Tamil Nadu

South Chennai

CC/248/2015

M/s.T.N.CKaushik - Complainant(s)

Versus

M/s.British Airways - Opp.Party(s)

T.Nadarajan

31 May 2022

ORDER

Date of Complaint Filed : 05.06.2015

Date of Reservation      : 06.05.2022

Date of Order               : 31.05.2022

                                                                                         

                                              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.248/2015

TUESDAY, THE 31^st DAY OF MAY 2022

Mr. T.N.C. Kaushik,

B1, Hari Om Flats,

109, Kothawal Chavadi Street,

Saidapet,

Chennai – 600 015.                                                                                                               ... Complainant                           

 

..Versus..

M/s. British Airways,

Represented by its Manager,

And having branch office at

No.10/11, Chennai City Centre,

Dr. Radhakrishnan Salai,

Near Woodlands Restaurant,

Mylapore, Chennai – 600 004.                                                                                               ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. T. Natarajan

Counsel for the Opposite Party       : M/s. Rupa. J. Tharayil

 

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

 

ORDER

Pronounced by the Member-I, Thiru.T.R. Sivakumhar., B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.1,00,000/- towards the living expenses, stay, food, expenses, cab expenses in New York for two days and to pay Rs.1,00,000/- for the deficiency of service of cancellation of flight without any tangible reason and to pay a sum of Rs.5,00,000/-as compensation for the mental agony and mental stress and hardship inflicted on him by the Opposite Party and to pay a sum of s.10,000/- towards cost of the proceedings.

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

The Complainant submits that he planned for vacation to travel to USA. He booked an air ticket in British Airways under booking reference No.4R3AA6 from Chennai to San Francisco, through London Heathrow Airport and travelled to San Francisco on 3^rd May 2014 and his scheduled return was on 21^st May 2014 to India. After reaching San Francisco, he exended his return ticket from 21^st May 2014 from Newark, New Jersey to Chennai via London Airport to 26^th of May 2014 on payment of $ 215 and his air ticket was confirmed. When it being so, on 26^th May 2014 when he was checking his email to get the print of the ticket he got a mail from Opposite Party that the flight on 26^th May 2014 British Airways 186 was cancelled from Newark, New Jersey USA. To his shock and surprise, on viewing the mail he immediately contacted the customer care of British Airways, the customer service staff said that they couldn’t provide any alternative flights since the flight is cancelled and he has to approach the airport. He immediately rushed to the airport and simultaneously called the customer care but there was no response and the call was put on-hold and thereafter he called up customer care several times and finally after speaking to customer care staff nearly for half an hour he explained his urgency to reach his country, India. He was informed that there were no flights available from Newark, New Jersey to Chennai, if he had to return  immediately, then he had to travel from Newark, New Jersey to Newyork for the next flight which is scheduled on 28^th May 2014. He had no other option, on 26^th May 2014, hence  he travelled from Newark, New Jersey airport to Newyork and stayed in Newyork for 2 days to travel back home and he was provided with ticket to fly back on 28^th May 2014 from New York to London and Chennai after 48 hours delay of his scheduled flight. When he asked the customer care of British Airways, as to who would take care of his two days expenses and stay, the customer care of British Airways was reluctant to answer the same and the Complainant was left alone in an alien land and due to flight cancellation he had to leave to New York with all his luggage viz., two suit cases of 23kgs and cabin bags of 7 kgs and travel from Newark to Newyork and the same cost him $200. Moreover because of the cancellation of flight he couldn’t attend the vacation sitting of Madras High Court resulting in loss in professional income, and finally he reached Chennai only on 29^th May 2014. All this sufferings and ordeal were only due to the negligent and deficient service rendered by the Opposite Party for which the Complainant is liable to be compensated under EC Regulation No.261/2004 and he falls under the clauses contemplated in the EC Regulation. He stayed in New York for two days and his expenses is Rs.40,000/- for two days which is on 26^th May to 28^th May 2014 for the cancellation of flight and his food expenses  is Rs.15,000/- for two days which is on 26^th to 28^th May 2014. Hence the complaint.

3.  Written Version filed by the Opposite Party in brief is as follows:-

        The main contentions of the Opposite Party are that it was the decision of the Complainant to extend the date of his journey from 21^st May 2014 to 26^th May 2014. The Complainant booked his extended date return ticket for flight BA186 with this Opposite Party which unfortunately got cancelled due to aircraft damage. Hence, this Opposite Party offered to the Complainant a sum of 600 Euro as a compensation/goodwill gesture. The Complainant has acknowledged the same by his e-mail dated 11^th June 2014.  There had been a settlement issue between the Complainant and the Opposite Party and even after receiving the sum of 600 Euro, the Complainant has filed the present complaint with ulterior motive of trying to claim money from this Opposite party. It is submitted that the Complainant was informed before hand about the cancellation of the flight by email in advance, which he may not had bothered to read, but he only checked his mail on 26^th May 201 as alleged in the complainant. Since the reason was beyond the control of this Opposite Party, the Complainant was given choice of the next available flight of 28^th May 2014 which the Complainant agreed to be booked on from New York. The flights on the 26^th and 27^th remained cancelled from Newark and the Complainant is exaggerating that no one assisted him, the fact that an alternate flight was found was because of the co-operation by the staff of this Opposite Party. As the Complainant was travelling to Chennai via London, a flight to coincide the closest to the connecting Chennai flight had to be found otherwise he could have been stuck in London, and if he did not have a visa, then he would not have been allowed to leave the airport. He was provided with return ticket for the journey dated 28^th May 2014, however, it was due to inevitable circumstances as the delay was because of the unforeseen circumstances beyond the control this Opposite Party, as there was damage to the Aircraft. It is not only the Complainant who could not travel on the said date, but several/all the passengers booked with same flight could not travel due to flight cancellation on the said date. That the Complainant was called upon to produce bills/receipts for his stay in New York or Newark wherever he stayed, in order to enable this Opposite Party to consider the same. However the Complainant failed to provide such bills/receipts evidencing such expenses incurred. Since he did not provide the receipts/bills invoices of his expenses so spent for 2 days, this Opposite Party could not consider his claim for reimbursement of expenses for the same. This Opposite Party was never reluctant to pay the same upon receipt of all the bills and invoices. That the distance from Newark to New York is not too far and several means of transport are available from airport to airport. Limousine services rarely costs more than US$50 so it seems doubtful that the Complainants claim for paying US$200 for taxi seems far-fetched. Further this Opposite Party also had arranged to credit the Complainant’s Blue Executive Club account with 10000 Avios Point (10000 mile Journey free). The delay arose as it was beyond the control of this Opposite Party for which this Opposite Party cannot be held liable. Reliance  also be placed on the DGCA – Govt. of India rules on delays such as these, where the payments for delay is Rs.4000 despite which in order to settle matters in cordial manner, this Opposite Party agreed to pay Euros 600 for the cancellation of the flight. The fact that he is practicing lawyer was not known to this Opposite Party. Further the putative loss of income for non attending of any matter is too remote a damage to be considered. If it had been so important for the Complainant to attend the Vacation sitting of Madras High Court he could have travelled back as scheduled, instead the Complainant himself extended his stay from 21^st May to 26^th may and only 2 days delay i.e.28^th May 2014 would not have made any huge difference on the professional income of the Complainant. The Complainant did not provide true and correct account of his expenses incurred for 2 days, neither had he submitted any bill, receipt, invoices for the said expenses. It was hard to believe that the Complainant has incurred cost of Rs.40,000/- for 2 days stay in New York/Newark and Rs.15,000/- for food, since the Complainant failed to provide any documentary proof (bill/receipt etc) of the same. Infact the Complainant has admitted in the complaint that he does not have in his possession any bills/receipts towards such expenses. In the prayer clause of Complaint the Complainant is claiming Rs.1,00,000/- towards stay, travelling from Newyork to New York and food expenses altogether, which is exorbitant. The complainant has reproduced Regulation 261 of 2004 of EC Europe Union Regulation in his Complaint, which clearly states that “… the Airline is not obliged to provide cash compensation in the case of extra ordinary circumstances which could not have been foreseen even if the Airline took all reasonable precautions…” also, the charges so claimed by him for these expenses are not reasonable one.

        This Opposite Party was also ready and willing to consider reimbursement of the expenses the Complainant alleged to have incurred, on production of receipts/bills, which the Complainant has failed to provide till date. Hence prayed to dismiss the complaint.

4.     The Complainant had filed his Proof Affidavit and Written Arguments. On the side of Complainant Ex-A.1 to Ex-A.11 were marked. The Opposite Party had filed Proof Affidavit and Written Arguments. On the side of Opposite Party Ex.B1 to Ex.B5 were marked.

5.       Points for Consideration : -

1.     Whether the Opposite Party had committed deficiency of service?

2.     Whether the Complainant is entitled for the relief claimed in the complaint?

3.     Whether the Complainant is entitled for any other relief/s?

Point No.1 :-

Heard the arguments on both sides and perused the documents filed by either side.

It is an undisputed fact that the e-air ticket of the Complainant was confirmed on return to India from Newark Airport (New Jersey) to Heathrow Airport (London) on 26.05.2014, by the Opposite Party.

The contention of the Counsel for Complainant is that on 25.05.2014  the Opposite Party had sent an email, Ex.A-3  informing the cancellation of the flight booked on 26.05.2014 from Newark Airport (New Jersey) to Heathrow Airport (London), which he saw only on 26.05.2014 result of which the Complainant was not able to reach India as scheduled on 28.05.2014 and the Opposite Party could not arrange for alternate flight to the Complainant on the same day, i.e., 26.05.2014, requested the Complainant to arrange by himself and would refund the amount of air ticket in full. Thereupon the Complainant was provided with an alternate arrangement of fight only on 28.05.2014 and for the said 2 days he had made to travel with huge luggages from Newark to Newyork and stay and spend his miserable time alone, because of the deficient service of the Opposite Party who had failed to inform the Complainant about the cancellation of flight well in advance and further no reason for cancellation was informed in the email dated 25.05.2014, which is a gross negligence on the part of the Opposite Party and the Opposite Party had committed deficiency of service.    

The contention of the Counsel for Opposite Parties is that the flight was cancelled due to damage reported which was beyond their control and the same was intimated through Ex.A3 Email dated 25.05.2014 sent to the Complainant and it is the Complainant who had opened his email on 26.05.2014 and saw it belatedly, which resulted the Complainant in getting alternate flight in time on 26.05.2014 and the Opposite Party had nothing to do as in the said email itself had intimated to book for an alternate flight and they would refund flight ticket. Further the reason for cancellation could not be provided as the cause of damage to the flight was under investigation and found to be in later as due to lighting struck the flight got damaged which resulted in cancellation of the flight of the Complainant, which was beyond their control, as found in Ex.B3 and even otherwise the Opposite Party had not committed any deficiency of service as they had communicated about the cancellation of flight on 25.05.2014 itself to the Complainant. And further contended that though only the DGCA’s regulation dated 06.08.2010 issued by Government of India was available and applicable for the Complainant, and under Civil Aviation Requirements (CAR) in 1.4 and 1.5 the Opposite Party is not liable for any compensation on cancellation and delay of flights caused due to force majeure beyond the control of the airline was they had provided Euro 600 under Europe Regulation, which would be much higher to the Complainant.  

It is an undisputed fact that the fact of cancellation of flight was intimated and informed to the Complainant by the Opposite Party by their Email dated 25.05.2014 (Ex.A3) but no reason for cancellation was available in the said email and the reason mentioned in the written version which was signed on 30.07.2015 and filed on 21.09.2015, was due to cause of damage, the flight was cancelled which was beyond their control and Proof affidavit filed on 23.02.2016 by the Opposite Party along with Ex.B2, the Flight Cancellation report dated 27.05.2014 downloaded copy dated 13.07.2015, it was mentioned in Eng Txt as L/Strike and this commission when questioned   to know the meaning term “L/strike” in presence of the Counsel for Complainant it was informed by the Opposite Party’s Counsel the said term would mean Lightening Strike which caused damage to the engine of the Flight which resulted in cancellation. Hence the Opposite Party had agreed to compensate Euro 600 as per Europe Regulation, to the Complainant. And the Opposite Party who had paid a sum of Euro 600, had also agreed to consider the expenses incurred for stay etc., on production of bills/receipts in respect of the said expenses, but the Complainant had failed to produce the same and the Opposite Party had never tried to escape from the its liability but as per the rules and regulations, it could consider the expenses whatever incurred on the production of proof. Further the Opposite had made arrangement to add 10000 Avios points to the Complainant that would be credited to Blue Executive Account of the Complainant, which could be used only by the regular customers of the Opposite party’s Airways.

On reading of Ex.B4, Regulation 261/2004 of the European Parliament and of the Council of 11 February 2004, as well as the Europe Union Regulation 261 (as per the Flight Delay Compensation Regulation (EC) no.261/2004) that came into effect from 18^th February, 2005, by repealing Regulation (EEC) No. 295/91 on delayed or cancelled flights or on denial of boarding, as quoted in the Complaint which was not denied by the Opposite Party, which covers on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. And Article 5 defining on Cancellation, reproduced as follows:

“ Article 5 : Cancellation

1.     In case of cancellation of a flight, the passengers concerned shall :

(a) be offered assistance by the operating air carrier in accordance with Article 8; and

(b)    be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1) (b) and 9(1)(c); and

(c) have the right to compensate by the operating air carrier in accordance with Article 7, unless;

(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the schedule time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii) they are informed of the cancellation less than seven days  before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the schedule time of departure and to reach their final destination less than two hours after the scheduled time of arrival; 

(2)        When passengers are informed of the cancellation, an explanation shall be given concerning possible alternative transport.

(3)         An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

(4)         The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating air carrier.”

        As per Ex.A3 & Ex.B3 the email dated 25.05.2014 at 10.06 pm sent by the Opposite party to the Complainant, the Opposite Party had informed about the cancellation of the flight BA0186 from Newark Liberty International (NJ) (New York) to Heathrow (London) on 26 May 2014, which is less than seven days before the scheduled time of departure, but no offer of re-routing has been provided as prescribed in Article 5 (1) (c) (iii) of EU Regulation and no reason for the cancellation of flight has been provided, instead in Ex.A3 & Ex.B3, the Opposite Party had only informed they were rectifying the situation and the booking on to an alternative flight was left to the option of the Complainant, which the Opposite Party had failed to comply with Article 5 (2)        of EU Regulation as quoted above. And further informed that rebooking to be made on the next suitable flight or to claim a full refund.  As there were no alternate flights available on the same day from Newark, the Complainant was provided an alternate flight from New York on 28 May 2014 by the Opposite Party, hence re-routed from Newark to New York, Article 5 (1) (a) & (b) would be applicable to the Complainant, which is reproduced hereunder:

“ Article 5 : Cancellation

1.     In case of cancellation of a flight, the passengers concerned shall :

(a) be offered assistance by the operating air carrier in accordance with Article 8; and

(b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1) (b) and 9(1)(c);

As Article 5 (1) (a) & (b) refers Article 8 & 9, the said Article are reproduced as follows:

Article 8 : Right to reimbursement or re-routing

1. Where reference is made to this Article, passengers shall be offered the choice between:

(a)-reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant, a return flight to the first point of departure, at the earliest opportunity;

(b) re-routing, under comparable transport conditions, to their  final destination at the earliest opportunity; or

(c) re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.

2. Paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under Directive 90/314/EEC.

3. When in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger.

Article 9: Right to care:

1.     Where reference is made to this Article, passengers shall be offered free of charge:

(a) meals and refreshments in a reasonable relation to the waiting time:

(b) hotel accommodation in cases

-where a stay of one or more nights becomes necessary, or

-where a stay additional to that intended by the passenger becomes necessary:

(c) transport between the airport and place of accommodation (hotel or other).

2. In addition, passengers shall be offered free of charge two telephone calls, telex or fax messages, or e-mails.

3. In applying this Article, the operating air carrier shall pay particular attention to the needs of persons with reduced mobility and any persons accompanying them, as well as to the needs of unaccompanied children.

And it is also important to reproduce Article 7 of EU Regulation under which the Opposite Party had settled was applicable to the Complainant, hence Article 7 is reproduced as follows:

“Article 7 : Right to Compensation

1. Where reference is made to this Article, passengers shall receive compensation amounting to:

(a) EUR 250 for all flights of 1500 kilometers or less;

(b) EUR 400 for all Intra-Community flights of more than 1500 kilometers, and for all other flights between 1500 and 3500 kilometers,

(c) EUR 600 for all flights not falling under (a) or (b).

 

In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time.

2. When passengers are offered re-routing to their final destination on an alternative fight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked.

(a) by two hours, in respect of all flights of 1500 kilometers or less; or

(b) by three hours, in respect of all Intra-Community flights of more than 1500 kilometers, and for all other flights between 1500 and 3500 kilometers; or

(c) by four hours, in respect of all flights not falling under (a) or (b).

The operating air carrier may reduce the compensation provided for in paragraph 1 by 50%

3. The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.

4. The distances given in paragraph 1 and 2 shall be measured by the great circle route method.

It is important to note that only after Ex.A4 the online notice dated 01.06.2014 sent to the Opposite Party, the Opposite Party by Ex.A5 email dated 04.06.2014 come forward to settle EUR 600 to the Complainant is clear that only to avoid their responsibility provided to the Complainant under Right to reimbursement or re-routing clause in Article 8 of EU regulation, as against the claim of the Complainant in Ex.A4, opted Article 7 (1) (c) & 3 of EU regulation, as the Opposite had failed to provide a return flight to the first point of departure at the earliest opportunity, in spite of the fact that the Complainant was re-routed from the first point of departure to an alternate airport, i.e., from Newark airport to New York airport, which would entitle the Complainant to claim for the expenses spent towards travel, stay, food and living expenses for two days in New York, on   knowing well that the settlement though made under said Article would not restrict the Complainant to make his claims under Article 8 & 9 of EU Regulation to compensate him for his living expenses in New York for two days from 26 May 2014 to 28 May 2014 along with the cab expenses from EWR to New York, the settlement of Euros 600 made to the complainant though the Opposite Party very well aware of they were not obliged to compensate the said amount is nothing but from clearly escaping from their liability contemplated under above referred Articles of EU Regulation.                      

Admittedly, the case in hand is on cancellation of Flight, the Opposite Party in the written version had contended that the cancellation of flight was due to damage which was beyond the control of the Air carrier and specific reason for cancellation of the Flight has not been mentioned, in spite of EX.B2 dated 27.05.2014 a downloaded copy dated 13.07.2015 being OPNL Leg report filed along with Proof Affidavit by the Opposite party, had not been referred in any of the Communications sent by them marked as Ex.A5 to EX.A10 by the Complainant, moreover, admittedly the Opposite Party had agreed to reimburse the Complainant towards expenses spent on Stay etc., on production of bills/receipts would also clearly prove and establish that only from escaping the liability and responsibility under the above mentioned  Articles in the said regulation applicable to the Complainant, the Opposite Party had clearly failed to settle under the said Articles which were in favour of the Complainant and provided the compensation, though it was contended by the Opposite Party that they are not liable to compensate either under EU Regulation or DGCA Regulation (CAR), but had compensated and transferred the same on goodwill gesture, further as nowhere in the said regulation it was compelled for production of bills/receipts, and as per referred Articles 8 (3) & 9  of EU Regulation, it is duty cast upon the Opposite party to take the Complainant from Newark Airport to New York Airport and to pay for transport for the Complainant and the Complainant be offered, free of charge, Meals and refreshments in proportion to the waiting time, Two Telephones calls, fax or telex messages, or emails, Hotel accommodation and transport between the airport and the hotel, if a stay of one or more nights, or a stay additional to that intended by the passenger become necessary, in the case of a delay, the airline may withdraw or abrogate these entitlements if offering them would delay the flight further, would clearly establish that the Opposite has committed deficiency of service by not providing and meeting out the requirement to the Complainant without adhering the Articles referred above of the EU Regulation.  

The reliance of Order made by the Complainant in Order dated 22.01.2014 passed by Hon’ble State Consumer Disputes Redressal Commission, New Delhi in British Airways vs Dr.Mukesh Mehra, wherein it is observed in paragraph No.17 of the said order that whether it is not question of admitted delay and admitted cancellation of flight due to extremely bad weather conditions, the whole complaint is centred on the attitude, behavior and maltreatment meted out to the Complainant, consequent upon cancellation of flight and question of applicability of different provisions of CAR and European Union Rules and Regulations on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights is not involved. The eye of the storm as already stated in this case is on the expected civilized behaviour and obligations of airlines to passengers availing services of air travel industry and expectation of passengers in situation of difficulty.   In paragraph No.18 of the said order, it is observed that Even Hon’ble Supreme Court in para 48 of its Judgement in the case Interglobe Aviation Ltd Vs. N.Sachidanand 2011 (VII) SCC 465, had stated under the CAR circular dated 06.08.2010 which came into effect on 15.08.2010, in the event of delays attributable to air traffic control or metrological conditions, the operating airlines shall have to offer to the passengers free of cost, meals and refreshment in relation to waiting time, (vide clause 3.6.1 (a) read with Clause 3.4.1). In paragraph No.20 of the said order, it is observed that on the submission made that the complainant/respondent is definitely entitled for some compensation but that is restricted to 600 Euros as per Article 7 (1) (c) of the European Regulation, on such submission made would clearly reflects the acceptance of deficiency of service in providing services to the respondent/complainant. In paragraph No.21 of the said order, it is observed that as to award compensation is concerned according to Hon’ble Supreme Court the word compensation appearing under Section 14 of the Consumer Protection act 1986 includes each and every element of suffering by the Consumer at the hands of service provider, which includes mental agony, harassment, physical discomfort, emotional suffering, actual loss expected loss and other injustice suffered by the Consumer.  Further observed in the said paragraph that “we have further extended the concept of compensation to the extent that those service providers who force a consumer to seek remedy before Consumer Forum or before any other legal forum to have their rightful claim are liable to pay in addition to what a consumer is otherwise entitled to as now a days  the legal remedy is becoming costlier day by day and it is only time consuming but at times tortuous also. 

Though the facts of the present case slightly differs with that of the above referred case, as the Complainant herein had an alternate flight which is two days after the cancellation of the Original Fight on 26.05.2014, i.e, on 28.05.2014 and hence the said order relied upon would apply with regard to the deficiency of service committed by the Opposite Party.

But whereas in Order dated 12.11.2017 passed by Hon’ble State Consumer Disputes Redressal Commission, New Delhi in Go Airlines Pvt Ltd vs Yogesh Kumar, wherein the plea of communication made to the agent of the Airlines has been discussed with and held that it is the duty of the Airlines to communicate about delay or cancellation of flight to the details of contact provided by the passenger and also held that unexplained delay and unproved reason for cancellation of a flight or delay amount to deficiency amounts to deficiency in service, unless the reason is beyond human control and due to act of nature like fog, poor visibility, bird hit, tyre-uncture or any other unforeseen event.  Hence the said order relied upon would not apply to the case in hand.       

The reliance of Orders made by the Opposite Party in Order dated 18.08.2014 passed by Hon’ble State Consumer Disputes Redressal Commission, Chennai in Kingfisher Airlines Ltd Vs M.S.Ravishankar, the facts of the case would not apply to the case in hand and also an Order dated 13.06.2017 passed by District Consumer Disputes Redressal Commission, Chennai South in Sujjit Kumar Vs Ehtihad Airways & Another, the facts of the case would not apply to the case in hand.

Hence, from the facts and circumstances of the case, we are of the considered view that the Opposite Party had committed deficiency of service by not providing transportation to an alternate airport, cab expenses, stay, living and food expenses to the complainant and we hold that the Opposite Party had committed deficiency of service. Accordingly Point No.1 is answered against the Opposite Party. 

Point No.2 & 3 :-

As we have discussed and decided Point No.1 as against the Opposite Party, the Opposite Party is liable and responsible to pay towards the living expenses, stay, food expenses, cab expenses in New York for two days from 26 May 2014 to 28 May 2014, as per Europe Regulations on cancellation of flight.

The complainant had pleaded that he had spent a sum of Rs.40,000/- towards Stay and Rs.15,000/- towards food expenses, which was agreed to be reimbursed by the Opposite Party subject to production of the bills/receipts and on non production of the bills/receipts, the said claim was rejected, for non production of the bills/receipts the Complainant had pleaded that he had misplaced during transit and even without the said bills the Opposite Party is liable to pay him towards the living expenses, stay, food expenses, cab expenses in New York for two days from 26 May 2014 to 28 May 2014, as the Opposite Party was well aware that he was in alien land, would have met out the said expenses as he was to stay for two days in New York. The Opposite party had contended that the Complainant could not enrich himself twice, as he had accepted the Payment of 600 Euros amounting to Rs.48,894/- approximately as per the EU Regulations in force on cancellation of Flight and admitted that if the bills/receipts would have been produced by the Complainant towards his stay, food expenses, cab expenses in New York for two days from 26 May 2014 to 28 May 2014, they were ready to settle the sad expenses.

On reading of the Europe Union Regulation 261 (as per the Flight Delay Compensation Regulation (EC) no.261/2004) that came into effect from 18^th February, 2005, by repealing Regulation (EEC) No. 295/91 particularly on flight cancellations to the case in hand, as quoted in the Complaint which was not denied by the Opposite Party and moreover the Opposite Party had agreed to reimburse the Complainant towards expenses spent on Stay etc., on production of bills/receipts, as under Refreshments, communication and accommodation clause in the said Regulation, would also clearly prove and establish that only from escaping the liability and responsibility under the above said regulation, the Opposite Party had failed to adhere the clauses which are in favour of the Complainant and provided the compensation and had transferred the same to their convenience, as nowhere in the said regulation quoted and accepted, compelling of production of bills/receipts is found and the Complainant is entitled under Rerouting clause as well as under Refreshments, Communications and accommodation Clause in EU Regulation, was in addition to the Cash compensation clause mentioned in EU Regulation and the Opposite Party is liable for the same.

Considering the facts and circumstances of the case, the Complainant would have been certainly spent for his travel from Newark to New York and for his stay, living expenses for two days in New York and being in an alien land that too in a miserable situation would have worried about his stay without noting the expenses to be borne and the Opposite Party could not evaluate based on the routine or prevailing structure of payment to be made in all aspects from travel to New York to stay for two days in New York, and the comparison of price could not be ordinarily made by the Complainant in a situation he was in the alien land. One of the Contention of the Counsel for the Opposite party in comparison to travel expenses from Newark and New York would rarely costs more than US$50 and the payment of US$200 for taxi by the Complainant seems far-fetched is not at all sustainable to the condition and situation the Complainant would have faced in alien land due to the negligent act of the Opposite party in providing the same as contemplated in Article 8 (3) & 9 of EU Regulation.        

Though the Complainant though pleaded he being advocate could not be able to attend the Vacation Court of High Court, Madras, because of late arrival against his scheduled plan due to the cancellation of flight, resulted to loss of professional income, had not produced any proof in support of his pleadings.

 In the facts and circumstances of the case, we are inclined to compensate the Complainant for the deficiency of service committed by the Opposite Party and hence the Opposite Party is directed to pay a sum of Rs.50,000/- towards living expenses, stay, food expenses for two days from 26.05.2014 to 28.05.2014, with interest at the rate of 9% per annum from 05.06.2015 to till date of this order, to pay a sum of Rs.25,000/- for the deficiency of service committed by the Opposite Party, to pay a sum of Rs.10,000/- as compensation for the mental agony and mental stress and hardship suffered by the Complainant and to pay a sum of Rs.5,000/- towards cost of the proceedings and the Complainant is not entitled for any other relief/s. Accordingly, Point no. 2 & 3 are answered.

In the result the Complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards living expenses, stay, food expenses in New York for two days from 26.05.2014 to 28.05.2014, with interest at the rate of 9% per annum from 05.06.2015 to till date of this order,  to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) for the deficiency of service committed by the Opposite Party, to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) as compensation for the mental agony and mental stress and hardship suffered by the Complainant and to pay a sum of Rs.5,000/- (Rupees Five Thousand Only)  towards cost of the proceedings, within 8 weeks from the date of this Order, failing which, the above amounts shall carry interest at the rate of 9% per annum from the date of the 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 31^st day of May 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	21.04.2014	Air ticket send by the Opposite Party to the Complainant
Ex.A2	21.05.2014	Air Ticket Reference No.4R3AA6
Ex.A3	25.05.2014	Air ticket cancelled by the Opposite Party
Ex.A4	01.06.2014	Online notice to Opposite Party
Ex.A5	04.06.2014	Email Communication from the Opposite Party to the Complainant.
Ex.A6	05.06.2014	Email Communication from the Opposite Party to the Complainant
Ex.A7	08.06.2014	Email Communication from the Opposite Party to the Complainant
Ex.A8	09.06.2014	Email Communication from the Opposite Party to the Complainant
Ex.A9	11.06.2014	Email Communication from the Opposite Party to the Complainant
Ex.A10	23.06.2014	Email Communication from the Opposite Party to the Complainant
Ex.A11	25.06.2014	Email Communication from the Opposite Party to the Complainant

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	11.06.2014	E-mail communication from Complainant to Opposite Party acknowledging compensation
Ex.B2	27.05.2014	Flight cancellation Report
Ex.B3	25.05.2014	E-mail from Opposite Party informing of flight cancellation
Ex.B4	11.02.2004	Regulation 261 of the European Union Regulation of 2004
Ex.B5	06.08.2010	DGCA Regulation regarding cancellation of flights.

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT