Per Mrs. M. Shreesha, Member

          Aggrieved by the order dated 30.01.2017  in CC No. 288 of 2014 passed by the State Consumer Disputes Redressal Commission, West Bengal (for short the “State Commission”), the Opposite Parties (hereinafter referred to as “Air India”) preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”).  By the impugned order, the State Commission has allowed the Complaint in part directing Air India to pay a sum of ₹15,00,000/- to the Complainants within 30 days together with costs of ₹10,000/- with default interest of 8% p.a. 

2.       Briefly stated, the facts material to the case are that the Complainants purchased round-trip tickets to travel to USA by Air India at a consolidated price of ₹1,45,396/-.  The travel particulars with sitting options were given by the Complainants and agreed upon by Air India and E-Ticket Itinerary Receipt was issued.  It is averred that seat No. 10-E and 10-F in Flight No. AI23 for the journey from Kolkata Airport to Delhi and seats No. 20H and 20J in Flight No.        AI 127 for the journey from Delhi to Chicago were allotted to them. Those seats were agreed for by the Complainants only to avoid discomfort and inconvenience due to turbulence.  In addition a request was made for providing a wheel-chair to the second Complainant which was also agreed upon.  It is stated that on 07.05.2014 after reaching the check-in counter at Kolkata Airport, when the first Complainant requested the concerned staff to issue the Boarding Passes and accept the check-in bags, his request was turned down on the plea that the said counter was meant for Dhaka flight. When he pointed out that no such board was displayed in the counter, an argument had followed between him and the concerned check-in staff.  It is averred that although the Boarding Passes were issued from the said counter, the seat particulars were changed from 10-F and 10-E to 12-A and 12-B respectively in Flight No. AI 23 and seats No. 52J and 52K were allotted in place of seats No. 20H and 20K in AI 127.  As a result of these changes, they were placed in the last row close to the tail end of the flight which had made their life hell as they had to struggle hard to bear with the excessive jerking.  It was also pleaded that no wheel chair was provided to the Second Complainant at Delhi Airport which caused extreme and unbearable suffering to her.  Both the Complainants had fallen sick and had to suspend their work in the United States of America.  An e-mail was addressed to Air India on 05.06.2014 by them seeking compensation for which a reply was received on 29.06.2014 tendering an apology, but refusing to pay any compensation.  Hence this Complaint seeking the following reliefs:-

1.           Compensation of ₹31,45,306/- along with damage of ₹50,00,000/-

2.           Interest @ 18% on the amount of compensation and damages/- 

3. Litigation costs to the tune of ₹15,000/-. And

4. Any other relief as would be deemed fit and proper for the ends of justice.

3.       Air  India filed their Written Version denying all the allegations made in the Complaint. It was averred that the wheel-chair could not be arranged for the Second Complainant at Delhi Airport due to paucity of the same.  The changes in respect of the sitting arrangements was on account of a rare system error.  It was denied that there was excessive jerking movements as no other passengers except these two Complainants had complained of the same.  It was denied for want of knowledge that the Complainants had to cancel all social and religious functions because they were confined to the bed for a month. 

4.       The State Commission while allowing the Complaint in part observed as follows:-

“First seating arrangement of the Complainants was reshuffled.  It was done despite the fact that confirmed seat nos. were allotted to the Complainants at the time of booking.  Notwithstanding the OPs have attributed it to technical error, one wonders, when the Complainants pointed out the anomaly to an airline official, who introduced himself as Mr. Sarrabjit Singh, Load Master,  why such so called system error was not manually rectified; after all, it is nobody’s case that such technical error was beyond reconciliation. 

It appears from the materials on record that the Complainants requested for placing them in the middle of the aircraft and accordingly, suitable seats were allotted to them.  Once request for booking a particular seat is made and the airline concerned confirms such booking, it cannot arbitrarily reshuffle the seating arrangement, particularly if such arrangement cause any discomfort to the passenger.  If we put the sequence of events in proper perspective that ensued following the arguments in between the Complainant No. 1 and the staff of the OP airline at the check-in-counter of the airport, the possibility of acrimony on the part of the concerned staff of the OP airline cannot be discarded as a remote possibility.

Also, we find that despite confirming in black and white, the OPs did not make any arrangement for wheelchair for the Complainant No. 2 at the Delhi airport compelling her to walk a long distance to board the international flight.  Let us not forget that she did not seek this privilege for her pleasure, but circumstances forced her to seek this patronage from the OP airline.  We find, despite written assurance, the OP airline backed out at the last moment leaving the Complainants in the lurch to fend for themselves.  This is unpardonable.

It appears, although the OP airline tendered apology in a mechanical manner for the harassment of the Complainants, evidently it did not cause any enquiry in right earnest to fix up responsibility.  Little wonder, therefore, that no explanation was sought for from the concerned officials, let alone rolling any head; rather palpably a concerted effort was made to cover up everything.

We find, Manager (VC) in her email dated 29-06-2014 stated that inputs/reports were requisitioned from concerned departments.  However, for some obscure reasons, OPs preferred to keep the same under the wrap. In our considered opinion, therefore, the OP airline cannot escape due liability for the harassment, discomfiture, mental as well as physical stress  and agony of the Complainants.

While we proceed to the arduous task of quantifying appropriate compensation, we find that Complainants have not brought on record any supporting document to establish their ailment for a month in view of such harrowing experience.  Similarly, no tangible proof is forthcoming before us that Complainants had to incur heavy financial loss on account of cancellation of prefixed social and religious functions and purchasing air tickets for their guests. 

Although it is argued by the Complainants that since the OPs in their reply letter dated 29-06-2014 did not dispute the allegation of the Complainants in this regard, save and except one formal denial of payment, as such, they did not bring documents against online payment to the agencies.  We afraid, such a feeble alibi hardly makes any sense as it is the settled position of law that the burden of proof rests upon the claimant.  Given that, incurring of such payment was made by none other than the Complainants themselves, it was obligatory on their part to voluntarily place the same for our evaluation.  Without having a glance through relevant documents, we afraid, we cannot accord any relief on this count.”

5.       Learned Counsel appearing for Air India vehemently contended that a wheel-chair was not provided only from the domestic airport to the international airport as they were less wheel-chairs compared to the number of requests.  He further contended that the E-ticket itinerary shows that the “request” for reservation of the said seats was made but no “confirmation” was accorded to the Complainants and that the Commission has erred in giving a finding that though the seats were confirmed they were unilaterally changed. He submitted that the advance seat reservation (ASR) request are entirely technical and are co-dependent on technical soundness of the system and system failures may cause reshuffling of the seats and that the seat booking or blocking does not ensure that the specific seats can always be blocked as per the demands of the passengers.  It was denied that any such assurance was made in the E-ticket itinerary receipt of the Complainant.  He strenuously argued that there was no evidence shown by the Complainants that they faced life-threatening turbulence/excessive jerking during the journey; that they had undertaken the journey to USA to perform some social and religious functions; that they fell sick for a period of one month in USA; he vehemently denied that though sufficient wheel-chairs were available at the Delhi Airport the same was not made available to him only with the intention of causing inconvenience to them.  He relied on the guidelines issued by the Office of the Directorate-General of Civil Aviation, CIVIL AVIATION REQUIREMENTS SECTION 3 – AIR TRANSPORT, SERIES ‘M’ PART I ISSUE II, DATED 1^st May 2008 on the subject of Carriage by Air Persons with Disability and/or Persons with Reduced Mobility.  The said Guidelines are re-produced as hereunder:-

“4.1.5 It shall be the responsibility of the persons with disability or reduced mobility to notify their needs at least 48 hours before the scheduled time of departure so that the airline makes necessary arrangements, which may include but not limited to the following:-

a) Nature and level of special assistance required while embarking, disembarking and during in-flight;

b) Mobility equipment and disability aids that need to be carried by the airline either in cabin and/or aircraft hold;’

c) Requirement of escort.

    Even though special request for wheelchair was made at the time of the booking it is always advisable for passengers to notify the airlines 48 hours prior to their travel time to ensure for themselves the best experience without facing difficulties which the respondents have failed to do so.”

(Emphasis supplied)

6.       The first Complainant was present in person and strenuously argued that they were registered frequent fliers; that the tickets were booked in advance and specific instructions were given in respect of provision of wheel-chair; it was agreed by the Airline that wheel-chair would be provided by them at the Domestic and at the International Airports; he contended that it was only because of the argument that they had with the ground staff at Kolkata Airport where the Boarding Passes were issued that the seats were unilaterally changed both for the Domestic Sector as well as for the International Sector. He further submitted that his wife had to go through immense pain because at the time of landing at Delhi Airport there was no wheel-chair and his wife was compelled to walk for a considerable distance to board the international flight.  Seats given to them in AI 127  were at the tail end of the flight and it was only on account of the inconvenience caused that both of them had fallen sick.  He submitted that the amount sought for on account of the mental agony suffered cannot be construed to be excessive.

7.       The purchase of tickets, the date of journey, the amount paid for the tickets are not in dispute.  We first address ourselves to the contention of the Complainants that the seats were changed both in the domestic as well as in the international Flight despite their having booked and requested for particular seats which was confirmed in their itinerary.  The contention of the Learned Counsel of Air India that it was only because of system failure that the seat numbers had changed and also that the pre-allotted seats does not mean that the seat numbers are actually confirmed is unsustainable as when particular seats are allotted to a passenger, the passenger goes to the Airport with a notion that he would be travelling in those particular seats.  Even for argument’s sake we take into consideration the submission of the Counsel that there was a system error when the passengers had shown the pre-allotted seats and the E-ticket, personnel at the check-in counter could have rectified the error and issued the Boarding Passes.  This error had happened twice from the  Kolkata Airport to Delhi and then again from Delhi to Chicago.  We find force in the contention of the Complainants that it was a long flight from Delhi to Chicago and allotment of seats does make a difference in respect of comfort and convenience.  Additionally, Air India did not file the Affidavit of the personnel who were handling the check-in of the Complainants to rebut the allegations made by the Complainants.  Be that as it may, except for contending that there was a system failure there is no explanation put forth by Air India not to have considered the request of the Complainants to give them the pre-allotted seats as given in their confirmed E-ticket when the same was shown at the counter.  There is no plausible explanation or substantial reasons given by Air India as to why the seats were changed particularly in the international flight.  The seats were changed from 20H and 20K to 52J and 52K which were in the rear end. It is also pertinent to mention that the seat numbers 10E and 10F, which were initially allotted to the Complainants from Kolkata Airport to Delhi were seats in the No Smoking Area and even the confirmed seats from Delhi to Chicago flight were in the No Smoking Area. Vide an Order dated 14.11.2017 this Commission had directed Air India to clarify as to whether certain specific seats had been allotted to the Complainant  for the flight from Delhi to Chicago which were later changed to the seats at the rear portion of the Aircraft and was also asked to submit technical reasons, if any, to indicate if the passengers sitting at the rear of the Aircraft were subject to certain health risks.  In compliance of the directions given by this Commission Air India filed an affidavit stating as follows:-

“In this regard, it is humbly submitted that two seats, seat nos. 20H and 20J were “soft protected” but not allocated to the Complainants on flight No. AI 127 travelling from Delhi to Chicago.  It is further submitted that at the time of boarding at Delhi, the said seats 20H and 20J could not be allotted to the Complainants and the seats got changed at system level i.e. without manual intervention and consequently seat nos. 52J and 52K were allotted to them.  It would be pertinent at this juncture to add that the seats 20H and 20J were only “soft protected” and not allotted when the Complainants requested for the said seats at the time of purchasing the tickets.” 

8.       In the same affidavit it was also submitted that the document of World Heath Organization on International Travel and Health does not contain any advisory for avoiding seats in the rear portion of the Aircraft.  Even for travellers with medical conditions or special needs there is no health risk associated while sitting at the rear end of the Aircraft.  If we take into consideration the argument of the Learned Counsel for Air India that seat Nos. 20H and 20G were only softly protected, the same ought to have been clearly mentioned in the ticket which were issued to the Complainants.  It is significant to mention that the itinerary does not anywhere say ‘softly protected’ but instead gives the seat numbers as ‘confirmed’.  The Complainants are frequent fliers and are aware of the procedure which goes into seat reservations.  There is no such terminology given anywhere either in the ticket or in the Itinerary Receipt. 

9.       We hold Air India deficient in service in pre-allotting the seats and then changing the same without any plausible explanation, both in the domestic as well as in the international sector and thereby causing inconvenience to the Complainants. 

10.     Now we address ourselves to the second contention of the Complainants that no wheel-chair was provided to them at Delhi Airport despite request made by them for the same in the ticket.  A brief perusal of the ticket shows confirmation of a wheel-chair.  It is interesting to note that the Complainants were frequent fliers.  The contention of the Learned Counsel appearing for Air India that as per the Guidelines given by the Directorate-General of Civil Aviation on 01/05/2008 on the subject of carriage by air, persons with disability and/or persons with reduced mobility, it will be the responsibility of the persons with disability or reduced mobility to inform their needs at least 48 hours before the scheduled time for departure so that the Airlines makes necessary arrangements, is untenable in the instant case, in the light of the fact that the date of journey was 07.05.2014 and the ticket was issued on 04.03.2014 which is two months in advance and, therefore, it is all the more significant that necessary instructions ought to have been given to the ground staff for provision of wheel-chair.  The confirmed itinerary tickets also had the wheel-chair request ‘confirmed’ on it.  The argument of the Counsel for Air India that there were no sufficient wheel-chairs at Delhi is unacceptable as request could also be made to the other Airlines operating in the same Airport and also with the Airport Authorities themselves who also have the provision for keeping the wheel-chairs.  On a pointed query from the Bench as to how many passengers were travelling who had requested for wheel-chairs and how many wheel-chairs were actually provided, there was no such information forthcoming from Air India.  Be that as it may, it is a matter of common knowledge that flight No.127 of Air India lands at Terminal 3 of Delhi Air Port and distance from the Domestic to International area is extremely long and tedious and not providing a wheel-chair to a senior citizen who is physically challenged and could not walk, constitutes an act of deficiency of service.  At the cost of repetition, when Air India did not adhere to the Guidelines issued by DGCA, they are bound to pay the compensation for the mental agony and inconvenience caused to the senior citizens.  However, we are of the considered view that the compensation of ₹15,00,000/- awarded by the State Commission is excessive as there is no documentary evidence to establish that the Complainants had been bed-ridden for a month and could not attend any religious or social functions only on account of the turbulence in the Aircraft, mental agony suffered on account of change in seats or the physical harassment on account of non-availability of wheel-chair at Delhi Airport.  Hence, we of the considered view that for act of the deficiency of service on the part of the Air India the Complainants are entitled to compensation of ₹5,00,000/-together with interest at the rate of 8% per annum from the date of filing of the Complaint  till the date of payment and costs of ₹25,000/-.       

11.     In the result, this Appeal stands disposed of with the aforenoted directions.

12.     Vide order dated 29.03.2017, this Commission while ordering stay of the impugned order directed Air India to deposit 50% of the decretal amount with the State Commission. Needless to add, the amount of ₹5,25,000/- along with accrued interest thereon shall stand released to the Complainant and the balance amount along with interest accrued, shall be refunded to Air India. However, if the amount deposited by the Appellant before the State Commission along with accrued interest if any and paid/released to the Complainant is less than the total amount payable to the Complainant in that case the Appellant shall pay the balance amount within four weeks from today. The statutory amount deposited in this First Appeal stands transferred to Consumer Legal Aid Account of this Commission.