Tripura

StateCommission

A/53/2017

Smt. Kalpana Rani Debbarma - Complainant(s)

Versus

The Branch manager, Indigo Airlines - Opp.Party(s)

Mr. Anjan Kanti Pal

22 Feb 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

Appeal Case No.A.53.2017

 

1. Smt. Kalpana Rani Debbarma,

W/o Sri Swadesh Debbarma,

 

2. Sri Swadesh Debbarma,

S/o Late Jagadish Debbarma,

 

3. Master Albish Debbarma,

S/o Sri Swadesh Debbarma,

 

4. Master Alex Debbarma,

S/o Sri Swadesh Debbarma,

 

[All are residents of near Nazir Pukur Par,

Krishnanagar, P.S. West Agartala, West Tripura.]

… … … … Appellant/Complainants.

Vs

 

1. The Branch Manager,

Indigo Airlines, Kolkata,

Netaji Subhash Chandra Bose (Domestic)

Damdam, Kolkata,

P.O. Damdam, West Bengal.

 

2. The Branch Manager,

Indigo Airlines, Agartala Airport,

P.O. Airport, P.S. Airport,

West Tripura.

… … … … Respondent/Opposite Parties.

 

For the Appellants:                                              Mr. Anjan Kanti Pal, Adv.

For the Respondents:                                          Mr. Koushik Roy, Adv.

 

J U D G M E N T [O R A L]

 

 

U.B. Saha, J,

Both the appeals being Appeal Case No A/53/2017 and A/61/2017 are directed against the judgment dated 22.08.2017 passed by the learned District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.35 of 2017 whereby and whereunder the learned District Forum allowed the complaint petition filed by the appellants in Appeal Case No. A/53/2017 (hereinafter referred to as complainants) directing the appellants in Appeal Case No.A/61/2017 (hereinafter referred to as opposite parties/IndiGo) to pay an amount of Rs.41,432/- (Rs.16,432/- as air fare + Rs.10,000/- as hotel expenditure + Rs.10,000/- for mental agony, harassment and suffering + Rs.5,000/- as cost of litigation). The opposite parties were also directed to pay the aforesaid amount to the petitioner/complainants within two months, in case of failure, it will carry interest @ 9% per annum.

2. Being aggrieved by the aforesaid judgment both the complainants and the opposite parties have preferred the appeal as stated (supra).
3. Heard Mr. Anjan Kanti Pal, Ld. Counsel appearing for the complainants as well as Mr. Koushik Roy, Ld. Counsel appearing on behalf of the opposite parties-IndiGo.
4. Brief facts of the case are as follows:-

The complainant no.1, Smt. Kalpana Rani Debbarma and complainant no.2 Sri Swadesh Debbarma, the husband of the complainant no.1 and their two minor son, namely, Master Albish Debbarma, the complainant no.3 and Master Alex Debbarma, the complainant no.4 purchased their air tickets from the opposite parties IndiGo for their travel from Kolkata to Agartala on 08.01.2017 by Flight No.6E 861 vide PNR No. IHRNSE. The departure time of the flight was 08:45 hours. To avail the flight all the four complainants reached Kolkata Airport [Netaji Subhash Chandra Bose International Airport (Domestic)] and collected their boarding passes as issued by the opposite parties and their baggage were also collected/received by the IndiGo Authority, but the opposite parties IndiGo Airlines did not allow the complainants to be boarded inside the aircraft and the office staff of the opposite party no.1 at Kolkata Airport forcibly snatched away their boarding passes from the hand of the respective complainants which were issued by the opposite parties and the luggage which were received by the opposite parties were also returned to them without assigning any reason. It is also stated that keeping them in the Kolkata Airport the aforesaid IndiGo flight proceeded for Agartala Airport and as a result the complainants could not reach Agartala by the said scheduled flight. They also requested the IndiGo Authority at Kolkata Airport to make an arrangement for sending them by the next flight of the opposite parties to Agartala from Kolkata as at that time no money was with them for further purchase of air tickets, but the opposite party no.1 did not heed to the request of the complainant no.1 and 2 nor any arrangement was done to carry them from Kolkata Airport to Agartala Airport i.e. in their home town and lastly as they could not come to Agartala on that date, they had to stay at Kolkata in a hotel, namely, ‘Hotel Rupasi Bangla’. On 10.01.2017 after managing money complainants came to Agartala by the flight of the IndiGo Airlines and they had to pay an amount of Rs.16,432/- which was higher than the fare of earlier air tickets.

5. Being aggrieved by the action of the opposite parties for their harassment, mental agony and suffering, the complainants filed the complaint petition before the learned District Forum wherein they claimed the price of the air tickets for an amount of Rs.16,432/-, Rs.6,338/- for two days salary, Rs.15,000/- for hotel expenditure and Rs.3 lacs for mental agony, harassment and sufferings.
6. Opposite parties Indigo Airlines Authority submitted their written statement denying the claim. In their written statement it is stated that the condition of the carriage was violated by the petitioner/complainants. There is a contractual relation between the complainants and the Indigo airlines. According to the contract, the opposite parties advised to the customers to report two hours prior to the departure of the flight for check-in formalities and that the boarding would be closed 45 minutes prior to the departure time. Complainants failed to arrive before the boarding time though boarding passes were issued on special consideration by the opposite parties. It is also stated that repeated announcement was made and thereafter the door was closed. As the complainants violated the terms and conditions, therefore, they are not entitled to get any compensation.
7. On the basis of the pleadings of the parties, the learned District Forum framed the following points for deciding the case:-

1. Whether the petitioner violated the terms and condition laid down by the Indigo authority condition of carriage?
2. Whether the petitioner is entitled to get compensation and other claim as stated?

8. Complainants produced the copy of their air tickets, salary certificate of the complainant no.1 and 2, copy of Advocate's Notice, Hotel bill. Complainant no.1, Smt. Kalpana Rani Debbarma submitted her statement on affidavit on behalf of all the complainants and she was also cross-examined by the opposite parties, but the opposite parties did not produce the statement on affidavit of any witness and also not examined anybody in favour of their contention in the pleadings, rather produced the certified copy of the resolution of Indigo and conditions of carriage.
9. The learned District Forum considering the evidence on record and the documents available before it passed the judgment awarding an amount of Rs.41,432 in favour of the complainants as stated (supra).
10. Being aggrieved, the complainants preferred the Appeal No.A/53/2017 for enhancement of the award passed by the learned District Forum.
11. On the other hand, opposite parties IndiGo Airlines preferred the Appeal No.A/61/2017 against the same judgment along with an application for condoning the delay of 106 days.
12. This Commission considering the fact that against the same judgment complainants have also filed an appeal, condoned the delay and admitted the appeal of the IndiGo Airlines to be heard on merit.
13. Mr. Pal, Ld. Counsel in favour of the appeal preferred by the complainants would contend that the learned District Forum did not allow the salary of two days of the complainants no.1 and 2 as they had to take earned leave for those days and also the cost of hotel which was allowed by the learned District Forum is lower in side.
14. On the other hand, Mr. Roy, Ld. Counsel while urging for setting aside the impugned judgment and allowing the appeal of the opposite parties would contend that the learned District Forum failed to consider the terms and conditions and resolution of the opposite parties as produced by them. He further submits that the Hon’ble Supreme Court in Interglobe Aviation Limited Vs N. Satchidanand (2011) 7 SCC 463 noted that “The e-tickets do not contain the complete conditions of carriage but incorporate the conditions of carriage by reference and the interested passengers can ask the airline for a copy of the contract of carriage or visit the website and ascertain the same.” Here in the instant case, it was the duty of the complainants to ascertain the time of check-in in the airport and boarding in the aircraft.
15. We have considered the submissions of the Ld. Counsel appearing for the parties. It is the admitted fact that the opposite parties IndiGo Airlines issued boarding passes after completion of check-in of the complainants in the airport. Not only that, their luggage were also taken by the opposite parties for boarding the same in the aircraft in order to enable the passengers to reach their destination along with their luggages. Opposite parties IndiGo Airlines in their written statement specifically stated that boarding passes were issued to the complainants on a special consideration, but did not mention what were those special considerations for issuance of the boarding passes and receiving the baggages of the complainants. As the boarding passes were taken by the opposite parties admittedly we are not in a position to come to a conclusion as to whether the complainants were inside the security enclosure or nearer to the gate on the way to the aircraft, but fact remains that boarding passes were issued and the same were taken back by the opposite parties IndiGo Authority without showing any reason. The decision in Interglobe Aviation Limited (supra) as referred by Mr. Roy was earlier also referred before this Commission in the case of Dr. Bikas Roy and Another Vs Interglobe Aviation Ltd. (IndiGo) and Another in Appeal Case No.A/42/2017. In Paragraph-31 of the said judgment, it is stated,
    • 31.………………………………The e-tickets do not contain the complete conditions of carriage but incorporate the conditions of carriage by reference. The interested passengers can ask the airline for a copy of the contract of carriage or visit the website and ascertain the same. Placing the conditions of carriage on the website and referring to the same in the e-ticket and making copies of conditions of carriage available at the airport counters for inspection is sufficient notice in regard to the terms of conditions of the carriage and will bind the parties. The mere fact that a passenger may not read or may not demand a copy does not mean that he will not be bound by the terms of contract of carriage.”
16. We have gone through the judgment of the Hon’ble Apex Court in Interglobe Aviation Limited (supra). The facts of the said case are that the respondent of that case and eight others were to travel on Indigo flight No.6E-301 from Delhi to Hyderabad on 14.12.2007 scheduled to depart at 6.15 a.m. and the respondent reached the airport, obtained a boarding pass and boarded the flight at around 5.45 a.m., but due to dense fog, bad weather and poor visibility at Delhi airport the flight was delayed. An announcement was made that the flight was unable to take off due to dense fog and poor visibility, and that the flight would take off as and when a clearance was given by Air Traffic Control. As appellant was a `low cost carrier' neither snacks nor beverages were offered. However sandwiches were offered for sale and the respondent purchased a sandwich by paying Rs.100. Around 11.15 a.m., an announcement was made that the aforesaid flight was cancelled and the passengers were given the following options: (a) refund of air fare; or (b) credit for future travel on IndiGo; or (c) rebooking onto an alternative IndiGo flight at no additional cost. As an extension of the third option, willing passengers were permitted to undertake the journey on the next flight, by combining the said flight (Flight No.6E-301) with the next flight (Flight No. 6E-305) which was scheduled to depart at 12.15 p.m., subject to improvement in weather conditions and clearance by Air Traffic Control (`ATC' for short). As the same aircraft was to be used for the combined flight, several of the passengers including respondent took the third option, and opted to continue the journey on the combined flight, by the same aircraft by remaining on board. Several other passengers, who opted for refund of their airfare or obtaining credit for future travel or for re-booking on subsequent flights of their choice, left the aircraft. In view of the cancellation of flight No.6E-301 and the DGCA regulations prescribing maximum duty hours for the crew, the crew of 6E-301 was replaced by the fresh crew of flight No.6E-305. Even the combined flight No.6E 305 could not take off on schedule as the ATC did not give the clearance. Several announcements were made about the delay on account of inclement weather conditions and the piling up of delayed flights queuing for takeoff. In the meanwhile on account of cancellation of flights and delaying of several flights, the airport was getting overcrowded and congested. As a consequence, the airport authorities advised the flights which had completed boarding but had not taken off for want of ATC clearance, not to send back the boarded passengers to the airport lounge, but retain them in the aircraft itself, as the airport was not capable of handling the additional load. The respondent and some other passengers, who had opted for travel in the combined later flight by the same aircraft, protested about the delay and demanded lunch/refreshments as they were held up inside the aircraft. Each of the affected passengers, including the respondent, was provided with a sandwich and water, free of cost around noon time. A further offer of free sandwiches was made around 3.00 p.m. However as vegetarian sandwiches were exhausted, the second offer by the crew was of chicken sandwiches. Respondent and others, who declined chicken sandwiches, were offered biscuits and water free of cost. Finally the ATC clearance was given at 4.20 p.m. and the flight departed at 4.37 p.m. and reached Hyderabad around 7 p.m. When the flight reached Hyderabad, the respondent and some other passengers were detained at the Hyderabad Airport for more than an hour in connection with an enquiry by the Security Personnel of IndiGo, in regard to a complaint by the on-board crew that they had threatened and misbehaved with the air hostesses when the flight was delayed. In that case complaint was lodged by the complainant before the Permanent Lok Adalat and question was regarding the jurisdiction of the Permanent Lok Adalat and low cost carrier vis-a-vis full service carrier. Thus the said decision is not applicable in the instant case.
17. So the facts of that case are totally different than the case at hand. Thus the said Law Report has no application in the instant case. There is no doubt that a passenger is bound by the terms and contract of carriage, but here in the instant case, question is not regarding the terms and contract of carriage, but to inadequate help and harassment of the complainants. Admittedly, they collected their boarding passes as issued by the opposite parties-IndiGo well ahead of the boarding time and thereafter the opposite party took away the boarding pass from them and returned their luggage though booked by them at the time of check-in without any reason. More so, mere filing of the written statement/reply by way of affidavit of the opposite parties cannot be considered as evidence. Pleading has to be proved by way of adducing evidence. Admittedly in the instant case, the opposite parties IndiGo did not examine any witness. The terms and conditions which were annexed with the reply were also neither proved by the opposite parties nor exhibited. Therefore, it is very difficult to accept the contention of the opposite parties IndiGo Authorities that there were repeated announcement made for the benefit of the complainants. For the argument sake, even if it is admitted that the complainants were delayed in check-in, then the question arises as to why the opposite parties allowed them for check-in and issued them boarding passes and subsequently took away the same. In Dr. Bikas Roy (supra) this Commission held that “…………………After issuance of boarding pass it is the duty of the airlines authority like opposite parties to help the passengers so that they can board the flight in time on completion of the security check-up.”. In  the instant case, the opposite parties IndiGo Airlines admittedly issued the boarding passes and the complainants handed over their luggage to the IndiGo Authority for the scheduled flight, but the opposite parties IndiGo Authority subsequently returned the luggage and also took away the boarding passes, as a result of which, the complainants were in a helpless condition at Kolkata Airport and they had to stay two days in the hotel with their minor children. We hope and trust that after issuance of the boarding pass when the passengers enter into the security enclosure, the Airlines Authority should help the passengers so that they can board in the scheduled aircraft after completion of the security measures in time.
18. So far the contention of Mr. Pal regarding the salary of two days, it appears from the Office Order produced by the complainants that the complainant no.1 took earned leave for 17 days from 28.12.2016 to 13.01.2017, suffixing holidays on 14^th & 15^th January, 2017 along with station leave permission therefore, the dates for which they were at Kolkata i.e. from 8^th December, 2016 to 10^th January, 2017 morning were within the leave period. Thus, the claim for salary of two days cannot be allowed. As admittedly the hotel charge was Rs.4,560/- for two days excluding the meal charge, the learned District Forum rightly allowed Rs.10,000/- for the cost of hotel expenditure and Rs.16,432/- towards the air fare for coming to Agartala from Kolkata on 10^th January, 2017 as well as Rs.5,000/- as cost of litigation. According to us, Rs.10,000/- for harassment and mental agony of the complainants are lesser in side as the complainant no.1 and 2 had to pass their time with two minor children at Kolkata. Thus the amount awarded by the learned District Forum for mental agony, harassment and sufferings is enhanced from Rs.10,000/- to Rs.20,000/-.
19. In view of the above, the opposite parties IndiGo Authority is directed to pay Rs.20,000/- for mental agony, harassment and sufferings and in total to pay Rs.51,432/- to the complainants. The aforesaid amount shall be paid within a period of two months, in case of failure; it will carry interest @9% per annum.
20. In the result, the appeal No.A/53/2017 is partly allowed and Appeal No.A/61/2017 is dismissed being devoid of merit.                 

Send down the records to the Ld. District Forum, West Tripura, Agartala.