BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 07/03/2011

Date of Order : 31/10/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 137/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the case leading to this complaint are as follows :-

The 1^st complainant is working as a staff nurse in Ireland. The 2^nd complainant is her minor daughter who was born on 05-12-2008. The 3^rd complainant is the mother-in-law of the 1^st complainant. Due to heavy winter, the 1^st complainant along with the 2^nd complainant returned from Ireland to India during October 2010. The 2^nd complainant was entrusted to the custody of the grand parents for the time being and the 1^st complainant left for Ireland. Thereafter, the 1^st complainant arranged flight ticket for the 2^nd complainant in Kochi-Dublin flight operated by the opposite party on 26-02-2011. On 26-02-2011, two colleagues of the 1^st complainant namely Shiby George and Ulahannan Thomas were also slated to travel in the flight and the 1^st complainant authorised them to take the 2^nd complainant and an authorisation to that effect was executed. In the meantime, the 1^st complainant arranged Visa for the 3^rd complainant as well to Ireland and purchased ticket in the same flight. On 26-02-2011, the 3^rd complainant along with the 2^nd complainant duly reported before the check in counter of the opposite party at the airport. However, the opposite party refused to allow the 2^nd and 3^rd complainants to board the flight raising untenable contentions. The above conduct of the opposite party amounts to deficiency in service on their part. The complainants had to suffer lot of inconveniences, monitary loss and mental agony and they are entitled to get a total compensation of Rs. 16,36,310/-. This complaint hence.

2. The version of the opposite party is as follows :-

The 2^nd and 3^rd complainants along with Ms. Shiby George and Mr. Ulahannan Thomas reached the check-in-counter of the opposite party and they were referred to the opposite party's flight security officer. He informed them that since the authority letter issued by the 1^st complainant had not been attested by the Indian Embassy in Dublin, Ireland it was not a valid document, and therefore, the opposite party could not allow the 2^nd complainant to travel on the aircraft. The 3^rd complainant was not denied travel on the aircraft and was advised that she could travel without the 2^nd complainant, however, the 3^rd complainant chose not to travel without the 2^nd complainant of her own accord. The opposite party is entitled to take any kind of action, it deems fit in accordance with the rules and regulations. Actions taken by the opposite party in accordance with the statutory guidelines and procedures cannot in any manner be interpretted as deficiency in service. The complainants are not entitled to get any of the reliefs as sought for and the complaint is liable to be dismissed.

3. The 3^rd complainant was examined as PW1 and Exts. A1 to A5 were marked on the side of the complainants. The witness for the opposite party was examined as DW1. Exts. B1 to B3 were marked on their part. Heard the learned counsel for the parties.

4. The only point that emanates for consideration is whether the complainants are entitled to get a total compensation of Rs. 16,36,310/- claimed under various heads from the opposite party?

5. Admittedly, the minor 2^nd complainant and the 3^rd complainant were booked to travel on 26-02-2011 from Kochi to Dublin on the opposite party's flight No. KEY-281 evidenced by Exts. A1 and A2 air tickets.

6. According to the 1^st and 3^rd complainants, though they have submitted Ext. A4 authorisation letter to carry the 2^nd complainant to Ireland, the opposite party did not issue boarding pass to the 2^nd complainant. It is stated that due to the above conduct of the opposite party, the 2^nd and 3^rd complainants could not travel from Kochi to Ireland and the complainants had to suffer lot of inconveniences, mental agony and discomfort.

7. Per contra, the opposite party maintains that the 2^nd complainant was denied to travel on the flight of the opposite party on account of defective travel records as mandated in Ext. B2 general condition of carriage. According to the opposite party, Ext. A4 authorisation letter to carry the child issued by the 1^st complainant does not bear the required attestation stamp of Indian Embassy in Dublin–Ireland since the 2^nd complainant's mother was not accompanying the 2^nd complainant.

8. We have carefully gone through Ext. B2, the General Conditions of Carriage (passenger and Baggage), since it is in fina a pint. Article 17 in Ext. B2 reads as follows :

“OTHER CONDITIONS

Carriage of you and your Baggage is also provided in accordance with certain other regulations and conditions applying to or adopted by us. These regulations and conditions as varied from time to time are important. They concern among other things :

(i) the carriage of unaccompanied minors, pregnant women and sick passengers, (ii) restrictions on use of electronic devices and items; (iii) the on board consumption of alcoholic beverages.

Regulations concerning these matters are available from us upon request.”

9. It is pertinent to note that the opposite party has not stated in Ext. B2 the details regarding the travel documents to be carried along with a minor. In the absence of such explanation in Ext. B2, an ordinary passenger is not made aware of the nomenclatures in the same. Moreover, the opposite party does not have a case that they have issued a copy of Ext. B2 to the complainants at any point of time. So in this case, the complainants had no occasion to come across Ext. B2 at the time of booking of the ticket or thereafter or in continuation. We are afraid to say that Ext. B2 is not a statutory document and the same has only been prepared by the opposite party to suit their purpose seemingly. Had the opposite party or their booking agent disclosed or conveyed the requirements to carry a minor passenger when they received the booking of the ticket, this complaint would not have arisen, especially when information technology is advanced in our country and to which any one is answerable to.

10. Further, the opposite party contended that there is no evidence to prove the loss or damages sustained by the complainants due to the denial of boarding to the 2^nd complainant and they have not prevented the 3^rd complainant to travel as per the schedule. No part of impertinence would sustain the argument or claim of the opposite party. Indisputably, no tangible loss has been caused to the complainants as averred by the opposite party. But we cannot lose sight of the important factual position that the 2^nd complainant is a minor only aged 2 years and the 3^rd complainant a lady aged 57 years who is a home maker who could not travel leaving her grand child behind alone. To reiterate the same, the 2^nd complainant alone was denied boarding pass and left at the airport with no humanitarian explanations being explained. This would have made the parents or relatives as the case may be at the place of their departure and destination about their safety and security concern for the 2^nd and 3^rd complainants. The mental agony which the complainants had to go through cannot legally sustained and which has not been answered by the opposite party. This indeed calls for compensation. Something which has not been abated in any way. The compensation talked in Section 14 of the Consumer Protection Act is not only confined to the award of monitary compensation for loss and/or injury suffered by a consumer, but it has many other elements as has been held by the Hon'ble Apex Court in the case of Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, where in the Hon'ble Supreme Court has held as under :

“The word 'compensation' is again of very wide connotation. It has not been defined in the Act. According to dictionary, it means 'compensating or being compensated : thing given as recompense. In legal sense it may constitute actual loss or expected loss and may extend to physical mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been rested with the jurisdiction to award value of goods or service and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also compensate a consumer for injustice suffered by him.”

11. A monitary compensation will not alone console or abate the agony of the complainants, however, it would though inadequately compromise their grievances, especially since the 2 year old child has been in safe hands of her grand mother. Considering the singular facts and circumstances of the case at hand, we fix a compensatory cost of Rs. 5 lakhs to the complainants.

12. It is in our view that such legal formalities as averred may not come to such a deplorable condition, if can be avoided. If such stipulations as specified could be avoidably stipulated at the first instance itself could have necessarily not given enough reasons for such litigations unnecessarily, observed so. A note that such opposite parties might become aware of would be appreciable.

13. In the result, we partly allow the complaint and direct that, the opposite party shall pay Rs. 5 lakhs (Rupees five lakhs only) to the complainants towards compensation for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. till payment.

Pronounced in the open Forum on this the 31^st day of October 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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