Heard the learned counsel for both the sides. The Officer concerned of appellant is present.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The unfolded story of the complainant, is that the complainant in a group had gone to have a darshan of the Lord Amarnath,for that they contacted OP No.1 to facilitate the to and fro journey by flight from Bhubaneswr. It is alleged inter-alia that OP No.1 arranged the flight tickets on 01.07.2010 from Bhubaneswar to Delhi in Kingfisher Airline and then go by Air India flight from Delhi to Srinagar. Similarly OP No.1 arranged return flight on 6.7.2010 by Air India (OP No.2) from Srinagar to Delhi and then from Delhi to Bhubanewar by Kingfisher Airline. It is alleged by complainant that as per schedule programme the complainants travelled in a Kingfisher airlines on 30.06.2010 from Bhubanewar to Delhi and on 01.07.2010 travelled in Indian Airlines from Delhi to Srinagar. After their darsan of Lord Amarnath and completion of the trip again they returned from Srinagar to Delhi in the flight of Indian Airlines on 06.07.2010. When they arrived at Delhi they could not catch the Kingfisher flight in which they had to travel from Delhi to Bhubaneswar. It is stated that OP No.2 has deviated its timings and delayed departure of their flight at Srinagar and so also made delay in arrival at Delhi, accordingly they missed the Kingfisher flight for that they were harassed and got mental agony. So, they filed this complaint claiming compensation of Rs.50,000/- from OP No.2 and others.
4. OP No.1 and 3 are set-ex-parte.
5. The OP No.2 filed the written version stating that the jurisdiction of the learned District Forum was lacking U/S-11 of the Act. It is further averred that the flight No.IC 826 from Srinagar to Delhi on 06.07.2010 was delayed and delay was caused due to consequential and operational reasons beyond the control of the OP No.2. They took the plea by citing clause 3(3) of the Conditions of Contract Relating to Non-International Carriage of Passengers and baggage Rules which states as follows:-
“The Company reserves to itself the right, without assigning any reason, to cancel advance, reschedule, over fly or delay the commencement or continuance of the flight or to alter the stopping place or places or to deviate from the route of the journey or to change the type of aircraft in use without thereby incurring any liability in damages or otherwise to the passengers or any other person on any round what so ever. The Company also reserves to itself the right to refuse to carry any person whom it considers unfit to travel or who in the opinion of the Company may constitute risk to the Aircraft or to the persons on board.”
6. The OP No.2 further averred that the complainant has named nine persons in the Air tickets whereas the cause title of complainant reflects the names of 11 persons travelled in the said flight thus the travel of the two persons is doubtful. However, they submit that they have no deficiency in service on the part of the OP No.2.
7. After hearing both the parties, learned
District Forum passed the following order:-
Xxxxx xxxxxxxx xxxxxx
“The petition of the complainant is allowed on contest against OP No.2 and exparte against OP No.1 and 3. As per the direction given in the body of the judgment , the OP No.2 and 3 will pay a sum of Rs.66,000/- (Sixty six thousand) to the complainants towards the charges paid by them for their journey from Delhi to Bhubaneswar in the flight of OP No.3. OP NO.2 will pay the train charges from Delhi to Visakhapatnam @ Rs.800/- (Rs.8,800/-) already paid in advance and also pay the same amount for their journey from Delhi to Visakhapatnam Rs.8,800/-. The OP No.2 will pay a monetary compensation of Rs.33,000/-(thirty thousand) towards the mental agony and financial loss and another sum of Rs.22,000/- (twenty two thousand) towards the boardings and lodging charges at Delhi.
The OP No.2 and 3 are directed to comply the order within one month failing which the complainant’s may opt to execute the said order by invoking the provisions U/S-25 & 27 of the C.P.Act.
The complainants have engaged an Advocate. Paid the fees in this Forum. Hence, the complainants are also entitled to get a sum of Rs.5000/-(Five thousand) towards litigation expenses.”
8. Learned counsel for the appellant submitted that the complainants were travelling from one place to another but purchased tickets from different places. Moreover, he submitted that due to some circumstances beyond the human control the delay occurred. Learned District Forum failed to apply judicial mind to the above facts and law for which the impugned order is liable to be set-aside. Besides he urged that U/S-11 (2) of the Act the territorial jurisdiction of learned District Forum,Rayagada is lacking. He submitted that no permission as required US-12(1)© of the Act has been obtained to file one complaint. Therefore, he submitted to set-aside the impugned order by allowing the appeal.
9. Learned counsel for the respondent submitted that the issue raised by the learned counsel for the OP was made for the first time in this case before this Commission. He drew our attention to the fact that all the AIR tickets of 9 complainants out of 11 complainants were purchased under one ticket no. and other two complainants were travelling in separate ticket nos. According to him they were all travelling in same flight because they went for darshan of Lord Amarnath. He submitted that there is no any reasons proved for causing delay in departure of flight by OP No.2. Therefore, the impugned order should be confirmed by dismissing the appeal.
10. Considered the submission of learned counsel for both the parties, perused the DFR and impugned order.
11. It is admitted fact that 11 persons have filed the complaint where under 9 persons were travelling in one ticket and other two persons were travelling in separate ticket. It is a fact that they are travelling in one flight of OP No.2. It is not in dispute that the flight was delayed while coming from Srinagar to Delhi on 06.07.2010. It is also not in dispute that at the time of arrival of this flight the flight Kingfisher has already left from Delhi to Bhubaneswar on 06.07.2010 and the complainants travelled in subsequent flight. The only question arises whether one complaint would lies or different complaint would lie. Section-12(1)© of the Act is as follows:-
“One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of all, consumers so interested; or
Section-2(b)(iv) of the Act is as follows:-
One or more consumers, where there are numerous consumers having the same interest ;
Section-13(6) of the Act is as follows:-
Where the complainants is a consumer referred to in sub-Clause(iv) of Clause(b) of Sub-section (1) of Section 2, the provisions of Rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 ( 5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon,
The above all provisions if read combinedly it would be clear that a group of persons can be complainants under the Act and should maintain one complaint case of having same interest but the permission of the learned District Forum is mandatory. This view has been already held by the Hon’ble Supreme Court of India passed in Civil Appeal No.4802 of 2018 disposed of on 07.12.2018 Rameshwar Prasad Shrivastava-Vrs- Dwarikadhis Projects Pvt.Ltd.
12. In the instant case the necessary permission U/S-12(1)© is lacking even though all the complainants were travelling with same interest. Therefore, the one complaint is not maintainable by 11 complainants.
13. It is also worthy to note that the complainants belong to Rayagada and they have made OP No.1 to 3 as part who belongs to Visakhapatnam,Delhi and Mumbai respectively. The cause of action arose while purchasing ticket from Visakhapatnam. None of the cause of action arose at Rayagada. Therefore, Section-11(2) of the Act is as follows:-
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdictions –
(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 on 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.
Hon’ble Apex Court in M/s. Sonic Survical-Vrs- National Insurance Co.Ltd. AIR 2010 SCW 198 held that District Forum can entertain the complaint if main office or branch office or OP is situated and part of cause of action or cause of action arises within such territorial area of District Forum.
14. After going through all the provisions and decision of Hon’ble Supreme Court it is clear that the present complaint can not be entertained by the learned District Forum,Rayagada where neither cause of action arose nor any branch office of Ops is situated. Therefore, the complaint is not maintainable U/S-11 of the Act. So far merit of the case is concerned that the delay was caused due to technical snag which is beyond the control of OP No.2. They have also cited Clause-3/3 of the Conditions of Contract International Carriage of passengers Rules which is as follows:-
“The Company reserves to itself the right, without assigning any reason, to cancel advance, reschedule, over fly or delay the commencement or continuance of the flight or to alter the stopp8ing place or places or to deviate from the route of the journey or to change the type of aircraft in use without thereby incurring any liability in damages or otherwise to the passengers or any other person on any round what so ever. The Company also reserves to itself the right to refuse to carry any person whom it considers unfit to travel or who in the opinion of the Company may constitute risk to the Aircraft or to the persons on board.”
15. The above clause is clear to show if there is any cancellation or rescheduling or delay of flight or deviation from the route of journey due to technical snag, OP No.2 can not be held liable. So whatever the reasons of delay, they are not liable to pay damage for delayed journey of the flight. As such also on merit the complainants can not claim any damages against the Ops.
16. In view of aforesaid discussion, we are of the view that learned District Forum has not considered the case with proper perspectives and as such the impugned order is liable to be set-aside and it is set-aside.
The appeal stands allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
