M/s.Atrose Shaik filed a consumer case on 12 Sep 2022 against The Chief Executive officer, ETHIHAD, Airways in the South Chennai Consumer Court. The case no is CC/176/2016 and the judgment uploaded on 20 Jan 2023.
Date of Complaint Filed : 12.05.2016
Date of Reservation : 23.08.2022
Date of Order : 12.09.2022
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.176/2016
MONDAY, THE 12th DAY OF SEPTEMBER 2022
Mrs. Afrose Shaik,
W/o Ismail Shaik,
No.21, K.T.S Mani Street,
Mamallan Nagar,
Kanchipuram. ... Complainant
..Vs..
1.The Chief Executive Officer,
ETIHAD Airways,
Post Box No. 35566,
Khalifa City A, Abu Dhabi, (U.A.E.).
2.The General Manager,
ETIHAD Airways,
No. 10/11, Chennai City Centre,
Regus Business, 6th level,
Dr. Radhakrishnan Salai,
Mylapore,
Chennai - 600004.
3.The Officer in-charge,
ETIHAD Airways,
Anna International Airport,
Meenambakkam,
Chennai-600027. ... Opposite Parties
******
Counsel for the Complainant : M/s.R. Abdulhakim
Counsel for the Opposite Parties : 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 Parties, we delivered the following:
ORDER
Pronounced by Member-I, Thiru. T.R. Sivakumhar, B.A., B.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 pay a sum of Rs.4,93,375/- for pecuniary loss and for damages caused to the Complainant and for payment of interest of 18% from the date of petition until payment of the award amount along with cost.
2. The averments of Complaint in brief are as follows:-
The complainant herself, her minor son Shaik Ishaq (aged 13 Years) and Samya Shaik (aged 8 yrs) are non-residential Indians who reside at Discovery Gardens, Jebal Ali, Dubai, UAE along with her husband Mr. Shalk Ismail. The complainant had to attend a family function at Thiruvanamalal. Thiruvanamalai District, Tamil Nadu, on 26 06-2014 at about 12.00 noon along with her minor son and daughter. The complainant was a VIP in the family function i.e., the function to name the twin babies born to his brother's wife. Only for such reason, the complainant had to purchase 3 tickets to travel in the flight of the opposite parties (ETIHAD Airways) on Monday (23-06-2014) at 21.50 Hrs. She had purchased 3 tickets from the Opposite Parties airways on payment of 1800 Dirhams (equalant to Rs 29,250/- as per the then prevailing market value of Dirham)each. The complainant is a resident of 'Dubai' and the opposite party's flight No. EY 0268 was scheduled for departure from Abu Dhabi International Airport on Monday 23-06-2014 at 21.50 Hrs from Terminal-1. As per the travelling schedule of the ticket issued by the opposite parties establishment a Luxury Coach Departing at 19.00 Hrs on 23-06-2014 from Dubai ETIHAD Travel Mall Ey bus station would arrive at 20.20 Hrs. Accordingly the complainant with her children reached the Dubai ETIHAD Travel Mall Ey Bus Station before 19.00 Hrs on 23.06.2014 and the complainant and her 2 children were commuted through the scheduled coach and the said coach arrived at 'Abu Dhabi International Airport' at 20.35 Hrs. The coach left the complainant in the ground floor, whereas the check-in counter is located in the 1st floor. From the ground floor the complainant took her children and the baggages to the 1st floor and they had to walk a long distance to reach the baggage's scanning counter. She had completed the formalities in a hurry and reached the check-in counter (Boarding Pass Counter) of the opposite parties airways at 'Abu Dhabi International Airport' by 20.50 Hrs. (Amended as per order in C.M.A.No.333/20 dated 30.05.2022 - Substituting 20.50 hrs instead of 21.50 hrs). To the shock and surprise of the complainant, she was told that the counter was closed a few seconds earlier and the complainant's request to issue boarding pass was turned down unequivocally without any alternative. Even thereafter, the counter for business class was kept open for issuing boarding pass for about 25 minutes more. The complainant requested the opposite party's staff in the check-in counter to issue the boarding pass for their ticket at least through the business class counter. But the opposite parties' staff insisted for additional payment and to get a business class ticket to travel in the same flight, which clearly shows that the opposite parties company trained their staff in the boarding pass counter to indulge in unfair trade practice in order to enhance the income of their airlines. She is being a lady was made to stand in the midnight hours at the 'Abu Dhabi International Airport along with her 2 minor children. She was shell shocked on receiving the lethargic treatment through the staff of the opposite parties' airways. Thereafter, the complainant communicated the massage to her husband Mr. Shaik Ismail at Dubai. He came in his vehicle from Dubai to Abu Dhabi International Airport in the midnight hours and took the complainant with 2 children to Dubai. It was a horrible experience in the life of the complainant and her minor children. She was advised to travel in the subsequently scheduled flight by getting a fresh ticket. For the purpose of attending the family function, the complainant had no other option except to schedule her travel before the midnight of 24.06.2014. But the flight of the opposite parties scheduled to depart on Tuesday 24.06.2014 at 21.50 Hrs also cannot accommodate the complainant and her 2 children as there was no vacancy in the economy class. Left with no other option, the complainant upgraded the tickets to business class on payment of 1200 Dirhams more for the complainant, and her minor son Shaik Ishaq and 1500 Dirhams more for her minor daughter Samya Shalk. Thus the complainant had to pay 3900 Dirhams more for planning the schedule to the ETIHAD airways. Inspite of request made by the complainant to provide accommodation in the flight scheduled to depart on 24-06-2014 without collecting any further charges towards providing seats in the business class, the complainant's request was summarily rejected by the opposite parties' office at 'Abu Dhabi' without any basic courtesy. Originally the complainant had purchased the 3 tickets at 1800 Dirhams each equivalent to Rs. 87,750/- Indian money. Due to the negligence on the part of opposite parties' airways company the complainant happened to pay a further sum of 3900 Dirhams, equalant to Rs.63,375/- Indian Money. The complainant was least interested to spend more money and to travel in business class. Out of sheer necessity to attend the function on 26-06-2014 and due to the negligence on the part of airways of the opposite parties, the complainant had to pay Rs. 63,375/- more. Otherwise, the complainant was not at all inclined to travel in the business class. Due to the negligence on the part of the opposite parties' airways, the complainant and her 2 children were put to mental agony, pain and sufferings. The complainant and their minor children were stranded to the street in midnight hours due to the deficiency of service on the part of the opposite parties' airways. They were made to bring their own vehicle through her husband in the midnight all the way from Dubai to Abu Dhabi International airport and travel back to Dubal. The complainant's husband being an Engineer employed in executive rank, happened to drive the car in the midnight and also lose his sleep. The complainant's aged parents came in a car from their native town Kanchipuram on 23-06-2014 and stayed the night at Chennai in order to pickup the complainant in the Chennai Airport. Only during the midnight they were conveyed of the news about cancellation of the complainant's travel as per schedule on 23-06-2014. They got frustrated and went back to Kanchipuram in the wee hours on 24-06-2014 and again came back to Chennai on the same night to collect the complainant from Chennai Airport in the morning of 25-06-2014. In respect of a complaint preferred by the complainant through her husband Mr. Shaik Ismail by mail dated 03-07-2014, the opposite parties company had issued a reply mail dated 05-07-2014 through their guest affairs officer, putting the blame upon the service provider of the coach, which commuted the complainant and her children from Dubai to Abu Dhabi Airport. The opposite party’s company cannot escape from liability by simply shredding the burden upon the service provider of the coach. There is no privity of contract between the complainant and the service provider of the coach. The contract is only between the opposite parties' company establishment and the complainant, which fact can be verified by the ticket issued by the opposite parties' airways. As per the schedule, the opposite parties' airway wanted the complainant to avail the coach facility at Dubai ETIHAD Travel Mall EY Bus Station by 19.00 Hrs on 23-06-2014 which the complainant promptly followed. It is a great wonder that the opposite parties airways want the passenger to reach the Abu Dhabi International Airport by 20.20 hrs, while the opposite parties airways check in counter was likely to be closed by 20.25 hrs. The timings mandated in the opposite parties ticket alone is responsible for lapse. The opposite parties are requested to go through the timings allotted to the complainant with reference each point of travel from Dubai to Abu Dhabi. A copy of the ticket is enclosed herewith. There is a clear case of deficiency of service on the part of the opposite parties airways. In law and on contract, the opposite parties company is liable to compensate the complainant in respect of the loss and damages sustained by the complainant for having declined to issue boarding pass to the complainant and her 2 children and consequential travelling facility by the scheduled ETIHAD Airways flight No. EY 0268 on 23-06-2014 at 21.50 hours. Hence the Complaint.
3. Written Version filed by the Opposite Party in brief is as follows:-
At the outset this opposite party states that the complainant was the cause of her own misery. Those choosing to book tickets from Dubai on Etihad airlines (opposite party) have the option of either travelling to Abu Dhabi airport on their own, or they opt to travel by the coach from Etihad Travel Mall, Dubai where they have the land terminal of Etihad airways,and from where buses take passengers to the airport. There is a facility to check in your bags and the fight, provided it is done 6 hours prior to the flight time. There are buses every hour or thereabouts, and the passenger has to opt for which bus will be convenient. The records of this opposite party clearly indicates that the coach services between Dubai Etihad travel Mall to Abu Dhabi International import was as per the schedule and arrived on time at Abu Dhabi airport 20.20 hrs and not 15 minutes later as alleged by the complainant. That the complainant chose the 19.00 hrs (7 pm) bus was due to her own convenience, and she would have still made it in time, but for the fact that the probability was delayed because she had to handle her two children and the baggage and make her way to the check in desk. The Etihad website clearly mentions that the economy class counters close 60 minutes prior to departure. This is required as immigration formalities, baggage check in and screening by the airport security after check in. At the time of booking on the internet, reference is made to understand the conditions of carriage, and reference is made to the www. etihad.com site. Therefore the complainant was well aware that the check in counters closes 60 minutes prior to departure. The flight from Abu Dhabi to Chennai was scheduled to depart at 2150 hrs (9.50pm) and thus the complainant had 30 minutes time from arrival at the airport to the airport check in to proceed to the check in counters at Abu Dhabi airport. For some apparent reason the complainant arrived late at the check in counter and could not be accepted for travel on the said flight. Considering that the Complainant was travelling alone with heavy baggage and two minor children she ought to have made sufficient allowances for the time required for reaching the check in terminal, the time for baggage screening and checking in a the counters. She ought to have therefore booked herself on an earlier bus. Furthermore as the complainant wanted to travel on the available flight, it was not available as this was the busy holiday season, seats were not available in economy class, therefore inorder to travel she had to pay for business class tickets if she wanted to make the engagement that she was allegedly travelling for. This complaint has been filed as an afterthought few days before the expiry of the period of limitation. That the above issue be framed as a preliminary issue to see whether any case for deficiency of service took place to fall within the definition of section 2 (g) of the consumer Protection Act 1986 before going into the merits of the case in order to save the valuable time of this Hon'ble forum. Hence prayed to dismiss the complaint.
4. The Complainant submitted his Proof Affidavit and Written Arguments and also revised Proof Affidavit and revised Written Arguments, after filing Amended complaint copy as per order passed in C.M.P.No.333/2019 on 30.05.2022, by this Commission. On the side of the Complainant, documents Ex.A-1 to Ex.A-5 were marked. The Opposite Parties submitted their Written Version and Proof Affidavit and on the side of Opposite Parties Ex.B1 to Ex.B-6 were marked and the Opposite Parties has not filed any additional
Proof Affidavit or additional Written Arguments, inspite of opportunity provided to them.
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 to?
Point No.1:-
It is an undisputed fact the Complainant had purchased three flight tickets from the Opposite Party for herself and two children, for travel from Dubai to Chennai on 23.06.2014 at 21.50 hrs vide flight No.EY0268.
It is also not in dispute that the Complainant had booked the bus service provided by the Opposite Party, from Dubai Ethihad Travel Mall Ey Bus station to Abu Dhabi International departing at 19.00 hrs and arrives/ reaches at 20.20 hours.
It is also not in dispute that the check in for economic class closes 60 minutes prior to scheduled departure time.
The disputed facts are that the Complainant though had reached the check in counter at 20.50 hrs, 60 minutes prior to scheduled departure of her flight at 21.50 hours, by which time the check in counter was closed and she was denied boarding pass and to travel in the scheduled flight.
The contention of the Complainant was that the Complainant and her two minor children were confirmed with the seats in the scheduled flight, as the bus service provided by the Opposite Party had delayedly reached the Airport by 15 minutes as assured to reach by 20.20 hours, had reached only at 20.35 hours and that too dropped at Arrival terminal instead of departure terminal. Further contended that the Complainant with her two children and draggages had to walk to the 1st floor where the check in counter was located and reached the counter at 20.50 hours, it was told to her that few seconds earlier the counter was closed and she was denied boarding pass inspite of her requests and situation. Though she had explained the purpose of travel and requested to issue boarding pass through business class counter which was kept open, but she was asked to pay additional amount to get business class ticket to travel in the same flight. As she has to attend the naming ceremony of her brother’s twin babies at Kanchipuram, on 26.06.2014, had no other option except to schedule her travel before the midnight of 24.06.2014, as the seats in Economy class was not available, she has been accommodated in the business class by paying additional amount of 3900 Dirhams in Indian Currency Rs.63,375/-, for herself and two minor children, for up gradation of ticket to business class. Apart from the same, on the date of denial of board pass i.e., on 23.06.2014, she had suffered a lot by making her husband to pick up them from Abu Dhabhi to Dubai and also made her parents to return from Chennai Airport to Kanchipuram, as her parents waited to pick them and had made them to came again to pick them on 25.06.2014. Further contended that in this regard the Complainant’s husband had sent a mail dated 03.07.2014 to the Opposite Party and the Opposite Party on 05.07.2014 had sent a reply mail, blaming the service provider of the coach. Further contended that the Opposite Party cannot escape from their responsibility by blaming the service provider of the coach, as there is no privity of contract between the Complainant and the bus service, further the Complainant had promptly boarded the bus at 19.00 hours on 23.06.2014 but the said bus dropped the Complainant at Airport only at 20.35 hours that too at arrival terminal and not at departure terminal.
The contention of the Opposite Party was that the Complainant was well aware about the closure of check in counter and hence she should have opted for a earlier bus service if she has to travel with minor children and baggages. Further contended that the boarding pass was denied as the Complainant had not reached in time, i.e., 60 minutes prior to closure of the checking / Boarding pass Counter. Further contended and denied that the business class counter was kept open 25 minutes more and the Complainant was asked to take business class ticket to fly in the same flight. Further contended that the purpose of travel and sufferances alleged were nothing to do with them, all those had happened only because of late arrival of the Complainant to the check in / boarding pass counter. Further contended tat the bus service provided is of third party service and they were not responsible for any delay caused by them.
On foregoing discussions and on considering the facts and circumstances of the case, the Complainant had purchased three tickets from the Opposite Party, for her travel with her two children, from Dubai to Chennai and the tickets were confirmed for the scheduled departure of Flight EY 0268 at 21.50 hours, as found in Ex.A-1. Further the Complainant was provided for a bus service to reach the Airport from Dubai Ethihad Travel Mall Ey Bus Station at 19.00 hours by the Opposite Parties, which was scheduled to reach by 20.20 hours, as found in Ex.A-1. The contention of the Complainant is that the bus service provided by the Opposite Party reached only at 20.35 hours and that too dropped the complainant at Arrival terminal instead of Departure Terminal, which led the Complainant to reach the check in/Boarding pass counter at 20.50 hours which was 60 minutes prior to closure of the counter. Even as per Ex.B-3 the coach Report, the bus was found to be dropped at 20.30 hours. Further the contention of the Complainant that when she had reached the check in counter by 20.50 hours it was informed to her only few seconds before the counter was closed and even after several requests the boarding pass to the scheduled departure flight was denied. Though the Opposite Party had denied taking advantage of the time mentioned in the complaint as “21.50 hours”, had failed to file Additional Proof Affidavit and / or Additional written Arguments, after this Commission had allowed CMP.No.333 of 2019 on 30.05.2022 for Amendment of timing from “21.50 hours” to “20.50 hours” and the amended complaint copy had been filed by the Complainant and duly served to the Opposite Party, the Opposite Party inspite of provided with opportunity to file Additional Proof Affidavit if any, has not chosen to file Additional Proof Affidavit and / or Additional Written Arguments. Further the Opposite Party had not filed any proof to show that the Complainant had reached the check in / Boarding pass counter belatedly than the time stipulated for closure of counter. Further, it is clear from Ex.B-2, the bus service provided by the Opposite Party reached the Airport belatedly, which resulted in reaching the check in / boarding pass counter by the Complainant with her two minor children and baggages. Hence the contentions of the Opposite Party in this regard that they are not responsible for any delay by the service provider of the coach / bus, the Complainant has been provided free service by the Opposite Party to reach Airport Terminal and the Complainant should have opted for earlier bus service if she has to travel with two minor children and baggages, are not sustainable, as from Ex.A-1 the ticket issued for the trip to Chennai by the Opposite Party, it is clear that the timing of the bus/coach provided on 23.06.2014 from Dubai Ethihad Travel Mall EY Bus Station was at 19.00 hours and arriving / reaching time at Abu Dhabhi International was at 20.20 hours, and from Ex.B-2 the coach report the bus found to be reached the Airport terminal at 20.30 hours. Further there is no denial with regard to the coach /bus dropped the Complainant at Arrival terminal instead of departure Terminal. Hence, this Commission holds that only because of the delay in dropping the Complainant by the coach provided by the Opposite Party, though the Complainant who had reached the check in/boarding pass counter at 20.50 hours, being the time stipulated for closure of check in/boarding pass counter, the denial of issusing boarding pass to the Complainant amounts to gross negligence on the part of the Opposite Party and thereby had serious mental agony to the Complainant. Therefore, we are of the considered view that the Opposite Parties had committed deficiency of service. Accordingly, Point No.1 is answered.
The Complainant relied upon two orders passed by the Hon’ble State Consumer Disputes Redressal Commission, Delhi, 1) Indian Airlines Ltd Vs. D.G.Sangal, on 07.12.2007 and 2) Air France Vs-Bharat Kapur, on 23.07.2010, will not apply to the instant case, as the facts and circumstances varies from that of the case at hand.
The Opposite Party relied upon the following orders of Hon’ble National Consumer Disputes Redressal Commission in support of their contention:
And also orders reported in I(2009) CPJ 3 and in I(2010) CPJ 369, passed by Hon’ble Andhra Pradesh SCDRC, Hyderabad and Hon’ble Andaman & Nicobar Islands SCDRC, Port Blair, respectively.
The facts and circumstances referred in the above orders varies with that of the facts and circumstances of the instance case and hence the above orders will not apply to the case at hand.
Point Nos.2 and 3:
As discussed and decided Point No.1 against the Opposite Parties 1 to 3, the Opposite Parties 1 to 3 are liable to refund a sum of Rs.63,375/- towards tickets upgraded to Business class together with interest @6% p.a from the date of filing, i.e., 12.05.2016 to till the date of the order and to pay a sum of Rs.25,000/- towards mental agony and deficiency of service along with cost of Rs.3,000/-. Accordingly, Point Nos. 2 and 3 answered.
In the result the complaint is allowed in part. The Opposite Parties 1 to 3 are jointly and severally directed to refund a sum of Rs.63,375/- (Rupees Sixty Three Thousand Three Hundred and
Seventy Five Only) towards tickets upgraded to Business class, together with interest @6% p.a from the date of filing, i.e., 12.05.2016 to till the date of the order and also to pay a sum of Rs.25000/- (Rupees Twenty Five Thousand Only) towards mental agony and deficiency of service along with a sum of Rs.3,000/- (Rupees three Thousand Only) towards costs, to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of receipt of this order till the date of payment.
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 12th of September 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 | 23.06.2014 | E-Ticket issued Ethihad Airways to the Complainant and her Children |
Ex.A2 | 03.07.2014 | Copy of Complainant’s husband to Ethihad Airways |
Ex.A3 | 05.07.2014 | Copy of Reply received from Ethihad Airways to the Complainant’s husband |
Ex.A4 | 24.06.2014 | Ethihad Airways issued three tickets and boarding pass to the Complainant and her children. |
Ex.A5 | 23.07.2014 | Copy to the lawyer’s notice issued to the Opposite Parties |
List of documents filed on the side of the Opposite Parties:-
Ex.B1 | 11.08.2014 | E-mail from Opposite Party to Complainant |
Ex.B2 | - | Print out of opposite Party website in respect of check in information |
Ex.B3 | 23.06.2014 | Report for coach No.5423 from Etihad Travel Mall Dubai to Abu Dhabi Airport |
Ex.B4 | - | Conditions of carriage |
Ex.B5 | 24.06.2014 | Coach Report |
Ex.B6 | - | Check in information |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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