BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 6th day of August 2015
Filed on : 29-03-2012
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.210/2012
Between
Rejimon Ravindran : Complainant
Ambalathumveliyil house, (By Adv. P.A. Augustine,
Vatakara P.O., Faizel Chambers, Pulleppady
Thalayolaparambu, Cross Road, Cochin-18)
Kottayam-686 605.
And
Commercial Manager, : Opposite party
Air India, Collis Estate, (By Adv. Sharanshahier,
M.G. road, Ravipuram, M/s. Menon & Pai, I.S. Press road,
Cochin-682 015. Ernakulam, Kochi-682 018)
O R D E R
Cherian K. Kuriakose, President.
The complainant Smt. Rejimol Raveendran had booked 4 tickets for his family including himself with the opposite party M/s. Air India on 16-03-2011 for the journey from Kochi to Toronto. The tickets were booked from Kochi to Delhi in flight No. A1 468 for the journey of 1st May 2011 at 20.00 hours and the onward ticket from Delhi to Toronto was booked in flight No. A1 187 on 2nd May 2011 at 13.25 hours. The complainant had made the payment of Rs. 1, 01,810/- to the opposite party. After booking the ticket there was news of strike by the Air India Pilots in India. The complainant was anxious about the status of his flight which was booked and therefore the complainant had contacted the office of the opposite parties for confirmation as to whether the flight will be available as per schedule or not. The answer of the opposite party had confirmed that the flight will be available asl per the schedule and that in case of cancellation of domestic flight the opposite party shall make alternate arrangements to carry passengers meant for International sector, through other Airlines. It was also assured that the passengers need not pay the additional amount for such service. On 30-04-2011 that is, the day prior to the scheduled travel, the complainant received a message from the opposite party intimating him that if required the complainant may avail the refund of the entire amount, since the complainant had to be catch the connecting flight from Delhi to Toronto on 2nd May 2011. It was out of question to cancel his ticket and to avail a refund. The complainant therefore requested the opposite party to arrange alternate means of travel as promised. That request of the complainant was turned down by the opposite party. Since the complainant had to reach Canada as scheduled earlier, he was left with no other option but to find his own means to reach Delhi on 2nd May 2011. Therefore he took shelter of a travel agency who made arrangements for his travel to Delhi on 1st May 2011 by Jet Airways for the flight which was taken off at 14 hours. The travel fare for the family in Jet Airways to travel from Kochi to Delhi amounted to Rs. 72,971/-. In addition to the ticket fare the complainant had to spent an amount of Rs. 25,000/- towards accommodation and food. There was no support from the staff of the opposite party by either of Kochi Airport or at Delhi Airport. The complainant had reached Canada made representations to the opposite parties narrating the deficiency in service which was given to him and requested the opposite party to compensate the loss suffered by the loss due to the cancellation of the flight. Aggrieved by the callus attitude of the opposite parties the complainant had caused to issue a letter dated 27-09-2011 to the opposite party and such request was repudiated by the opposite party by letter dated 22-11-2011. The complainant therefore seeks reimbursement of the ticket fare which he had to expend in Jet Airways and for a compensation of Rs.25,000/- for the wilful failure on the part of the opposite party in arranging alternate arrangements for his travel. The complainant also seeks a compensation of Rs. 5,000/- towards the unfair trade practice committed by the opposite party.
2. Notice was issued to the opposite parties, who appeared and contested the matter by filing version contending inter-alia as follows:
3. Version of the opposite party. The allegation that the complainant had booked 4 tickets in Air India flight on scheduled on 1st May 2011 is admitted. The ongoing journies ticket from Delhi to Toronto booked with the opposite party is also admitted. The averment that the complainant had contacted the opposite party with regard to the confirmation of the flight schedule or cancellation is not correct.
4. The complainant had never called the opposite party. The allegation of the complainant that he received a message from the opposite party to avail another air service or claim refund are not true. The information with regard to the delay in the scheduled flight A1 468 from Kochi to New Delhi was conveyed to all passengers including the complainant. There was no cancellation; of the flight. The flight which was to depart at 07.30 hours was rescheduled to depart on 20.20 hours. The rescheduled time was also informed to ;all the passengers who were to fly abroad, by the delayed flight was also accommodated in the said flight. The rescheduled time would have been enough, for the complainant to board the Air India Flight A 187 from New Delhi to Toronto on the next day.
5. The evidence in this case consists of the oral evidence of PW1 the power of Attorney holder of the complainant and Exbts. A1 to A5 on the side of the complainant. The opposite party examined one of its officers as DW1 and Exbt. B1 document was also marked. Heard both sides.
6. The following issues were settled for consideration
i. Whether there was any deficiency in service on the part of the opposite party as alleged?
ii. Is the complainant is entitled to get compensation as prayed for and if so the quantum thereof?
iii. Reliefs and costs.
7. Issue No. i. There is no dispute to the fact that the complainant had booked 4 tickets for his travel from Kochi to Delhi in Air India Flight. The complainant had taken a single itinerary to travel from Kochi to Delhi at 20.00 hours in Air India Flight which was scheduled to reach Delhi at 22.55 hours. Onward the flight from Delhi to Toronto was scheduled at 01.25 hours on 2nd May by the flight No. A1 187 bound for Toronto. Exbt. A1 would go to show that the complainant was to reach Delhi at 22.47 hours at terminal No. 3, he and his family were supposed to reach International terminal No. 1 at 00.25 hours. Therefore it can be seen that the complainant had only one hour and ten minutes at their disposal, to catch the next flight as per Exbt. A1. The fact that the complainant and his family travelled through Jet Airways from Kochi to Delhi on 1st May 2011 at 14.10 hours is proved through Exbt. A2 series boarding pass issued by Jet Lite Airways. Exbt. A3 series is the certificate issued by the Jet Airlines stating that the complainant and his family consisting of 4 persons in toto, had travelled in Jet Airways as per the Exbt. A2 boarding pass.
8. Exbt. A5 is a letter issued by the opposite party to the complainant on 24-11-2011, regarding the question of cancellation of the flight, referring to the letter issued by the complainant to the opposite party on 27-09-2011, requesting for refund of his ticket and other expenses incurred due to the cancellation of flight A1 468 from Kochi to Delhi on 01-05-2011. It is seen admitted in Exbt. A5 that due to Pilot’s strike a lot of flights were cancelled and there were lot of disruptions. Still the opposite party managed to operate few flights depending on the availability of the crews. The opposite party had put in their best efforts to serve the passengers. However some of the passengers were put to inconveniences. The strike commenced in the month if April and it continued till early May 2011. The strike had disrupted the operation of the flight and the schedule of the flights were totally out of order. It was only when the crew actually reported on the Airport, one could say certainly whether a flight would be cancelled or not. In spite of the best efforts to transfer the passengers through private carriers, the opposite party could not do so as the private carriers were prepared to give seats to Air India, only at the last minutes, when no direct sales was possible by them. So far as compensation is concerned as per CAR “strike” is an extra ordinary situation beyond the control and that would not entitle any compensation other than a refund of the unutilized ticket to the passengers.
9. It is therefore clear from Exbt. A5 that the opposite party had admitted that they could confirm whether their flight would be taken off or not, only on the arrival of the crew. All the contentions of the opposite party with regard to the non-deficiency in service can be to ignored, on the admission made by the Air India Authority in Exbt. A5. We cannot assume that a passenger were booked his ticket to travel up to Canada would be prudent enough if he had to depend on Air India Flight when the strike was going on continuously for one month. In the version, the opposite party is seen to have stated that all the passengers were informed regarding the delay in the flight. However neither the version nor the evidence of DW1 would show as to when such information was passed on to passengers. In the complaint, it is seen stated that the complainant was informed by the Air India Authorities to avail on his choice in getting a total refund of the ticket amount. However that fact is denied by the opposite party. The opposite party is a mighty institution with all latest in fractures to provide prompt communication. The absence of mentioning in the timing with regard to the delay of the flight is crucial in the circumstances of this case. On reading Exbt. A5 with this circumstances, one can understand the limitation of the opposite party in informing the passengers with regard to the possible delay or cancellation of the flight. As we have earlier pointed out that, the arrival of the crue, was the only circumstances guiding the opposite party in scheduling their flight during the strike period.
10. There is no dispute to the fact that strike was going on since last one month from the date of travel of the complainant. Naturally, the complainant would have been eager to confirm his ticket before his travel schedule, especially when he was to travel such a long distance in two different flights. The opposite party is seen to have denied the allegation of the complainant that he had enquired with regard to the officials of the opposite party regarding the cancellation or delay of the flight. As a person of ordinary prudence, we do not expect in the above circumstances, the complainant should have been prudent enough to wait for the uncertain event of the arrival of the crew to get the flight taken off. On the other hand the complainant had selected a different flight to reach his destination to catch the flight abroad. We find no fault on the part of the complainant in choosing such a course. On the other hand we find deficiency on the part of the opposite party galore in keeping the passengers at sphere head without making proper communication regarding their travel arrangements. The letter addressed by the complainant to the opposite party seeking refund was made in the month of September and the said letter is seen to have been replied as per Exbt. A5 only in the month of November. This would depict in the indifferent attitude shown by the Air India Authorities to the aggrieved passenger who is the consumer in this case.
11. The learned counsel for the opposite party argued that the flight which was to take off at 20 hours on 1st May 2011 from Kochi to Delhi was delayed only for 20 minutes. Para 8 of the proof affidavit filed by the opposite party would go to show that Air India flight 468 which was scheduled to depart on 07.30 hours was rescheduled to depart at 20.20 hours.
12. It was pointed out by the learned counsel for the opposite party that it was only a typological error. Such an arguments cannot be accepted in view of the fact that the same timing has been shown in the version as well. The possibility of another flight A1 468 which should have been departed 7.30 hours from Kochi to Delhi was also there because the flight timing from Kochi to Delhi is only less than 4 hours. The learned counsel for the opposite party, taking clue from Exbt. A5 produced by the complainant argued that the compensation will have to be governed as per the CAR regulations. According to the learned counsel for the opposite party “strike” is an extra ordinary circumstances beyond the control of the opposite party and that would exonerate the opposite party from paying any compensation. In the circumstances of this case, as per clause 1.4 of CAR Regulations issued by the Director General of Civil Aviation it was effective from 15-08-2010. The said Regulation is extracted as follows:
“ The operating airline would not have the obligation to pay compensation in cases where the cancellations and delays have been caused by an event(s) of force majeure i.e. extraordinary circumstance(s) beyond the control of the airline, the impact of which lead to the cancellation/delay of flight(s), and which could not have been avoided even if all reasonable measures had been taken by the airline. Such extraordinary circumstances may in particular, occur due to political instability, natural disaster, civil war, insurrection or riot, flood, explosion, government regulation or order affecting the aircraft, strikes and labour disputes causing cessation, slowdown or interruption of work or any other factors that are beyond the control of the airline”.
13.On going through the said regulations even though it is seen stated that extra-ordinary circumstances which occurred due to riot, flood, explosion, strikes and labour disputes beyond the control of the Airlines are exempted. Here it is proved that strike was going on for the past one month and that such a strike was not an unexpected strike. The continuous strike of the employees of the Air India was going on since the past one month cannot be said to be force majeure . Force majeure has to be taken as an unforeseen circumstances which could not have been seen by the parties concerned. In this case strike was going on for a long time. The opposite parties should have foreseen the possibility for the cancellation of the flight or even for delay of the flight. In spite of such circumstances existed it is seen that the opposite party had not provided adequate service to the complainant. We are visualizing the situation where the complainant was put to maximum tension since he had to travel abroad, especially when he was travelling with his family including small children. Such an attitude cannot be expected from a responsible Airlines who were to look after the facilities and provide service to the passengers after collecting the air fare. The height of deficiency in service is reflected through Exbt. A5 wherein there is a clear denial of refund of the air fare collected unmeritedly. We therefore find that the complainant has successfully proved his case that the opposite party had committed gross deficiency in service. It was also contended that there was unfair trade practice on the part of the opposite party. Issuance of tickets to the passengers without settling the strike which were continuing for a long time, can be deemed as unfair trade practice. The opposite party Airlines should not have confirmed the tickets of the passengers until and unless the strike announced by the pilots and crews were settled. The learned counsel for the opposite party submitted that cancellation of the flight or non- providing the scheduled flights would amount to accepting to the demands of the strikers. Flight service is not an essential service. It is purely a commercial service. The strike was not against all the Airlines, the strike was only against Air India. Therefore the said argument of the learned counsel for the opposite party is not found to be sound. We find that booking confirmed tickets during strike period after collection of money and without providing the refund when the flight is delayed or cancelled would amount to unfair trade practice. The issue is found in favour of the complainant.
14. Issue No. ii. Having found issue number 1 we find the complainant in the special circumstances of the case is entitled to get refund of the ticket fare collected by the opposite party and the complainant is also entitled to get compensation with regard to the amount paid by him for his travel to Kochi to Delhi by through Jet Airways on 1st May 2011. The complaint is also found entitled to get compensation for the mental agony suffered by him with regard to the uncertainty of the flight of the opposite party and the opposite party having committed unfair trade practice as aforesaid. This issue is accordingly in favour of the complainant.
15. In the result, the complainant is found entitled to get refund of the flight fare from Kochi to Delhi booked in Air India flight. In the absence of specified amount in the Air ticket as it is only a consolidated air ticket we
-10-
estimate the air ticket at Rs. 5,000/- per passenger, which would come to Rs. 20,000/-.
ii. The complainant is also entitled to get reimbursement of the amount of Rs. 72,971/- which is the fare of the fight ticket for his travel in Jet Lite from Kochi to Delhi.
iii. The complainant is also found entitled to get compensation of Rs. 50,000/- for the mental agony suffered by him due to the last minutes tensions suffered by him in the uncertainties provided by the opposite parties.
iv. The complainant is also found entitled to get Rs. 10,000/- by way of compensation for the unfair trade practice committed by the opposite parties.
v. The cost of the proceedings, which we estimate at Rs. 10,000/- is also found entitled by the complainant, to be realized from the opposite parties.
The order shall be complied within 30 days from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 6th day of August 2015
Cherian K. Kuriakose, President.
Sheen Jose, Member.
Beena Kumari V.K., Member.
11
Appendix
Complainant’s Exhibits:
Ext. A1 : Copy of Electronic Ticket
A2 : Copies of 4 boarding passes
A3 : Copies of 4 certificates
A4 : Copy of letter dt. 27-09-2011
A5 : Copy of letter dt. 22-11-2011
Opposite party’s Exhibits:
Ext. B1 : Copy of passenger Check in
History system
Depositions:
PW1 : Raveendran
DW1 : S. Gopakumar
