D.o.F:28/05/2011
D.o.Remand Order:1/1/2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.123/11
Dated this, the 1st day of January 2013
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
A.V.Gangadharan, Retired RTO,
Sree Laxmi, Kudlu, Ramdas Nagar PO, : Complainant
Kasaragod.
(Adv.A.K.V.Balakrishnan,Hosdurg)
1. The Manager,
Akbar Travels of India,
Bendichal Shopping Arcade,
M.G.Road,Kasaragod.(Exparte)
2. Managing Director, Kingfisher Airlines Limited,
12nd floor UB Tower UB City, No.24,
Vital Mallya Road, Bangalore.
3. The Airport Duty Manager, : Opposite parties
Kingfisher Airlines, Indira Gandhi International-
Airport terminal-3, New Delhi.
( Ops 2& 3 K.V. Ramesan,Kasaragod).
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
This complaint is again came up for our consideration in view of the judgment of the Hon’ble State Consumer Disputes Redressal Commission in Appeal No.840/11. dtd.28/12/2011. As per this judgment the Hon’ble State Commission remitted back the matter for fresh consideration since the earlier order passed was an exparte one.
2. The case of complainant is as follows:
The complainant on 24/1/2011 obtained Air Tickets for himself , his wife and co-brother from Ist opposite party. The journey was in the sector Mangalore - New Delhi on 8/5/2011 and back from Delhi - Mumbai on 14/5/2011 and from Mumbai - Mangalore on 16/5/2011. Complainant paid `39573/- for the tickets. The return journey from Delhi to Mumbai was scheduled on 14/5/2011 by King Fisher Airlines flight No.IT 308 which will depart at 11.50 a.m. The passengers were instructed to report for checking in 45 minutes before the departure time. Accordingly the complainant and his fellow passengers reported at the checking counter of Kingfisher Airlines at Indira Gandhi International Airport terminal-3 at 10.50 a.m. But the duty staff refused to check in stating that they were late. Actually one hour was still remaining for the departure of the flight. So he requested the staff on duty to make note on the ticket the time and the reason of denying the check- in. That was also refused. Then the complainant prepared a written complaint and met the 2nd opposite party. But she was not prepared to talk him and summarily refused to accept the complaint. In the mean time 2 passengers who came behind them were allowed to check-in. When the complainant questioned about the staff on duty, they said that it is none of his business to interfere. Since no other way complainant and his follow passengers forced to reschedule their journey by another flight operated by Ist and 2nd opposite parties at 4.55 p.m on the same day after paying `4500/-additionally. All his pre arranged program at Mumbai were also cancelled. Since he could reach at Mumbai only by 8.p.m as the flight was late. Their return journey from Mumbai to Mangalore was on 16/5/2011 was pre-scheduled in flight No. IT 3143 of Kingfisher Airlines. But they cancelled the flight and their journey was re-scheduled through Mumbai-Bangalore- Mangalore without any information to them. That also caused undue hardship, mental agony and loss. On local enquiry at Delhi it came to known to the complainant that the opposite parties are usually overbooking the flights and it is a regular practice to deny checking in to the passengers who booked tickets in advance at lower rates, to accommodate last moment passengers who pay higher amount for tickets. Hence the complaint claiming refund of `4500/- together with compensation of `25000/- for the injury, hardships , monetary loss, mental agony and `10,000/- for the deficiency in service with costs.
3. Opposite parties 2&3 appeared and filed their version. But Ist opposite party remained absent. Complainant during the earlier proceedings itself had submitted that he is not seeking any relief against 4th opposite party.
4. According to opposite parties 2&3 the complaint is not maintainable before this Forum neither the cause of action arose within the territorial limits of the Forum nor opposite parties 2&3 have any branch office with the territorial jurisdiction of this Forum. On merits, regarding the first grievance the contention of the opposite parties 2&3 is that the complainant and his fellow passengers were no show GUESTS as they were reached at the counter prior to its closure at11.08 hours on the date of their proposed journey.
5. Regarding the second grievance the contention of opposite parties 2&3 is that the IT 3143 scheduled to operate in the sector Mumbai- Mangalore on 16/5/2011 was cancelled for operational reasons. But the said cancellation did not affect the passengers booked in the said flight as they were accommodated in IT 105 Mumbai- Mangalore and flight IT 2445 Bangalore- Mangalore against the cancellation . Further they attempted to inform this cancellation to the complainant in the mobile phone number provided by the complainant at the time of booking. But the complainant did not confirm the acceptance of accommodation. The complainant however availed the alternate arrangement made by Ist opposite party and traveled in IT 105 in the sector Mumbai-Mangalore and in IT 2445 in the route Bangalore-Mangalore. Therefore there is no inconvenience caused to the complainant and there is no deficiency in service on their part and the complaint is therefore liable to be dismissed.
After filing the version complainant filed affidavit in support of his claim. Exts.A1&A2 series marked on his side. Opposite parties 2&3 produced Exts.B1 to B9. Both sides heard and documents perused.
5. The points arises for consideration are
1. Whether the complaint is maintainable before the Forum?
2. Whether there is any deficiency in service on the part of opposite parties?
3.Whether the complainant is entitled for the relief claimed?
4. What is the order as to costs& compensation?
6. Issue No.1:
Maintainability of the complaint:
According to opposite parties 2&3 the Forum does not have jurisdiction to try the instant complaint since the complainant’s booking with the opposite party airline was for his travel from Mangalore to Delhi and return there from. The complainant’s grievance pertains to him allegedly not being allowed to check-in- for flight No.IT 308 at Delhi by opposite parties 2&3. Hence the cause of action arose at Delhi . Further their registered office is in Bangalore and head office in Mumbai and they does not have a branch office in Kasaragod.
The opposite parties 2&3 relying on the following judgments to support their contentions.
1. Air India Limited and 2 others vs Prabhas Chandra Das & 2 others in FA 737/2007 judgment dated 24/11/2008 Orissa State Commission
2. Sonic Surgical vs National Insurance Co.Ltd (2010 CTJ 2 (Supreme Court)
3. Indian Airlines Corporation vs Consumer Education & Research Society Ahamadabad 1991 CPJ 686.
4. American Express Banks Ltd Travel Related Services vs Rajesh Guptha reported in 2000 (1) CPJ (1) NC.
But we are unable to accept the contention of the opposite parties. The judgments cited supra are not applicable to the instant case.
7. Sec 11 2(a) &(b) of the Consumer Protection Act are very relevant in this case regarding the maintainability of the complaint before this Forum.
Sec 11 2
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries an business or has a branch office or] personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office] or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business, or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises
Section 11(2)(b)
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 1[ carries on business or has a branch office] or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 1[ carry on business, or have a branch office] or personally work for gain, as the case may be, acquiesce in such institution; or
8. From the above it is clear that if any of the opposite party actually and voluntarily render or carries on business within the territorial jurisdiction of a particular Forum the complaint can be instituted in that Forum. The Act nowhere says that the opposite party /opposite parties arrayed in the case shall have active involvement in the grievance of the complaint . Sec.11(2)(b) further stipulates that . Even if the opposite party or opposite parties, do not reside, or carries on business, or personally works for gain or do not have a branch office acquiesce to the jurisdiction of the Forum, that complaint can be maintained in that Forum. In this complaint Ist opposite party is residing and carrying on their business within the territorial jurisdiction of the Forum. Therefore the complaint is maintainable before this Forum.
9. Issue No2.
The specific case of the complainant is that the staff of opposite parties 1&2 did not allow him to check in for the scheduled journey stating that he was late. According to him he reached airport before one hour of the scheduled departure and as per the rules of opposite parties 1&2 PAX need to reach the check-in-point 45 minutes earlier only . His request to take note of the time is also yielded no result and he could also see 2 passengers who came much later than him were allowed to travel in the same flight. His written complaint to 2nd opposite party in this regard is refused. Therefore he constrained to re-scheduled his journey by 3.55 p.m as same day.
10. As against this contention the case of 2nd & 3rd opposite party is that as per their records check-in counter for flight IT 308 of opposite parties at Delhi airport closed at 11.08 hrs which is 42 minutes prior to 11.50 hrs of departure time of flight IT 308. But neither the complainant nor his fellow passengers were present at the check-in counter prior to closure of counter at 11.08 hrs. The IT 308 operated on 14/5/2011 with 12 unoccupied seats with a load of 139 passengers against the total capacity of 151 passengers. The complainant and his fellow passengers were ‘No Show Guests” as they were failed to report in time in the check-in counter.
11. Complainant impleaded 4th opposite party in the party array to produce the video clippings which would goes to prove their time of entry to the airport. According to him if the video clippings of the security camera is produced from 9.30 A.M to 11.a.m at 14/5/2011 it would show that they arrived at the airport at 10.50 A.M. But subsequently he dropped the proceedings against 4th opposite party and there after no steps were taken to produce the video clippings or any other documents to prove his case that he reported for check in at the airport at 10.50 a.m. In the absence of any evidence we are unable to accept the case of the complainant that his team arrived at the airport at 10.50 a.m . On the other hand the opposite parties were able to prove that on flight No.IT 308 left Delhi Airport leaving 12 vacant seats. Hence we do not find any deficiency in service on the part of opposite parties 1&2.
12. The further grievance of the complainant is that the opposite party rescheduled IT 3143 which was scheduled to operate Mumbai - Mangalore on 16/5/2011 in which he and his fellow passengers were proposed to travel in the sector Mumbai-Bangalore- Mangalore. Because of this he suffered much mental agony and was put in trouble since he had to attend some important engagements.
13. In response to this the contention of the opposite parties are that as per their terms and conditions the flight times are subject to change and do not form a part of the contract of carriage. It is their further case that the reservation Team of opposite parties 2&3 attempted to contact the complainant on 12/5/2011 on his mobile phone number 09747005779 provided by the complainant himself at the time of booking. But though the call made second time is attended he did not confirm acceptance of cancellation & accommodation in the flight Mumbai- Bangalore-Mangalore. However the complainant and his fellow passengers traveled in IT 105 ( Mumbai-Bangalore) and IT 2445 (Bangalore-Mangalore)
The complainant has not adduced any evidence regarding his important engagements and the loss he suffered due to the re-scheduling of the flight.
Hence we do not find any reason to allow the complaint. The complaint is therefore dismissed with no order as to costs.
Exts:
A1&A2 series- Air tickets
B1-Copy of flight passengers manifest
B2- true copy of resolution of board meeting passed by OP.2
B3& B4-copy of booking details
B5-Copy of terms & conditions of contract
B6-copy of flight summary
B7-copy of rescheduling charge
B8 Copy of flight passengers manifest
B9- —do-
PW1-Gangadharan-complainant
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
