BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 07/2006 Filed on 11.01.2006 Dated : 15.02.2010 Complainant: Khalid Kunju, Roadarikathu Veedu, Kollayil P.O, Nedumangad, represented by his Power of Attorney Holder Nizarudeen, S/o Abdul Rehman, River View, Sathyamangalam, Kollayil P.O, Madathara.
(By adv. G.S. Sanal Kumar) Opposite party: The Manager, Gulf Air, Diamond Hill, Vellayambalam, Thiruvananthapuram-10.
(By adv. A. Abdul Kharim)
This O.P having been heard on 30.12.2009, the Forum on 15.02.2010 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant applied for an air ticket from Thiruvananthapuram through Abudabi to Kuwait and got a confirmed air ticket of flight No. 063 on 04.02.2005, that complainant reached Thiruvananthapuram airport at 6 p.m before two hours of the scheduled time for the flight, that opposite party did not allow the complainant to fly in the said Airways as per the said ticket, that opposite party informed the complainant that he would be able to fly on the next day i.e on 05.02.2005. It is submitted by the complainant that he was not able to report in time before his employment officer. He could not meet partners at Dubai Airport for discussing some business matters. The act of the opposite party amounts to gross negligence and clear deficiency in service and opposite party is liable to compensate the complainant. Hence this complaint to direct opposite party to pay an amount of Rs. 50,000/- for the loss and damage sustained and Rs. 50,000/- for negligence and deficiency in service committed by the opposite party. Opposite party filed version contending that there is no wilful misconduct or negligence or deficiency in service on the part of the opposite party. Opposite party had no idea about the purpose of the complainant's travel. It is true that he was a confirmed ticket holder of opposite party's flight on the sector Thiruvananthapuram-Abudabi-Kuwait on 04.02.2005, that complainant reported for journey late after closing the check in counter at Thiruvananthapuram Airport and hence he could not be accommodated in the flight. Complainant himself was responsible for the incident as he acted negligently. Opposite party as a routine procedure vide their letter dated 27.04.2005 without admitting any liability and on a goodwill gesture had offered 150 US $ to the complainant and the same was unreasonably rejected by the complainant. All claims are unfounded without any basis. Opposite party is still ready and willing to pay the amount as offered in the letter dated 27.04.2005, but without prejudice to the contentions and defences of the opposite party and also without admitting any deficiency in service or liability on their part. The points that arise for consideration are:- Whether there is deficiency in service on the part of opposite party? Whether the complainant is entitled to get compensation? If so at what amount?
In support of the complaint, the Power of Attorney Holder of the complainant has filed proof affidavit as PW1 and Exts. P1 to P6 were marked. PW1 has been cross examined by the opposite party. In rebuttal, opposite party has filed affidavit as DW1. Opposite party did not file any documents. Points (i) & (ii):- Admittedly, the complainant was a confirmed Air Ticket holder of opposite party's flight on the sector Trivandrum-Abu Dhabi-Kuwait on 04.02.2005 and he could not fly in the said flight as per the confirmed ticket. It has been the case of the complainant that though he had reached the Trivandrum Airport at 6 a.m before 2 hours of the schedule time for flight he was not allowed to travel in the said flight by the opposite party. It has also been the case of the complainant that due to denial of boarding by the opposite party, he could not report in time before the employment officer and meet partners at Dubai Airport for business discussions. Opposite party resisted the complainant by submitting that complainant has reported for journey late after closing the check in counter at the Trivandrum Airport and hence he could not be accommodated in the flight, that there is absolutely no wilful misconduct or negligence or deficiency in service on the part of the opposite party in the said incident and that the complainant himself was responsible for the incident as he acted negligently. Ext. P1 is the copy of the ticket for passage from Abudhabi to Kuwait. Ext. P2 is the ticket for passage from Thiruvananthapuram to Abudhabi. Exts. P1 and P2 are seen issued in the name of the complainant and as per Ext. P2 the flight No. is 063, dated of journey is 4th February 2005, time is 8 a.m and status of the ticket is 'O.K'. There is no dispute in regard to the status of the said ticket. Ext. P3 is the copy of the advocate notice addressed to the opposite party. Ext. P4 is the acknowledgement card. Ext. P5 is the reply notice dated 27.04.2005 issued by the opposite party to complainant wherein it is seen mentioned that opposite party has initiated an investigation and will revert to him upon its conclusion. Ext. P6 is the reply notice dated 07.07.2005 issued by the opposite party to the complainant informing him that their reports have shown that GF 063 experienced an overbooking situation, which resulted in several passengers including the complainant being denied boarding for this flight. It is stated in Ext. P6 that ' Gulf Air is sometimes forced to marginally overbook our flights. This is to compensate for the 'no show' passengers that is, those passengers who despite having confirmed booking, fail to turn up for their flight. Incidences of this nature are higher on some routes than others and can also depend on the time of travel, the season and the amount of traffic. The logistics involved are finely balanced to try and avoid having to inconvenience our passengers and at the same time to try and avoid taking off with too many empty seats. It is further stated in Ext. P6 that “ in accordance with our conditions of carriage, Mr. Kunju (the complainant) was rebooked to travel on the next available flight, which was GF 461 on the 5th February which resulted in him reaching Kuwait at 6.40 p.m the same day, instead of 9.15 a.m as booked. He was also provided with hotel accommodation until the departure of his flight from Trivandrum. As a result of our findings, therefore, we are not liable to compensate, however, in consideration of the inconvenience Mr. Kunju faced during this time, we would like to offer him the amount of $ USD 150 in the form of an MCO voucher, which may be redeemed towards the cost of a flight ticket on our services, or any excess baggage charges incurred. Complainant's Power of Attorney holder has never denied the contentions of Ext. P6 in his affidavit. In this regard, opposite party has argued that National Commission in its decision reported in 2003(1)CPJ 24 (NC) and 2003(1) CPJ 169 (NC), has held that even in case of denial of boarding due to overbooking, the passenger is entitled to get one day's hotel accommodation and if not Densed Boarding Compensation(DBC) which is 300 US dollar. Opposite party has further argued that in this case opposite party had provided one day's hotel accommodation and confirmed for travel in the next day's flight. Complainant never denied the contentions of the Ext. P6 reply issued by the opposite party. In the light of the Ext. P6 reply, the averment in the version that the complainant reported for journey late after closing the check in counter at the Trivandrum Airport and hence he could not be accommodated in the flight goes contradictory/wrong, the action of the opposite party would definitely amount to deficiency in service, for which complainant is entitled to get compensation. In view of the above, what is offered by the opposite party in Ext. P6 is seemed to be genuine and reasonable. In the result, complaint is partly allowed. Opposite party shall pay the complainant a sum of 150 US dollar (converted into rupee at the rate of exchange prevailing on the date of passing of this order) within two months from the date of receipt of this order. Both parties shall bear and suffer their costs. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of February 2010.
G. SIVAPRASAD, President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER jb
C.C. No. 07/2006 APPENDIX
I COMPLAINANT'S WITNESS : PW1 - Nizarudeen. A II COMPLAINANT'S DOCUMENTS : P1 - Photocopy of the ticket for passage from Abudabi to Kuwait. P2 - Photocopy of the ticket for passage from Tvpm to Abudhabi. P3 - Photocopy of the advocate notice addressed to the opposite party. P4 - Acknowledgement card P5 - Reply notice dated 27.04.2005 issued by the opposite party. P6 - Reply noticed dated 07.07.2005 issued by the opposite party.
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL PRESIDENT
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