DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Sumit Dhawan s/o Sh.K.L.Dhawan, resident of House No.3679, Sector 46-C, Chandigarh.

…..Complainant

                                      V E R S U S

1.       Kingfisher Air Lines, N-42, Outer Circle Caunaught Place Opposite Statesman House, Delhi through its Managing Director.

2.       Manager, Kingfisher Air Lines, SCO No.19, 2^nd floor, Sector 17-E, Chandigarh.

3.       Manager, Kingfisher Air Lines, Airport Premises, Chandigarh.

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

Argued by: Sh.Shiv Kumar, Counsel for the complainant.

                     Sh.Y.S.Dhillon, Counsel for OPs No.1 and 2.

                     OP No.3 exparte.

PER P.L.AHUJA, PRESIDENT

1.                Sh.Sumit Dhawan, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Kingfisher Air Lines & Ors. - Opposite Parties (hereinafter called the OPs). The allegations of the complainant in brief are as under :-

                   The complainant is an NRI and residing at New York (USA). The complainant came to visit his parents at Chandigarh on 29.6.2012 and booked his returned journey ticket on Virgen Atlantic Airlines from New York to Delhi on 28.6.2012 and back from Delhi to New York on 14.7.2012 at 1.15 PM. The copies of the booking reservation and details are annexed as Annexure C-1 and C-2. The complainant booked the Kingfisher flight from Delhi to Chandigarh on 29.6.2012 and the return flight from Chandigarh to Delhi on 14.7.2012 at 9.30 AM. The fare was $115.25 equivalent to Rs.6338/-. The copy of reservation ticket is Annexure C-3. On 14.7.2012 the complainant reached Chandigarh Airport at about 8.00 AM to board the flight from Chandigarh to Delhi, which was scheduled to take off at 9.30 AM. The complainant had to board the Virgen Atlantic Airlines from Delhi to New York, which was scheduled to fly at 1.15 PM on 14.7.2012 from Delhi. However, on arrival at Chandigarh Airport, the complainant was shocked to know that the flight had been cancelled due to operational reasons. The complainant came to know that the pilots of the OPs had gone on strike, therefore, the flight had been cancelled.  This fact was also reported in Hindustan Times (ht live) dated 15.7.2012, copy of which is annexed as Annexure C-4. The complainant could not reach Delhi in time to board his flight to New York as there was no other flight available immediately at Chandigarh Airport. The complainant got the flight from Delhi to New York cancelled. The complainant then got booked another flight on 17.7.2012, which was to land at New Jersey Airport, which is at a distance of about 60 Kms from New York. In this process, the complainant had to spent $287.40 equivalent to Rs.15,807/- and the copy of the ticket is Annexure C-5. The complainant had to hire a taxi from New Jersey to New York costing $105 equivalent to Rs.5775/-. The receipt of taxi is Annexure C-6. The complainant had to hire taxi on 17.7.2012 from Chandigarh to Delhi to catch the flight and paid Rs.3000/- as taxi fare. The copy of the receipt of fare is Annexure C-7. The complainant is employed at New York in a Security Agency Company and he could not attend his office for 3 days and his absence was treated as without pay and he suffered a loss of Rs.33,000/-. The complainant has made a prayer for a direction to the OPs to make payment of an amount of Rs.63,920/- suffered as loss, Rs.50,000/- as compensation and Rs.11,000/- as litigation expenses.

2.                OP No.3 did not appear despite service and he was proceeded exparte on 5.10.2012.

3.                OPs No.1 and 2 have pleaded in their reply that the registered office of Kingfisher Airlines is situated at Bangalore and no part of cause of action arose within the territorial jurisdiction of this Forum.  It has been pleaded that Annexure C-1 and C-2 are not generated by the OPs, therefore, the same are denied. It has been averred that OPs were not informed about the complainant’s travel plan from New York to Delhi and Delhi to New York. It has been denied that Annexure C-3 is a reservation ticket. On the other hand, the same is only confirmation receipt issued by the travel agency to the complainant. It has been averred that the complainant did not inform the OPs about his onward journey to New York from Delhi at 1.15 PM at the time of booking of the tickets. It has been admitted that the flight No.IT 2636 operating between Chandigarh to Delhi on 14.7.2012 was cancelled due to operational reasons for shortage of crew as the pilots of the OPs had resorted to a strike. It has been further stated that the flight disruptions in the aviation industry are not uncommon and the same are unavoidable. It has been further stated that the OPs are not liable in any manner whatsoever and no compensation is payable if the cancellation and delay are caused by some events beyond the control of airline. It has been further stated that even as per Section – 3 of Civil Aviation Requirements, the airline is not bound to make payment of compensation in case of strikes and labour disputes causing cessation. The copy of the Civil Aviation Requirements dated 6.8.2010 is Annexure RW-III. It has been further stated that the intended strike was learnt by OP No.1 on 13.7.2012, due to which, it was forced to cancel the said flight. The said fact of cancellation was informed to all the passengers booked on the said flight on 13.7.2012 itself but the same could not be intimated to the complainant as the direct contact number of the complainant was not provided to OP No.1 at the time of booking of the ticket.

4.                The parties led evidence in support of their contentions.

5.                We have appraised the entire evidence and heard the arguments addressed by the learned Counsel for the complainant and the learned Counsel for OPs No.1 & 2.

6.                As far as the question of jurisdiction of this Forum is concerned, it is pertinent to note that the complainant had to take a flight of Kingfisher Airlines at 9.30 AM on 14.7.2012 from Chandigarh to Delhi, which was cancelled on account of the strike of the pilots of the OPs. Evidently a part of cause of action arose to the complainant at Chandigarh, therefore, we feel that this Forum at Chandigarh has got territorial jurisdiction to try the complaint.

7.                Adverting to the other issues, the affidavit of the complainant coupled with the booking reservation – Annexure C-1, e-ticket and ticketing confirmation – Annexures C-2 and C-3 show that the complainant had traveled from New York to Delhi by Virgen Atlantic Airlines on 28.6.2012 and then he came on Kingfisher Airlines from Delhi to Chandigarh on 29.6.2012. The complainant had to board the flight for USA at 1.15 PM on 14.7.2012 from Delhi. He had to go from Chandigarh to Delhi on Kingfisher Airlines at 9.30 AM on 14.7.2012 but that flight was admittedly cancelled by the OPs, due to which, the complainant had to cancel the flight from Delhi to New York and had to go by taxi to Delhi and take the flight from Delhi on 17.7.2012 for New Jersey, due to which, he had to bear extra expenses and as per his version, he has also suffered a loss of Rs.33,000/- for being absent from his duty.

8.                The learned Counsel for the OPs has contended that the said flight from Chandigarh to Delhi on 14.7.2012 had to be cancelled due to operational reasons for shortage of crew as the pilots of the OPs had resorted to a strike. He has drawn our attention to the following terms and conditions and has argued that the OPs are not liable to make payment of any compensation because of strikes by the pilots :-

“Kingfisher Airlines shall not be liable in any manner whatsoever and No Compensation will be paid/provided to Guest, if the cancellation and delay 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 the flight/s. Such extraordinary circumstances may in particular, occur due to political instability, natural disaster, civil war, insurrection of riot, flood, explosion, government regulation or order affecting the aircraft, strikes and labour disputes causing cessation, slowdown or interruption of work or any other facts that are beyond the control of Kingfisher Airlines.”

The learned Counsel for OPs No.1 and 2 has also drawn our attention to Civil Aviation Requirements Section 3 – AIR Transport Series ‘M’ Part IV Issue I, dated 6.8.2010, in accordance with which, the operating airline is not under obligation to pay compensation in cases where the delay or cancellation is caused by an event of force majeure i.e. extraordinary circumstances beyond the control of the airline. The learned Counsel for OPs No.1 and 2 has also urged that OP No.1 was forced to cancel the said flight on 13.7.2012 and this fact could not be communicated to the complainant because the direct contact number of the complainant was not provided to OP No.1 at the time of booking of the ticket. The learned Counsel for the OPs No.1 and 2 has vehemently argued that there is no deficiency in service on the part of the OPs, therefore, no compensation is liable to be paid to the complainant.

9.                We have carefully considered the above arguments of the learned Counsel for the OPs. We feel that in view of the terms and conditions mentioned above, since the flight No.IT 2636 from Chandigarh to Delhi had to be cancelled by OP No.1 due to the strike of the pilots, the OPs are not liable to make payment of any compensation on that account. However, it is significant to note that the complainant has not even received the refund of the fare from Chandigarh to Delhi on 14.7.2012 so far. Since the said flight was cancelled by OPs No.1 and 2, they were bound to retund the fare to the complainant.

10.              Apart from the above deficiency in service on the part of OPs No.1 and 2, it is worth noting that the intended strike was learnt by OP No.1 on 13.7.2012 but the complainant was not intimated on 13.7.2012 that his flight on 14.7.2012 has been cancelled. Had the complainant been intimated, he could have made some alternative arrangement for reaching Delhi Airport on the morning of 14.7.2012 or on the night of 13.7.2012. The contention of OPs that the direct contact number of the complainant was not provided to OP No.1 at the time of booking of the ticket is devoid of any force because the ticketing confirmation – Annexure C-3 clearly shows the email address and phone number of Mr.Sumit Dhawan, complainant. Consequently, we find that the complainant was harassed on account of the non intimation of the cancellation of the flight in time by the OPs and this omission on the part of OPs No.1 and 2 amounts to deficiency in service.  Since the OPs No.1 and 2 are not bound to pay any compensation on account of the strike by the pilots, therefore, we do not feel that the complainant is entitled to the amounts claimed by him on other grounds. However, he is certainly entitled to get compensation for deficiency in service on account of non intimation of cancellation of flight on 13.7.2012 and he is also entitled to the refund of the fare of the ticket from Chandigarh to Delhi.

11.              For the reasons recorded above, the complaint is partly allowed. OPs No.1 and 2 are directed :-

i)                 To make payment of an amount of Rs.3169/- as refund of the air fare from Chandigarh to Delhi to the complainant with interest @ 9% p.a. from 14.7.2012 till realisation.

ii)                To make payment of an amount of Rs.20,000/- to the complainant as compensation for physical and mental harassment on account of deficiency in service and Rs.10,000/- towards litigation expenses.

12.              This order shall be complied with by OPs No.1 & 2  within one month from the date of receipt of its certified copy, failing which, OPs No.1 & 2 shall be liable to refund the above said awarded amount to the complainant along with penal interest @ 12% p.a. from 14.7.2012 till its realization,  besides costs of litigation.

13.              The certified copies of this order be sent to the parties free of charge. The file be consigned.