S.C. CASE NO- FA/285/2009
DATE OF FILING : 31.7.09 DATE OF FINAL ORDER: 11.11.09
1. Sri Sabyasachi Lahiri.
S/O Late Hari Har Lahiri.
2. Smt. Rupa Lahiri
W/O Sri Sabyasachi Lahiri .
3. Sri Samik Lahiri (Minor),
S/O Sri Sabyasachi Lahiri.
50/2, Gopal Banerjee Lane, Howrah-711 101.
RESPONDENTS/O.P.S : :
1. General Manager, ( Commercial),
Indian Airlines Ltd., Airline House,
39, Chittaranjan Avenue,
BEFORE : HON’BLE JUSTICE : Mr.A.Chakrabarti,PRESIDENT.
HON’BLE MEMBER : Shri A.K. Ray.
HON’BLE MEMBER : Smt. Silpi Majumder.
FOR THE PETITIONER : In Person . Advocate.
FOR THE RESPONDENT : Sri P.R. Bakshi. Advocate.
Sri. A.K. Ray, Hon’ble Member.
The District Forum, Kolkata Unit-II in their order dated 15.07.09 passed in case no 325 of 2007 dismissed the complaint on contest without any cost. The Appellants Sri Sabyasachi Lahiri, his wife and minor son had purchased 3 confirmed return tickets from Indian Airlines on 14th June 2007 at 09.42 hours by flight no IC 230.The said flight was cancelled due to a flash strike by the members of “Air Corporation Employees’ union”, as a result, all the flights of Indian Airlines including Flight no IC 230 could not be operated. The staff of the Indian Airlines endorsed their tickets for traveling by Indigo Airlines on the reverse side of the flight coupons. But Indigo Airlines refused to accept such endorsement. Indian Airlines officials tried to get accommodation in “Jet Airways” & “King Fisher Airlines” for their return journey to Kolkata. Jet Airways declined to accept the Appellants for want of seats in their flight. King Fisher Airlines agreed to accommodate the Appellants at the last moment subject to availability of seats. In the mean time the Appellants got their tickets endorsed for full refund by an official of the Respondent and arranged tickets on “Air Deccan Flight”. The Appellants returned to Kolkata on the same day by the aforesaid Air Deccan flight. They had to pay Rs.8,468/- to take the Air Deccan flight to Kolkata. But when the Appellants approached the Indian Airlines for cash refund as per the endorsement made in the flight coupon by the officials of the Indian Airlines at Guwahati airport as it clearly mentioned “IC 230 of 14.6.07 cancelled due to Industrial strike, suitable for full refund”, the officials of the Indian Airlines categorically refused to refund the value of the tickets. Claims were lodged with the Airport Manager, Indian Airlines, Kolkata on 20.6.07 for the said refund. But the General Manager, (Commercial) in his letter dated 10.07.07 spoke of their inability to compensate. Obviously the Appellants held ticket in “X-class”. Tickets purchased under “X-class” were not refundable as per terms and conditions of the fare scheme.
2. The Respondent who was the OP before the Forum below contested the case by filing their written objection wherein they denied the material allegations of the Complainant stating inter alia that three confirmed air-tickets were issued on 9.5.07 in “X-class” favouring Mr. Sabyasachi Lahiri, his wife and minor son for travelling from Kolkata to Guwahati by flight no. IC 229 on 11.6.07 and from Guwahati to Kolkata by flight no. IC 230 on 14.6.07. Due to an all India agitation programme called by members of the “Air Corporation Employees’ union” from the mid night of 13.6.07 for an indefinite period, the flight no. IC 230 which was scheduled to start from Guwahati, could not be operated. Sri Lahiri was personally attended to by the Airport Manager of the Indian Airlines at Guwahati and was offered endorsement of his tickets for travelling by Indigo Airlines who however refused to accept them for want of clear instruction from their head quarters. Further attempts were made to accommodate them in Jet Airways which also refused to accept them. The King Fisher Airlines was then approached by the Indian Airlines officials at Guwahati for endorsement of the Air tickets of Sri Lahiri and his party. The said Airlines had agreed to accept Sri Lahiri and his party at the last moment subject to availability of seats in their flight which was scheduled to fly at 16.00 hours. Sri Lahiri however got his tickets endorsed for full refund and arranged tickets of Air Decccan flight. Sri Lahiri had “X-class” non refundable tickets & in view of the terms and conditions of the air line no hotel accommodation could be offered to them. The flight got cancelled due to industrial unrest. In the eye of law & in view of section 2 (1)(g) of the C.P Act 1986, the act of the OP, Airlines authority could not be said to be deficiency in service as there was no deliberate or intentional laches on the part of the OP.
3. In their brief of written argument filed before us on 27.10.09 the Respondent, Indian Airlines Ltd further stated that in view of the aforesaid unavoidable & unwanted situation on 14.6.07 one senior official was assigned duty at Guwahati airport to make different endorsements on the tickets of passengers of the disrupted flight ex-Guwahati. During arguments Sri Baksi, Ld. Advocate for the Respondent relied on a decision of the National Commission reported in IV (2005) CPJ page 186(NC) wherein it was held amongst others that delivery of consignment was delayed due to strike of Airport ground staff –situation causing delay was beyond control of OP (TMA International Air Lines) – alleged deficiency has not resulted in any loss/damage to the Complainant – deficiency in service not proved. He also cited a decision of the Apex Court reported in 1(1995) CPJ 1(SC) between Consumer Unity and Trust Society , Joypur and the Chairman & Managing Director, Bank of Baroda , Kolkata and another wherein it was held in relation to Consumer Protection Act, 1986 that the customers of the Bank were deprived of services due to strike-whether the Bank is liable to compensate its customers for loss of service due to illegal strike by its employees? – No.
The Apex Court further observed that negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under clause (d) of sub-section (1) of section 14 must cause some loss or injury to him. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damages or wrong. It means “invasion of any legally protected interest of another” Thus, the provisions of section 14(1) (d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence. Mere loss or injury without negligence is not contemplated by this Section. In the instant case, in view of the flash strike called by a certain section of employees of the Indian Airlines Ltd no flights could be operated on 14.6.07. Sincere efforts were made by the Respondent to help the passengers. In the case of Sri Lahiri and the two members of his family they also tried to help them in taking flight of other Airlines. But the disgruntled and dismayed Complainant / Appellant did not wait to try their luck in the King Fisher Airlines which had agreed to accept them at the last moment subject to availability of seats.
He arranged his return journey to Kolkata on the same day by Air Deccan on payment of Rs. 8,468/- in total. Admittedly, at Guwahati Airport officials of the OP endorsed 3 tickets of the Complainant/ Appellant with the comment “IC 230 on 14.6.07 cancelled due to Industrial Strike, suitable for full refund”. It was indeed a signal to the Appellants to travel by other Air-liner on payment of due fare. Sri Lahiri and party after a day long disturbance, both physical and mental, took the Air Deccan flight with the understanding that as per the endorsement on their tickets, they would get full refund of their Indian Airlines fare. To their surprise the officials of the Respondent at Kolkata ignored the endorsement for full refund and refused to refund the Air-fares in question and made further endorsement on the tickets “cash not refundable”. Undoubtedly, it was harassment causing pecuniary loss to the Appellants. This was negligence and deficiency in service on the part of the Respondent. But keeping in view the fact of the flash strike we do not feel inclined to award any compensation or litigation cost to the Appellants. The appeal therefore succeeds in part.
4. It is accordingly, ordered that the appeal be allowed in part on contest without cost. The impugned order of the Forum below be set aside. The Respondent Indian Airlines Ltd is directed to reimburse the cost of 3 Air tickets for a total sum of Rs. 8,468/- of Air Deccan along with interest @ 8 % p.a on the aforesaid sum for the period from 14.6.07 to the date of payment by the Respondent within 30 days from the date of communication of this order failing which the Appellants will be at liberty to take recourse to further action as per law.
Member Member President
I have perused the judgment prepared by Shri A.K.Ray, the Ld. Member. On consideration of the materials on record and considering the contentions of the respective parties, I agree with the finding of Mr. Ray, the Ld. Member as regards negligence and deficiency in service on the part of the respondent. But I am unable to agree with the view taken in the said judgment as regards some conduct of OP and also in refusing compensation and litigation cost to the appellants.
I find that the complainants/appellants had to move from pillar to post in Guahati Airport in view of the sudden strike by Members of Air Corporation Employees’ Union. Undoubtedly as flight could not be operated due to industrial strike, there was no deficiency on the part of the OPs on that ground. It is also found that the officers of the OPs made efforts to obtain tickets in the flights of other operators. I find explanation as to how alternative tickets by Indigo Airlines, Jet Airways and King Fisher Airlines could not be made available. But I find from the facts available that the complainants themselves could book tickets in Air Decan flight and there is no explanation as to how and why the said officers of the OPs could not obtain the said seats to give relief to the complainants. The complainants themselves could arrange for seats but it is surprising that the officers looking after the said matter could not obtain those very seats for the complainants by the own arrangement of the OPs. Therefore, it is apparent that the efforts of the officers of OPs were not a complete effort. Therefore, also I find that there was deficiency on the part of the OPs.
As regards compensation, I am of the view that when deficiency has been found, there is no reason for not granting compensation and cost to the complainants. Undoubtedly the complainant no. 1 with his wife and son were in distress when suddenly the strike disturbed their scheduled flight. Finding has been arrived at that there was negligence and deficiency in service on the part of the respondents. Therefore, in my opinion the complainants are entitled to compensation. Considering the extent of harassment but its short life as the flight could be availed of in the same evening, a compensation of Rs. 5,000/- to each of the complainants is found sufficient. The complainants having been compelled to file litigation are also entitled to litigation cost. Therefore, the appeal is allowed and the respondent is directed to pay 8,468/- towards airfare, Rs. 15,000/- as compensation and Rs. 2,000/- towards litigation cost to the complainants within a period of 60 days from the date of this order and in default of such payment the complainants will be entitled to recover the said amount along with interest @ 9% per annum for the period of default.