Karnataka

Bangalore 4th Additional

CC/14/1160

LGC Promochem Private Limited - Complainant(s)

Versus

Etihad Airways - Opp.Party(s)

11 May 2018

ORDER

Complaint filed on: 27.06.2014

                                                      Disposed on: 11.05.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1160/2014

DATED THIS THE 11^th MAY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

1. LGC Promochem Pvt. ltd.,

A company incorporated under the companies act 1956.

Having its registered office at 142, 3^rd floor, 5^th cross,

RMV Extension,

Bengaluru-80.

Rep. by its Managing Director Mr.B.R.S.Rao

 

2. Mr.B.R.S.Rao,

Managing Director of LGC Promochem Pvt. ltd.,

S/o late Sri.Bengaluru Venkappaiah Raja Rao,

Aged about 68 years,

R/at no.377, Kausthabha,

13^th main road,

RMV Extension,

Bengaluru-80.

 

By Advocates

M/s.NDS Law Partners     

 

V/s

Opposite party/s

Respondent/s:-

 

Etihad Airways

Level 15, Concorde Towers,

UB City, I Vittal Mallya Road, Bengaluru-01.

 

By Adv.Sri.Ramesh.C.N.

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant no.1 & 2 (hereinafter referred as Complainants) against the Opposite party (hereinafter referred as Op) seeking issuance of direction to refund Rs.2,27,314/- towards the purchase of tickets for travel from Bengaluru to Washington. Further direct it to pay Rs.10 lakhs as nominal damages towards loss of business, compensation of Rs.5 lakhs, cost and to grant such other reliefs deem fit for which the Complainants are is entitled to.

 

          2. The brief facts of the case of the Complainants are that, Complainant no.1 is an integrated techno commercial organization with a strong emphasis on science and research and development recognizes for setting quality standards through analytical science and providing best value of products, services and solutions. Complainant no.1 company is headed by the Complainant no.2, its Managing Director. Complainant no.2 submits that, a certain important meeting of business interest to him, Complainant no.1 booked tickets for the travel of Complainant no.2 on board the flights of the Op from Bengaluru to Washington via Abu Dhabi and back through authorized agent of Op.no. Complainant no.2 further submit that, he was scheduled to undertake travel with the Op on 08.10.13 from Bengaluru to Washington. He was to take the flight of Op which was to depart from Bengaluru on 08.10.13 at 4.40am and arrive at Abu Dhabi on 08.10.13 at 6.55am. Complainant no.2 was to then change over to a connecting flight of Op, departing on 08.10.13 at 10am. from Abu Dhabi and arriving at Washington. Similarly, he was to undertake travel with Op on 12.10.13 from Washington to Bengaluru such that he flew on flight from Washington to Abu Dhabi and another flight from Abu Dhabi to Bengaluru. He further submits that, the cost of repetition that this itinerary was chosen by Complainants following the scheduling of an important meeting at Washington and Complainant no.2 was undertaking the travel with Op for attending such meeting. On the date of travel, the flight of OP from Bengaluru to Abu Dhabi did not depart at the scheduled time of departure. The Op personnel initially informed him that the flight was delayed and would depart Bengaluru by 5.50am. However, the flight did not depart at the rescheduled time of 5.50am. Repeated rescheduling of the flight was announced by the Op personnel. Finally, Complainant no.2 was informed that the flight originally scheduled to depart at 4.40am would depart from Bengaluru only at 7.30am. He realized that it would be a wasteful exercise for him to take the flight rescheduled to depart at 7.30 am as he would not be able to reach Abu Dhabi in time to undergo the very intense security checks and board the connecting flight to Washington from Abu Dhabi, scheduled to depart from Abu Dhabi at 10am. on the same day. Realizing that to travel on 7.30am flight could prove detrimental to his presence at the only meeting that was scheduled to take place in Washington, the Complainant no.2 informed the Op that it was imperative that he reached Washington in time to attend his meeting. He apprised the Op personnel of his unwillingness to travel abroad and delayed flight and expressed his intention to take a flight on an alternative airline out of either Bengaluru or Mumbai. Complainant no.2 further submits that, when he expressed such unwillingness, the Op personal assured him that the connecting flight to Washington from Abu Dhabi would wait for the Complainant no.2. Op asserted that since there were several other passengers on the Bengaluru-Abu Dhabi flight who needed to board the connecting flight to Washington from Abu Dhabi, the flight from Abu Dhabi to Washington would wait to take on board the passengers arriving on the Bengaluru flight and would only then depart to Washington. He further submits that, by expressly asserting that the flight to Washington from Abu Dhabi would wait, the Op personnel dissuaded him from opting to travel on a different airline and cancelling his tickets with Op. He repeatedly sought assurance from Op regarding the connecting flight and was repeatedly assured by it that the connecting flight would wait for the passengers on board the flight from Bengaluru to Abu Dhabi. Following repeated assurances, Complainant no.2 finally agreed at 7.10am on 08.10.13 to travel on the delayed flight. This decision was taken by him as the repeated assertions and assurances of Op had resulted in him holding the firm belief that the connecting flight to Washington DC from Abu Dhabi would wait for him.   Complainant no.2 travelled on the delayed flight. When he entered the transit lounge at Abu Dhabi airport at 10.45am, he was informed by Op that the connecting flight to Washington had departed at 10.00am as per the original scheduled time of departure. Complainant no.2 further submits that, confronted the Op personnel at Abu Dhabi airport about the assertions and promised made by them at the Bengaluru airport. The personnel at Abu Dhabi informed him that on account of a number of reasons, no flight bound to the USA from Abu Dhabi ever waited nor would ever wait for a connecting flight. Further, he was informed by Op personnel at Abu Dhabi airport that every personnel of the Op was aware that no flight to USA from Abu Dhabi ever waited for a connecting flight as this was an inflexible norm. The personnel at Abu Dhabi airport stated that the personnel at Bengaluru airport ought to have been well aware of this inflexible norm and orally admitted that the personnel at Bengaluru airport had misled the Complainant no.2. Then, he was offered only choice i.e. he would have to stay the entire day in the accommodation provided by Op and that he would be flown to Washington on the following morning. The alternative travel date offered by Op did not meet with the requirements of the Complainants, hence it was rejected. Further, Complainant no.2 requested the Op personnel to place him on any other flight departing from Abu Dhabi for Washington so that he could reach there on the same day and attend his meeting and he even offered to pay the difference in fares. Such request was also rejected by Op. Complainant no.2 explained to the Op personnel at Abu Dhabi airport that it was futile to travel to Washington the next day and that he would have to return to Bengaluru. He further submits that, upon inquiry for travel back to Bengaluru, the Op personnel initially informed him that should he choose to travel back to Bengaluru, he would lose the whole amount that had been paid for the Abu Dhabi-Washington-Abu Dhabi sector. He objected to this vehemently. After insisting for several hours that the Complainants would lose the amount paid towards the tickets, Op finally informed the Complainant no.2 that they would keep the Abu Dhabi-Washington-Abu Dhabi sector ticket open so that a fresh ticket could be linked to it in future. Complainant no.2 further submits that, he spent endless number of hours in the airport lounge and was not granted any option by which he could meet his commitments in Washington. These events caused great mental agony, frustration and hardship to the Complainant no.2. He returned to Bengaluru using his sector ticket from Abu Dhabi to Bengaluru flight. Owing to the aforementioned actions of Op, Complainants not only incurred substantial costs for the fruitless journey, but most importantly also lost out on the business opportunity of significant revenue due to the inability to reach Washington as scheduled to attend the prescheduled business meeting for which Complainant no.2 was exclusively undertaking the travel to Washington. Such meeting would have materialized in to business profits of Rs.25 lakhs. But owing to the acts of deficiency of service and unfair trade practice, Complainant no.1 have lost such profits. In this context, Complainants issued legal notice dtd.21.02.14, but Op failed to respond to it. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op did appear and filed version denying the contents of the complaint. The sum and substance of the version of the Op.no.1 are that, the complaint filed by the Complainant no.1 which is a company, cannot be maintainable under the provisions of the CP Act as the said company is not a consumer as defined under the provisions of Sec.2d as amended of the CP Act.  The vast description as given in the complaint pertaining to Complainant no.1 clearly indicates that the organization is for a commercial purpose and thus would not fall under the provisions of the CP Act and therefore will not come within the preview of this forum. Furthermore, it is averred in the complaint that Complainant no.2 who is the Managing Director of Complainant no.1 company, had purchased the ticket for his travel through the Complainant no.1 company, on the flight of this op in order to attend an alleged meetings for commercial purposes and his entire claim is for loss of profit for his company and thus would not fall under the ambit of the CP Act. The Op further submits that, the Complainants have averred in the complaint due to non-attendance of the alleged meeting, the Complainant no.1 company has suffered loss of business of Rs.25 lakhs. Thus the attendance at the meeting by the Complainant no.2 was for making a profit and for commercial/business purposes alone. The Op further submits that, in view of the above, it is abundantly clear, that this forum cannot entertain the present complaint and the complaint should be dismissed in limine or returned back to the Complainants for filing before the proper and appropriate courts, should the Complainants wish to claim damages for loss of business etc., It is also the contention of Op that, as the flight from Bengaluru to Abu Dhabi was delayed due to ATC control issues at Abu Dhabi and the incoming flight from Abu Dhabi was delayed slightly and was accordingly rescheduled for departure from Bengaluru to Abu Dhabi. The decision to take an alternative flight or cancel the travel plans, had to be the decision of the Complainant no.2 only, as the alternative plans offered by the Op was for a flight the next date though all arrangements for his stay and comfort would have been arranged in Abu Dhabi. It is also the specific contention of Op that, usually flights make up time, and possible the staff could have stated that there was a possibility to catch the connecting flight. Since the flight could not take off as rescheduled, the Washington flight would have left, as delays mean missing slots at the arrival airport in Washington. It is also another contention of Op that, it is not possible for the connecting flight to wait for the incoming aircraft at Abu Dhabi airport. It may be possible to wait for a short while in case a connection needs to be made, never more than 10-15 minutes in any case, as they can make up time and since slots at the arrival airport are crucial, delays means loss of landing slots. Further, it is denied by Op that, their staff had informed the Complainant no.2 that the flight would wait at Abu Dhabi airport or mislead the Complainant as falsely alleged.  Since Complainant no.2 missed his connection at Abu Dhabi airport he was offered alternative routes, but the same was declined by the Complainant no.2 for the reasons best known to him. No purpose would have been served forcing him on a flight, because if the Complainant had missed his fight, costs of accommodation at Abu Dhabi, visa costs etc., would have to be borne by Op. it is also the contention of Op that, if it was so imperative for the Complainant no.2 to attend the alleged meeting at Washington, he should have left much earlier keeping in mind delays/cancellations or any unforeseen eventualities and should have not travelled at the last minute knowing well that there could be delays in flight schedules for various reasons beyond the control of the carrier. Hence prays to dismiss the complaint.

 

4. Op filed IA.No.I on 22.09.14 stating that, complaint filed by the Complainant no.1 & 2 is not maintainable as none of them comes under the purview of the Sec.2(1)d of CP Act, as the service availed from Op is for commercial purpose. To which the objection has been filed by the Complainants denying the contents of the affidavit filed in support of IA.No.I and also the contents of the said application stating that, complaint filed by the Complainant no.1 & 2 very well maintainable in the light of the following decisions:

1) (2009) 3 SCC 240 in the case of Karnataka Power Transport Corporation and Anr. v. Ashok Iron Works Pvt. ltd.,

2) AIR 1996 SC 2508 in the case of Bharathi Knitting co. v. DHL worldwide express courier division of airfreight ltd., This view has been adopted by Hon’ble National Commission in its order dtd.12.05.14 in the case of DTDC courier and cargo and anr vs. M/s.Caterpillar India Pvt. ltd., and anr.

3) Hon'ble West Bengal State Commission, order dtd.23.09.2010 in the case of FA/213/10, Thai Airways International v. Anil Kumar Parolia

4) Hon'ble Chhattisgarh State Commission, order dtd.07.06.11 in appeal no.112/2011, The Chairman and Managing Director, National Aviation co. of India ltd., Vs. Sujogya Kumar Mishra and Anr.

 

Hence, prays for dismissal of IA.No.I. My Learned Predecessor was of the view that the said IA is to be considered along with the main order. Hence ordered to consider with main complaint.  

 

          5. To substantiate the case, Complainant no.2 filed affidavit evidence and got marked the documents as Ex-A1 to A7. The General Manager of Op filed affidavit evidence and got marked the document as Ex-B1. Both filed written arguments. Heard both side.

  

6. The points that arise for our consideration are:

1. Whether IA.No.I filed by Op on 22.09.14 is to be

allowed ?

2. Whether the Complainants prove deficiency of service on the part of Op, if so, entitled for the relief sought   for ?    
3. What order ?

                   

           

 

7.  Our answers to the above points are as under:

 

Point no.1: In the Negative  

Point no.2: In the Affirmative 

Point no.3: As per the final order for the following

 

REASONS

 

          8. Point no.1: The preliminary objections raised by the Op is that, neither the Complainant no.1 nor the Complainant no.2 are the consumer comes within the definition of Sec.2(1)d of CP Act, stating that, Complainant no.1 is the company and Complainant no.2 is its Managing Director, whose itinerary was towards Washington for the purpose of business i.e. for the commercial purpose. In this context, he filed IA.No.I on 22.09.14. In support of his case, at para 4 of the application, he placed reliance on the following decisions:

1) II (2014) CPJ 82 (NC) in the case of Duggirala Prasad Babu vs. Skoda Auto

2)  IV (2010) CPJ 178 (NC) in the case of Sanjay Ghodawat vs. RRB Energy

3) Meera Industries, Howrah vs. Modern Constructions, Howrah, R.P.no.1765/07

 

9. Per contra,  learned counsel for the Complainants urged before us stating that, the Complainant no.1 is a company which comes under the purview of Sec.2(1)d of CP Act, so also, its Managing Director who is the Complainant no.2. In support of it, they placed reliance on the following decisions:

1) AIR 2009 SC 1905 in the case of Karnataka Power Transmission Corpn., and Anr., vs. Ashok Iron Works Pvt. ltd.,

2) AIR 1999 SC 2508 in the case of Bharathi Knitting co. v. DHL Worldwide Express courier division of airfreight ltd.,

3) DTDC courier and cargo & M/s. Sri.Sourabha Enterprise v. M/s.Caterpillar India Pvt. ltd., Hon’ble National Commission, order dtd.12.05.14

4) The Chairman and M.D., National Aviation co. of India ltd., v. Sujogya Kumar Mishra and Ors., Hon'ble Chandigarh State Commission, order dtd.07.06.11

5) Thai airways international v. Anil Kumar parolia, Hon'ble West Bengal State Commission, order dtd.23.09.10

 

10. We have placed reliance on the contents of IA.No.I filed by Op on 22.09.14, the objections filed by the Complainant and also the decisions cited by both of the parties. Now, we would like to discuss the decision of Hon’ble Supreme Court reported in AIR 2009 SC 1905 in the case of Karnataka Power Transmission Corpn., and Anr., vs. Ashok Iron Works Pvt. ltd., In the said decision Sec.2(1)d, 2(1)g and 2(1)o has been elaborately discussed. For our purpose, the relevant para 18 is important which reads thus:

18. Section 2(1)m is beyond all questions, an interpretation clause, and must have been intended by the legislature to be taken in to the account in construing the expression ‘person’ as it occurs in Sec.2(1)d. While defining ‘person’ in Sec.2(1)m, the Legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, categories (i), (ii) and (iv) being unincorporated and category (iii) corporate, of its intention to include body corporate as well as body unincorporated. The definition of ‘person’ in Sec.2(1)m is inclusive and not exhaustive. It does not appear to us to admit of any doubt that company is a person within the meaning of Sec.2(1)d read with Sec.2(1)m and we hold accordingly. Re: contention – (ii) and (iii)

 

11. Further in the case of DTDC courier and cargo & M/s. Sri.Sourabha Enterprise v. M/s.Caterpillar India Pvt. ltd., Hon’ble National Commission, order dtd.12.05.14, it is held that, the company registered under the Companies Act is comes within the definition of Sec.2(1)d of CP Act.

 

12. Further in the case of The Chairman and M.D., National Aviation co. of India ltd., v. Sujogya Kumar Mishra and Ors., Hon'ble Chandigarh State Commission, order dtd.07.06.11, wherein it is specifically held at para 9 which reads thus:

9. …..It is the honesty of the Complainant/respondent No.1 that at the very outset he has declared that it was an official tour and the journey was sponsored by C.G. State Electricity Regulatory Commission, so irrespective of the fact that the payment has been made by the office, the Complainant/respondent no.1 was the person who was to travel by Air though the airlines of the appellant company and was to avail services provided by the Airlines in connection with the journey. He was the passenger who performed that journey and ticket was purchased for his journey. Baggages, regarding which the complaint has been made, were his own property and were taken by him through the journey for his comfort. As per Sec.2(1)d of the CP Act, clause (ii) everyone who ‘hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised….” Therefore, this definition not only includes the person who hires services, but it also includes the person who avails services and also those persons who are beneficiary of such services, other than the person who hires or avails of services for consideration. The Complainant/respondent no.1 herein, is definitely a person who availed services of the airlines for which fare was paid by C.G.State Electricity Regulatory Commission, for his benefit and therefore for the purpose of the provisions of the Act, he comes in the category of consumer and the complaint filed by him is very well maintainable, in view of the provision of Sec.2(1)d(ii) of the Act.

 

13. Further in the decision of Hon'ble West Bengal State Commission, order dtd.23.09.10 in the case of Thai airways international v. Anil Kumar Parolia, wherein the relevant para reads thus:

The definition of ‘consumer’ as enumerated therein cannot have any inclusive effect of a person who has availed of any service for a consideration for the purpose of his own utilization even though such person carries on his profession as business and/or for the purpose of carrying on his such profession he has availed of the service for consideration so long such service has not been dealt with for commercial purpose. For clear understating we may take the following example. If a travel agent and or a tour operator buys an air ticket for his client and such client being a business man avails of the service of the airline for going to a particular destination either for his business purpose or for commercial transaction then such client would very much be a consumer in respect of the airlines through which he travelled even though for his business and/or commercial purpose but the travel agent and/or the tour operator availed of the service of the airlines for dealing with such service for its commercial and/or business purposes. The client of the tour operator and/or the travel agent who availed the service of the airlines is very much a consumer in relation to the airlines even though he undertook such journey for his personal business and/or commercial purposes. Because he is the consumer who has availed of the service of the airlines. His availing of service from the airlines be it as a common man or as a business man does not make any difference. Because in both such cases he is availing of such service from the airlines for his own use and it is immaterial what is the ultimate purpose for which such service has been availed of by him. This is more so, because the airlines do not require any declaration by the passenger for the very purposes for which the journey is being undertaken.

We are, therefore, of the view that although the Complainant travelled to Beijing through the carrier of the appellant/airlines for his business purpose as stated in the complaint, still then he is very much a consumer so far as the service availed of by him from the appellant/airlines for the purpose of reaching to the destination of Beijing.   

 

14. Ongoing through the decisions cited by the learned counsel for the Complainant at sl.no.1 & 2 are of the Hon’ble Supreme Court which are binding nature under the article 141 of the Constitution. With regard to the decisions cited by the learned counsel for the Op are of Hon’ble National Commission, hence, cannot be taken in to consideration in the light of the decisions of the Hon’ble Supreme Court in AIR 2009 SC 1905 in the case of Karnataka Power Transmission Corpn., and Anr., vs. Ashok Iron Works Pvt. ltd., and in AIR 1999 SC 2508 in the case of Bharathi Knitting co. v. DHL Worldwide Express courier division of airfreight ltd., In this view of the matter, we come to the conclusion that, Complainant no.1 as well as Complainant no.2 comes within the purview of the Sec.2(1)d of CP Act. Hence the application filed by Op under IA.No.I to dismiss the complaint filed by the Complainant has no legs to stand and liable to be dismissed. Accordingly we answered the point no.1 in the negative.

 

  15. Point no.2: We have briefly stated the contents of the complaint as well as the version filed by Op. In the instant case, the undisputed facts which reveals from the pleadings of the parties goes to show that, Op did not meticulously denied the contents of para 2 to 12 of the complaint. The facts of real controversy between the parties to the lis starts from para 13 of the complaint. Complainant no.2 has specifically stated that, on the date of travel from Bengaluru to Washington i.e. 08.10.13, the flight of Op from Bengaluru to Abu Dhabi did not depart at the scheduled time of departure i.e. 4.40am. The Op personnel initially informed the Complainant no.2 that the flight is delayed and would depart Bengaluru by 5.50am. However, the flight did not depart at the rescheduled time at 5.50am. Repeated rescheduling of the flight was announced by the Op personnel. Finally, the Complainant no.2 was informed that the flight originally scheduled to depart at 4.40am would depart from Bengaluru only at 7.30am. The delay in departure of the said flight is not denied by op. The Complainant no.2 realized that it would be a wasteful exercise for him to take the flight rescheduled to depart at 7.30 am as he would not be able to reach Abu Dhabi in time to undergo the very intense security checks and board the connecting flight to Washington from Abu Dhabi, scheduled to depart from Abu Dhabi at 10am. on the same day. In this context, he informed the personnel of Op that it was imperative that he reached Washington in time to attend his meeting. He has also apprised the Op personnel of his unwillingness to travel abroad and delayed flight and expressed his intention to take a flight on an alternative airline out of either Bengaluru or Mumbai. In this context, personnel of Op assured the Complainant no.2 that the connecting flight to Washington from Abu Dhabi would wait for the Complainant no.2, since, there were several other passengers on the Bengaluru-Abu Dhabi flight who needed to board the connecting flight to Washington from Abu Dhabi, the flight from Abu Dhabi to Washington would wait to take on board the passengers arriving on the Bengaluru flight and would only then depart to Washington. This assurance appears to be an eye wash to the Complainant no.2 as the connecting flight was already left Abu Dhabi on its schedule time, hence he could not in a position to board the said flight from Abu Dhabi to Washington. On being questioned, the Op personnel told the Complainant that the connecting flight at the most wait till 10 to 20 minutes from the schedule of its departure, therefore,  it will take off. Hence, the flight has departed from Abu Dhabi to Washington in time. Further the personnel of Op told the Complainant that, they will have to make the arrangement in the alternative flight which could materialize the Complainant no.2 as he is not able to attend the meeting which was scheduled to be commenced at Washington which can be seen ongoing through the contents of Ex-A3 which is the email dtd.03.10.13 from one Sri.Ashok Dang to the Complainant no.2, reads thus:

Dear Mr. Rao,

This is with reference to our discussion during IDMA-PAC regarding your visit to Rockville and meeting with Ms.Barbara Hubert and Mr.Rich Wailes, your meeting is confirmed as under:

When: Thursday, 10.10.13 8.00am. – 10.00am (GMT-05:00) Eastern Time (US & Canada).

Where: A412 Conference Room

Please ask for Ms.Barbara Hubert on arrival

 

16. When he is not able to reach the conference hall at Washington well within time, he returned to Bengaluru on the same day. The reasons assigned by the Op are that, the flight of Op from Bengaluru to Abu Dhabi on 08.10.13 was delayed due to late arrival of the incoming flight to Bengaluru which was due to ATC control. This was clearly beyond the control of this Op. Thus the departure time of the flight from Bengaluru to Abu Dhabi was rescheduled. In this context, the Op placed reliance on the circular marked as Ex-B1 dtd.06.08.10 issued by The Director General of Civil Aviation, New Delhi which came in to effect from 15.08.10. It has also taken another contention that the operating airline would not have the obligation to pay compensation in cases where the cancellations and delays have been caused by an events of force majeure i.e. extraordinary circumstances beyond the control of the airline, the impact of which lead to the Civil Aviation Requirements Section 3 Series ‘M’ part IV 06.08.10, cancellation/delay of flights, 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. Additionally, airlines would also not be liable to pay any compensation in respect of cancellations and delays clearly attributable to Air Traffic Control (ATC) meteorological conditions, security risks, or any other causes that are beyond the control of the airline but which affect their ability to operate flights on schedule. Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft or several aircraft on a particular day, gives rise to a long delay or delays an overnight delay or the cancellation of one or more flights by that aircraft and which could not be avoided even though the airline concerned had taken all reasonable measures to avoid or overcome of the impact of the relevant factor and therefore the delays or cancellations. This CAR is issued under the provisions of Rule 133 A of the Aircraft Rules, 1937 and with the approval of Ministry of Civil Aviation. We have placed reliance on the said circular. For our purpose the relevant provisions are clause no.1.4, 1.5 & 1.6 so also 3.4.4 and 3.5.3 which reads thus:

1.4: The operating airline would not have the obligation to pay compensation in cases where the cancellations and delays have been caused by an events of force majeure i.e. extraordinary circumstances beyond the control of the airline, the impact of which lead to the cancellation/delay of flights, 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.

1.5: Additionally, airlines would also not be liable to pay any compensation in respect of cancellations and delays clearly attributable to Air Traffic Control (ATC) meteorological conditions, security risks, or any other causes that are beyond the control of the airline but which affect their ability to operate flights on schedule. Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft or several aircraft on a particular day, gives rise to a long delay or delays an overnight delay or the cancellation of one or more flights by that aircraft and which could not be avoided even though the airline concerned had taken all reasonable measures to avoid or overcome of the impact of the relevant factor and therefore the delays or cancellations.

1.6: This CAR is issued under the provisions of Rule 133 A of the Aircraft Rules, 1937 and with the approval of Ministry of Civil Aviation for information, guidance and compliance of all concerned.

3.4.4: The burden of proof concerning the questions as to whether and when the passenger has been informed of the delay of the flight shall rest with the operating airline.

3.5.3: Additionally, the passenger 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.

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.

 

17. With regard to the clause 1.4 is concerned, the operating airline would not have the obligation to pay compensation in cases where the cancellations and delays have been caused by an events of force majeure i.e. extraordinary circumstances beyond the control of the airline and also due to political instability, natural disaster, civil war, insurrection or riot, flood, strikes and labour disputes causing cessation. These events are not applicable to the present case on hand. The Only contention taken by the Op is that, the flight from Bengaluru to Abu Dhabi on 08.10.13 was delayed due to late arrival of the incoming flight due to ATC control. This fact is not specifically proved by Op by producing relevant documents. With regard to the clause 1.5 is concerned, which is also not applicable, since none of the extra ordinary circumstances are proved by Op. According to us, the relevant provisions applicable to this case with regard to the delay in arrival of the flight is at clause 3.4.4, wherein the burden of proof concerning the questions as to whether when the passenger has been informed of the delay of the flight shall rest with the operating airline. If the Op being diligent, they would have to inform well in advance as the flight from Abu Dhabi to Bengaluru was delayed. If this fact was made known to the Complainant, certainly he would have cancel the itinerary. In that event, the refund of the flight charges with other incidental charges are to be easily recoverable. But when the Complainant landed in the Abu Dhabi airport, by that time, the connecting flight was left Abu Dhabi airport towards Washington. In this context, one of the very important email is found at Ex-A4 inkpage no.29 sent by JVI Travel to Corporate India i.e. Op office dtd.23.10.13 which reads thus:

Sub: Missed connection

Kind Attn: Ms.Savitri Gupta/Etihad Personnel,

This to bring to your kind notice that Rao/Suryanarayana B R Mr.(M.D) LGC Promochem India a very esteemed client was to travel to Washington (IAD) on 08.10.13 ex Bengaluru and back, in business class, subsequently the flight EY 287 was considerably delayed from Benglauru to Abu Dhabi leaving at 0730hrs, 02 hrs 50 mins later than the scheduled departure of 0440hrs.

Mr.Rao/Suryanarayana was hesitant to board the flight till 0710 hrs, he had not checked in the luggage till that time, as technically speaking he was unsure about the connection to EY 131 AUH to IAD on 08.10.13, but he was literally assured that the EY 131 fit to IAD would not take off till the EY 287 fit arrived in AUH, and the relevant passengers connected.

Mr.Rao/Suryanarayana argued with the airport manager Etihad airways that the connection would not be possible, but was still implored upon to board the flight, assuring the AUH-IAD connection.

When the fit arrived at AUH from Bengaluru, the AUH-IAD EY131 had already taken off, this infuriated Mr.Rao/Suryanarayana a lot that after assurances from Bengaluru that the pax ex Bengaluru would definitely be connected, he was left stranded at Bengaluru missing very important business meetings on 08.10.13 evening at IAD.

The AUH duty manager of Etihad airways was shellshocked that how the Indian counterpart had assured of the onward connection to IAD inspite of 3 hrs delay, also Mr.Rao had to undergo a lot of physical and mental trauma and ordeal at AUH apt and finally returned the same evening on EY 286.

In view of the above unfortunate incident, we request you to thoroughly investigate the matter at your end revert asap to Mr.BRS Rao and us (ticket issuing agent) IATA no.14344654. We may also end up losing a very high profile client, he will not accept anything less that the full refund of the ticket.

 

18. Further another email dtd.28.11.13 which is part of Ex-A4 found at inkpage 32 sent by Op to its travel agent JVI, the relevant portion reads thus:

Dear Mr.Syed,

Thank you for writing to us on behalf of Mr.Rao

We make every effort to respond to our guests in a timely manner. However, on this occasion, I understand that a response has been pending for some time, for which I apologize.

I regret to rea that due to the disruption of the guest flight from Bengaluru to Abu Dhabi this sadly caused her to misconnect with her flight to Washington.

We apologize for the disruption that the delay may have caused the guest as our guests certainly have every right to expect punctuality from us and I can assure you that under normal circumstances, we do everything we can to maintain good performance. Unfortunately due to operational reasons flight EY 287 on 08.10.13 departed from Bengaluru with a recorded delay of 2 hours and 51 minutes.

 

19. If these facts are read with to the clause no.3.5.3 of the said circular marked as Ex-B1, one thing is clear that additionally, the passenger 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.

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.

 

20. In this context, we come to the conclusion that, on the assurance of Op personnel, the Complainant no.2 has boarded the flight from Bengaluru to Abu Dhabi to get connecting flight from Abu dhabi to Washington, but the things went wrong as by that time, the flight from Abu Dhabi to Washington was already left as per the schedule time. This itself is deficiency of service on the part of Op. But the Op has given an option to Complainant no.2, recognizing that they fell short of Mr.Rao expectations on this occasion by the delay, and as a sincere gesture of goodwill, they would like to offer 10,000 Etihad Guest miles which can be utilized towards future Etihad flights and/or any of the 6,000 + rewards available on the Etihad Guest Reward shop. This offer appears to be not accepted by the Complainant no.2, as he was returned to Bengaluru on the same day night. In this view of the matter, we come to the conclusion that, as the connecting flight was missed to the Complainant in view of false assurance given by Op personnel at Bengaluru and even if the alternative flight would arrange by the Op, which would not materialize to the Complainant as the meeting was scheduled on Thursday, 10.10.13 8.00am. – 10.00am (GMT-05:00) Eastern Time (US & Canada) at A412 Conference Room. With regard to the financial loss is concerned, Complainant no.2 has produced the cogent evidence. Hence, this forum has no other go except to order for the refund of the ticket amount paid by the Complainants from Bengaluru-Abu Dhabi-Washington-Abu Dhabi-Bengaluru. But, Op informed to the Complainant no.2 that, they would keep the Abu Dhabi-Washington-Abu Dhabi sector ticket open, so that a fresh ticket could be linked to it in future. This issue is not before us. Only issue that is to be considered is: relief of the Complainant.  With regard to the refund of the ticket amount of Rs.2,27,314/- as per Invoice marked as Ex-A2 is concerned, we are of the opinion that, the same is to be refundable by Op to the Complainants. With regard to the nominal damages towards loss of business and goodwill is concerned, the Complainants have sought for an amount of Rs.10 lakhs. In this context, there are no sufficient materials on record to come to the conclusion. Hence this claim is rejected. With regard to the suffering of mental pain, agony, loss of reputation and mental trauma are concerned, an amount of Rs.5 lakhs has been claimed by Complainants. In this context, Complainants have not produced any cogent evidence as to how they are entitled for an amount of Rs.5 lakhs. But any how only guess work is to be carried out for assessing the compensation. Looking to the available materials on record, an amount of Rs.50,000/- is ordered to pay by way of compensation in respect of mental pain, agony, loss of reputation and mental trauma, the ends of justice would met sufficiently. We are also of the opinion that, if an amount of R.10,000/- is fixed being cost of litigation, the same is substantial part of amount. Accordingly we answered the point no.2 in the affirmative.

 

21. Point no.4: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant no.1 & 2 is allowed in part.

 

          2. Op is directed to refund the sum of Rs.2,27,314/- to the Complainant no.2, who is the Managing Director of Complainant no.1 as per the Invoice marked as Ex-A2 paid by them towards purchase of tickets for travel from Bengaluru to Washington and back between 08.10.2013 and 10.10.2013 within six weeks from the date of receipt of this order, failing which, the said amount carries interest at the rate of 6% p.a. from the date of ticket booking to till the date of realization.

 

          3. Op is also directed to pay compensation of Rs.50,000/- and cost of litigation of Rs.10,000/- to the Complainants.

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 11^th May 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.B.R.S.Rao, who being the complainant no.2 and Managing Director of Complainant no.1 was examined. 

 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Certification of registration
Ex-A2	Travel tickets issued to Complainants
Ex-A3 & A4	Emails
Ex-A5	Montreal convention 1999
Ex-A6	Letter dtd.04.11.09
Ex-A7	SDR valuation

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Smt.Neerja Bhatia, who being the General Manager of Op was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1

Civil Aviation requirements section 3 – Air transport series ‘M’ part IV dtd.06.08.10 – Circular

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT