Order-16.
Date-05/01/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that he had a confirmed ticket on 18-01-2015 in AI21 from Kolkata to Delhi and scheduled time to depart Kolkata Airport was at 10-00 a.m. and supposed to reach Delhi at 12.05 p.m. and further he had confirmed ticket in AI113 which was scheduled to leave Delhi at 1-15 p.m. (13.15 hrs.) and was supposed to reach Birmingham at 5.00 p.m. (17-00 hrs) UK time in the same day. In fact complainant was supposed to start work at Alexandra Hospital at Redditch which is near Birmingham the next day on 19-01-2015 at 8-30 a.m. ad he was doing a Locum job which means a temporary job and it also means that if he does not work he shall not get employment. That day before 17-01-2015 he received a text message from Air India the OP1 that the flight AI21 on 18-01-2015 is on time. Thereafter complainant reached Netaji Subhas Chandra Airport, Kolkata on 18-01-2015 at 7-45 a.m. and after his luggage was checked in x-ray he came to the Air India desk where a staff told him that the Delhi flight was one hour delayed, then complainant explained to the Air India Staff that they have to make an arrangement to get a flight to go Delhi otherwise he shall miss the AI 113 flight to Birmingham. There were other passengers who were going to London Heathrow in U.K. and they requested the OPs and there was a young man who also had to start work the next day i.e. Monday and there was another elderly male doctor also.
No doubt one hour delay became two hours and then three hours and it carried on, complainant requested to speak to the Manager and spoke to Mr. Tapash Chakraborty and Mrs. Shamita Mazumdar of Air India and he requested to make arrangement to reach at Delhi by Indigo Flight 6E 228 which was leaving at 8.50 a.m. There were two more flights SG 602(Spice Jet) which was leaving at 11.15 a.m. and 6E 246 (Indigo) at 11.45 a.m. and all these flights would have taken the complainant to Delhi in time for availing of the AI 113 flight from Delhi to Birmingham.
Complainant asked Mrs. Shamita Mazumdar of OP1 to ask Delhi duty manager to hold the Birmingham or London flight at Delhi but Mrs. Mazumdar refused to arrange a seat in the Indigo flights or Spice Jet flight to Delhi and also refused to detain the Birmingham flight till they reached at Delhi. Complainant requested to speak to the duty manager at Delhi whose name was Mr. Khera and at that time Mrs. Mazundar said that Mr. Khera refused to speak to the complainant accompanied with other co-passengers and the persons of the OP1 told the complainant that the flight was delayed as the flight from Delhi had not arrived to Kolkata because of fog. But complainant investigated about the actual fact behind delay caused by fog theory and the fact is that they delay did not happened in that day first time but happened several times in the previous week also and he surprised that if fog would delay the flight then why the OP had not arranged the earlier flight being no.A1763 from Kolkata to Delhi at 7.00 a.m. knowing from experience and records of fog that flights to Delhi from Kolkata could be delayed and as a result the connecting flights from Delhi to Birmingham/London could be missed and the OP and its men, agent did not warn the complainant and the other co-passengers about delay due to fog nor did it arrange for them in the earlier flight at 7.00 a.m. in that event the complainant and his co-passengers would not have missed the connecting flight to Birmingham or London and no doubt it is a gross negligence and deficiency, fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance on the part of the OP as caused deficiency of service.
Complainant also requested OP2 for arrangement of his arrival to London Heathrow by the 2.45 p.m. (14.45 hrs) flight so that he could travel to Birmingham from London that evening and start work on the next day i.e. on 19-01-2015 and the flight to London was supposed to reach at 18.55 hrs but OP refused to do that and in that occasion the complainant explained to the OP1’s staff that he is a doctor and if he could not reach Birmingham on that evening then he would not be in a position to start work in the next morning and he would lose lot of money and his employer would have a bad opinion about him and he shall have to loss his duty. Truth is that all the requests by him and other co-passengers fell on deaf ears by the OP. OP refused all their requests and were counting its money for arranging seats in Indigo or Spice Jet Flights but did not bother about the Passengers’ harassment and the loss of money that he would suffer due to delay.
According to International Rules the OPs are bound to provide breakfast as there was delay and when he asked for breakfast the men of the OP1 said there was heavy refreshment and the breakfast was one piece of sandwich, one potato boda and a cup of tea and when complainant asked for drinking water the staff of the OP1 said water had been finished and there was not even drinking water. Ultimately the flight to Delhi left at around 4.00 p.m. and reached Delhi at around 6.00 p.m. and at Delhi Airport he asked to speak to Mr.Khera, the duty manager of the OP1 to arrange for any possible connection to Birmingham to L:ondon and he was told by the staff of the OP1 that Mr. Khera was at downstairs waiting for them and when they went downstairs they found Mr. Khera was not there and in that event the complainant demanded to speak to Mr. Khera and one staff contacted him over the phone but Mr. Khera refused to speak to the complainant. Practically there was a total chaos in Delhi Air Port and there was no Air India staff to assist them to arrange for the overnight stay in the hotel, there was no transport to take them to hotel and the complainant and the other co-passengers were standing outside the Delhi Airport for a bus as they were told. There was one lady with a child and her elderly mother in a wheel chair and after long wait when no bus turned up the complainant ventured his way and this is the manner of service on the part of the OP and in fact he had to spent the night at the Air India Hotel, and he had to go to bed in his trousers and shirt and this is another type of harassment.
On the next day on 19-01-2015 the flight to Birmingham was scheduled for 1.15 p.m. (13.15 hrs) and the weather was bright and the sky was clear and at 3.15 p.m. already 2 hrs late the captain announced that he was waiting for Amritsar passengers to join the aircraft but the previous day i.e. on 18-01-2015 when the complainant and other co-passengers requested at Kolkata for the Delhi to Birmingham to wait or the Delhi to London Heathrow flight to wait they were told that the Flight cannot wait. But on this day i.e. on 19-01-2015 the flight waited and this is clear discrimination by the OP1.
Ultimately the flight to Birmingham left at 4.00 p.m. on 19th January, 2015 and it reached Birmingham at 8.00 p.m. and there was 27 hours delay. OP1 put him and his family through indescribable anxiety, stress and harassment and that is no doubt sheer negligent and deficient manner of service on the part of the OP.
Complainant sent a representation on 20-03-2015 when he specifically had claimed from the OP1 Rs.1,36,000/- towards compensation and damages for deficiency of service and negligence, flight delay, loss suffered, physical inconvenience, discrimination, harassment, mental trauma and anguish but OP did not respond to the complainant. Thereafter, he sent another representation on 16-06-2015 to the OP but no response made from OP1 so the consumer complainant is entitled to get such relief in the above circumstances complainant has prayed for compensation and other relief and also for loss of his earning etc.
On the other hand OP by filing written statement submitted that no doubt Dr. Amitava Banerji booked advance ticket from Kolkata to Birmingham via Delhi by Air India Flight AI-021/AI-113 on 18-01-2015 against ticket number 098-2110381442 and the AI-021 Aircraft from Kolkata to Delhi operates with incoming aircraft from Delhi Ai-401 which was inordinately delayed due to heavy fog at Delhi on 18-01-2015 which is beyond the control of OPs and the said flight AI-401 of 18-01-2015 arrived Kolkata at 13.45 hours instead of schedule arrival at 09:05 hours and AI-021 of 18-01-2015 departed at 14:51 hours and arrived Delhi at 17:09 hours instead of schedule arrival at 12:05 hours. Due to late arrival of AI-021 of 18-01-2015 at Delhi, the complainant could not avail of flight AI-113 of 18-01-2015 to Birmingham and the flight no.AI-113 of 18-01-2015 from Delhi to Birmingham departed at 17:08 hours instead of schedule departure 13:35 hours. Complainant could not be accommodated by any other carrier due to no seat available in the carriers with whom Air India has interline agreement and had to accept for travel by AI-113 on 19-01-2015 and hotel accommodation was provided in Delhi by Air India at Hotel Best Western Taurus on 18-01-2015.
Anyhow complainant ought to have availed of the said flights by purchasing new tickets of the airlines if he was interested and in that event the complainant would get full refund of his ticket fare of AI-021 from the OP1.
OPs have stated that there was no deficiency of service as alleged as delay of the flights had been caused for heavy fog over Delhi, which was an extraordinary circumstances beyond the control of the airline which led to the delay of flights and misconnection could not have been avoided even all reasonable measures had been taken by the airlines. As such the payment of compensation as claimed by the complainant against the OP1 is contrary to the Civil aviation Requirements (CAR), issued by Director General of Civil Aviation, Govt of India in this regard. So, the allegation as made by the complainant is completely baseless and without any inadequacy in the quality, nature and manner of performance which is required to be maintained caused deficiency of service as alleged or at all.
Further OP has submitted that the European Rules are not applicable to Air India as India is neither an European member State nor Air India is an airline based in an European member State. Therefore, the compensation claimed by the complainant for the delay of flights does not come under the purview of the European Rules.
It is specifically mentioned that all reasonable measures was not taken by the Airline and to that effect they have filed some documents.
In view of the above materials it can safely be said that the entire complaint is misconceived and speculative one and for which the complaint should be dismissed.
Decision with Reasons
On an overall evaluation of the complaint and the written version and also considering the entire materials it is found that OP has admitted that Flight No.AI 21 from Kolkata was delayed and date of journey was 18-01-2015 to travel from Kolkata to Birmingham via Delhi and fact remains due to delay of the said flight complainant failed to avail of all the coming air flight from Delhi to Birmingham on that date and that is admitted by the OP. Truth is that complainant is a doctor and he was going to join in a hospital at Birmingham for which purpose he purchased the ticket of Air-India and no doubt complainant asked the OPs to arrange for alternative flight which was scheduled to depart from Kolkata at 8.50 p.m. and no doubt there was flight from Spice Jet(SG 602), 6E 246 (Indigo) but admitted position is that OP did not arrange and OP submitted that there was no tie up with Indigo Jet, Spice etc. so it is proved that there was no alternative arrangement by the OP and for which no doubt complainant failed to avail of duty at Birmingham on the next day and delay was not only for one hours or 2 hours or 3 hours but for long hours.
No doubt after considering the defence of the OP and also the running of other airways during that time we are convinced to hold that the story of delay due to fog is quite unbelievable because all other flights arrived and departed from Kolkata and from Delhi also other flight departed from Delhi airport to other foreign countries so the defence of the OP that delay was caused due to fog is completely baseless and there was no such report also if actually fog was there then all the airlines ought to have closed down their departure from Kolkata but all other airlines air-flight departed in due time without any delay but only the Air India flight was cancelled that means story of delay due to fog is baseless and it is included for the purpose of defending this case.
From the weather report as submitted by the complainant it is found in Kolkata there was no fog, in Punjab, Haryana, Delhi, Uttar Pradesh and Rajasthan were affected only on 17-01-2015 but not on 18-01-2015. No doubt as per regulations of the Airlines when OPs issued confirmed date to the complainant it was their responsibility to provide necessary assistance and to help the complainant as passenger. But in the present case it is found that no doubt complainant was harassed for inhabitable attitude of the employee of the OP and no doubt it is considered as a deficiency of service.
Further as per regulation of Civil Aviation in the event of long delays for 2 hours or more depending on the distance of the flight, passengers must in every case be offered free meals and refreshments plus two free telephone calls, telex or fax messages or e-mail and if the time of departure is deferred until the next day, passenger must also be offered hotel accommodation and transport between the Airport and the place of accommodation, when the delay is 5 hours or longer passenger may opt for reimbursement of the full cost of the ticket together with relevant, a return flight to the first point of departure and the cash compensation is to be rewarded for the delays also.
As per clause 3.5.3 of the Civil Aviation Regulations the passengers shall be offered the choice between the following : a) refund of air ticket at the price it was purchased, b) a flight to the first point of departure, c) alternate transportation under comparable/alternate mode of transport(whenever applicable) to the final destination and d) alternate transportation under comparable/alternate mode of transport(whenever applicable) to their final destination at a later date at the passengers’ convenience, subject to availability of seats. But peculiar factor is that in the present case nowhere OP has taken any defence that they offered to the complainant for refund of air ticket at what price it was purchased or flight to the first point of departure or any other clause as mentioned in 3.5.3 then it is clear that the OP did not take any step for alternate transportation or complainant was not offered by the OP for the refund of the air ticket at what price was purchased or a flight to the first point of departure. Though it is evident from the ticket that it was a confirmed ticket for his journey from Kolkata to Birmingham via Delhi and truth is that complainant requested the OP for his alternate journey so that he may avail of Birmingham flight in Delhi in time. It is proved that OP did not take any step only but also did not act as per regulation of the Civil Aviation Department.
Another factor is that as per Clause 3.1.2 Airline must provide neutral information on the different options available for a journey ranked in the following order : a) non-stop flights, b) flights within intermediate stops but without a change of aircraft, c)connecting flights and d) all the fares available from airlines, as applicable. Considering that fact it is clear that it is no doubt a negligent and deficient manner of service and it is proved that OP did not comply the guideline of the Civil Aviation Department by which the OPs are being guided.
Considering the materials and the defence of the OP it is clear that complainant ought to have been provided other alternative service for his timely arrival at Delhi to avail of the Delhi- Birmingham air flight but that too was not done and in fact, OPs have failed to produce any documents to show that OPs took all sorts of measures to avoid harassment of the complainant and for his smooth journey to Birmingham and for attending his job and there is no scope on the part of the OP to change his flight time at Kolkata on 18-01-2015 to leave Kolkata instead of flight no.AI21 at 10 a.m.
Further it is proved that complainant were aware of the details of the journey from the confirmed ticket of the complainant and knowing very well of that OP did not take any step thought they were aware of the fact that AI 047 shall flight from Kolkata at 7.00 a.m. is delayed due to so called fog but fog was not uncommon rather in Delhi also but flights of other air-companies departed in time and only for the laches on the part of the OP complainant missed the flight to Birmingham, UK at 13.15 hrs. and considering the facts and conduct of the OP it is clear that OP failed to take any necessary measures which was not possible for OP to arrange that and no doubt it is a deficiency of service and negligence on the part of the OP and it is also proved that Air India has also scope to give alternate services to the complainant for his smooth journey but Air India did not take up such necessary measures for which the damage and professional loss was caused to the complainant because there was every scope on the part of the OP to give alternate flight of Indigo, Spice Jet who departed from Kolkata Air Port even after so called fog.
In this regard, we have also considered the Clause 3.1.2 but considering that we find that OPs did not act as per said guideline as given by Civil Aviation Requirement, series M Part IV or they have not complied the provision of 3.5.3 of the Civil Aviation Department to give all such facilities to be offered to the passengers at first if any flight is found delayed. No doubt considering the entire materials and the defence of the OP it is clear the staff of the OP was showed unhelpful and unfaithful attitude to the complainant and it is no doubt considered as deficiency and no doubt unfriendly attitude of staff of Air India towards customers like complainant and others has caused harassment to the complainant in all respect and for their irresponsible attitudes complainant missed his job at Birmingham.
Fact remains flight from Kolkata to Birmingham of the Air India via Delhi particularly Delhi to Birmingham is an international flight and as per international rules and regulations Montreal Convention 1999 the said clause of Montreal Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. In case of damage caused by delay the liability of carrier for each passenger is limited to 4150 Special Drawing Rights and that is about 5000 Euros as per said clause and as per said clause if a flight distance is more than 3500 k.m. and delay is more than 4 hours the compensation amount is 600 Euros and that is the regulation which is applicable to all worldwide airlines when departure takes place within the EU and in the case of flights from outside the EU to a destination in EU etc. but anyhow in the present case OP has claimed their sovereign immunity as they are guided by Civil Aviation Guidelines but already Hon’ble Supreme Court has observed that countries who participated in trade, commerce and business with different countries ought to be subjected to normal rules of the market. State owned entities would be able to operate with impunity, the rule of law would be degraded and for which the Hon’ble Supreme Court has observed that the Air India or Indian Airlines Authority cannot claim any sovereign impunity. In this case delay was for 27 hours for his Air flight at Birmingham and as per Montreal Convention and European Commission Regulation complainant is entitled to 600 Euros that is INR 42,000 and also for his loss of earning on 19-01-2015 that is 464 GBP equivalent to INR 46,400 and no doubt complainant has been harassed mentally, physically due to negligent and deficient manner of service on the part of the OP and their employees and for which he is also entitled to get certain compensation.
Another factor is that on proper consideration of the entire fact and the situation of other air flights and their departure from Kolkata and Delhi we are of the view that the power to reschedule the flight is strictly construed if the Airlines authority exceeds the power invariably the Airlines shall be considered negligent and for which Airlines shall be held liable to bear damages. No doubt in the instant case Airlines is held responsible and negligent in causing particular inconvenience to the complainant besides mental tension, pain, sufferings including financial loss to the complainant on the ground that all other Airlinies departed within scheduled time from Kolkata Airport whereas Air India flight did not depart and at the same time alternate arrangement was not made though there was every scope because there were some other flights of other airlines which departed in scheduled time, if the complainant would be offered by the OPs for availing of other air flight in that case complainant would reach Birmingham within time and in that case there was no chance of loss of earning on that date. So, no doubt the OP caused great hardship to the complainant by giving mental tension and also expenses in fact, there is no material to hold that OPs took any positive measures for giving alternate services to the complainant and this violation on the part of the OP to give proper service to the complainant was only for the negligent and deficient manner of service on the part of the OPs. Moreover, considering the provision of law and the judgment of the Hon’ble Supreme Court we are convinced that countries who would participate for trade, commerce and business in different countries who and with different countries ought to be subjected to normal rules of the market and State owned entities would be able to operate with impunity, the rule of law would be degraded. Therefore, we have no hesitation to come to a conclusion that OP cannot claim sovereign unity in this case. Further considering the conduct of the Air India all over India particularly in West Bengal it is clear that with a few year Air India organization shall be closed for not giving proper service for not giving alternative accommodation for journey when their flight is found always defective or not fit for flight and already situation is out of control, for which there is no such air service directly from Kolkata to any foreign countries and every flight is upto Delhi this is the position of Air India and no doubt for which Nobel Laureate Amartya Sen has expressed the painful situation of the Kolkata Airport and the manner of rendering service is not only pathetic but naughty and they have their no courtesy for which only living organization of India that is Air India has already lost their reputation as airline company all over the world and no doubt their service is one of the worst service in this regard. Many passengers in other cases submitted their complaint to Air India Authority and the Government for closing down the company. But such sort of expression of the consumers and customers is not a mere disgusting comment but Air India’s situation is very wretched which is proved from that fact, Indigo already placed more than 100 planes for journey to different countries whereas Air India has failed to place and add even one plane from Kolkata Airport. So, apparently the air service on the part of the OPs is very poor and they have their no courtesy to give consumers proper service and in fact, for the laches, negligence and deficient manner of service on the part of the OP complainant failed to avail of the said journey to Birmingham on that date and lost his service for the next date though there was many chance on the part of the OP to offer alternative service for his journey but that was not done and that is the conduct of the business tactics of earning of the OP and people at large reported to Air passengers and not to avail of Air India flight at any cost on the ground if opportunity lost opportunity gone and the loss of the complainant has never been understood by the OP and practically there is no discipline in the Air India organization only they are raising for their monthly package but not for their service lingering life of the Air India Organization.
In the light of the above observation and findings we are inclined to hold that no doubt complainant had been harassed mentally and physically and also lost earning at Birmingham Hospital only for the laches and negligence and deficiency of service on the part of the OP and no doubt OP has their option to give such alternate flight to reach Birmingham in time by providing him another flight when OP sold such confirmed ticket to the complainant making his journey as a safe journey from Kolkata to Birmingham by issuing two tickets, one from Kolkata to Delhi and another from Delhi to Birmingham and it was a connecting journey. So, knowing about that and the loss of the service of the complainant OP did not do anything but they misbehaved and that is the business of the Indian Organization who are generally founded by government partly. But in this regard OPs’ written version also speak that they did not offer any sort of alternative flight though there was chance and if alternative accommodation in other flight would be made by the OPs in that case complainant shall not be disturbed and complainant shall not have to loss daily income at Birmingham and for delayed departure and delayed arrival no doubt complainant lost one day’s salary at Birmingham Hospital and for which no doubt OP s are liable to pay damages and compensation etc. and for causing mental pain and agony and for misbehaviour made by the OPs complainant suffered much mentally and for such harassment OPs are liable to pay such damages and compensation for their deficiency of service and negligent manner of act.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OPs.
OPs jointly and severally are directed to pay Rs.1 lakh to the complainant as compensation for harassment to the complainant and causing mental and financial sufferings to the complainant and also for the lost of job of the complainant at Birmingham and further for negligent and deficient manner of service on the part of the OPs.
OPs jointly and severally shall have to pay entire compensation of Rs.1 lakh and also litigation cost that is total Rs.1,10,000/- to the complainant within one month from the date of this order failing which for non-compliance of the Forum’s order and for further harassing the complainant OPs shall have to pay penal damages of Rs.3,000/- per month till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
