KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 35/2016

JUDGMENT DATED: 01.12.2022

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.T.S.P. MOOSATH                                                       : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINAN TS:

1. K. Kumaran Kusabhadran, Malika Veetil, Karthikapalli P.O, Pin-695 516.

2. Radhamany, W/o Kusabhadran,             ..do..           ..do..

                   (By Advs. O.M. Jyothikumar, N G Mahesh & S. Nisha)

                                                Vs.

OPPOSITE PARTY:

The Managing Director, M/s Etihad Airlines, Thiruvananthapuram.

(By Adv. Sandeep T. George)

JUDGMENT

SRI. RADHAKRISHNAN K.R.: MEMBER

This is a complaint filed by the complainants under section 17 of the Consumer Protection Act 1986 seeking compensation for the hardships suffered by them due to the alleged inordinate delay / rescheduling of the flights operated / arranged by the opposite party.

2.  The case of the complainants as detailed in the complaint is briefly as follows:

The complainants, husband and wife who are senior citizens, were passengers of the opposite party   airlines from Thiruvananthapuram to Los Angeles via Abu Dhabi. They had booked two tickets from Thiruvananthapuram to Los Angeles, California, USA via Abu Dhabi and return by paying Rs 76,249/- each. They reported at Thiruvananthapuram Airport in time on the date of the onward journey on 03.02.2015.  After some time the complainants were informed that the flight from Thiruvananthapuram to Abu Dhabi was delayed by an hour.  The complainants told the officials of the opposite party that there was only a gap of 90 minutes between the arrival of the flight at Abu Dhabi and departure of the connecting flight to Los Angeles.  Hence the complainants expressed their anxiety to the officials of the opposite party that there was every chance of their missing the connecting flight from Abu Dhabi to Los Angeles. In view of the said uncertainty, the complainants expressed their desire to postpone their journey, since they were also having various old age related problems. Opposite party assured them that the complainants could board the connecting flight to Los Angeles from Abu Dhabi as all flights including the connecting flight to Los Angeles would be delayed.  Believing the assurance extended by the officials of the opposite party the complainants did not   postpone the journey and chose to travel on the delayed flight to Abu Dhabi. 

3.  When the complainants reached Abu Dhabi they came to know that the connecting flight to Los Angeles had already departed. The opposite parties gave them boarding passes for a flight to New York instead of Los Angeles and from there the complainants were expected to board another connecting flight to Los Angeles, their final destination. Since the complainants had no other option they were constrained to board the flight to New York.  When the complainants reached New York there was no official from the side of the opposite party to help them to board the flight to Los Angeles. .  Complainants could not contact their son and inform him about the changes in the route and delay. They were stranded in New York airport and had to suffer a lot there.  Their flight from New York to Los Angeles reached at 2:30 a.m on 04-02-2015 instead of 1.25 P.M on 03-02-2015.There was a delay of 13 hours. Because of the negligence and deficiency in service on the part of the opposite party, the complainants had to suffer severe mental agony, stress and tension. 

4. The return ticket was on 14.05.2015 from Los Angeles to Chicago, and from there to Abu Dhabi on 15.05.2015. The connection flight from Abu Dhabi to Thiruvananthapuram was on 16.05.2015.   In the case of return journey also there was inordinate delay consequent on the cancellation of the flight.  The ticket was rescheduled to travel from Los Angeles to Abu Dhabi on the next day i.e; 15.05.2015.  There was a delay of more than 28 hours.  But the opposite party refused to provide any accommodation which they were bound to give when such a delay or inconvenience is caused to a passenger due to the negligence on the part of the opposite party. The complainants sent a notice to the opposite party demanding compensation for the negligence and deficiency in service on the part of the opposite party.  Opposite party sent a reply admitting the negligence and deficiency in service on their part and they offered a compensation of 20,000  Ethihad guest miles or shopping for equivalent value as per the choice of the complainants.   There were lot of hardships to both the complainants during their onward and return journey due to the deficiency in service on the part of the opposite party.   As the complainants were not satisfied with the offer of the opposite party, they have filed this complaint claiming a compensation of Rs. 25,00,000/- for the mental agony, inconvenience  and tension suffered by them.

5. Opposite party filed version stating that the complainants were informed at the time of check-in that the flight from Thiruvananthapuram to Abu Dhabi was delayed due to the reason ‘technical ground hold due to weather forecast’.  Since there was fog related activity, a decision was taken to hold the aircraft on ground before being allowed to take off.  The situation was explained to all passengers including the complainants accordingly.  It may have been stated by the staff of the opposite party that the flight to Los Angeles could be delayed, but if a slot would become available, the flight would have left, as the flight being a non-stop flight of 16 hours, delays would only cause problems on crew timings, and therefore the Los Angeles flight left when it became possible.  It was assumed, therefore, that the complainants may have been able to connect on the said flight.  Had the complainants opted not to travel by the delayed flight they would have been given a full refund, and could have rebooked on the next available flight.  As the connecting flight to Los Angeles had already left, the opposite party made alternative arrangements to get them to Los Angeles in the shortest possible time.  This is the standard practice with airlines, so as to cause as little inconvenience as possible to the passengers.  Since the complainants missed the connection flight to Los Angeles, the opposite party had to reroute them on the best possible alternative flight, which was via New York and onwards to Los Angeles.

6. It was very clear that when they were waiting for the flight, they were aware of the fact that the flight was going to New York and just to get attention of this Commission they are pretending that they were unaware of where they were going, or could not read what flight they were taking.    The complainants are educated persons and were able to read the signage put up at the airport for transfer passengers.  This was all in the terminal of Ethihad airlines, and staff would have been available at all the check-in gates. If the complainants were unable to travel or walk at the airport they could have requested for assistance or wheel chair facility which apparently was never requested for, which clearly indicates that the claimants could walk and needed no assistance.  The flight from New York to Los Angeles was operated by Jet Blue and the opposite party is not aware and cannot be aware why the said flight was delayed, as this can only be answered by the concerned airline. 

7.  The complainants booked return ticket from Los Angeles to Trivandrum via Chicago and Abu Dhabi which could have been the cheapest option when they purchased the ticket.  The return flight was not cancelled as claimed by the complainants, but was rescheduled.  The said change was informed to the travel agent from whom the complainants had booked their tickets, and it was the duty of the travel agent to inform the complainants as the travel agent had the contact details of the complainant.  As they claimed that the travel agent had not informed them about the change, the opposite party made it more comfortable for them to travel by putting them on the more expensive direct flight to Abu Dhabi.  Thus it is wrong to say that the flight was cancelled and the question of giving accommodation to the complainants did not arise.  Thus the complainants opted to go back to their son’s home and came back to the airport on the next day to catch the re-routed flight directly to Abu Dhabi for their own convenience.  Opposite party denied that the complainants were made to wait at the airport lounge as falsely alleged.  They stated that the complainants did not face any mental stress and agony or additional financial burden as alleged in the complaint.  They were in a better position as they now could fly directly to Abu Dhabi and then to Thiruvananthapuram. The opposite party had responded to the legal notice giving the correct details and offered 20000 Ethihad Guest Miles as a goodwill gesture to each of the complainants which could be used for future travels, upgrades, shopping etc.  However the said offer was made in respect of the inconvenience caused to the complainants, if any, without admission of any liability.  The complainants are seeking a sum of  Rs. 25 lakhs as compensation which is nothing but an attempt made to try and extort money from the opposite party to which they are not entitled when no loss has been established by the complainants.  Hence the opposite party prayed to return the complaint to the complainants for filing before the appropriate forum having jurisdiction or in the alternative restrict the final award to 20000 Ethihad Guest Miles each.

8. The complainants filed proof affidavit and the first complainant was examined as PW1 and seven documents were marked as Exbts. A1 to A7.  The opposite party filed version and two documents were marked on their side as Exbts R1 and R2. There was no oral evidence on the side of opposite party.

          9. On the basis of the pleadings the following points arise for consideration:

(i) Whether there is any deficiency in service on the part of the opposite party in connection with the onward and return journeys of the complainants?

(ii)What, if any, are the reliefs to be granted?

          10. Point No.(i):- The complainants were passengers of the opposite party airlines from Thiruvananthapuram to Los Angeles on 03-02-2015 as per the ticket booked (Exbt A1) by them.  There was a delay in the onward flight from Thiruvananthapuram to Abu Dhabi and they missed their connection flight to Los Angeles.  It is admitted that the opposite party arranged an alternative flight on the same day. Extbs A2(1) and  A2(2) are the boarding passes by EY 101 from Abu Dhabi to New York  and A3(1) and A3(2) are the boarding passes by Jet Blue (523) from New York to Los Angeles.  A4(1) and A4(2) are passes for shopping only, giving details of passenger itinerary. The learned counsel for the complainants submitted that the alternative flight arranged by the opposite party was via another sector, Abu Dhabi to New York and the complainants had to alight at New York and were required to take another flight to Los Angeles.  There was an inordinate delay of about 13 hours to reach the destination.  Instead of a flight through a deviated route, the opposite party could have arranged a direct flight considering the age of the complainants and also to cause minimum disturbance. 

11. The return journey was booked for 14.05.2015. But as the flight was cancelled they could leave only on the next day as per a rescheduled ticket (Ext A5). The complainants sent a notice on 02.06.2015 (Exbt A 6)  for which the opposite parties replied vide mail dated 23.06.2015 (Ext A 7) offering 20,000 Ethihad guest miles each which was not acceptable to the complaints.. This complaint was filed as there was no response from the opposite parties regarding the compensation claimed. The learned counsel for the complainants prayed for allowing the complaint with costs.

          12. The learned counsel for the opposite party contended that the alleged delay was due to bad weather which was beyond their control. They have produced a flight delay report (Exbt R1) to prove that the delay was due to bad weather. They assisted the complainants in the best possible way without any loss of time by arranging alternative flight. The opposite parties produced a circular dated 15.08.2010 (Ext R2)  of  Director General of Civil Aviation regarding civil aviation requirements (CAR), issued under the provisions of Rule 133 A of the Aircraft Rules, 1937, in support of their arguments. It states about facilities to be provided by airlines due to denied boarding, cancellation of flights and delays in flights. Opposite parties have followed the guidelines and complainants are not entitled for any compensation.   As regards the return journey the flight was not   cancelled and it was only rescheduled which was communicated to the passengers/travel agents. Flight schedule/timing was changed from 12.45 pm to 5 am as early on 26.01.2015. Despite the fact that there is no lapse in respect of the return flight, opposite parties arranged a more expensive direct flight from Los Angeles to Abu Dhabi, which substantially saved their travel time. Opposite parties submitted that they have done whatever was possible to help the complainants and so they were not liable to pay any compensation.  Hence they prayed for dismissal   of the complaint with cost.

          13. We have considered the submissions on both sides and perused the records. 

14. The main issue in this complaint is the hardship caused to the complainants consequent on the delay of the flights. The flight from Thiruvananthapuram to Abu Dhabi (EY 273) was originally scheduled to leave at 04.20 on 03.02.2015. Opposite party admitted in their e mail dated 23.06.2015 (Exbt  A 7) that this flight was  delayed by 01 hr 05 minutes ‘due to operational reasons’. There was no mention about ‘bad weather’ in the said communication. The scheduled departure of EY 171 from Abu Dhabi to Los Angeles was at 08.50 on the same day. Complainants missed this flight. The scheduled time of arrival at Los Angles was 1.25 pm on 03.02.2015 as per the ticket booked by the complainants.

15. The departure time of the alternative flight (EY 101) arranged by the opposite party from Abu Dhabi was at 10.45 on 03.02.2015 reaching New York at 16.30. From there the complainants reached Los Angeles by Jet Blue (523) at 2.30.am on 04.02.2015. They reached the final destination around 13 hours after the scheduled time of arrival as per the ticket booked by them.

16. Though the tickets were booked by the travel agent, it was issued by the opposite party. They are expected to give intimation about the flights to the passengers directly as well.  The opposite party produced Exbt R1 report to prove that the onward flight from Thiruvananthapuram was delayed on account of bad weather. There is lack of clarity in the report and so it is not sufficient to prove that  ‘Extra ordinary circumstances’ as defined in clause 1.4 and 1.5 of Exbt  R2 prevailed at the time of scheduled departure of the onward flight. Moreover the ‘original dep day’ and ‘estimated dep day’ shown in the Ext R1 is 02.02.2015. The delayed flight (EY 273) in which the complainants travelled was on 03.02.2015 and therefore Exbt R1 is not relevant to this complaint.

17.  PW1 deposed that connecting flight tickets from Abu Dhabi was arranged by the opposite parties. However rerouting of their ticket from Abu Dhabi via New York was done without their concurrence / without informing them. Alighting at and boarding from an intermediate airport not as per the ticket booked by them was quite unexpected, which naturally worried them.

18. Following provisions of Exbt R2 are relevant in this complaint:

Clause 3.4.4 states that “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.”

Clause 3.6.2states that “ Airlines shall pay particular attention to the needs of the persons with reduced mobility and any other person(s) accompanying them”.

Clause 3.8.2 states that “ …… Airline counters at airports shall disseminate reasons of cancellation and delays to the affected passengers and attend to their grievances”.

From the evidence we find that the opposite party has not fully complied with the obligations especially as per the above clauses in Exbt R2.

19. In their version opposite party has quoted Article 9.2 of the ‘the conditions of Carriage of Ethihad Airlines” pertaining to ‘Cancellation, rerouting, delays etc’

Article 9.2.2.2 states that “… within a reasonable period of time re-route you and your baggage to the destination shown on your ticket by our own services or those of another carrier, or by other mutually agreed means and class of transportation without additional charge”. Obviously there was no mutual agreement in the case of re routing as deposed by PW1. Needless to state that the complainants, being senior citizens, deserved better treatment.

20. We are not convinced about the arguments put forward by the opposite party that they had done whatever was possible to mitigate the hardships of the complainants because of rescheduling of their tickets. In our view the following observations in various decisions are relevant in this case:

In Chandrikaben J Patel & Others Vs Spice Jet Ltd & Anr  [II (2020) CPJ 42 (NC)] National Consumer Disputes Redressal Commission (NCDRC) observed as under:

“12.  ……The carrier must provide the passengers with meals and refreshments during the delay as well as access to communications.  …..”

“14.    ….It was a moral responsibility and courteous approach from the airline was expected at least to the senior citizens, children or infants on the flight…..”.

The above observations highlight the standard of treatment expected from the airlines, especially to senior citizen passengers.

21. In Air India Ltd Vs Banibrata Poddar (Order in RP No. 1712/2018 dated 01.04.2019), a case similar to this complaint, decision of the NCDRC is given below:

“9. The airlines Co., one, did not run its concerned flight on schedule, two, did not put him in an earlier flight at Kolkata which could have enabled him to catch his connecting flight from New Delhi, three, did not facilitate or provide courtesy to enable his early departure from New Delhi to New York (when he had landed late in New Delhi only due to the airline Co’s flight from Kolkata to New Delhi running behind schedule)

10. We find clear deficiency in service within the meaning of section 2(1)(g) and (o) of the Act, 1986, and see no reason to interfere with the findings and the award made by the State Commission.”

The above decisions underline the responsibility of airlines in the case of delayed flights and handling its consequences to the affected passengers.

22. From the foregoing discussion, we find deficiency on the part of the opposite party in making alternative arrangements for both stay and travel to the complainants during their onward journey from Abu Dhabi to Los Angeles.

23. As regards the return journey, the scheduled return ticket was on 14.05.2015 from Los Angeles to Chicago (by EY 3035 scheduled to leave at 12.45) and then from Chicago to Abu Dhabi (by EY 150 scheduled to leave on 15.05.2015 at 13.30 and reaching Abu Dhabi at 12.20). In his deposition, PW1 stated that his daughter in law called the international help desk 0n 11.05.2015 to confirm the ticket and not thereafter. The opposite party has stated in Exbt A 7 that that there was a schedule change on 26.01.2015 on flight EY 3035 from 12.45 pm to 05.00 am. We agree to their contention that this revised schedule should have been noted and informed by the travel agent as the change was known much prior to the commencement of the journey.

24. We find that the complainants were given tickets by the opposite party by a direct flight from Los Angeles to Abu Dhabi.  The rescheduled direct flight (EY 170) was leaving Los Angeles at 16.55 on 15.05.2015 and reaching Abu Dhabi at 21.00 on 16.05.2015.  In view of the change in the flight complainants could get a direct flight ticket to Abu Dhabi and saved their travel time. That was done by the opposite party without any extra cost.

25. The complainants could catch the flight from Abu Dhabi to Thiruvananthapuram on 16.05.2015 (by EY 272 leaving Abu Dhabi at 21.35 and reaching Thiruvananthapuram on 17.05.2015 at 03.30) as per the original ticket. Thus the Complainants saved travel time substantially during their direct flight from Los Angeles to Abu Dhabi and could reach the destination at Thiruvananthapuram at the original schedule time. Loss of time due to rescheduling of the flight from Los Angeles to Chicago is suitably compensated. Hence we do not find any deficiency on the part of the opposite party in the case of return journey.

           26. Point No.(ii):- We have found that there was  deficiency in service  on the part of the opposite party during the onward journey of the complainants.   We consider that an amount of Rs.  One lakh   each shall be just and reasonable compensation for the hardships and mental agony of the complainants during their onward journey.   We also feel that an amount of Rs. 10,000/- is reasonable towards costs. 

In the result the complaint is allowed on the following terms:

1. The opposite party is directed to pay an amount of Rs. 1 lakh each to each of the complainants with interest at the rate of  8% per annum  from the date of filing of  this  complaint ( ie 16^th March 2016) within one month from the date of receipt of  a copy  of this  judgment.   If they fail to do so, the complainants shall be entitled to get  interest @ 8 % p.a on the compensation amount from the date of filing this complaint till the date of this order and thereafter @10 % p.a
2. The opposite party is directed to pay an amount of Rs. 10,000/- to the complainants towards costs within one month from the date of receipt of a copy of this order. 

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                             T.S.P. MOOSATH    : JUDICIAL MEMBER

                                        BEENA KUMARY. A         : MEMBER

                              RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                            T.S.P. MOOSATH    : JUDICIAL MEMBER

                                BEENA KUMARY. A         : MEMBER

                      RADHAKRISHNAN K.R.  : MEMBER

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