school but could not join the same on time and had missed his important classes. This has caused huge financial loss and mental stress to the complainants. Complainant No.1 vide Email dated 02.01.2022 called upon OP1 for re- scheduling of the flight from Amritsar Airport to Dubai and payment of compensation due to mental harassment, mental agony and financial loss. Along with the mail the complainant had sent to OP1 the return tickets, RT-PCR (SPS hospital - done on 31.12.2021) Rapid RT-PCR (Spice Health Lab - done on 01.01.2022) and RT-PCR (SRL Diagnostic - done on 02.01.2022). OP2 duly received the mail dated 02.01.2022 but failed to give any reply or accede to the genuine request of the complainants. The complainant again sent the email dated 04.01.2022 clearly stating that "further to our below mail sent on 2 January 2022, we have got done our RT-PCR test done from another reputed ICMR approved Lab (Dr. Lal Path Labs, Ludhiana). We again tested negative for Covid-19. Kindly find attached reports of the same. This clearly indicates that some error was deliberately made by the Spice Health Lab staff to harass the customers which could be because the flight was overbooked. Otherwise, how can it happen that after coming back from the airport, both our test results that too, from different ICMR approved labs has come out to be negative. Also, I received a phone call on my registered mobile no. from a person (Prabhjeet 8285372826) claiming to be a staff of Spice Health Lab who demanded our vaccination certificate and also demanded a bribe for converting the positive report to negative the next time we board our flight. The Spice Health Lab staff at the Amritsar Airport are deliberately doing all this goof ups to make money from innocent people. We have 3-4 more cases like this from the same flight as ours. We are keeping in touch with them as well. And their results are negative too. It seems that Spice jet is deliberately offloading the passengers at the airport to harass the passengers and above that not providing the free rescheduling of the flight to mint money from the people. For this harassment we will sue you in the court or else provide us with free rescheduling of the flight. As there is no fault of ours as all our 3 reports are negative even after 72 hours of our departure on 1st Jan 2022. So I request you to reschedule our flight as soon as possible."
The complainants further stated that OP1 received the said Email but did not give reply or failed to accede to their genuine request. The said Email was followed with the reminder dated 05.01.2022 through Email. OP1 did not agree to the genuine requests of the complainants, the complainants got their tickets (two in number) booked from Air India on 05.01.2022 from Amritsar to Dubai through flight No.A1 929 and by paying Rs.43,390/- being the basic fare, taxes, fees and charges for the flight to be taken off on 09.01.2022 departure time: 04.25 Hrs. from Amritsar (ATQ) to Dubai (DXB). OP1 vide their Email dated 06.01.2022 sent a false and frivolous reply stating that flight SG 55 was delayed due to schedule change, which is totally wrong, false, after thought and concocted one in order to avoid the payment of compensation and rescheduling of the flight. The complainants on 27.01.2022 checked her bank account in Dubai Islamic Bank and found that OP1had credited AED 1236/- on account of refund of one way fee (Amritsar Dubai). The complainants immediately informed OP1 for re-scheduling of their flights from Amritsar to Dubai but the same was not done. So, the complainants had to purchase air ticket for Rs.43,390/- from Air India for their return journey. The complainants claimed to have entitled to the difference of fare which comes to Rs. 18,000/- also which they had incurred only due to deficiency in service and negligence of the OPs who adopted unfair trade practices. The complainants had further stated in the said Email that they had spent money for getting the RT-PCR tests done 3-4 times from private ICMR approved labs and had to paid RT-PCR test at Amritsar International Airport twice costing Rs. 1250/- per person to Spice Health Lab i.e. OP2 and as such, they entitled to the amount of Rs.5000/- for RT-PCR tests. The complainants had further stated in the Email that they had to travel from Ludhiana to Amritsar Airport by taxi twice costing the complainant Rs.3000/- for one side thus amounting to Rs.9000/-. The complainants were not allowed to board the scheduled flight from Amritsar to Dubai on Spice Jet on 01.01.2022 due to wrong testing reports given by OP2, who is the subsidiary of OP1 and as such, both the OPs are jointly and severally liable to pay aforesaid amount and compensation. The results of OP2 Spice Health Lab were factually wrong and incorrect and this fact has been mentioned in the Daily Hindustan Times dated 7th, 8th and 9th January, 2022. A probe was also conducted against the said lab of OP2 by the Health Department which found the testing kits to be inaccurate which led to false results. The complainants further stated that they are entitled to compensation on account of mental agony, harassment, financial loss, loss of work etc. as claimed through Email dated 27.01.2022. The complainants have requested the OPs to pay the aforesaid compensation amount but they refused to accede to the genuine requests of the complainants. In the end, the complainants have prayed for issuing directions to the OPs to pay compensation of Rs.2,00,000/-
2. Upon notice, OP1 appeared and filed written statement and assailed by complaint by taking preliminary objections on the grounds of maintainability; the complaint being filed to extort money from them; bad for mis-joinder of parties; lack of territorial jurisdiction; lack of cause of action etc. OP1 stated that it has acted as per rules and regulations of DGCA, the applicable rules and regulations of the Central and State Governments regarding Covid-19 protocols which were applicable at the relevant point of time. It has also acted as per the terms of carriage and there is no deficiency in service and negligence on their part. OP1 has acted as per rules, regulations, laws and bye laws of the State as well as Central Government and also the Terms of Carriage/E-ticket. In fact, the complainant booked two tickets in the name of Shallu Chawla and Gurpartap Singh Anand (minor son) on 21.10.2021 for travel from Amritsar to Dubai on 01.01.2022, on SG-711 vide PNR No.TDM2GG. OP1 further stated that as per the COVID-19 guidelines, for entry in UAE, the RT-PCR (validity within 48 hours of departure) and RAPID-PCR (Validity within 6 hours of departure) was mandatory to carry. To follow and comply with the COVID-19 guidelines, the responsibility was for the Airport Operator to provide COVID-19 testing facility at the airport. At Amritsar Airport, the contract to conduct COVID-19 test was awarded by OP1 to OP2. OP1 further stated that the complainant reported at the Airport with RT-PCR negative report and as such, she cleared the airline documents check counter. Thereafter, the complainant and her minor son were guided for RAPID-PCR test and as per report of which Shallu Chawla was tested to be positive and her minor son was tested to be negative for COVID-19 virus due to which she was not allowed to board the flight and travel to her destination as per applicable guidelines. Complainant No.1 did not let her son to fly alone and as such, they were not allowed to travel in the said flight. Further as per applicable rules, the entire ticket amount of 1236.80 AED was remitted/refunded in original mode of payment by the complainants. Further as per goodwill gesture, a travel voucher for sum of Rs.1000/- for each passenger i.e. total Rs.2000/- were also offered to the complainants. OP1 further stated that it is not a proper and necessary party as the main grievance of the complainant is against OP2 and as such, the complainants have no cause of action against OP1. There is no nexus between OP1 and OP2.
On merits, OP1 reiterated the crux of averments made in the preliminary objections. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.
3. The complainant filed rejoinder to the written statement of OP1 reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement.
4. Upon notice, OP2 appeared and filed written statement and assailed by complaint by taking preliminary objections on the grounds of maintainability; the complaint being filed to extort money from them etc. OP2 stated that it has acted as per rules and regulations of DGCA, the applicable rules and regulations of the Central and State Governments regarding Covid-19 protocols which were applicable at the relevant point of time. It has also acted as per the terms of carriage and there is no deficiency in service and negligence on their part. OP1 has acted as per rules, regulations, laws and bye laws of the State as well as Central Government and also the Terms of Carriage. OP2 stated that the complainant has raised basic grievance that OP2 has intentionally and deliberately tested complainant Shallu Chawla Positive for COVID-19when she was tested at Amritsar Airport through lab of OP2 regarding which OP2 has been issued/granted certificate of Accreditation by National Accreditation Board for Testing and Calibration Laboratories after assessing and accrediting OP2 with the standard ISO 15189:2012. The said certificate No.MC-4140 was issued on 08.02.2023 and the same was valid till 07.02.2021.
OP2 further stated that due to onset of COVID-19 pandemic and restrictions on travel imposed by various State Governments, Central Governments and other countries, the Government of India and other countries made it mandatory for all the passengers to get their COVID-19 test all the passengers to get their Covid-19 tests done immediately before Air Travel. For the said purposes, various entities/Laboratories etc. were authorized by the Airport Authority of India (AAI) to establish their laboratory units at the space/kiosk allocated by the AAI to said laboratories at the airport itself. OP2 further averred that the AAI, vide Award Letter dated 01.11.2021, bearing No. AAI/ASR/Comml/Rapid/2021- 22/742, allowed OP2 to set up and operate Covid-19 Rapid PCR Testing facility for Internationally departing passengers at Sri Guru Ram Dass Jee International Airport, Amritsar. In order to carry out Rapid-PCR Tests for Covid-19, OP2, as per the directions and approval of the appropriate Government Authorities, used only those kits, which were tried, tested, approved and accredited by the appropriate government authorities. OP2 further used either of 2 kits viz. Agappe Real Time RT- LAMP COVID 19 Testing Kit, manufactured by Agappe Diagnostics Ltd., Ernakulam, Kerala. The performance of the said kit was evaluated by ICMR-National Institute of Virology, Kerala Unit, on 21.09.2020 and the same was concluded to be Satisfactory. Further the said product i.e. MISPA LUME: Real Time RT-LAMP Analyser was granted International Certificate i.e. Certificate of Conformity, certifying that it complies with the requirements applicable to Directive 98/79/EC of IVD. OP2 further stated that the other kit, which it uses is ACCULA DOCK RAPID RT PCR MC TRMO#2000 and its reagent namely ACCULA SARS-COV2 25T THERMO#COV4100. Even the said product was tried, tested and examined by Food and Drug Administration of USA and was approved for testing for COVID-19. The said KIT was also one of the approved KITS in India to carry out COVID-19 tests. All tests done for COVID-19 were mechanical/electronic and the same did not involve human evaluation and assessment and as such, there was no chance of any human error while conducting the said tests. OP2 further stated that if the sample is positive, then the report will be positive and if the sample is negative, then the report will be negative. Any human involvement or interference cannot change the test result. The allegation of the complainant that the staff of OP2 has given false report or that has given positive report for the complainant Shallu Chawla (who was tested negative by other laboratories). OP2 further stated that the complainant had leveled a vague, evasive and bald allegation against it that the COVID-19 report given (positive) by it is false and incorrect. The outcome of the report is not in the hands of staff of OP2. Each and every staff of OP2 who collects sample and gets the tests done is duly qualified, experienced and is trained to take samples and conduct the examination. Further the KIT, which was used for COVID-19 examination gives the result mechanically and automatically without any human involvement and human intervention and as such, there is absolutely no chance of any human error while generating the report. The complainant has failed to either plead or place on record any document to even remotely show as to on what basis, her positive report for COVID-19 is erroneous or incorrect. Merely, the said report does not suit her and has caused inconvenience to her, the same cannot be faulty or erroneous. The present complaint, as such, seems to be outcome of own figment of imagination of the Complainant and is filed with the sole motive of extracting unjustified amount from OP2, without any basis, whatsoever.
On merits, OP2 reiterated the crux of averments made in the preliminary objections. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.
5. The complainant filed rejoinder to the written statement of OP2 reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement.
6. In evidence, the authorized representative of the complainants tendered her affidavit as Ex. CA and reiterated the averments of the complaint. The complainants also placed on record documents Ex. C1 is the copy of air ticked booked on 21.10.2021, Ex. C2 is the copy of air ticket booked on 05.01.2022, Ex. C3 is the copy of report dated 04.01.2022, Ex. C4 is the copy of report dated 31.12.2021, Ex C5 is the copy of report dated 01.01.2022, Ex. C6 is the copy of report dated 01.01.2022 of OP2, Ex. C7 is the copy of passport of Shallu Chawla, Ex. C8 is the copy of report dated 02.01.2022, Ex. C9 is the copy of test report dated 02.01.2022, Ex. C10 is the copy of test report dated 04.01.2022 of Gurpartap Singh Anand, Ex. C11 is the copy of test report dated 31.12.2021 of Gurpartap Singh Anand, Ex. C12 is the copy of test report dated 01.01.2022 of Gurpartap Singh Anand of OP2, Ex. C13 is the copy of passport of Gurpartap Singh Anand, Ex. C14 is the copy of test report dated 31.12.2021 of Gurpartap Singh Anand, Ex. C15 is the copy of test report dated 01.01.2022 of Gurpartap Singh Anand, Ex. C16 is the copy of test report dated 05.01.2022 of Gurpartap Singh Anand, Ex. C17 is the copy of test report dated 05.01.2022 of Gurpartap Singh Anand, Ex. C18 to Ex. C23 are the copies of various newspapers, Ex. C24 are the copies of Email correspondence and closed the evidence.
The complainants filed application for leading additional evidence, which was allowed vide order dated 11.01.2024. The complainants tendered document Ex. CX i.e. copy of Email dated 04.11.2023 and closed the additional evidence.
7. On the other hand, the counsel for the OPs tendered affidavit Ex. RA of Sh. Vijay Roy, Asst. Manager (Legal) of OP1 and tendered documents Anenxure-R1 is the copy of authority letter, Anneuxre-R2 is the copy of Terms of Carriage and closed the evidence.
In rebuttal to additional evidence, the counsel for the OPs suffered statement to consider the earlier evidence tendered by the OPs.
8. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavit produced on record by both the parties.
9. Admittedly, the complainants mother and son, equipped with COVID-19 Negative reports dated 31.12.2021 Ex. C4 and Ex. C11 issued by SPS Hospital, Ludhiana, an ICMR approved laboratory, arrived at Amritsar Airport on 01.01.2022 to board flight from Amritsar to Dubai for their return journey. On arrival at the airport, the representatives of OP2 conducted second RT-PCR test which was found positive for complainant No.1 and negative for complainant No.2. For this reason both could not take their destined flight to Dubai and had to return to their place of residence at Ludhiana. Complainant No.1 again submitted herself for RT-PCR from another ICMR approved laboratory i.e. SRL Diagnostics and she was again tested negative vide report dated 02.01.2022 Ex. C8. Complainant No.1 vide email dated 02.01.2022 submitted the report with the OPs and requested OP1 to reschedule the flight so that her job prospect as well as study of complainant No.2 may not be adversely impacted. Reminder through Emails dated 04.01.2022, 05.01.2022 failed to evoke any positive response from the OPs. Seeing no early resolution, the complainants booked two tickets from Air India from Amritsar to Dubai for its departure on 09.01.2022 and had to shell out an extra amount. Although OP1 had refunded one way fee to the complainants but the question mark on the veracity of reports of OP2 subsisted. Perusal of news items Ex. C18 to Ex. C23 clearly indicts OP2 qua COVID-19 testing facilities. The report in question Ex. C5 has been issued by Dr. Shekhar Kumar, Ph.D Senior Scientific Officer and has been countersigned by Dr. Mehak Manro, MD, Microbiology Consultant. Both these doctors were not examined by OP2 to corroborate its written version qua adopting of foolproof standard operating procedure and usage of approved testing kits and equipments. Further it is mentioned in the report itself that it is only a “professional opinion”. So non-examination of these expert witnesses constrains this Commission to draw adverse inference against OP2 with regard to conduct of COVID-19 tests by OP2.So there is a deficiency in service on the part of OP2. However, no such case is made out against flight carrier i.e. OP1 who acted in consonance with prevailing guidelines.
10. The complainants in para No.9 had claimed compensation of Rs.2,00,000/- including difference of air fare as Rs.18,000/-, RT-PCR test fee Rs.8,000/-, taxi fare Rs.9,000/-, loss on account of mental tension etc. Rs.25,000/-, loss of salary for seven days Rs.25,000/- and education loss of one week of complainant No.2 as Rs.10,000/-. But this Commission deems it just and appropriate if OP2 is burdened to pay composite cost of Rs.1,00,000/- to the complainant No.1.
11. As a result of above discussion, the complaint is partly allowed with direction to OP2 to pay composite cost of Rs.1,00,000/- (Rupees One Lac only) to complainant No.1 within 30 days from the date of receipt of copy of order failing which complainant No.1 shall be held entitled to interest @8% per annum on the said amount from date of filing of complaint till date of actual payment. However, the complaint as against OP1 is hereby dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
12. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Sanjeev Batra) Member President
Announced in Open Commission.
Dated:05.06.2024.
Gobind Ram.
