M/s. Air India Express, A Subsidiary of air India Ltd V/S M/s. Venkatraman Vembu S/o. N.Vembu - Consumer Court Case

Tamil Nadu

South Chennai

CC/116/2015

M/s. Venkatraman Vembu S/o. N.Vembu - Complainant(s)

Versus

M/s. Air India Express, A Subsidiary of air India Ltd - Opp.Party(s)

M/s. R.Udaya Kumar

29 Nov 2022

ORDER

Date of Complaint Filed : 20.02.2015

Date of Reservation : 03.11.2022

Date of Order : 29.11.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT

THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I

THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II

CONSUMER COMPLAINT No. 116/2015

TUESDAY, THE 29^th DAY OF NOVEMBER 2022

1.VenkatramanVembu,

S/o. N. Vembu

2.Mr. Bhuvaneswari Venkatraman,

W/o. Venkatraman both residing at,

No:19, K.K.Road, Kaveri Rangan Nagar,

Saligramam,

Chennai - 600093. …Complainants

-Vs-

1. M/s. Air India Express,

A subsidiary of Air India Ltd,

Owned by Air India Charters Ltd,

Represented by its Chairman,

Head Office address:-

Air India Building,

Nariman Point,

Mumbai - 400 021

Chennai address:-

19 RukminiLakshmipathi Salai,

(Marshalls Road) (Near Ethiraj College for Women),

Egmore-Chennai 600 008.

2. M/s.GOIBIBO,

A subsidiary of IBIBO WEB (P) LTD,

Represented by its:-

Managing Director,

4^th Floor, Pearl Towers,

Plot No:51 Dector - 32,

Gurgaon, Haryana - 122 002. ... Opposite Parties

******

Counsel for the Complainant : M/s. R. Udaya Kumar

Counsel for the 1^st Opposite Party : M/s. N.G.R. Prasad

Counsel for the 2^nd Opposite Party : M/s. Shivakumar & Suresh

On perusal of records and having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite parties, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1. The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to refund the ticket amount of Rs.9665/- with interest @18% from 06.04.2014 till date of realisation and to pay damages of Rs.2,50,000/- towards mental and to pay a sum of Rs.2,50,000/- towards unfair trade practice and deficiency of service.

2. The averments of Complaint in brief are as follows:-

The 1^st Complainant booked tickets using the 2^nd Opposite Parties goibibo.com website on 04.04.2014 for travelling from Mumbai to Chennai in the 1^st Opposite Party’s flight, which was confirmed on the same day and the tickets were forwarded to the 1^st Complainant’s email. The date of travel was on 06.04.2014 at 13.00 hours. On 06.04.2014 at 08.01 hours the 1^st Complainant received a message whereby it was informed that the Complainants had to report for checking and the gates will be open two hours before departure and closes 45 minutes prior to departure. There are two terminals in the Chhatrapati Shivaji International Airport:- Terminal 1 International and Terminal-2 Domestic. It is implied from the nomenclature that the domestic flight will leave from Terminal-2. The complainant reported in the said terminal but to their utter shock and dismay they were asked to report in Terminal-1. They had to rush up to Terminal-1 and reach the Terminal-1 in time at 12.10, which was well within the reporting time. For the best reasons known to the 1^stOpposite Party the Checking officer Mr.Satish Gokhale rudely denied the Complainants to board the flight. The Complainants were informed that the tickets cannot be used for the next flight and that refund will be made only after 8 or 10 days. The Complainants were 5 minutes ahead of the checking closure time but they were denied to board the flight. The Complainants were forced to buy flight tickets to Chennai afresh and were subjected to severe financial constrain. The Complainants had sent a notice through email on 09.04.2019, for which the 1^st Opposite Party gave a blunt reply throwing the blame on the 2^ndOpposite Party. Hence the complaint.

3. Written Version filed by the 1^st Opposite Party in brief are as follows:-

The 1^st Opposite Party submitted that the 2^nd Opposite Party is a travel agent of the Complainants. The Complainants had paid money to the 2^ndOpposite Party and booked their journey only through them. Even though the travel was with the 1^stOpposite Party flight, admittedly the privity of contract was only between the Complainants and 2^ndOpposite Party. If they had committed any default, the Complainants should look only up to them for redressal and not this Opposite Party. Admittedly the booking details and the tickets produced by the Complainants were issued by the 2^ndOpposite party, an independent travel agency. If they failed to mention the terminal details on the tickets issued by them to the Complainants it is the 2^ndOpposite Party who has to answer the same. Admittedly the Complainants reported at the checking counter only at 12.30 p.m i.e., is only 15 minutes after the closure of the check in therefore Mr.Satish Gokhale, staff of the 1^stOpposite Party airlines expressed his inability to accept the Complainants for the norms for closing the counter 45 minutes before departure is fixed by the Director General Civil Aviation for all airlines uniformly and it is beyond the control of the 1^st Opposite Party to deviate from the same. Since the Complainants had paid the money to the 2^ndOpposite Party they had to refund the money. When the Complainant sent email in this regard, this Opposite Party promptly replied and also furnished the ticket image of the Complainants in which the terminal is clearly mentioned. In Bombay the domestic terminal is Terminal-1 and International terminal is Terminal-2. Since the Complainants failed to report at the counter within time in spite of having confirmed booking, the ticket lapsed and the 2^ndOpposite Party would have refunded the amount to the Complainant after deducting the applicable charges as per rules. The allegation of the Complainant about being forced to purchase a fresh ticket is bereft of any detail. There is no deficiency on the part of the 1^st Opposite Party. Hence the complaint is to be dismissed.

4. Written Version filed by the 2^nd Opposite Party in brief is as follows:-

The 2^ndOpposite Party submitted that the entire cause of action stated in the complaint is based on booking of the tickets from Mumbai to Chennai which was scheduled on 06.04.2014. The Opposite Party does not have any branch office at Chennai. It is clear that no cause of action either in part or in whole as arisen at Chennai. Hence this Forum has no territorial Jurisdiction to adjudicate upon this issue. The Complainants have booked the tickets voluntarily for travel from Mumbai to Chennai after fully knowing well about the terms and conditions of booking. Checkin, cancellation policy, refund of the Policy etc. As per the terms and conditions and refund Policy the Complainants were required to inform about the cancellation of flight and should have contacted this Opposite Party in order to process the refund. Hence the Complainants have no locus standi to file the complaint. This Opposite Party is only a facilitator for reservation of flight tickets and not the aviation company or the Carrier. In the instant case the air ticket has specifically mentioned the terminal details. However the Complainants himself failed to read the check in terms and conditions stated in the tickets and due to their own negligent the Complainants could not reach the 2^nd counter and they are not allow to go. It is submitted that the Complainant booked air tickets from Mumbai to Chennai to the website of the Opposite Party and the flight was scheduled to departure on 06.04.2013 13:00 hours. The message sent to the Complainants was only to remind them for timely check in and that they should not forget to carry the valid photo ID card and such messages are computer generated sent to all the passengers. The departure terminal was international Terminal and the same was mentioned in the air ticket. It is further stated that in the said air ticket, it was specifically mentioned that the checking counter are open 3 hours before the schedule flight departure time and closes 60 minutes before the scheduled departure time. The Complainant denied check in and boarding by the 1^stOpposite Party due to their own negligence which they could have avoided by reading the terms and conditions stated in the air ticket. This Opposite Party holds liability to refund the air fare or pay any compensation to the Complainant. Hence the complaint is to be dismissed.

5. The Complainants submitted their Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-7 were marked. The 2^nd Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the 2^nd Opposite Party Ex.B-1 to Ex.B-2 were marked. The 1^st Opposite Party submitted his Proof Affidavit and Written Arguments. On the side of the 1^st Opposite Party Ex.B-3 to Ex.B-6 were marked.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled?

Point No.1:-

The admitted fact are that the Complainants booked air tickets through the 2^ndOpposite Party on 04.04.2014 for the travel from Mumbai to Chennai in the 1^stOpposite Parties flight on 06.04.2014 at 13.00 hours. It is also admitted that on 06.04.2014 at 08.01 hours the Complainant received a message informing them to report for check in and the gates will be open two hours before departure and closes 45 minutes prior to departure.

The dispute arose when the Complainants were denied boarding stating delay for check in by the 1^st opposite Party.

The contention of the Complainants was that for the travel from Mumbai to Chennai on 06.04.2014 at 13:00 hours they had received a message stating that the gates will be open two hours before departure and closes 45 minutes prior to departure. To the shock and dismay of the Complainant when they reported at the domestic terminal to board the flight they were asked to report to international terminal with great difficulty they arrived at the International terminal at 12.10 hours. However the Complainants were denied boarding stating that they were late and check in counter was closed. Thereafter they had to take another flight to Chennai. After returning to Chennai they had sent an email narrating the entire ordeal they underwent, the unfair trade practice and deficiency of service of the Opposite Party.

The 1^st Opposite Party had admitted that the Complainant had booked tickets for the travel on 06.04.2014 at 13:00 hours through their flight and the Complainants were denied to board the flight. The 1^stOpposite Party had shifted the blame on the 2^nd Opposite Party stating that there was privity of contract between the Complainants and the 2^ndOpposite Party and the failure of the 2^nd Opposite Party to mention the terminal details in the e-ticket, issued by them to the Complainants, for which the 2^ndOpposite Party alone is liable. The Complainants reported at the check in counter at 12.30 p.m, i.e., 15 minutes after the closure of the checkin and hence the staff of the 1^stOpposite Party expressed his inability to accept the Complainants, as the restriction, norms for closing the counter 45 minutes before departure is fixed by the Director General Civil Aviation for all airlines uniformly and this is beyond the control of the Opposite Party to deviate from the same.

The 2^ndOpposite Party contended that they are only the facilitator for reservation of ticket and not the aviation company nor the air craft carrier and does not have control over operation, non operation, arrival departure or boarding of passenger in the flight. Further contended that in the said air tickets it was specifically mentioned that the check in counter are opened 3 hours before the scheduled departure time and closes before 45 minutes from the scheduled departure time. The Complainant were negligent in reading the terms and conditions of the air ticket and hence they cannot be held responsible.

The allegation of the 2^ndOpposite Party that this Commission has no territorial jurisdiction to adjudicate upon this issue is baseless as the Complainant had booked the tickets from Chennai and the 1^stOpposite Party is having its office at Chennai and part of the cause of action has also arisen at Chennai. Hence this Commission has got jurisdiction to decide the dispute between the parties.

As regards the contention of the Complainant that there was no mentioning of the terminal details in the e-ticket forwarded by the 2^ndOppsoite Party to the Complainant by pointing out Ex.A-1 and Ex.A-3 where the terminal detail is left blank the 1^st Opposite Party relied on Ex.B-5 the ticket issued by the 1^stOpposite Party to the 3^rd Party passenger where the details of the terminal and the departure timings where mentioned. The 2^nd Opposite Party relied on Ex.B-2 where it was specifically mention that “all Air India express flight depart and arrive from- at International Terminal except for the case of Kochi wherein Air India Express domestic flight departure/ arrive/ at the domestic terminal and out international flight depart/arrive form/ at the International terminal”. A perusal of Ex.A-1 would show that though the terminal has not been mentioned on the right side of the air ticket there is a print e ticket option which if the Complainant had taken print out would have known the terminal details of the flight booked by them. Hence the contention of the complainant that they were not aware of the terminal details and that they had a difficulty in reporting to the proper terminal is only due to the negligence on the part of the Complainant for which the Opposite Parties could not be blamed.

In so for as the denial by the 1^st Opposite Party to board the flight for the reason that the Complainant arrived late at the check in, it is clear from Ex.A-2 the 2^nd Opposite Party had sent a message to the 1^stComplainant stating that the flight IX 266 check in gate opens two hours before departure and closes 45 minutes prior to departure, on the basis of which messages the Complainant had reported to the counter at 12.10 hours. As per Ex.A-3 the staff of the 1^stOpposite Party Mr. Satish Gokhale had returned that the Complainant had checked in at 12.10 hours, which timing is not in dispute. The 1^stOpposite Parties 1 and 2 had contended that the Complainants should have checked in the counter 60 minutes prior to the scheduled departure, by referring Ex.B-2. However the 2^ndOpposite Party had sent a message stating that the closure of check in counter was 45 minutes prior to departure. And the 1^st Opposite Party had also admitted in the written Version that as per the norms prescribed by the Director General Civil Aviation for all air lines the closing of counter is 45 minutes before departure, and it is beyond the control of the 1^stOpposite Party.

The 1^st Opposite Party had referred Article 7 of the Civil Aviation Rules under the Caption check in, where it is stated that if the passenger fails to arrive in time at the check-in or boarding gate the carrier may cancel the spare reserved and the carrier is not liable to the passenger for loss or expense, is not applicable as the complainants had admittedly arrived 50 minutes prior to departure time while the closing of Counter is 45 minutes before departure as fixed by the Civil Aviation Rules.

The 1^st Opposite Party relied upon the judgement reported in (1995) 2 SCC 150, Consumer Unity and Trust Society, Jaipur Vs. Chairman and Managing Director, Bank of Baroda wherein it was held that mere loss or injury without negligence on the part of the bank would not entitle the Customers to claim compensation and the order of National Commission reported in III (1997) CPJ 119 (NC), Indian Airlines Ltd., Vs Pr.V.J Philip wherein it was held that compensation can be awarded to a Consumer only if there is loss or injury suffered due to negligence of Opposite Party. Both there cases are not applicable to the present case as the complainant had established that the Opposite Parties had committed deficiency of service by denying boarding even though the Complainant had arrived in time.

The Complainants having arrived well in time at 12.10 p.m that is 50 minutes prior to departure of flight, the 1^stOpposite Party had denied access to the flight by the Complainant as they arrived after the closure time, when the closure timings is 45 minutes prior to departure as per the norms of the Civil Aviation which is nothing but deficiency in service on the part of the Opposite Parties .

Point No.2:-

As discussed and decided in Point No.1 the Opposite 1 and 2 are liable to refund 9665/- with interest @ 9% from 06.104.2014 till the date of realisation and to pay a sum of Rs.50,000/- as compensation for the deficiency in service and mental agony caused to the Complainant along with cost of Rs.5000/- to the Complaint. Accordingly, Point Nos. 2 and 3 are answered.

In the result the Complaint is allowed in part. The Opposite Parties 1 and 2 are directed to refund a sum of Rs.9,665/-(Rupees Nine Thousand Six Hundred and Sixty Five Only) with interest @9% from 06.04.2014 till date of realization and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) as compensation for the deficiency of service and mental agony caused to the Complainant, along with Cost of Rs.5,000/- (Rupees Five Thousand Only), within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest @ 9% per annum from the date of receipt of this Order till the date of realization

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 29^th of November 2022.

S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA

MEMBER II MEMBER I PRESIDENT

List of documents filed on the side of the Complainant:-

Ex.A1	04.04.2014	Tickets booked through e-mail with the 2^nd Opposite Party
Ex.A2	06.04.2014	SMS received from the 2^nd Opposite Party
Ex.A3	06.04.2014	Proof of entry being refused despite reporting in time
Ex.A4	06.04.2014	Return tickets once again purchased
Ex.A5	09.04.2014	e-mail notice seeking refund and damages
Ex.A6	09.04.2014	Vague reply from Opposite Parties
Ex.A7	07.2011 till date	Medical case history of the 1^st Complainant

List of documents filed on the side of the 2^nd Opposite Party:-

Ex.B1	-	Copy of terms and conditions
Ex.B2	-	Copy of the Air ticket booked by the complainant

List of documents filed on the side of the 1^st Opposite Party:-

Ex.B3	31.07.2015	Email from the Route Manager of the 1^st Opposite Party
Ex.B4	04.09.2015	Email report sent by S. Gokhale, Counter Officer-C
Ex.B5	25.03.2014	Ticket issued by 1^st Opposite Party to Gopalakrishnan Ramanathapuram
Ex.B6	17.04.2014	Receipt and Itinerary issued to 2^nd Opposite Party

S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA

MEMBER II MEMBER I PRESIDENT

Tamil Nadu

South Chennai

CC/116/2015

M/s. Venkatraman Vembu S/o. N.Vembu - Complainant(s)

Versus

M/s. Air India Express, A Subsidiary of air India Ltd - Opp.Party(s)

M/s. R.Udaya Kumar

29 Nov 2022

ORDER

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