By Smt. C.S. Sulekha Beevi, President,

1. Three complainants have jointly preferred this complaint. The complainants were initially represented by their agent who is none other than the son of first and third complainants.

2. It is their case that they were members of a Haj Pilgrim group operated by Akbar Travels, Tirur. The journey of Haj from Calicut to Jeddah was scheduled on 12-11-2007. The return flight from Jeddah to Calicut was scheduled on 26-12-2007 at 10.10am. All of them reached the airport several hours before the scheduled time for departure. After several hours of waiting at the Jeddah airport they were informed that the said Air India flight was cancelled and the next flight will be operated only after 24 hours. Neither were the complainants informed about the cancellation of flight in advance nor were they provided with food, accommodation and necessary facilities during the long hours of delay. It is stated that they had to suffer much inconveniences, hardships and difficulties. They were not even able to communicate with their families which added to the misery. It is alleged that due to the mismanagement of opposite party, the complainants suffered loss of precious time and money. Hence this complaint claiming damages of Rs.1,00,000/-.

3. Version was filed by first opposite party stating that the complaint not maintainable for not being presented in proper format. That the address of only first complainant is furnished and the absence of details and address of two other complainants makes the complaint defective and unsustainable. It is also stated that the agent who purports to represent the complainants has no capacity to do so. Upon merits it is submitted that the complainants were on a Haj pilgrim group operated by M/s Akbar travels of India, Tirur. That the said travel agency is a necessary party to the proceedings. It is stated that in order to meet the demand of pilgrims during the Haj season, first opposite party used to organize extra section flights based on the request from private Haj operators. In the present case arrangements were made with M/s Akbar Travels, Tirur. In such cases Air India does not have any direct contact with these passengers. The passengers directly deal with the Travel Houses conducted by Haj operators. That these Haj flights are non-scheduled flights and their time schedule are only provisional and subject to change at short notice. That this is because additional flights are provided basing on the availability of aircraft and crew. That these factors are informed to Private Haj Operators. It is further stated that management of passengers carried in these additional flights are the sole responsibility of the Private Haj Operators. They take care of the relevant formalities for travel of the pilgrims. The responsibility of Air India is limited to carrying the pilgrims according to the availability of aircraft. The alleged flight A1-5524 operated on the said day with delay of 23 hours. The rescheduled timing was informed to the Travel Operator/second opposite party well in advance. It was the duty of the Travel Operator to inform the pilgrims/passengers regarding change of time. The failure committed by travel Operator may not be considered as deficiency on the part of Air India. First opposite party prays that, Air India maybe exonerated from liability.

4. Second opposite party was impleaded as per orders in I.A.178/08 filed by complainant. Second opposite party filed version disputing the maintainability of complaint. It is stated that the complaint is filed by three complainants uncombinedly and hence not maintainable. It is also averred that a representative is incompetent to file such complaint. That even by pleadings the allegation of negligence is levelled against first opposite party only and that second opposite party is an unnecessary party. Second opposite party admits that the complainants were members of the Haj Pilgrimage group of second opposite party. That due to operational reasons the airlines are compelled to change their schedule and this is not deficiency. That even by i International Carriage of Passenger Regulations the complainant is not entitled to claim any relief from the Carrier for change of schedule. That no negligence is attributed against second opposite party and that complainant is not entitled to any reliefs.

5. Evidence consists of the affidavit field by the agent of complainant on behalf of complainants and Exts.A1 to A28 marked for complainant. First and second opposite party filed separate counter affidavits. No documents marked for opposite parties. Either side has not adduced any oral evidence.

6. Points for consideration:-

(i) Whether the complaint is maintainable.

(ii) Whether opposite parties are deficient in service.

(iii) If so, reliefs and costs.

7. Point (i):-

Both opposite parties have disputed the maintainability of the complaint on the following grounds: (i) That three complainants have combined to file a single complaint and that this makes the complaint per se defective. (ii) That the format of the complaint is not proper. (iii) That the details of address of only first complainant is furnished and the details of address of second and third complainants are absent which makes these complainants unidentifiable. (iv) That the person who purports to represent th complainants as their agent does not have any capacity to do so. We have perused the records carefully to analyse the correctness of these contentions. At the outset, we have to say that the complaint was presented directly without the assistance of lawyer. At the fag end of the case a vakkalath was filed on behalf of the complainants; but the contribution of this counsel in conducting the case was negligible. The case was conducted mostly by the agent of the complainants. It is true that the complaint is signed by all the three aggrieved consumers. The Consumer Protection Act does no where state that each complainants alleging the same grievance against the same opposite party has to file separate consumer complaints. In fact Sec. 12(b) provides that one or more consumers having the same interest can prefer a complaint on behalf of all consumers so interested with the permission of the District Forum, when there are numerous consumers. To avoid multiplicity of litigations it is only healthy that consumers with same interest join together to file a single complaint. We have no reason to deny permission to the complainants to jointly file a single complaint and we hold that the complaint is not defective for this reason.

8. The format of the complaint is indeed composed like a letter written to opposite party. The facts of the case and allegations have been clearly stated and the gist of the complaint gives rise to allegation of deficiency in service. In the cause title the complaint is addressed to this Forum and has prayed to the Forum to allow the reliefs claimed against opposite party. Therefore we do not consider the minor error in the format of the complaint to be material. Further it is seen that the address details of 2^nd and third complaints are absent. But this aspect does not make these complainants unidentifiable. Both opposite parties do not have a case that 2^nd and 3^rd complainants did not belong to the Haj group. Further complainants have produced copies of their passports and visas (Exts.A20 to A26) which contain the necessary details of address. The agent represented the case before the Forum on several posting dates. On 26-3-2008 the agent has furnished written attested authorisation executed by first complainant. On perusal of records it is seen that the agent is none other than the son of first and third complainants. As per details of the passport the 2^nd complainant appears to be a close relative of the other two. In VOICE Vs. The Reg. Tamil Nadu SCDRC decided on 02-01-2003 the Apex Commission observed that an agent has a right of audience before the Forum. In our opinion the agent, Sri.Komu alias Bava Paruthikunnan is not incapacitated from representing the complainants. A complainant may not be educated or conversant with law and may not know what precisely is the format for submitting an authorisation or complaint. He may not be aware of what are pleadings and what are the details to be furnished in the complaint. Needless to say that a Consumer Forum is not bound by such stringent technicalities. The Act envisages a new approach, which is to break the shackless of procedural law so that access to justice is easy and simple. In ever so many decisions it has been observed that on the basis of facts disclosed., the Forum can formate the relief even if none is prayed for. We do not desire to take a technical approach in adjudicating the issue of maintainability of this complaint. For the above reasons we find that this complaint is maintainable and the agent is competent to represent the complainants. Point found in favour of complainants.

9. Point (ii):-

Admittedly the flight A1 5524 which was to fly from Jeddah to Calicut at 10.10am (local time) was cancelled and it later operated after a delay of 23-24 hours. Air India or the Travel agent/second opposite party does not have a case that they informed the passengers about the cancellation of flight well in advance. Both opposite parties do not have a case that either of them made any arrangement for the food, accommodation and necessary facilities of these passengers. The nature of defence raised by each opposite party is only to the efect of shifting liability on the other and also evading responsibility. By decisions rendered in a catena of cases it is now settled position of law that passengers have a right to be informed well in advance in case of cancellation of flight or delay of flight.

10. The contentions put forward by Air India is as follows:

The to and fro travel of the complainants and all arrangements for Haj was arranged by Private Haj Operator which is second opposite party herein. Upon the request of second opposite party

a special section flight for carriage of pilgrims alone was provided, one of which is the alleged flight A1 5524. It is submitted that such section flights do not have scheduled time and their time is provisional and liable to change at short notice based on the availability of aircraft and airport slot timings. That when a pilgrim travels by Private Haj Operators all deeds starting from booking of tickets, to check-in, board, accommodation etc. are done by the such Haj Operator. Air India in such cases do not have direct contact with the pilgrims. It is the Haj Operators who have direct contact with Air India and Air India interacts only with these Haj Travel Operators. It is affirmed that the schedule, reschedule, cancellation and delays are conveyed to the second opposite party only and therefore it is the responsibility of second opposite party to pass the information to the pilgrims. It is also the case of Air India that only if the pilgrim travels by ordinary scheduled flight of Air India does the company have the responsibility to inform as well as provide facilities in case of cancellation of flight.

11. Evidently, in the present case, the stand taken by Air India is that it has no responsibility to communicate with the pilgrims about cancellation of flight and has no responsibility to provide necessary facilities in case of cancellation of flight.

12. We are unable to appreciate or agree with such contentions. Firstly, apart from the vague affirmation absolving responsibility and shifting it upon second opposite party, Air India has not placed any rule or regulation before us to substantiate that it is the sole responsibility of second opposite party to inform about the delay of flight and to attend to the need of the passenger/pilgrim during the delay. In cases of special section flights Air India does not have a case that they have entered into any agreement with second opposite party so as to cast the entire liability upon second opposite party. In our view the liability of Air India does not end by merely informing second opposite party. Undisputedly the ticket was availed from Air India. Whenever a service provider, like the airlines chooses a mechanism of selling it's tickets through it's agents, then Air India is liable for every act of omission and commission on the part of the agent. Therefore it is definitely the responsibility of Air India to see that the information of cancellation of flight is passed to each pilgrim well in advance. Air India has also to see that their needs during the delay are properly and promptly attended. Secondly, though Air India affirms that the information regarding cancellation of flight was communicated to second opposite party well in advance Air India does not specifically state at what time such information was communicated to second opposite party. There is no document to show that such message was given to second opposite party well within sufficient time needed to inform all the pilgrims.

13. The argument of Air India that these special section flights do not have any schedule of time is also without any force. These section flights are operated for carrying pilgrims only. The private Haj Operators will be allotted with the flight and it's timings well in advance since it carries numerous pilgrims who are going for a scheduled purpose. These agents inform the time of flights for their onward and return journey of Haj which definitely is scheduled time of the flight. The contention that the time given is only provisional and liable to change at short notice may be applicable to flights chartered by V.I.Ps for any special or emergency situation.

14. Merely informing second opposite party about flight cancellation and delay will not absolve Air India from it's liability, towards the passenger. No valid reason is stated for the cancellation. When Air India issues a confirmed ticket to a passenger it undertakes to carry that passenger to the destination on the scheduled time. Any change in time has to be effectively brought to the notice of the passenger. If it is not possible to operate the flight on the scheduled time then Air India should provide adequate facilities and make necessary arrangements for the passenger till the next operation of flight. It is Air India who receives the consideration of the ticket and the travel agent receives only a commission. In a case of cancellation of ticket, the refund is to be paid by Air India. So the privity of contract is with Air India. From the foregoing discussions we have no doubt to hold that Air India has a duty to inform passengers about the cancellation of flight and also has to provide facilities to them till the operation of next flight. Failure to do so amounts to deficiency in service. We find first opposite party/Air India deficient in service.

15. We may now address ourselves as to the liability of second opposite party. Admittedly second opposite party was the Haj Travel Operator with whom the complainants travelled to perform their holy Haj. Except vague denials no specific defense is raised by second opposite party. It is stated by second opposite party that complainants have not assailed any specific allegation against second opposite party and that therefore complainant is not entitled to get any relief against second opposite party. We are able to infer that the absence of specific allegation against second opposite party is only because when a flight is canceled the tendency of ordinary man is to blames the airlines only for the inconveniences. He may not be prudent enough to search for all causes of his misery. As already discussed the Consumer Forum is not bound by meticulous pleadings. To give effect to the object of Consumer Law the Forum can formulate the liability and relief that emanates from the adjudication of the consumer dispute. Particular facts of this case, and the scrutiny of documents reveal the major role played by second opposite party. Exts.A11 to A19 are cash receipts issued by second opposite party to the complainants for the payments made by them for the Haj travel package. The details are as under.

Ext.No. Name of complainant Amount Date of making

payment

A11 Unniyath Anchukandan (2^nd complainant) 5000/- 08-1-2007

A12 Pathuma Chakarathodi (3^rd complainant) 5000/- 08-1-2007

A13 Kunhamedkutty Paruthikunnan(1^st complainant) 5000/- 08-1-2007

A14 3^rd complainant 50,000/- 09-3-2007

A15 1^st complainant 50,000/- 09-3-2007

A16 2^nd complainant 50,000/- 16-4-2007

A17 2^nd complainant 60,000/- 16-5-2007

A18 3^rd complainant 60,000/- 16-5-2007

A19 1^st complainant 60,000/- 16-5-2007

16. It is seen from the above documents that second opposite party has collected Rs.1,15,000/- towards Haj travel package from each complainant. The complainants started from Calicut for Haj on 12-11-2007 and were scheduled to return on 26-12-2007 on the alleged flight. It is pertinent to note that payments are made to second opposite party well in advance. The travel agency which organizes and conducts the Haj travel by accepting consideration has to provide to the members of the group all necessary facilities from the starting of the journey till return. The travel agency is responsible for the well being of the members of their travel group. If any of the member has a cause to complain about, inconvenience and hardships, the travel agent cannot absolve from their liability by mereby shifting the same upon the Carrier. Second opposite party has no case that it informed the passengers about the delay of flight well in advance. It is not their case that the pilgrims including the complainants were taken care of well and were provided with necessary food and accommodation during the long delay of 23-24 hours. Year after Year, we come across news reported through media, narrating the hardships endured by Haj pilgrims due to the substandard quality of service rendered by Private Haj travel Operators. Unruly and rowdy scenes are created at the airports due to uninformed delay and cancellation of flights. Returning from the holy Haj seldom do the Hajees come forward to voice their grievances. Travel Operators cannot be allowed to treat their members shabbily. Such unscrupulous behaviour and insensitive attitude is definitely deficiency in service. From the discussions we have no hesitation to conclude that failure on the part of second opposite party to inform the complainants about cancellation flight well in advance and the failure to provide with adequate food and accommodation and necessary facilities during the waiting hours of delay is deficiency in service. We find both opposite parties deficient in service. Point found in favour of complainant.

17. Point (iii):-

We have now come to the question of quantification of compensation. The claim made by each complainant as in Ext.A1, A2 and A3 are Rs.1,00,000/-, Rs.1,25,000/- and Rs.1,00,000/- respectively. The above claim of the complainants, according to us is on the higher side. Complainants have to be compensated for the deficiency on the part of First opposite party to inform each complainant about cancellation of flight and the failure to provide food and accommodation to them during the long waiting hours at Jeddah airport. We consider that an amount of Rs.10,000/- as compensation which is to be paid by Air India to each of the three complainants would be adequate as far as the liability of first opposite party is considered.

18. We are constrained to observe that the deficiency in service committed by second opposite party is more grievous. Second opposite party has collected Rs.1,15,000/- from each complainant. For their Haj travel scheduled in November, 2007 the complainants have booked by paying advance as early as 08-1-2007 itself. Still the service received from second opposite party was pathetic. The complainants have stated that to board the alleged flight scheduled at 10.10am they reached the airport seven hours early. Only after long hours of suspended animation did they receive the information that the flight is canceled. The complainants were left high and dry in a totally alien territory by both opposite parties. Complainants relied on Ext.A4 which is a news article reported on 27-12-2007 in the newspaper “Malayalam News”. It is seen reported in Ext.A4 that due to cancellation of flight A1 5524 the pilgrims had to suffer much and were not provided with adequate food and accommodation. Most of them had to lie down on the floor in the hotel to where they were taken after being stranded for hours. Since their luggage was left at the airport they could not even change their clothings. On making complaints the Travel Operators shouted at them. Ext.A28 is a certificate issued by a doctor on 28-12-2007 to the second complainant where she is advised for bed rest on account of suffering from severe back ache and myalgia. The relevant portion of Ext.A4 is reproduced as under:

 

"വിമാനം വന്നില്ല; സ്വകാര്യ ഗ്രൂപ്പ് ഹാജിമാര്‍ പെരുവഴിയില്‍

ജിദ്ദ: വിമാനം വൈകിയതിനാല്‍ സ്വകാര്യ ഗ്രൂപ്പുകളിലെത്തിയ ഹാജിമാരുടെ മടക്കയാത്ര താളം തെറ്റി.

ഇന്നലെ എയര്‍ ഇന്ത്യയുടെ ചാര്‍ട്ടര്‍ ചെയ്ത 5524 വിമാനത്തില്‍ പോകേണ്ട ഹാജിമാരാണ് പെരുവഴിയിലായത്.

ഷറഫിയയിലെ ഹോട്ടലില്‍ പാര്‍പ്പിച്ചിരിക്കുന്ന ഹാജിമാര്‍ക്ക് ഉറങ്ങാന്‍ മതിയായ സൗകര്യമോ നിലവാരമുളള ഭക്ഷണമോ കിട്ടിയില്ലെന്ന് പരാതിയുണ്ട്. ഹോട്ടലിലെത്തിയ ഹാജിമാര്‍ ബഹളംവെച്ച ശേഷമാണ് കിടക്കയെങ്കിലും ലഭിച്ചത്. തറയില്‍ കിടക്ക വിരിച്ചാണ് ഇവരുറങ്ങിയത്.

115000 രൂപയാണ് ഇവര്‍ സ്വകാര്യ ഗ്രൂപ്പില്‍ ഹജിനെത്തിയത്. അക്ബര്‍ ട്രാവല്‍സ് ഗ്രൂപ്പില്‍ വന്ന ഹാജിമാരാണ് ഹോട്ടലിലുളളത്. ഇന്നലെ രാവിലെ 10.10ന് പുറപ്പെടേണ്ടതായിരുന്നു വിമാനം. അസീസിയയില്‍ പാര്‍പ്പിച്ചിരുന്ന ഹാജിമാരെ ചൊവ്വാഴ്ച രാത്രി 12 മണിയോടെ ജിദ്ദയിലേക്ക് കൊണ്ടു വന്നിരുന്നു. മണിക്കൂറുകളോളം വിമാനത്താവളത്തില്‍ കഴിഞ്ഞ ശേഷമാണ് ഇവരെ ഹോട്ടലിലേക്ക് മാഹിയത്.

ലഗേജ് മുഴുവന്‍ വിമാനത്താവളത്തിലായതിനാല്‍ വസ്ത്രം മാറാന്‍ പോലും കഴിയാതെ വിഷമത്തിലാണ് ഹാജിമാര്‍ . ഗ്രൂപ്പ് പ്രതിനിധികള്‍ തങ്ങളെ ഗൗനിക്കുന്നില്ലെന്നും പരാതിപ്പെടുംപോള്‍ കയര്‍ത്തു സംസാരിക്കുന്നതായും ഹാജിമാര്‍ പരാതിപ്പെട്ടു.”

These documents establishes and proves the physical discomfort and hardships that complainants had to undergo due to lack of proper facilities and accomodation. The whole episode must have definitely caused a lot of mental strain and inconveniences. The complainants have to be definitely compensated for such imperfect services the mental agony, harassment, physical discomfort and emotional suffering undergone by them. The members of the Travel Group are entitled to dignified and humane treatment. In our opinion, this is a fit case to impose exemplary punitive damages on second opposite party. Such measure will not only redress the grievance of the complainants but will also serve as a message to all Travel and Tour Operators especially those who indulge in Haj Travel services. We are of the considered view that payment of an amount of Rs.25,000/- to each complainant by second opposite party would meet the ends of justice. Complainants are also entitled to cost of Rs.2,000/- each which shall be paid jointly and severally by both opposite parties.

19. In the result we allow the complaint and order the following:-

(i) First opposite party shall pay Rs.10,000/- (Rupees Ten thousand only) to each of the three complainants.

(ii) Second opposite party shall pay Rs.25,000/- (Rupees Twenty five thousand only) to each of the three complainants.

(iii) Both opposite parties shall be liable jointly and severally to pay Rs.2,000/- (Rupees Two thousand only) as cost to each of the three complainants.

(iv) The time fixed for compliance of this order is one month from the date of receipt of coy of this order.

Dated this 10th day of August, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A28

Ext.A1 : Photo copy of the List of damages of complainant for Rs.1,00,000/-

Ext.A2 : Photo copy of the List of damages of Unniyathu Anchu Kandan for Rs.1,25,000/-

Ext.A3 : Photo copy of the List of damages of Pathumma Chakkarathodi for Rs.1,00,000/-

Ext.A4 : Presscutting dated, 27-12-2007 in Malayalam News.

Ext.A5 : Boarding pass of complainant.

Ext.A6 : Boarding pass of Unniyathu Anchu Kandan.

Ext.A7 : Boarding pass of Pathumma Chakkarathodi.

Ext.A8 : Boarding pass of complainant.

Ext.A9 : Boarding pass of Unniyathu Anchu Kandan.

Ext.A10 : Boarding pass of Pathumma Chakkarathodi.

Ext.A11 : Computer print receipt of Rs.5,000/- dated, 08-1-2007 from

opposite party to Unniyathu Anchu Kandan.

Ext.A12 : Computer print receipt of Rs.5,000/- dated, 08-1-2007 from

opposite party to Pathuma Chakkarathodi.

Ext.A13 : Computer print receipt of Rs.5,000/- dated, 08-1-2007 from

opposite party to complainant.

Ext.A14 : Computer print receipt of Rs.50,000/- dated, 09-3-2007 from

opposite party to Pathuma Chakkarathodi.

Ext.A15 : Computer print receipt of Rs.50,000/- dated, 09-3-2007 from

opposite party to complainant.

Ext.A16 : Computer print receipt of Rs.50,000/- dated, 16-4-2007 from

opposite party to Unniyathu Anchu Kandan.

Ext.A17 : Computer print receipt of Rs.60,000/- dated, 16-5-2007 from

opposite party to Unniyathu Anchu Kandan.

Ext.A18 : Computer print receipt of Rs.60,000/- dated, 16-5-2007 from

opposite party to Pathuma Chakkarathodi.

Ext.A19 : Computer print receipt of Rs.60,000/- dated, 16-5-2007 from

opposite party to complainant.

Ext.A20 : Photo copy of the passport and visa of complainant.

Ext.A21 : Photo copy of instructions.

Ext.A22 : Photo copy of the passport of Fathima Chakkarathodi.

Ext.A23 : Photo copy of the visa of Unniyathu Anchu Kandan.

Ext.A24 : Photo copy of the passport of Unniyathu Anchu Kandan.

Ext.A25 : Photo copy of the visa of Pathumma Chakkarathodi.

Ext.A26 : Photo copy of the passport of Pathumma Chakkarathodi.

Ext.A27series : Certificates of three complainants issued by Tour organizer.

Ext.A28 : Medical Certificate dated, 28-12-2007 given by

Dr.C.JK. Hydroo, Bsc. M.B.B.S. to Anchukandan Unniyathu.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER