This complaint was filed u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in services against the Airlines as OPs.
The main points of the complaint as averred by the complainants are that the complainant no. 1, 2 and 3 were scheduled to undertake a journey and accordingly got their air tickets booked through Kiwi.com for availing the flight of Indigo Airlines (Inter Globe Aviation Ltd.) along with request for wheel chair assistance for all the Complainants (who are senior citizens and ailing passengers) at Kolkata International Airport on 12.09.2019 for journey to Bangkok Airport. The complainants further purchased air tickets to travel from Bangkok to Okinawa, Japan on 13.09.2019 through another Airlines namely ‘Peach Aviation’ along with request for wheel chair assistance at Bangkok airport during transit. The complainants also booked return tickets in the same airlines from Okinawa to Bangkok on 02.10.2019 in Peach Aviation and again from Bangkok to Kolkata on 03.10.2019 in Indigo airlines. The complainants filed exhibits in the form of air ticket invoice along with boarding cards with a mention of special assistance for wheel chair for the journey part of Kolkata to Bangkok on 12.09.2019. The complainants vide their e-mail dated 29.05.2019 requested Indigo airlines for assistance regarding speaking in Hindi/Bengali at Bangkok airport as they were not conversant in English. Indigo Airlines in their reply by e-mail dated 29.05.2019 communicated the complainants assuring assistance at respective airports. However, on the scheduled date of journey from Kolkata to Bangkok on 12.09.2019, the OPs did not provide wheel chair at Kolkata Airport. Upon arrival at Bangkok Airport also, only two numbers of wheel chairs were provided instead of three. The complainants averred that the airlines staff demanded money from the complainant which they refused to pay. Furthermore, when the complainants reached the immigration counter to avail the flight of Peach Aviation for undertaking onward journey from Bangkok to Japan, found that the onward journey flight had already left for destination. Feeling sick and aggrieved the complainants got return air tickets booked through another airlines SpiceJet on 13.09.2019 and came back to Kolkata. The relative of the complainants called up Indigo Customer Care Helpline when they assured him about necessary steps to be taken for the safety, security and care but ultimately nobody did turn up. The grievance submitted by the relative of the complainant on 13.09.2019 by e-mail to the OPs enquiring about the reason of their negligence, unfair trade practice and lack of services in reply to which the OP1 vide their e-mail dated 19.09.2019 denied all the allegations as mentioned in the said complaint. Being aggrieved, the complainant sent notice through their advocate on 16.12.2019 to serve on the OPs, claiming flight ticket cost of Rs. 1,37,388/- (Rupees one lakh thirty seven thousand three hundred eighty eight) only, compensation of Rs. 3,00,000/- (Rupees three lakh) for mental agony and Rs. 2,00,000/- (Rupees two lakh) only for anxiety and another Rs. 2,00,000/- (Rupees two lakh) for deficiency in service and another Rs. 1,00,000/- (Rupees one lakh) only as litigation cost totaling to Rs. 9,37,388/- (Rupees nine lakh thirty seven thousand three hundred eighty eight) only for all the damages and costs together.
During the course of enquiry before the district forum in order to prove their case the Complainants got the evidence filed through Affidavit from Complainants 1, 2 and 3 along with exhibits and requisites. Notices were duly served upon the OP1, OP2 and OP3 alongwith copy of the petition of the Complainant and other relevant documents and exhibits through speed post with A/D seeking their Appearance and Written Version, which were duly served as evident from the track reports. But due to the non-appearance of the OP1, OP2 and OP3, the case was running ex parte from 25.02.2021. Arguments were advanced by the Ld. Advocate of the Complainant and BNA submitted but all the OPs remained unrepresented. Hence the case was examined on merits and available documents and records and exhibits.
The OPs i.e. Indigo airlines refuted all the charges as raised in the notice served by the complainants’ advocate vide their letter dated 16.12.2019 and replied by letter dated 07.05.2020 denying and disputing all the charges raised by the complainants, save and except that has been admitted specifically by the OPs. The OPs contested in that reply to the notice dated 07.05.2020 which states inter-alia that there was no deficiency of service on the part of the OPs under the scopes and meaning of Consumer Protect Act and does not form a consumer dispute. The booking of journey tickets and carriage of the passengers are covered by various contractual and binding obligation duly expressed under “Indigo Condition of Carriage” made known to their passengers and binding at the time of booking of air tickets, which are processed only after due acceptance of the terms and conditions of the airlines. In compliance of the booking request, air tickets were issued for journey from Kolkata to Bangkok by Indigo Airlines on 12.09.2019 and return journey from Bangkok to Kolkata on 03.10.2019. The wheel chair facility at Kolkata Airport was offered free of charge to all the complainant passengers and the wheel chair facility was also provided to all the passengers at the Bangkok Airport along with assistance up to the counter of Peach Aviation airlines to avail the communicating flight towards Okinawa, Japan. The OP1 contended that as per provision of Indigo Airlines in respect of unconnected segments and travel documents, it was clear that the customers had to be aware of the immigration rules and transit requirement for their final destination as the Airlines would not be held responsible for any other segment of different airlines to reach final destination and after due compliance of immigration rules of respective countries. The Airlines claimed that all the 3 passengers refused to accept wheel chairs offered by the airlines at Kolkata Airport on the ground that the boarding gate of the flight was nearer being within a walkable distance and they did not avail any wheel chair assistance, all of whom voluntarily denied the facility and chose to move unassisted towards the boarding counter. The passengers checked in and successfully boarded at Kolkata for the Bangkok flight. The Airlines contended that it is neither the obligation nor the responsibility of the airlines to ensure that the complainants boarded the connecting flight which is subject to obtaining visa and immigration rules that are not under control of airlines. The airlines informed the passengers that assistance would be provided at Bangkok Airport, only as a service gesture. Since Bangkok Airport is not a transit Airport which means that the passengers have to pass through immigration counter, a Visa on arrival is required for all Indian national including transit passengers. Accordingly such passengers have to get a Visa on arrival even to reach the counter for their connecting flight. Accordingly the airlines staff assisted the passengers to the immigration counter by explaining that with a payment of a fees of 200 THB, the express service for immigration desk could be availed, due to paucity of available time for boarding onward flight. However, the passengers did not avail the same and by the time, the airlines staff got back towards the passengers in immigration area, they had left the immigration queue. On 20.09.2019 the air tickets for return journey from Bangkok to Kolkata were cancelled through website and an amount of Rs. 3,313/- (Rupees three thousand three hundred thirteen only) was refunded to the original payment mode after applicable cancellation charges. As there was no obligation on the airlines to assist the passengers to the counter of another connecting flight of another airlines and since the completion of immigration requirements and time taken in the queue were beyond the scope of this airlines and as the Complainant passengers voluntarily left the immigration queue, hence, the airlines can’t be held responsible for negligence and lack of understanding of the immigration rules for availing the connecting flight of another airlines.
The main points of determination in the case are as follows :-
- Whether the Complainants can be termed as Consumers or not ?
- Whether this complaint is maintainable from the points of its territorial and pecuniary jurisdiction?
- Whether there was any deficiency in rendering in service on the part of the OPs or not?
- Whether the Complainants are entitled to get any relief as sought for or not ?
In respect of the point no, 1 we are of the view that the Complainants are the consumers in view of the definition of ‘Consumer’ as enumerated in the Consumer Protection Act, 2019 on the ground that they have availed the airlines carriage services from the OPs by making payment of due consideration amount for the part of Kolkata to Bangkok. Therefore the Complainants are the consumers and the OPs are the service providers. Thus the point no. 1 is disposed of in favour of the Complainants.
In respect of the point no. 2 we are to say that as the addresses of the OPs fall within the territorial jurisdiction of this Ld. Commission so from the point of territorial jurisdiction this complaint is well maintainable before this Ld. Commission. Regarding pecuniary jurisdiction it is seen by us that the Complainants have sought for compensation to the tune of Rs. 7,00,000/- (Rupees Seven Lack only) and does not exceed the pecuniary jurisdiction of this Ld. Commission. So from the point of its pecuniary jurisdiction also this complaint is very well maintainable. Thus the point no. 2 is decided in favour of the Complainants.
Regarding point no 3, the Complainants got their e tickets booked online from the agent M/s KIWI.com who is not made a party in this case. As per the air tickets purchased by the Complainants from Kiwi.com, it reveals that the Complainants planned an onward journey which was booked for arrival at Bangkok Airport at 23.15 hours on 12.09.2019 with a departure time of the connecting flight at 01.25 hours on 13.09.2019 thereby with a layover of only 2 hours and 10 minutes to complete disembarkment from Indigo flight of Kolkata to Bangkok, completion of Visa on arrival formalities at Bangkok, immigration formalities for Japan and boarding of another flight of another airlines namely Peach Aviation. It is also expressly mentioned in the air tickets as exhibited that the airlines / agent would not be held responsible for any visa issue, including airport transit visa, which is the responsibility of the passengers, with further caution about possessing correct documents to board the aircraft and to learn more on pre-requisites by visiting IATA travel center website etc. Hence mere statement of the Complaints’ affidavit about wheel chair assistance and language assistance in this circumstances is wholly insufficient, particularly when refuted by the Airlines. The Airlines denied that there was any deficiency in the services as it could not be held responsible for the act of time taken by the immigration authorities specially when the question of completing immigration process comes in question while being in immigration queue and that too without availing the Express services that were offered and available before the complainants but not availed of, to enable those passengers to catch the connecting flight of another foreign airlines within a span of a mere 2 hours and 10 minutes. The only difference the Complainants faced regarding services was at Kolkata Airport where there are set procedures to report at the departure gate for Wheel chair assistance and mere claim by the Complainants that the Wheel chairs were not provided which is not supported by any exhibit or clipping in pen drive etc. and refuted by Airlines that these passengers did not avail of the same and neither could not be established adequately. The claim of CCTV footage for such purposes is not feasible due to safety and security reasons. Similarly the assistance of Wheel chair issue at Bangkok airport to get it provided for 2 passengers instead of 3 was not established beyond doubt as the passengers were admittedly assisted by the Airlines even in part but being the immigration area, the Express services was not availed by the Complainants although during purchasing of the air tickets, they planned but with a limitation of available time to complete all essential formalities of two different international airlines’ flights. The voluntarily quitting the immigration counter without leaving any intimation to the airlines and cancellation of the Air tickets online also led to loosing the track of the passengers by the OPs. Neither in the Affidavit in chief nor in the BNA these points were touched upon by the Complainants or their Ld advocate which were placed by the OPs in their refutal in their reply dated 07.05.2020 in response to the notice dated 16.12.2019 of the Ld Advocate of the Complainant. There can be no doubt that the respondent, like any other passenger could not complete immigration formalities or board connecting flight of a different airlines within a limited period as planned by themselves or underwent considerable mental hardship and agony on account of the same. But, it was not as a consequence of any deficiency in service, negligence by the OPs. A Consumer for can’t Award compensation merely because there was inconvenience or hardship or on grounds of sympathy. What is relevant is whether there was any cause of action for claiming damages, that is whether there was any deficiency in service or whether there was any negligence in providing services. If this delay was due to reasons beyond the control of the airline and if they have acted reasonably and in a bona fide manner, the OPs cannot be made liable to pay damages even there has been some inconvenience or hardship to a passenger on account of the delay.
In a consumer case, the onus of proof that there was deficiency in service is on the complainant. Without any proof of deficiency, the OP cannot be held responsible for deficiency in service which has been observed in various Orders of the National and State Consumer Dispute Redressal Commission. In the case in hand there is no evidence on behalf of the Complainants to prove that the OPs did not provide approved and accepted service assistance at airport area as per IATA rules standard protocols or deviated in providing wheel chair assistance or language assistances to the Complainant no 1 and 2 and 3. Without any evidence based only on mere allegations made out by the Complainants it can’t be held that the services provided by the OPs suffer from any deficiency or negligence. Therefore it can safely be said that the Complainants have failed to prove any deficiency in service on the part of the OPs. In spite of above, entire records were carefully perused. It is seen that there is no iota of evidence adduced by the Complainants or the documentary evidence from where it can be ascertained that there was any deficiency in providing proper and accepted service deficiency. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service, the aggrieved persons may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. If on the facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down.
Thus the point no. 3 is decided against the Complainants.
As the Complainants have failed to prove any negligence and deficiency in service from the end of the OPs by adducing any convincing and cogent evidence, the Complainants are not entitled to get any relief as sough for. Thus the point no. 4 is decided against the Complainants
Going by the foregoing discussion hence it is ordered, that the Consumer Complaint being no : CC/346/2020 is hereby dismissed on contest. However considering the facts and circumstances of the complaint there is no order as to cost.
Let plain copy of this judgment/final order be given to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MR. Partha Kumar Basu]
MEMBER
