Smt. Sahana Ahmed Basu, Member.
This is an application u/s.12 of the C.P. Act, 1986.
The crux of the instant consumer complaint is that complainant along with her husband and daughter had booked a return ticket from the O.Ps. on 17/01/2016 for a journey from Kolkata to New York on 19/01/2016 for Rs.64,000/- each to attend her son’s wedding. On the day of journey the complainant duly checked in at the O.Ps.’ check-in counter at Kolkata Airport and were handed over respective boarding passes for Kolkata to Dusseldorf, Germany and from there a separate boarding pass had to be issued and tagged with their luggage all the way to New York, after checking all travel documents assuring them that they would face no trouble with the U.S. immigration as their connecting flight o Trinidad was from the same Terminal. The itinerary provided by the O.Ps. was Kolkata-Abu Dhabi-Dusseldorf-New York. On reaching Abu Dhabi complainant had been stopped informing that they could not proceed further due to lack of Transit Visa for USA and after waiting for couple of hours the O.Ps. men advised them to return to Kolkata. Ultimately, with the help of complainant’s sister the complainant could able to rerouted journey for premium price of U$ 6900.00 which took over 4 days and they missed a number of important rituals of wedding.
Further case of the complainant is that it is the foremost duty of the Check-in Counter Staffs of O.Ps. to check the tickets and if there was any requirement of transit visa for USA they should have informed the complainant before handing over boarding pass in Kolkata but they had assured that the complainant would not face any problem at the U.S. Immigration at New York.
Complainant lodged a written complaint to O.Ps. which remained unanswered. On 04/03/2016 complainant’s daughter forwarded an e-mail and on 01/04/2016 O.Ps. replied that said e-mail was sent to Kolkata Duty Manager for investigation. On investigation it had transpired that “staff failed to check the transit visa requirements for which staffs were cautioned” and even after such clear admission of failure on the part of the O.Ps. they shifter their liability upon the complainant on the ground that it was the responsibility of the guests to ensure that all travel related documents are in place before they travel on reservation of the tickets. O.Ps. also tried to cover up their glaring omission by saying “the guests were also cleared by Indian Immigration after verification of all travel documents submitted by the guests”. Surprisingly, the O.Ps. also stated that in view of Article-7- refusal and Limitation of Carriage sub clause-7.1.2.7 “you do not appear to have valid or lawfully acquired travel document or you appear in our opinion not to meet requisite visa requirement …..”, the entire responsibility being thrust upon the complainant.
All such acts of the O.Ps. lead to deficiency in service and amounts to unfair trade practice and as such the complainant have filed this consumer complaint to get reliefs as prayed for in her petition of complaint.
This application was very much resisted by the O.Ps. by filing written version denying and disputing all the material allegations as made out in the petition of complaint contending inter alia that no assurance was given to the complainant in regard to US immigration. Nobody at Kolkata Airport could have guaranteed hassle-free entry into US as it is the prerogative of the immigration authority of a country. It is the case of the O.Ps. that it is not the duty of an Airline to advice passengers about the validity or adequacy of the passenger’s travel documents. The boarding passes were issued on the basis of the tickets which the complainant and her co-passengers held. Complainant was needed a transit visa for USA as they were required to change terminals to catch their flight from New York to Port of Spain, Trinidad which sector was to be flown on Caribbean Airlines and they were well aware about the matter. It is also the case of the O.Ps. that they every possible effort was made by them to provide assistance to the complainant in every manner and they offered two options either the complainant could travel back to Kolkata or reroute their journey. The complainant opted rerouting of tickets and the same was done by the O.Ps. without any additional cost. O.Ps. ticket was rerouted via Belgrade and Amsterdam, from where complainant was able to buy tickets to Panama City and onto Trinidad. Thus, there is no question of deficiency in service and practicing any unfair trade on the part of the O.Ps. Hence, the O.Ps. have prayed for dismissal of the instant consumer complaint.
On pleadings of the parties three points are come u[p determination :-
- Whether O.Ps. are deficient in service.
- Whether O.Ps. are indulged unfair trade practice.
- Whether the complainant is entitled to get relief / reliefs.
Decision with Reasons
Points 1 to 3.
All the points are taken up together for the sake of convenience and brevity in discussion.
Both parties have tendered evidence supported by affidavit and replied to the questionnaires set forth by their adversaries but the reply of the complainant is not supported by affidavit. Therefore, we are not inclined to rely the said reply. Both parties have also filed BNAs. We have gone through the evidence and documents on record and gave thoughtful consideration.
Fact remains that on 17/01/2018, the complainant along with her husband and daughter booked a return ticket on Etihad Airways on from Kolkata to New York for an amount of 63,964/- each. The date of journey was on 19/01/2016. From New York they had to avail connecting flight to Port of Spain, Trinidad. On the day of journey complainant and her family was duly checked in at the Etihad Airways counter at Kolkata Airport. Their Luggage were tagged and travel documents were also checked. After reaching at Abudhabi, complainant and her family members were abruptly stopped and informed by the Staff of O.Ps. that due to lack of transit visa for U.S.A. they could not proceed. Ld. Advocate for the complainant argued that the Staff of Etihad Airlines at the Kolkata Airport meticulously checked the tickets and other travel documents of complainant and her family members and assured that since both the flights were arrive and departure from the same terminal. But the tickets shows that the arrival flight at New York Airport was at Terminal-8 and the departure flight for Port of Spain was from Terminal-4. Complainant’s daughter enquired from the Etihad Airlines Staff whether they need transit visa. After consultation with the senior staff the said staff assured that transit visa is required only in case of a passenger having to leave Airport. Therefore, they had to re-routed their journey and had to purchase fresh tickets through Amsterdam via Belgrade and Panama and from there to Trinidad which cost of U$ 6900. Ld. Advocate for the O.Ps. argued that at Abudhabi it was found by the check in staff of the Etihad Airways that the complainant and her co-passengers were required to exit the Airport to change the Terminal and for that they needed transit visa for USA, which they did not possess. O.Ps. have offered two options to the complainant. That either re-route the tickets or to deport back to Kolkata. The complainant agreed for re-routing their tickets and as per their consent O.Ps. had re-routed the tickets without taking any extra charges. It has been denied by the Ld. Advocate for the O.Ps. that they had assured that there would be no trouble with U.S. Immigration.
On perusal of the record we find that it is clearly mentioned in the e-ticket of the Etihad Airways that the said flight would arrive at the Terminal-8 and would depart for New York from terminal-4.
General conditions of carriage (Passenger and Baggage) furnished by the O.Ps. goes to show that in Article-14.1 it is clarified that :-
“The passenger shall be solely responsible for complying with all laws, regulations, orders, demands and requirements whether given in writing or otherwise or for the consequences to any passenger resulting from his failure to obtain such documents or visas or to comply with such laws, regulations, orders, demands, requirements, rules and instructions.”
Therefore, submission by the Ld. Advocate appearing for the complainant in regard to verbal assurance of the staff of O.Ps. has no leg to stand. It was not possible to arrange re-routed journey by the O.Ps. without the consent of the complainant and her co-passengers. Therefore, we found no deficiency on the part of the O.Ps. in this regard.
Ld. Advocate for the complainant argued that due to lack of responsibility on the part of the O.Ps.’ staff to check all travel documents at Kolkata Airport, the complainant had to spent Rs.7,32,742/- for rerouting the journey and it is unfair trade practice on the part of the O.Ps.
On the other hand, Ld. Advocate for the O.Ps., denying such allegation and argued that it was not the foremost duty of the checked-in officers of Etihad Airways at Kolkata to check the tickets and journey details of the complainant or to have informed the complainant of the requirement of a transit visa for USA. It is entirely the duty of the passengers to ensure that their travel documents are valid and adequate and that they have all the required visas for all destinations they are travelling to and this responsibility and duty cannot be passed on to the Airline. Ld. Advocate for the O.Ps. relied upon the Conditions and Carriage of O.Ps., Article-7 and Article-13, where it stated –
7.1 – RIGHT TO REFUSE CARRIAGE.
7.1.2.7. – “you do not appear to have valid or lawfully acquired travel documents or you appear in our opinion not to meet requisite visa requirements, you seek to enter a country through which you may be in transit for which you do not have valid travel documents (or meet the visa requirement), you destroy your travel documents during flight or between check-in and boarding or refuse to surrender your travel documents to the flight crew, against receipt, or allow us to copy your travel document when so required.”
Article-13 – Administrative Formalities.
13.1.1 – You are responsible for obtaining and holding all required travel documents
and visas and for complying with all applicable laws, regulations, orders, demands and travel requirements of asll countries to be flown from, into or through which you transit.
13.1.2 – We shall not be liable for the consequences to any passenger resulting
from his or her failure to obtain such documents, visas or to comply with such laws, regulations, orders, demands, requirements, rules or instructions.
13.2 – Prior to travel, you must present all exit/entry, nealter and other documents required by laws, regulations, order, demand or other requirement of the countries concerned and permit us to take and retain copies thereof. We reserve the right to require you to present to us any of these documents at any time during your carriage and to refuse carriage of you and your baggage if you do not comply with these requirement, or your travel documents do not appear to be in order, even if you have started or completed part of your carriage before it becomes clear to us that you have not complied with this Article-13.2.
In course of argument, Catena of judgements have been cited by the Ld. Advocate appearing for the O.Ps. in support of their contentions, which are given below –
- The Hon’ble Supreme of India in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr. III (1999) CPJ 28(SC), while dealing with an appeal in a consumer complaint against an airline for having prevented a passenger from boarding a flight on ground of suspicious about the authenticity of his passport, even though the passport was proved to be valid later, held as follow :
“The deficiency of service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relationto any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on fact, been found to have not establishedany willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bonafide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority renderingservice had taken all the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondentis found to be in good faith, there is no deficiency in service entitling the aggrieved person to claim relief under the Act.”
- II (2015) CPJ titled Air India Vs. Sushil Kumar of Hon’ble NCDRC.
- Emirate Airlines Vs. Deshraj Malhotra IV (2015) CPJ 636 (NC) of Hon’ble NCDRC.
In the backdrop of above discussions, we are of the considered view that there is logic in the submission of the O.Ps. and those are suffice to abrogate the allegations of deficiency in service and unfair trade practice on their part. That apart, O.Ps. did not charge any extra fare for re-routing the journey of the complainant and her family members and that too this point has not been controverted by the Ld. Advocate for the complainant by adducing any cogent evidence. Therefore, we are of the opinion that the complainant fails to establish her case and as such she is not entitled to get any relief as prayed for.
Thus, all the points under determination, answered in the negative.
In result, the case merit fails.
Hence,
Ordered
That the complaint case be and the same is dismissed on contest against the O.Ps. Parties do bear their own part.
