CC No.105.2016

Filed on 23.01.2016

Disposed on.30.10.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 30^th DAY OF OCTOBER 2017

CONSUMER COMPLAINT NO.105/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 23.01.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to reimburse sum of Rs.29,062/- the above mentioned flights was for Indigo flights/onward journey: Rs.17,562/- and for return journey/spice jet flights:Rs.9,500/-(as the earlier return tickets amount was adjusted for journey Jammu to Bangalore.  The Complainant suffered loss of Rs.27,062/- in flight tickets and Rs.2,000/- in Taxi along with 18% p.a. from date of booking i.e., 07.09.2015 till the date of realization.  To pay damages of Rs.70,000/- along with the cost and other reliefs.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that on 07.09.2015, the Complainant and his wife booked tickets from Bangalore to Jammu in following details:

The total cost of Rs.26,176/- was incurred by the Complainant and his wife for the above mentioned journey.  On 22.12.2015, the Complainant and his wife reached the International Airport, Bangalore at 4:50 AM and in the queue for the counter at 4:55 A.M.   The Opposite Parties had very poor arrangements for the issuance of boarding passes and there was no separate queue for separate flights and the passengers whose flight had to leave after more than 2 hours after were still blocking the way of the Complainant and his wife and other Co-passengers who had to pick 5:55 AM flight.  There neither any announcements nor any efforts were made by the 2^nd Opposite Party to alert the passengers whose flight was going to leave shortly. The Complainant and his wife being aged old/senior citizen raised their hands and raised their voice to let them go first as there flight was going to leave shortly but that too went unheard by the 2^nd Opposite Party.  When the Complainant and his wife reached the counter the 2^nd Opposite Party refused to give them boarding pass saying “there are only 45 minutes to leave the flight thus he cannot allow the Complainant” and when the Complainant asked him “why you did not make any arrangements to allow the early fliers first then to passengers whose flight is late”?.  The 2^nd Opposite Party did not respond and very arrogantly responded “whatever he want his name is Deepak”.  Because of the irresponsible conduct of 2^nd Opposite Party and irresponsible arrangements of 1^st Opposite Party, the Complainant and his wife could not pick the flight.   Despite the Complainant’s repeated requests, the Opposite Parties straight away denied to make arrangements in any other flight and the Complainant and his wife’s ticket from Bangalore to Delhi, Delhi to Jammu not refunded and cancelled.  Due to the above mentioned circumstances the Complainant and his wife were constrained to cancel the return flight from Jammu to Delhi and Delhi to Bangalore scheduled on 31.12.2015 and to make fresh tickets as follows:

3. The total expenditure incurred by the Complainant for the above mentioned flights was:for Indigo flights/onward journey:Rs.17,562/- and for return Journey/spice jet flights:Rs.9,500/-as the earlier return tickets amount was adjusted for journey Jammu to Bangalore.  Thus the Complainant suffered loss of Rs.27,062/- in flight tickets and Rs.2,000/- in Taxi, thus in total Rs.29,062/-.  Hence, this complaint. 

4. In response to the notice, the Opposite Party No.1 put their appearance through their counsel and filed their version.  In the version of Opposite Party No.1 pleaded that the Opposite Party No.2 is an employee of Air India which is the 1^st Opposite Party.  Dispatching a legal notice to the 2^nd Opposite Party’s residential address which has not been obtained through any legal means is strongly objected to.  The Complainant has no right to send a legal notice to the residence of the airline’s employee which in this case is the 2^nd Opposite Party as the 2^nd Opposite Party was only discharging her duties as a public servant on behalf of the 1^st Opposite Party.  The relation between the Complainant and the 1^st Opposite Party is contractual and as the 2^nd Opposite Party is an employee of the 1^st Opposite Party.  It is not clear from the Complainant’s complaint as to which queue he entered since he has not specified the same. In any case, it is immaterial when a passenger enters the Airport building or when he enters a queue as the airline takes cognizance of when the passenger presents himself physically at the check-in the check-in counter.  Harmless Air India, which is the 1^st Opposite Party, cannot be held responsible for any time that the passengers in general or the Complainant in particular may choose to enter the Airport terminal building.  The Opposite Party denied that the 1^st Opposite Party had very poor arrangements for issuance of the boarding pass.  Hundreds of passengers check-in for their flights each day in the manner offered by them.   When 463 passengers could check-in and board their individual flights without any problem, harmless Air India, 1^st Opposite Party strongly denies that the Complainant presented himself on or before the check-in counter closure timings.  As per Article 7 of General Conditions of Carriage for Passengers and Baggage.  “The passenger shall arrive at the Carrier’s check-in location and boarding gate sufficiently in advance of flight departure to permit completion of any Government formalities and departure procedures and in any event not later than the time that may be indicated by the Carrier.  If the passenger fails to arrive at the check-in location or boarding gate or appears improperly documented and not ready to travel Carrier may cancel the space reserved for the passenger and will not delay the flight.  Carrier is not liable for loss or expenses due to the passenger’s failure to comply with the provisions of this Article”.   As the Complainant did not arrive in the check-in location in time he could not be accepted on the flight.  It is denied that the Opposite Parties had very poor arrangements for issuance of the boarding pass.  There are floor walkers present around the queue area. The Complainant has mentioned that he arrived in Bangalore airport at 4.30 a.m.  The scheduled departure of the flight in which the Complainant was booked to travel is 5.55 a.m and the check-in counter location closes 45 minutes before departure which means that the check-in counter closes at 5.10 a.m.  In between 4.50 a.m and the check-in location closure time of 5.10 a.m, Air India has checked-in as many as 20 passengers on the flight in which the Complainant was booked to travel.  The last boarding card for AI804 to Delhi i.e., the flight in which the Complainant was booked to travel was issued at 0512 hours which is in fact two minutes after check-in counter.  The check-in history of passengers evidencing the same.  The Complainant physically presented themselves in the check-in counter on or before 5.10 a.m they would have definitely been accepted on the flight.  It is strongly and vehemently averred that the Complainants did not present themselves in the check-in counter on or before 5.10 a.m.  The 1^st Opposite Party strongly and vehemently avers that no announcement is made drawing the attention of passengers in the check-in counter to reach the check-in counter in time.   It is the responsibility of any passengers in general and the Complainant in particular to reach the check-in counter in time and the airline cannot take any responsibility for this.  The floor walkers present near the check-in counter and in and around the passenger’s queue loudly shout to identify if there are any passengers whose check-in counter would close.  This call out happens towards the counter closure time say around 5-10 minutes before counter closure.  Hence on the day of departure of the Complainant similar calls were made between 5.05 a.m and 5.15 a.m and 6 passengers were checked-in between the time.  Even at 5.10 a.m when the final call out made, the Complainant was not present anywhere near the queue or the check-in counter.     The 1^st Opposite Party sufficient efforts were made to check-in the passengers present near the check-in counter so that they did not miss their flight and strongly denies that the Complainant was present in the queue or check-in counter.  The 1^st Opposite Party denied the allegation by the Complainant that they had raised their hands and raised their voice to let them go first as their flight was going to leave shortly and that this went unheard by the 2^nd Opposite Party.  In fact, the 1^st Opposite Party affirms that the last boarding card for AI804 of 22.12.2015 was issued at 5.12 a.m which is 2 minutes after check-in counter closure time.  Had the Complainant been present at the check-in counter or queue at that time, they could have easily been accepted on the flight in which they were booked to travel.  Despite the call out by the 2^nd Opposite Party and other floor walkers employed by the 1^st Opposite Party, the Complainant did not show up either physically or through gestures.  The 1^st Opposite Party strongly denies that it was aware of the passenger’s age prior to travel as the same is not required while booking the ticket if the passenger is an adult.  The Opposite Parties further avers that as mentioned in the heading passenger Services and sub heading aged passengers of the Citizen’s charter, all assistance is provided to aged passengers. If the Complainant desired any assistance in the airport their travel agent could have communicated the same in the PNR or the Complainant could have sent a mail to Air India through the website.  The Opposite Party No.1 denied that the Complainants reached the check-in counter before closure time of 5.10 a.m.  The 2^nd Opposite Party has clearly recorded in the Complainant PNR that the Complainant reported in the check-in counter at 5.25 a.m which is 15 minutes after the check-in counter closure time. The Complainant has reached the International Airport at 4.50 a.m and in the queue at 4.55 a.m.  From 4.50 a.m till 5.10 a.m, that 1^st Opposite Party has checked-in as many as 40 passengers on the flight in which the Complainant was booked to travel.   Had the Complainant been present at the check-in counter before 5.10 a.m, he would have definitely been accepted for travel.  The Complainant did not present himself on or before 5.10 a.m which is the deadline for check-in counter closure time.  The 1^st Opposite Party avers that the Complainant’s not being able to board the flight was inflicted upon by the Complainant themselves by not reporting on or before 5.10 a.m for their flight.  The Complainant has cancelled the Jammu-Delhi-Bangalore Sector on their own volition.  The cause for this cancellation cannot be attributable to any negligence on the part of the 1^st Opposite Party.  172 passengers were checked-in on the flight in which the Complainant was booked to travel was checked-in with 3 minutes still left for check-in counter closure.  Hence prays to dismiss the complaint.

5. The Opposite Party No.2 on 04.06.2016 filed a Memo adopting version of Opposite Party No.1. 

6. The Complainant, Sri.Maharaj Krishan Punjabi, filed his affidavit by way of evidence and closed his side.  The Opposite Party No.1, Sri.R.Kannan, Station Manager filed his affidavit by way of evidence.  Heard the arguments of both parties.

 7.     The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

8.     Our findings on the above points are:-

                POINT (1):-  Affirmative

POINT (2):-  As per the final Order

REASONS

9. POINT NO.1:- As looking into the allegations made in the complaint and the version of the Opposite Parties, it is not in dispute that the Complainant on 07.09.2015 booked tickets from Bangalore to Jammu total cost of Rs.26,176/-.  Further to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the tickets, it clearly reveals that the Complainant has booked tickets from Bangalore to Jammu date of journey on 22.12.2015 and Jammu to Bangalore on 31^st Day of December 2015 for a sum of Rs.26,176/-.  This evidence of the Complainant remains unchallenged.  To discard the evidence of the Complainant, there is no contra evidence, therefore, it is proper to accept the contention of the Complainant that the Complainant has booked tickets on 07.09.2015 from Bangalore to Jammu as follows.

10. It is further case of the Complainant, on 22.12.2015, in order to boarding the flight, the Complainant and his wife reached the International Airport, Bangalore at 4:50 AM and in the queue for the counter at 4:55 A.M.   The Opposite Parties had very poor arrangements for the issuance of boarding passes and there was no separate queues for separate flights and the passengers whose flight had to leave after more than 2 hours after were still blocking the way of the Complainant and his wife and other Co-passengers who had to pick 5:55 AM flight.  There neither any announcements nor any efforts were made by the 2^nd Opposite Party to alert the passengers whose flight was going to leave shortly.  The Complainant and his wife being aged old/senior citizen raised their hands and raised their voice to let them go first as there flight was going to leave shortly but that too went unheard by the 2^nd Opposite Party.  When the Complainant and his wife reached the counter the 2^nd Opposite Party refused to give them boarding pass saying “there are only 45 minutes to leave the flight.  In the version filed by the Opposite Parties have not denied these facts that the Complainant and his wife were not present in the International Airport on 22.12.2015 in order to boarding flight and they were in standing in the queue but their defence is that the schedule departure of the flight in which the Complainant booked travel is 5.55 a.m and the check-in counter location closes 45 minutes before departure which means that the check-in counter closes at 5.10 a.m.  In between 4.50 a.m and the check-in location closure time of 5.10 a.m, Air India has checked-in as many as 20 passengers on the flight in which the Complainant was booked to travel.  The last boarding card for AI804 to Delhi i.e., the flight in which the Complainant was booked to travel was issued at 0512 hours.   The Complainant in order to establish his contention, in his sworn testimony, he has reiterated the same and produced tickets, as looking into these tickets, it is clearly mentioned that showing in counter at the Airport opens 2 hours before departure and also further reveals that the departure of the flight is at 5:55 a.m.  According to the Complainant, the Complainant and his wife reached International Airport at 4.50 a.m and in the queue in the counter at 4.55 a.m i.e., one hour before departure time.  But to disbelieve the testimony of the Complainant, eventhough the Opposite Parties denied this fact have not chosen to elicit contra evidence to that fact.  On the other hand, they have not disputed the presence of the Complainant in the International Airport Bangalore on 22.12.2015.  Eventhough the Complainant and his wife was very much present in the International Airport, Bangalore on the journey day i.e., on 22.12.2015 when they reached the counter to get the boarding passes, they refused to issue boarding passes to the Complainant and his wife.  On the ground that check in counter closes 45 minutes before departure. 

11. But in support of their defence, except the interested version of Sri.R.Kannan, Station Manager of Opposite Party No.1, they have not placed any evidence.  Since the Opposite Parties have got evidence to show that the Complainant and his wife reached the check in counter before 45 minutes departure of the flight.  In that event, they could have produced the CCTV covering.  But they produced check in history of the passengers.  Even as looking into this document, it is not very clear that at what time they issued boarding passes to the passengers as mentioned in the check-in-history, thereby it is not proper to accept the defence taken by the Opposite Parties that even the Opposite Parties have issued boarding passes at 5.12 a.m.  On the other hand, as stated earlier they have not disputed the presence of the Complainant and his wife in the queue on that day not issuing boarding passes to the Complainant and his wife, they are not able to travelled in the flight to journey to Jammu on that day and this missing of journey by not issuing of boarding passes by the Opposite Parties is due to poor arrangements of the Opposite Party No.1 and as well as the Opposite Party No.2 who is a responsible for issuing boarding passes.  Due to their negligence and poor arrangements of the Complainant and his wife miss the journey, due to deficiency of service by the Opposite Party Nos.1 & 2.  If the Opposite Parties No.1 & 2 made proper arrangement for issuing boarding passes by arranging separate queue for a different flights the Complainant and his wife are able to get the boarding passes.  On the other hand, particularly the Complainant and his wife are aged persons.   Inspite of that they were standing in the queue at one hour early before departure of the flight.  In spite of that unable to get the boarding passes. This is due to negligent act of the Opposite Parties. 

12. It is further alleged that the Complainant repeated requests, the Opposite Parties to make arrangements in any other flight and the Complainant and his wife’s ticket from Bangalore to Delhi, Delhi to Jammu not refunded and cancelled.  Due to the above mentioned circumstances the Complainant and his wife were constrained to cancel the return flight from Jammu to Delhi and Delhi to Bangalore scheduled on 31.12.2015.

13. Further the Opposite Parties in their defence taken a contention that the Opposite Parties through its employee as 2^nd Opposite Party had checked in as many as 172 passengers on the flight in which the Complainant was booked to travel with 3 minutes still remaining for counter closure.  The Complainant reached the International Airport at 4.50 a.m and in the queue at 4.55 a.m, From 4.50 a.m till 5.10 a.m, the 1^st Opposite Party has checked-in as many as 40 passengers.  But to substantiate this, absolutely, there is no evidence, except the interested version of the Opposite Parties, thereby it is not proper to accept their defence.  Further in the version of Opposite Parties, thereby it is not proper to accept their defence.  Further in the version, the Opposite Parties denied that to make arrangements in any other flight and the Complainant and his wife tickets from Bangalore to Delhi and Delhi to Jammu not refunded and cancelled.  The tickets issued by the 1^st Opposite Party is refundable only through the issuing office.  The 2^nd Opposite Party clearly mentioned to the Complainants that they needed to write to their agents for refund and further that if they desired to change their dates, applicable difference in charges.  Even from looking into this defence, it is clear that the Opposite Parties have not refunded the amount and also failed to issue the boarding passes.  Furthermore in support of their defence that the Opposite Parties have to make arrangements in any other flight and the Complainant and his wife’s tickets has refunded by the Complainant, there is no evidence and on the other hand they cancelled the tickets and absolutely there is no evidence to disbelieve that refund is only through agents.   In that event, if it is so, the Opposite Parties ought to have produced any such evidence.  From this evidence placed on record by the parties, it is very clear that the Opposite Parties fails to issue boarding passes for the Complainant and his wife to travel from Bangalore to Jammu as per their booking tickets.  On the other hand, they cancelled the tickets.  Due to this reason they are unable to undertake the journey and also fails to refund the tickets fare, thereby it is clearly amounts to deficiency of service on the part of the Opposite Parties No.1 & 2.   Hence, this point is held in the Affirmative. 

14. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is allowed holding that there is deficiency of service by the Opposite Party No.1 & 2.

The Opposite Party No.1 & 2 are directed to reimburse a sum of Rs.29,062/- to the Complainant. 

The Opposite Party No.1 & 2 are further directed to pay a sum of Rs.10,000/- as compensation for causing mental agony.

The Opposite Party 1 & 2 are also liable to pay a sum of Rs.5,000/- towards cost.

The Opposite Party 1 & 2 are directed to pay the aforesaid amount within 30 days from the date of receipt of this Order. Failing which the aforesaid amount will carry interest at 18% p.a. from the date of order, till the date of payment. 

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 30^th day of October 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Maharaj Krishan Punjabi, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of the Flight Ticket for Journey on 22.12.2015 and 31.12.2015
2. Copy of the Flight Ticket for Journey on 28.12.2015 and 06.01.2016.

Witness examined on behalf of the Opposite Parties:

1. Sri.R.Kannan, Station Manager of the Opposite Party No.1 by way of affidavit.

List of documents filed by the Opposite Party:

1. Copy of check-in-history of passengers
2. Copy of Past date retrieval PNR

       MEMBER                                                                      PRESIDENT