PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as there is inordinate delay in the flight and Opposite Party failed to provide the necessary amenities during the delay which caused mental agony and harassment, physical discomfort to the Complainant.
2) The facts of the case as stated by the Complainant are that, the Complainant had purchased tickets from Opposite Party for journey from Mumbai to Chicago via Frankfurt and back by the same route. She travelled form Mumbai to Chicago without any problem. On return journey she was to travel on 12/11/06 from Chicago by flight LH9151, to Frankfurt and by flight LH756 from Frankfurt to Mumbai on 13/11/06. The scheduled time for flight LH95151 at Chicago was 18.20 on 12/11/2006. Accordingly she reached at Chicago Airport at about 17.45 but after some time, it was announced that the flight would be delayed by 45 minutes and there was continuous announcement regarding the delay and at about 21 hours the passengers were asked to get off the aircraft and wait at the terminal for further two hours. Again there was announcement that the flight would take off on next day.
3) The Complainant further states that she is a diabetic patient but food coupons were given at midnight of 12/11/06 when the food stalls were closed. No hotel arrangement was provided. The flight took off on 13/11/06. Complainant has not mention the time at which the flight took off and her journey started from Chicago to Frankfurt. It was alleged by the Complainant that the staff and crew of the Opposite Party was non cooperative and rude. The Complainant has averred that she is a pure vegetarian. She has informed this fact to the Opposite Party. But inspite of this, nothing had been done and Complainant had to survive with the food they offered.
4) The Complainant vide her letter dtd.20/12/06, communicated the above facts to the Opposite Party. After several correspondences by email, she received a letter dtd.07/02/07 of the Opposite Party apologizing for the inconvenience caused to her alongwith a travel voucher of US$150, however, she refused to accept the travel voucher and asked the Opposite Party to pay Rs.50,000/- as a compensation for hardship and mental agony, inconvenience caused to her during the flight journey from Chicago to Mumbai on 12/11/06 and 13/11/06.
5) Finally the Complainant has prayed that a sum of Rs.1 Lac be granted to the her as compensation for mental agony, stress and physical hardships suffered by her due to deficiency in service on the part of Opposite Party. Rs.20,000/- towards the legal and incidental expenses, Rs.10,000/- towards the cost of this complaint.
6) The Complainant has attached the xerox copies of the following documents in support of her complaint.
i)Letter dtd.20/12/06 addressed to Opposite Party.
ii)Letter dtd.12/01/07 alongwith boarding cards.
iii)Email dtd.01/02/07 of Opposite Party.
iv)Email exchanged between Complainant and Opposite Party letter dtd.07/02/07.
v)Complainant letter dtd.08//11/07.
vi)Letter of Voice Society dtd. Nil.
7) The complaint was admitted and notice was served to the Opposite Party. the Opposite Party appeared through its’ Ld.Advocate and submitted its written statement wherein the Opposite Party has stated that the cause of action has arisen on 12/11/06 and the complaint was filed on 15/11/08, hence, it is barred by limitation. There is no application for condoning the delay.
The Opposite Party has further stated that the complaint is regarding the deficiency in service as the flight was delayed. This delay in the Chicago – Frankfurt flight was due to technical snag in the aircraft. It was beyond the control of Opposite Party. The Opposite Party has also averred that the Complainant has plucked a figure from the air and sought the compensation for the damages, without substantiating as to how she suffered the damages.
8) The Opposite Party has given a clarification, regarding the hotel accommodation demanded by the Complainant that there was no contract between the Complainant and the Opposite Party to provide any accommodation/hotel facility. Hence, the Forum does not have the jurisdiction to entertain the complaint. The incident of not providing the hotel accommodation took place in U.S.A. i.e. out of the territorial jurisdiction of this Forum. The Opposite Party has also averred that the Complainant is not a consumer of Opposite Party so far as the hotel accommodation is concerned.
9) The Opposite Party has vehemently asserted that there is absolutely no proof whatsoever with regard to damages, suffered by the Complainant. It has further stated that the complaint involves complex issues which cannot be decided in a summary manner.
10) The Opposite Party has further submitted that the Opposite Party had offered 25000 travel miles to Complainant without prejudice to its right, as full and final settlement and the Opposite Party is still ready to credit the said travel miles.
11) It was further reiterated by the Opposite Party in para 2(a) that, after the passengers boarded the aircraft, a mechanical snag was detected in the said air craft. The crew tried to remove the mechanical defect but it took more time than expected. Therefore, all the passengers were requested to de-board the air craft so that they can sit comfortably at air port (Lounge) instead of sitting in the aircraft. A mechanical snag can occur for a number of reasons and it was beyond the control of the Opposite Party. Opposite Party insures that it takes steps to correct it at earliest. Despite repairs, if the flight cannot get clearance from airport authority, the Opposite Party is compelled to cancel the flight. It is averred by the Opposite Party that it, itself suffers huge loss when it cancels any flight. The Opposite Party looks after its passenger’s safety.
12) It was also clarified by the Opposite Party that the delay in the flight was caused due to mechanical snag and one could not anticipate as to how much time it would take to remove the fault. The aircraft crew was working and trying to solve the problem. During this process the flight was delayed. It was further explained that the Aeroplane can take off and fly only as per the timings given by the concerned authority and it is not in the control of the Opposite Party. The mechanical snag could not be corrected before the time schedule. Thus, the Opposite Party was compelled to cancel the flight.
13) It was also clarified by the Opposite Party that, it was hoping to rectify the aircraft fault as early as possible but in absence of exact timing which would require to correct the same, it could not request the passengers to leave the airport and it was also not obliged to provide the Complainant with alternative accommodation under such situation. The Opposite Party has vehemently denied that its staff was rude and non cooperative. Finally the Opposite Party has prayed that the complaint be dismissed with cost in favour of Opposite Party.
14) The Complainant filed its affidavit of evidence and written argument and the Opposite Party also filed its affidavit of evidence and written argument wherein they respectively reiterated the facts stated in their complaint and written statement. We heard the Ld.Advocates for both the parties and our findings are as follows –
15) The issue before us while deciding the complaint is whether there was deficiency in service on the part of Opposite Party ?
Ans.: As discussed below.
The Complainant had purchased the traveling confirmed air tickets form the Opposite Party and was traveling from Chicago to Mumbai via Frankfurt on 12/11/06. The flight was scheduled to take off from Chicago at 18-20 on 12/11/06. However, it was delayed and finally after 24 hours of waiting it took off from Chicago. As per the Opposite Party, this delay was caused due to the technical snag. The points of deficiency alleged by the Complainant are that there was a delay of 24 hrs. The Complainant was not provided with hotel accommodation and proper food as she is a diabetic patient. From the averments of both the parties, it is clear that there was delay in the flight LH9151. It is the contention of the Opposite Party that the mechanical snag was detected when the passengers boarded the aircraft and it took several hours to rectify the technical fault. This fact itself discloses that there was some technical fault in the aircraft and this can be attributed to improper maintenance of the aircraft. The airlines are charging hefty amount for their services. Therefore, it is their obligation to maintain the aircraft properly so that it should not display any defect at 11th hours at the time of take off. The Opposite Party has given the reason of delay, as “technical snag/mechanical snag.” This is something a vague term used by the Opposite Party. It has not specified what was technical snag and why it was not rectified before the scheduled time. It is not explained, how it was beyond the control of the Opposite Party to rectify it immediately.
16) It is the contractual obligation of the Opposite Party to provide defect free aircraft to the passengers and take them to their destination safely and in time. It is the contention of the Opposite Party that the technical snag was detected after the passengers boarded the air craft. Then the question arises, what the mechanical staff and engineers were doing before 18-20 on 12/11/08 ? Again we reiterate that it is the duty of the Opposite Party to keep ready the defect free and safe air craft for the flight. The Opposite Party failed in its duty to do so. We agree with the Opposite Party’s contention that, the Opposite Party itself suffers when it cancels its flight, but by doing so they add to the sufferings to their consumers by not maintaining its air craft properly and by not keeping it ready defect free before the scheduled time. Moreover, the Opposite Party has not explained exactly as to what was the technical snag which was not rectified before 18-20 hrs on 12/11/06 and how it was beyond its control. Therefore, we can conclude that the delay of 24 hour was caused by the Opposite Party and it was deficient in providing the expected service of taking the Complainant to her destination.
17) The Opposite Party has further expressed its apology vide its letter dtd.07/02/07 in the following words and offered the travel certificate “I apologize for the problems you experienced when your flight was cancelled etc. It is further stated in the said letter as “I am sorry you did not receive better service. As a gesture of goodwill, I offer the enclosed travel certificate in hopes that you will use it and give us the opportunity to regain your confidence and support.” We perused the copy of this travel certificate issued by the Opposite Party. The Voucher Value is USD150. Though it is goodwill gesture, the Opposite Party has realized that the Complainant had sustained inconvenience due to the cancellation of the flight and it had sent the voucher valued at 150 USD.
18) Opposite Party has submitted in its written statement that the Complainant is not a ‘Consumer’. But taking into consideration the definition of Sec.2(1)(d) and the facts of this case, Complainant is a Consumer and as per Sect.11 of the C.P.A. this Forum has the jurisdiction to decide on this complaint. Similarly the Opposite Party also has raised the point of limitation but the complaint clearly shows that it is filed on 07/11/08 while the cause of action has arisen on 12/11/06 and 13/11/06. Therefore, the complaint has been filed well within the period of limitation as stipulated in Sec.24(A )of the Consumer Protection Act, 1986.
19) The other allegation of the Complainant is that she did not get hotel accommodation. The Opposite Party found out the technical snag after the passengers had boarded the aircraft i.e. at or about 18.20. Then the mechanical crew tried to correct it. It was not certain when the defects could be removed. Under such circumstances it was not proper for the Opposite Party to make accommodation arrangement for the passengers as there was every possibility that the aircraft could be ready to fly at any time.
20) Another allegation of the Complainant is that she is a diabetic patient and Opposite Party did not give the food as per her request. In this regard, the Complainant has not given any proof that she is a diabetic patient and she needed the particular type of food. However, it is her contention that she had to survive on the food served by the Opposite Party. This indicates that food was served to her. Therefore, this allegation is also not substantiated by any cognate evidence.
21) The next allegation of the Complainant is that the staff of the Opposite Party was rude and non cooperative. In this respect also it is only a bare averment and is not based on any proof.
22) In view of the above discussion, we are of he considered opinion that the flight no.9151 was cancelled on 12/11/06 and it was delayed till next day. According to the Opposite Party, the cancellation was due to technical snag but the Opposite Party has not explained as to what the technical delay was and how it was beyond its control to remove the snag before 18-20 hours on 12/11/06. Therefore, there is a deficiency in service on the part of Opposite Party as it failed to take the Complainant to her destination on time and it caused mental agony & inconvenience. However, other deficiencies regarding hotel accommodation, food and rudeness of the staff of Opposite Party are not substantiated. The compensation prayed by the Complainant is exorbitant. We think it just and proper to pass the order as follows -
O R D E R
i. Complaint No.218/2008 is partly allowed.
ii The Opposite Party is directed to pay the compensation of Rs.10,000/- (Rs.Ten Thousand only) to the
Complainant for mental agony caused to the Complainant as the flight was delayed.
iii.Opposite Party is directed to pay Rs.3,000/- (Rs. Three Thousand Only) to the Complainant towards the cost of
this complaint.
iv.Opposite Party is directed to comply with the above order within 30 days from the receipt of this order.
v.Certified copies of this order be furnished to the parties.
