Present :     Justice P.N. Sinha, President

 

The General Manager, Air Deccan, 35/2,

Cunningham Road, Bangalore                       Appellant

Vs

 

Shri Thomas Thenalil, Thenalil Enterprises,

Goal Ghar, Port Blair and 3 others                Respondent

Date      :    27^th day of February, 2009

 

 

 

This appeal has been preferred by the appellant challenging the judgment and order dated 30.01.08 passed by the District Consumer Redressal Consumer Forum, Andaman at Port Blair in C.D. Case No.1of 2007.

The facts of the case, in short, is that the complainant respondents had purchased air ticket of Air Deccan Airlines (henceforth referred as Kingfisher Airlines) from OP respondent No.3, i.e. Fahim Tours & Travels, Aberdeen Bazaar, Port Blair for journey from Delhi to Thiruvanantpuram on 19.07.06. The respondents reached the Indira Gandhi Airport at Delhi on 19.07.06 before time and reached five minutes before the final closure of the check-in-counter and produced the ticket at 11.25 AM at the counter. The respondents were denied the boarding pass for their journey from Delhi to Thiruvanantpuram on the ground that the respondents reported late by five minutes and after the counter was closed. The respondents tried to convince the officers of the appellant at Delhi Airport that his luggage got the concerned Airlines cargo tag and initial security was cleared and also contended that he reported at 11.25 AM and not at 11.35 AM. The officers of the Airlines concerned did not pay any heed which resulted into his failure to take the flight on 19.07.06.

He submitted an application to the Manager of the concerned Airlines making his allegation therein. The concerned Airlines did not allow him to fly for the next day and returned him only Rs.900/- as the amount of tax. He had to purchase fresh ticket of Rs.25921/- for his and family members journey from Delhi to Thiruvananatpuram on 20.07.06. The respondents after returning to Port Blair filed the complaint against the Airlines concerned for deficiency in service, negligence and claimed damages for mental agony.

The appellant as opposite party contested the complaint by filing counter affidavit wherein it denied all the materials averments of complaint. It inter-alia, contented that the respondents reported at the check–in-counter at 11.35 AM. The scheduled departure time of the Flight No. DN-719 on 19.07.06 was 12.00 hours. The passengers were required to reach at the check-in-counter before 2 hours of the scheduled departure time which was categorically mentioned on the ticket itself and, it was further mentioned that, “Passengers are required to check in 2 hours prior to scheduled departure. Check-in-desk at all airports close 30 minutes before scheduled departure. Boarding will be denied without refund, except for taxes, if you do not comply with the check-in deadline”. The movement of the flight is not in the hand of the appellant Airline and it is directed by the authorities like the Air Traffic Controller (ATC), Airport Authority of India (AAI) and Board of Civil Aviation Security (BCAS). Even if the officers of the Airlines wanted to delay for some time they could not have done so. 

After hearing the respective parties the District Consumer Forum by its judgment and order dated 30.01.08 allowed the complainant and directed the appellant to pay Rs.30,000/- in all including value of Air ticket and damages for mental agony. Being aggrieved by and dissatisfied with the order of the District Consumer Forum the appellant Airlines has moved this commission in this appeal.

We have considered the submissions made by the Learned Advocates for the parties and carefully perused the materials on record including the records of CD Case No.1 of 2007 of the Learned District Consumer Forum. After carefully scrutinizing the records of CD Case No.1 of 2007 we find that the District Consumer Forum delivered the judgment in a hurry without properly recording evidence and without going through the proper procedure of accepting pleadings of the parties. It is evident that 10.08.07 was the date for filing written objection by the opposite party, who is appellant before us. On 10.08.07 the opposite party instead of filing written objection filed counter affidavit. The affidavit was not affirmed before the proper Authority. When an affidavit is filed before the District Consumer Forum which is functioning as a quasi judicial institution or forum there must be affirmation of affidavit either before Magistrate or before the Notary as defined in the Notaries Act or before other Authority duly empowered to that effect. The counter affidavit of opposite party which was without any affirmation was not valid and the District Consumer Forum should not have accepted the same.

It is further clear from the record of the district Consumer Forum that recording of evidence was not proper. The reverse page of the last page of the counter affidavit of opposite party shows that therein further examination-in-chief of OPW-1 K.C.Sudarshan was recorded. There is no existence of the previous examination-in-chief. We fail to understand how further examination-in-chief of OPW-1 was recorded when there is no existence of original examination-in-chief. There is no indication either in the order sheet or in the counter affidavit that counter affidavit filed by one N.Mehra on behalf of Opposite Party was recorded or accepted as evidence by affidavit. There is difference between pleading and proof. Pleading cannot take the place of evidence unless specifically prayed for before the District Consumer Forum and allowed by the District Consumer Forum. There is difference also between examination-in-chief by affidavit and written objection in the form of counter affidavit. At the same time, the evidence of complainant as PW-1 T.A.Thomas was also not recorded properly as examination-in-chief of PW-1 is for four sentences only. This examination-in-chief did not make out the case of complainant at all. It is well settled that every order of the District Consumer Forum must be based on proper evidence. There was no examination-in-chief of PW-1 by affidavit making out his case as disclosed in the complaint. When the examination-in-chief of PW-1 was inadequate and insufficient and did not make out any case of complainant as disclosed in complaint and as there was no examination-in-chief by affidavit, the Learned District Consumer Forum made a mistake by passing order in favour of the complainant. The order of the District Consumer Forum amounted to miscarriage of justice and it was not passed on proper evidence. 

There are other defects also as it is not clear which documents were relied upon by the District Consumer Forum. PW-1 stated that he had furnished the documents and let the documents be marked as exhibits. We find that the Learned District Consumer Forum did not mark any of the documents as exhibit. Without admitting documents in evidence and marking the documents as exhibits, the District Consumer Forum cannot place any reliance on such documents. The documents admitted in evidence on behalf of complaint should bear separate exhibit marks like 1,2,3 etc and the documents admitted in evidence on behalf of opposite party should bear separate exhibits mark like capital letter A,B,C etc.  

It is manifestly clear that the District Consumer Forum passed the order in a hurry without looking into the procedures to be followed during stage of pleading and also did not follow the trial properly and did not record the evidence properly. It resulted into any illegality for which the judgment and order passed by the District Consumer Forum requires to be set aside. It is true that while dealing with the complaint the District Consumer Forum should not follow the lengthy procedure of the Civil Court and complaints before the District Consumer Forum concerning deficiency faced by the Consumers should be tried to some extent summarily but, that would not allow District Consumer Forum to give a go bye to the procedure of recording evidence and accepting documents in evidence.

In view of the discussion made above the appeal is allowed and the judgment and order dated 30.01.08 passed by the Learned District Consumer Redressal Forum, Andaman at Port Blair in CD Case No.1 of 2007 is set aside. The complaint is sent back on remand to the Learned District Consumer Forum, Port Blair and the Learned District Consumer Forum would proceed with the hearing of complaint afresh starting from the stage of filing written objection by the opposite party.

Since this is a complaint of 2007 it is expected that the District Consumer Forum would try to dispose of the complaint as early as possible.

Send down the records of CD Case No.1 of 2007 to the Learned District Consumer Forum, Port Blair along with a copy of judgment for information and necessary action.