R.K. Bawri, Member- This is an Appeal filed by M/s Arrow Journey, authorised Agents of Sahara India Airlines, impugning the order dated 6.2.99 passed by the District Forum, Shillong in Complaint Case No.20(S)/1996 wherein the present Appellant (hereinafter referred to as the `Agent') was Opposite Party No.1. Sahara India Airlines which is Proforma Respondent No.2 in the present Appeal was Opposite Party No.2 before the Forum and is hereinafter referred to as the `Airline'.

 

2.         The Complainant / Respondent's case before the District Forum was that he purchased four Air tickets from M/s Arrow Journey, the Agent of Sahara India Airlines for his family's trip from Gauhati to Bombay and another four tickets for the flight from Bagdogra to Gauhati and the confirmed tickets for the Complainant, his wife and two minor children were handed over to him by the Agent on 18.12.95. For the Air trip from Gauhati to Bombay the departure was on 31.12.95 and the tickets from Bagdogra to Gauhati were for 20th January 1996.

           

           

On the date fixed for his trip, the Complainant availed the Gauhati - Bombay flight with his family but on the scheduled date of his return on 20th January 1996 when the Complainant along with his family members reported at Bagdogra Airport he was surprised to find that there were no officials from Sahara India Airlines to attend to the passengers except one lower grade staff who informed him that the Flight service of Sahara India Airlines from Bagdogra to Gauhati had been discontinued. Although the Complainant had left Shillong only on 30.12.95, yet, he was given no prior intimation of the cancellation/discontinuation of the flight. The Airlines Staff neither refunded the price of the Air Tickets at Bagdogra nor made alternative arrangements for his travel to Gauhati. The Complainant was thus put to a lot of inconvenience and harassment and he had no other alternative but to sell his wrist watch at throw-away price and also his wife's ornaments etc. to gather money for the family's return to Gauhati by rail because by that time the Complainant had already spent whatever money he had during his holiday.

Parties' negligence it had caused mental torture and agony to him and his family members and he also had to undergo a lot of harassment and physical inconveniences throughout.

 

3.         Upon reaching Shillong, the Complainant wrote a letter dated 29.1.96 to the Managing Director, Sahara India Airlines, New Delhi informing him about the whole episode and the harassment suffered by him and his family members and requested payment of compensation of Rs.1,00,000/- each to the Complainant, his wife and his two children. As the Airline failed to respond, after two months the Complainant wrote another letter to them on 28.3.96. Thereupon the Airlines in reply to the Complainant's letter dated 29.1.96 tendered their apologies for the inconveniences caused to the Complainant with an assurance that local transportation charges of Rs.300/- would be refunded to him.

 

In the meantime, the Complainant also approached the Agent from whom the tickets had been purchased for refunding the money paid for the Air tickets from Bagdogra to Gauhati. The Agent refunded the money to him on 30.1.96. However, since no action was taken as regards the claim of compensation made by the Complainant, he instituted the complaint before the District Forum with a prayer for directing the Agent and the Airline to pay Rs.4,00,000/- as compensation for the harassment and mental agony caused by their negligence and deficiency in service.

 

4.         Both the Opposite Parties contested this case before the District Forum and witnesses were examined by both sides. The Agent/Appellant averred that the flight on the Gauhati - Bagdogra sector stood withdrawn with effect from 14.1.96 by Circular dated 4.1.96 issued by the Airline, the factum of which was intimated and conveyed by the Agent at the Shillong address of the Complainant on 8.1.96 to his family member. There was no other way to get in touch with the Complainant who had already left Shillong on 30.12.95, except at the address and telephone number provided by him. Since the circular was received only 5.1.96, the question of informing the Complainant earlier did not arise. The Agent also averred that on the jacket of the envelope in which the tickets were handed over to the Complainant, it was clearly stamped that it was important for the customer to re-confirm the flight schedule 48 hours before departure but it was the Complainant who failed to comply with the said requirement and as such no negligence or deficiency in service was attributable to the Agent.

 

5.         The Airline stated before the Forum that it had stopped operation of its flight in the Bagdogra - Gauhati sector with effect from 14.1.96 due to some unavoidable reason and that this fact was also intimated to its authorised agent. Since the Complainant had purchased the tickets from its Agent it was the responsibility of the Agent to inform the Complainant about such cancellation of flight and therefore there was no negligence or deficiency in service on the part of the Airline and they could not be held responsible for the alleged mental tension or agony by the Complainant and his family members. The Airline refuted that the Complainant was put to any inconvenience and embarrassment due to the alleged irresponsible behaviour of the Airline Staff and stated that in fact when the Complainant approached its staff for assistance all efforts were made to provide him help and assistance.

 

6.         The Complainant examined himself and one witness. The Agent as well as the Airline also examined two witnesses from their side. Having heard the arguments from both sides and having considered all the evidence tendered before them, in its order dated 6.2.99 the District Forum arrived at the finding that with regard to the cancellation of the flight operating from Bagdogra to Gauhati by Sahara India Airlines with effect from 14.1.96, there was no publication of any notice in any newspaper by the Airline nor was it announced over the T.V. or Radio. The Agent too could not bring supportive and sufficient evidence to prove that intimation of the flight cancellation had been conveyed to the family member of the Complainant on 8.1.96 as purported by the Agent. The District Forum held that cancellation of the flight in such a manner which affected the passengers who had already obtained their confirmed tickets should have been widely circulated by all possible means through dissemination agencies which the Opposite Parties totally failed to do leading to a great deal of inconvenience and mental agony to be suffered by the Complainant and his family members.

cancellation the bounden duty lay upon the Opposite Parties to trace the passengers if possible for proper intimation and information and also to provide them with alternative facilities for travel. The Forum found that the Opposite Parties had also failed in their responsibility of making alternative travel arrangements for the stranded passengers.

 

7.         The District Forum therefore concluded that the cancellation of the flight without prior intimation to the Complainant and his family members, being passengers holding confirmed tickets of Sahara India Airlines, was a clear case of negligence and deficiency in service on the part of the Opposite Parties jointly and severally as the Complainant did face inconveniences, harassment and mental tension due to the said cancellation of the flight without intimation.

 

The District Forum ordered the Opposite Parties jointly and severally to pay a sum of Rs.10,000/- each to the 2 majors and Rs.6000/- each to the 2 minors as compensation together with Rs.300/- being the local transportation costs incurred by the Complainant and also Rs.2000/- being the costs of the Complaint together interest at 18% per annum in case the awarded sum was not paid within two months.

 

8.         Aggrieved by the order dated 6.2.99 passed by the District Forum, M/s Arrow Journey which was the Opposite Party No.1 before the Forum has come in Appeal before us. We have heard the learned Counsel for the Appellant as well as the learned Counsel for the Respondent/Complainant. It is stated at the bar that Sahara India Airlines have paid to the Complainant 50% of the amount awarded by the District Forum whose order dated 6.2.99 was directed against both the Agent and the Airline jointly and severally. In the present Appeal which is filed by the Agent the Airline which is the Proforma Respondent has neither appeared nor contested the Appeal.

 

9.         The major grievance of the Appellant before us is that the District Forum erred in its finding that the Agent had failed to intimate the Complainant about the cancellation of the flight and that they had indeed given the information at the known Shillong address of the Complainant on 8.1.96 to the Complainant's family member. It is also contended that the Appellant had promptly refunded the Bagdogra-Gauhati Air-Fare to the Complainant on 30.1.96 and that it was the duty of the Complainant to confirm about the flight 48 hours before the scheduled departure as the tickets were sold more than one month before the date of departure. Further that the deficiency in service and negligence was solely on the part of the Airline which failed to widely circulate/publish the information regarding cancellation of the flight and therefore the Appellant ought not to have been made liable in any manner by the District Forum.

 

10.       Learned Counsel for the Appellant has also referred before us the judgement reported in I (1992) CPJ 62 (NC) (Indian Airlines, New Delhi -Vs- S.N. Sinha.) where it was held that for any defect in the food supplied in - flight a caterer can only be regarded as an agent of the Airline and the principal i.e. the Airline would have to bear the responsibility. She has also relied upon a judgement reported in AIR 2001 Cal 150 (Jaytee Exports-Vs-Natvar Parekh Industries Ltd) which we find was a case under the Contract Act. These cases, however,in our view, do not apply to the facts before us.

 

11.       On the other hand learned Counsel for the Respondent / Complainant wants us to dismiss the Appeal and to uphold the order passed by the District Forum. She relies upon a case reported in II (1993) CPJ 1046 (Dr. Debasis Khadanga -vs- Tarom) which in our view is not relevant for our purpose. Another case cited by her is reported in 1996(1) CCC 413(NS) (The Chief Commercial Officer, Indian Airlines and Anr -Vs- P. Lalchand & Anr) where the National Commission held that where a passenger purchases a ticket from an Airline Agent before receipt of the changed schedule it is the Agent's duty and responsibility to inform the passenger about any change in the time schedule. In that case the Airlines had done their duty by publicising the change of flight schedule in the newspapers.

 

12.       In the case before us, upon perusal of the statements of the witnesses we find that there are conflicting versions regarding the purported intimation given by the Appellant at the Complainant's address on 8.1.96 regarding cancellation of the flight. Shri G. Singh, Proprietor of M/s Arrow Journey deposed that on 8.1.96 he had informed one elderly person at the residence of the Complainant who identified himself as the Complainant's father about the cancellation of the flight and requested him to convey the information to the Complainant. While the Complainant's father did not depose before the Forum, Shri Binod Bhujel,brother of the Complainant stated that he was staying at the residence of the Complainant while he was away from 30.12.95 and that he had received no information from the Appellant regarding cancellation of the flight.

            These conflicting versions do present us with some difficulty. Beyond the depositions of the witnesses it appears to be difficult for either side to either prove or disprove clinchingly that such intimation was made by the Appellant. We therefore have also to turn to the surrounding circumstances of the case in order to arrive at a fair decision.

 

13.       Firstly, it appears from the records that the Airlines failed in its duty to make alternative arrangements for the Complainant and his family to travel from Bagdogra to Guwahati on 20.1.96. It did not even refund to the Complainant at Bagdogra/Siliguri the Air fare paid by him when it was most needed and only "made all efforts to provide their best cooperation and assistance to Complainant" as stated by the Airlines in their written defense. We find it difficult to believe the statement of Shri M.S. Ansari an employee of the Airline who deposed that he requested the Complainant "to surrender his tickets and offered him 50% of payment but he refused to accept," (which is refuted by the Complainant) as there could be no logical reason for the Complainant to refuse to accept the money when he most needed it. It is obvious that it was only the Airline which could and should have made alternative travel arrangements for the Complainant who was stranded at Bagdogra Airport and having neglected to do so there was negligence and deficiency in service on their part.

 

There could be no deficiency on the part of the Agent on this count as they were located at Shillong and not at Bagdogra/Siliguri and this arrangement was neither possible for them to make nor part of the service they were supposed to render being only ticketing agents of the Airlines.

 

14.       Secondly, it is not refuted by the Airlines that they had given no wide circulation of the fact of cancellation / discontinuation of the Bagdogra - Gauhati flight which was incumbent upon them and therefore they failed to perform their duties and are guilty of negligence. Vide their letter dated 1.4.96, the Airline even tendered their apology to the Complainant for the inconvenience caused to him and his family members on account of the cancellation of the flight on 20.1.96.

 

15.       It thus appears to us that in any case the major part of the negligence and deficiency in service was on the part of the Airline as they admittedly failed to give wide circulation regarding cancellation of the flight from 14.1.96 onwards and failed to make alternative travel arrangements for the Complainant from Bagdogra.

 

16.       We feel it would be appropriate to recall here a recent judgement of the National Commission reported in 2002 (2) CPR 121 (NC) (M/s Express Travels -vs- M.R. Shah) where it was held that when a flight is cancelled reasonable notice is required to be given to the passengers and if not so given there is deficiency in service. In the facts of that case both the Airline as well as the Travel Agent were held to be liable to pay compensation. The National Commission also held that if the Airlines do not help in making alternative arrangements of travel for the passengers in such cases of uninformed cancellation that too renders their services deficient.

 

17.       As regards the Agent, whether they did in fact inform a family member of the Complainant at his Shillong residence about the cancellation of the flight, which was undoubtedly their imperative duty, remains debatable on the basis of the evidence before us. We are also unable to reconcile the equivocal statements made by the Appellant; while they state in the Memo of Appeal that they received the Airline Circular dated 4.1.96 on 8.1.96, in their deposition before the Forum the Agent's Proprietor stated that he had received the circular on 5.1.96 and has made attempts to inform the Complainant's house on 5.1.96 and 6.1.96 about the cancellation of the flight and finally did so on 8.1.96.

 

18.       On the other hand, it is not disputed that the Agent did promptly refund the Air Fare for the Bagdora-Gauhati flight to the Complainant and though it was surely obligatory on their part to inform the Complainant about the cancellation of the flight, in view of the fact that all the ticket - holders had left Shillong on 30.12.95 whereas the Airline circulated the fact of cancellation of the flight to the Agent only on 4.1.96, this situation did create difficulties for the Agent in informing the Complainant directly about the cancellation. Moreover, the first letter dated 29.1.96 which the Complainant wrote in this regard was addressed to Sahara India Airline and no negligence on the part of the Agent was imputed therein. In his second letter dated 28.3.96 too the Complainant informed the Airline that in case no response was received from them he would be constrained to refer the case to the Consumer Forum for which the Airline would be solely responsible.

 

19.       All these are surely mitigating factors as far as the Agent's liability is concerned although in the same breath it needs to be reiterated that, whatever may be the case, the Complainant did suffer a great deal of inconvenience, harassment and mental agony for which he was entitled to appropriate compensation.

 

20.       In view of the totality of the circumstances aforesaid and after weighing all the facts, we are therefore of the view that the ends of justice would be met if the impugned order dated 6.2.99 passed by the District Forum is modified to the extent that the liability of the Appellant M/s Arrow Journey under the said order would be limited and that the Appellant shall pay to the Respondent/Complainant a total sum of Rs.10,000/- as compensation towards the harassment and mental agony suffered by the Complainant and his three family members along with Rs.1000/- as costs of the complaint. It is directed accordingly.

It is further directed that the total sum of Rs.11,000/- shall be paid by the Appellant within 30 days of receipt of a copy of this order, failing which they will be liable to pay interest thereon @ 18% p.a. till the date of payment.

the impugned order dated 6.2.99 in so far as they relate to Sahara India Airlines shall remain unaltered.

 

In the result the Appeal is disposed of as partly allowed.