BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. No. 701/2005 against C.D No. 79/2003, Dist. Forum-I, Hyderabad
Between:
Thomas Cook India Ltd.,
Regd. Office at Dr. D. N. Road
Mumbai
Regional Office at
Nasir Arcade, Saifabad
Hyderabad.
Rep. by its Branch Manager &
Authorized Sigantory
Navzar A. Bengalli. *** Appellant/
O.P. No. 1.
And
1. Vuppala Venkateswarlu
S/o. Janakiramaiah
Age: 56 years,
2. Smt. V. Chandrakala
W/o. V. Venkateswarlu
Age: 48 years,
3. V. Hari Prasad,
S/o. V. Venkateswarlu
Age: 23 years
(All are R/o. 2-1-416,
Flat No. 204,
Prana Nilaya Apartments
Nallakunta, Hyderabad. *** Respondents/
Complainants
4. Air India,
Haca Bhavan
Opp. Public Gardens
Nampally, Hyderabad. *** Respondent/
O.P. No. 2
Counsel for the Appellant: Mr. P. Rajender Reddy
Counsel for the Respondents: R1 to R3 – Served
Smt. G. Sudha - (R4)
F.A. No. 943/2008 against C.D No. 79/2003, Dist. Forum-I, Hyderabad
Between:
M/s. Air India,
Haca Bhavan
Opp. Public Gardens
Nampally, Hyderabad. *** Appellant/
O.P. No. 2
And
1. Vuppala Venkateswarlu
S/o. Janakiramaiah
Age: 56 years,
2. Smt. V. Chandrakala
W/o. V. Venkateswarlu
Age: 48 years,
3. V. Hari Prasad,
S/o. V. Venkateswarlu
Age: 23 years
(All are R/o. 2-1-416,
Flat No. 204,
Prana Nilaya Apartments
Nallakunta, Hyderabad. *** Respondents/
Complainants
4. Thomas Cook India Ltd.,
Regd. Office at Dr. D. N. Road
Mumbai
Regional Office at
Nasir Arcade, Saifabad
Hyderabad.
Rep. by its Branch Manager &
Authorized Sigantory
Navzar A. Bengalli. *** Respondent/
O.P. No. 1.
Counsel for the Appellant: Smt. G. Sudha
Counsel for the Respondents: R1 to R3 – Served
Mr. P. Rajender Reddy- (R4)
QUORUM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT.M.SHREESHA, LADY MEMBER.
TUESDAY, THE NINETH DAY OF SEPTEMBER TWO THOUSAND EIGHT.
ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President.)
***
These appeals are preferred by the opposite parties against the order of the Dist. Forum-I, Hyderabad in directing them to pay Rs. 10,000/- towards compensation together with costs of Rs. 2,000/-.
The case of the complainant in brief is that he booked three tickets through R1 on 27.4.2002 for onward journey from Hyderabad to Singapore in Air India flight No. 424 on 11.5.2002. Confirmed tickets were issued by R1 for their journey on 11.5.2002 by direct flight from Hyderabad to Singapore. The scheduled time of the flight was 9.20 a.m. and the journey time was 4-1/2 hours. While so, on 11.5.2002 at 6.45 a.m. they reached the air port to board the flight and the Air India informed its inability to accommodate them on the ground that the flight was full. It has assured them to send by evening flight. When it was informed to R1 they directed them to go to immigration counter at 7.00 p.m. on the ground that there was a flight at 10.00 p.m. As there was no other alternative, again then went to air port at 7.00 p.m. Boarding passes were issued to Mumbai – Singapore via Chennia. The flight started at 10.20 p.m. and reached Mumbai at 11.55 p.m. As there was no connecting flight to Singapore, till next day they were forced to stay in Mumbai air port up to 2.30 a.m. They took the flight at Mumbai and reached Chennai at 4.30 a.m., and ultimately reached Singapore at 12.00 noon on the next day i.e., on 12.5.2002. Instead of traveling 4-1/2 hours, they were forced to travel more than 14 hours. As they had reached delayedly they could not spend weekend with their children and were subjected to mental agony, hardship and inconvenience. Had they accommodated in flight No. 424 as per the confirmed tickets there could not have been this trauma. While in the return journey they were forced to pay $ 173 in excess for getting confirmation for return journey on 8.6.2002. They issued registered notice demanding compensation of Rs. 50,000/- towards inconvenience, hardship and to reimburse $ 173 together with interest @ 24% p.a., for which they did not give any reply. Therefore, they sought reimbursement of $ 173, and Rs. 50,000/- towards compensation together with costs of Rs. 5,000/-.
M/s. Thomas Cook (India) Ltd., Opposite Party No. 1 filed counter resisting the case. While confirming that it being a booking agent of Air India issued three confirmed economy class airlines tickets from Hyderabad to Singapore on 11.5.2002, it alleged that it is merely a travel agent of Air India for limited purpose of booking its airline tickets, issuance of boarding passes to the airline passengers holding confirmed tickets after passing immigration. The factual flight departure and adherence to the flight schedule are in the hands of Air India. It is impossible for them to ensure boarding of passengers on to the flight. The complainants were guilty of suppression in not filing the original documents, viz., the air tickets. They have filed the first page of the air ticket without enclosing the terms and conditions. Clause 9 of the terms and conditions stipulates that “It is Air India undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch. Times shown in timetable or elsewhere are not guaranteed and form no part of the contract, carrier may without notice substitute alternate carriers or aircraft, and may alter or omit stopping places shown on the ticket in the case of necessity. Schedules are subject to change without notice. Carriers assume no responsibility for making connections.”
Since the above said condition was incorporated in every international airline ticket of Air India and there could be human error of around 0.5% . This cannot be assumed as deficiency in service. When the boarding passes were released by Air India the complainants could have cancelled the tickets and seek refund. The complainants themselves acquiesced for taking evening flight to Singapore via Mumbai without any protest. They never reserved their right to claim damages for the delay occasioned. Since the complainants did not suffer any pecuniary loss, claiming exorbitant amount of Rs. 50,000/- is untenable. The claim of $ 173 cannot be made against them as it was misconceived. There was no deficiency in service on their part. Therefore, they prayed for dismissal of the complaint with exemplary costs.
The Air India (R2) did not choose to contest the matter, and therefore it was set-exparte.
The complainant filed his affidavit evidence and Exs. A1 to A12. The Thomas Cook (India) Ltd., R1 did not file affidavit evidence but filed Exs. B1 to B3 copies of invoices, Ex. B4 copy of baggage check order. The Dist. Forum after considering the evidence placed on record opined that the complainants were forced to take tedious journey instead of non-stop flight. They reached Singapore at 12.00 noon on the next day i.e., on 12.5.2002. In fact they could have reached Singapore at 04.30 p.m. on 11.5.2002. They were un-necessarily forced to remain inside Mumbai Air Port. They were denied to spend time with their children on week ends. All this was due to deficiency in their service. Considering the circumstances the Dist. Forum directed the appellants to pay Rs. 10,000/- to the complainants towards damages together with costs of Rs. 2,000/-.
Aggrieved by the said decision M/s. Thomas Cook (India) Ltd., R1 booking agent preferred the appeal F.A. No. 701/2005 contending that they were not responsible for the delay of flight or in not accommodating them in the flight that was booked for their journey to Singapore. In the invoice there was categorical mention that they were not liable for any damage suffered by the customers on account of deficiency in service by the air lines. Therefore, at any rate, they are not liable to pay compensation.
The Air India preferred appeal F.A. No. 943/2008 contending that alternative arrangements were made for their travel to Singapore. There was no deficiency in service on their part. In view of position of the flights, some of the passengers were off loaded and alternative arrangements were made and on that score it cannot be said that there was deficiency in service. Therefore, they prayed that the appeal be allowed.
It is an undisputed fact that the complainants purchased three confirmed tickets for their journey from Hyderabad to Singapore through R1 booking agent of R2 in a non-stop flight No. 424 on 11.5.2002 at 9.20 a.m. operated by Air India. The journey time was 4-1/2 hours. It is also not in dispute that by the time they reached the air port at 6.45 p.m. the Air India expressed its inability to accommodate them on the ground that the flight was full. No doubt, when the Air India offered alternative flight in the evening at 10.00 p.m. on the same night, however the flight being from Hyderabad-Mumbai-Singapore via Chennai, as they have no other go they traveled in the said flight. Again they reached the air port at 7.00 p.m. at Hyderabad, boarded the Mumbai flight at 10.00 p.m. and since there was no connecting flight they sat in the Mumbai Air port up to 02.30 a.m. They boarded another flight at 2.30 a.m. and reached Chennai at 04.30 a.m. Again they boarded the flight at Chennai at 05.30 a.m. and ultimately reached Singapore at 12.00 noon i.e. on 12.5.2002. Undoubtedly, this is an unnecessary and forced travel. They must have felt inconvenience waiting for long hours in the air ports as well as traveling for long hours. This would undoubtedly cause mental agony and physical strain etc.
The journey to Singapore is on an international flight. Necessarily the complainants have to have visa for the journey. This must have been informed to the authorities at the time when the immigration check was made. It is the duty of the booking agent to see that confirmed tickets are issued and the complainants were able to take the boarding passes. When the complainants informed the booking agent for not accommodating them on the ground that the flight was full, the agent did not respond nor question Air India, as to why confirmed tickets were given. Equally, the Air India did not give any plausible explanation as to why it could give confirmed tickets when
flight was full. Undoubtedly, selling tickets more than the seats provided in the air flight, would amount not only to deficiency in service but also an unfair trade practice, obviously, to see that the passengers would not purchase any other flights. The Air India did not choose to contest the matter when it has received the notice. It did not even choose to reply for the legal notice issued by the complainants. Necessarily, adverse inference has to be drawn against their plea. Even in the appeal there was no plausible explanation as to why the complainants could not be accommodated in their direct flight. Arranging an alternative flight could not be a solace for the complainants, more so, traveling a tedious journey for 14 hours instead of 4-1/2 hours on a non-stop flight for which they have taken the tickets. From the contentions taken by both the appellants, one fact is clear that they could not give any plausible explanation as to why the Air India had sold more tickets than the seats that it could accommodate, nor the booking agent for not taking up the cause of the complainants, when it sold the confirmed tickets. The duty of the booking agent would not stop on issuing confirmed tickets. In case the confirmed tickets were not honoured, it was his duty to find out the reasons and see that the passengers’ to whom the tickets were sold were adequately compensated.
A strange contention was taken that the complainants could have cancelled their journey, took refund of the amount instead of pursuing alternative recourse. It is not for them to suggest the alternative. The complainants for the reasons best known had arranged their travel to Singapore. They intend to meet their son and family members more so on weekends. If they do not travel it may also entails refusal of visa. The postponement cannot be done immediately. As the complainants had no other go, they have taken the ordeal of traveling in a circuitous manner.
The question of traveling with protest will not arise. The complainants are at liberty to claim compensation for the inconvenience caused due to loss of time. Had the Air India contended that there was technical failure or some other ground that was beyond their control one can understand and could exonerate by stating that it was beyond their control. Evidently flight 424 from Hyderabad to Singapore left Hyderabad on time, with passengers full. The complainants could not be accommodated on the ground that the flight was full. Neither the agent nor the Air India could not have sold the confirmed tickets. This amounts to deficiency in service. The plea that the terms and conditions on the ticket would absolve them from their liability were all specious, they would not in any way restrict debarring the complainant from laying the claim. In the very invoice under the liability of the agent, it is mentioned that its liability is restricted to making reservation, issue of Travelers Cheques etc. The liability will cease on issuing travel documents, tickets to the customers. We do not see how the liability of the agent is absolved when the Air India did not honour the confirmed tickets and accommodate the complainants in the flight. It is for them to rectify the problem and see that the passengers who had been given confirmed tickets board the flight. In case of any eventuality or any difficulty encountered by the passengers, it has to be resolved by the agent in such circumstances. The Air India has no defense, in fact, and rightly it did not choose to contest. Even in the appeal no defense, much less plausible defense was raised from issuing boarding passes to the complainant and taking them in another flight. This is a case of clear deficiency in service on their part. The Dist. Forum has awarded Rs. 10,000/- to the complainants for the ordeal suffered by the complainants on the journey. Because of the conduct of the respondents, the complainants were denied their pleasure of seeing their children and spending more time with them. The compensation that was granted was modest and reasonable. We do not see any merits in the appeals.
In the result, the appeals are dismissed with costs computed at Rs. 2,500/- each.
PRESIDENT LADY MEMBER
Dt. 09.09.2008.
*pnr
CORRECTED – O.K.
