Chandigarh

StateCommission

A/4/2023

ETIHAD AIRWAYS - Complainant(s)

Versus

MRS. KRISHNA MALHOTRA - Opp.Party(s)

SHASHANK SHEKHAR SHARMA ADV.

24 Jul 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Appeal No	:	A/04/2023
Date  of  Institution	:	10/01/2023
Date   of   Decision	:	24/07/2023

 

 

 

 

 

Etihad Airways, O-3, Level 4, Terminal-3, Indira Gandhi International Airport, New Delhi - 110037.

 

…. Appellant

 

V E R S U S

 

1.   Krishna Malhotra wife of Late Sh. Krishan Kumar Malhotra, Resident of House No.91, Sector 4, Parwnoo, District Solan, Himachal Pradesh.

 

2.   Grand Travel Planner Pvt. Ltd., through its Director Mr. K.S. Cheema, SCO 117-19, 2^nd Floor, Sector 17-C, Chandigarh.

…… Respondents

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

PRESENT	:	Sh. Shashank Shekhar Sharma, Advocate for the Appellant.
		Ms. Ekta Sharma, Advocate for Respondent No.1.
		Respondent No.2 ex-parte.

 

PER PREETINDER SINGH, MEMBER

 

 

This appeal is directed against the order dated 09.06.2021, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the Consumer Complaint bearing no.CC/1113/2019, in the following terms:-

“17]      From the above discussion and findings, the deficiency in rendering proper service on the part of Opposite Party No.1 has been established, which certainly has caused harassment, agony & loss to the old aged complainant.  Therefore, the complaint stands allowed against OP No.1 Airlines with direction to reimburse an amount of Rs.31850/- being the cost of cancelled one way ticket. The OP No.1 is also directed to pay an amount of Rs.20,000/- as compensation to the complainant for causing harassment on account of deficient services along with litigation cost of Rs.10,000/-.

         This order shall be complied with by the Opposite Party No.1 within a period of 30 days from the date of receipt of its certified copy, failing which it shall be liable to pay additional compensation cost of Rs.10,000/- apart from above relief.”

2.      For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

3.      Before the Ld. Lower Commission, it was the case of the Respondent No.1/Complainant that being allured by the rosy picture shown by Respondent No.2/OP No.2 about the service of OP No.1 Airlines, purchased one Air Ticket No.607-2988252004 of Etihad Airways – Appellant/OP No.1 for a sum of Rs.63,700/- for her to & fro journey from New Delhi to Sydney (Australia) and Sydney to New Delhi (Ann.C-1). A special request was made to provide wheel chair as the complainant was an old lady of 83 years of age. The Respondent No.1/complainant on 01.01.2019 started her journey from New Delhi to Sydney through OP No.1 Airlines and the Flight EY 211 when reached Abu Dhabi the complainant was told that the connecting flight Etihad/EY 450 from Abu Dhabi to Sydney is delayed by one hour. However, later, the person assisting the complainant on wheel chair, informed her that the flight get delayed by approximately 12 hours and was rescheduled to depart at 9:40 AM Abu Dhabi time. When the complainant asked for some hotel accommodation, she was dumped at some hotel lounge. The complainant was not provided any room, food or water by the hotel authorities and she was forced to sit on the hotel lounge area. She complained to the hotel reception about her being suffering from headache, back ache and feeling uncomfortable being an old lady of 83 years, but the receptionist at the hotel did not accommodate her in any manner.  After much persuasions & request, when she asked for food & water, she was told that there was buffet system and it was only after that she got to eat food.  It was submitted that she spent restless hour without any information & assistance, in an unknown country, while sitting in the hotel lounge until she was picked up for the flight late at night and the flight ultimately depart at 9.40 AM (Abu Dhabi time) and arrived at Sydney at about 19.10 hours (Australian time) instead of scheduled time of 6:55 AM on 02.01.2019.  On arrival at Sydney, despite her request that she was having knee pain, she was not provided the wheel chair by the authorities. Due to her old age and knee problem, it was hard for her to take care of her luggage, but the lady Incharge was very rude and did not cooperate. Thereafter, the complainant vide email dated 06.01.2019 highlighted the problems suffered by her & the treatment met out to her at Abu Dhabi and Sydney and seeks compensation, in response to which the Appellant/OP No.1 replied vide mail Annexure C-5 thereby offering travel credit of USD 200 to be provided by Travel Bank valid for 12 months.  The complainant rejected the said travel credit of USD 200 so offered by OP No.1 whereupon they offered 20,000 Etihad Guest Miles, which too was rejected by her with a demand to compensate by cash or banker’s cheque.  The complainant thereafter sent legal notice to OPs No.1 & 2 for their discriminatory, callous behavior due to which the complainant suffered a lot, but they did nothing. It was further submitted that horrified travel experience of the OP No.1 Airlines from New Delhi to Sydney on 01.01.2019 had virtually pricked her conscious and after struggling with her mind, she decided cancel the ticket for her return journey from Sydney to New Delhi. Accordingly, the complainant requested OP No.2 to cancel her return journey through OP NO.1 and booked another ticket for return journey through Air India.  Thereafter, the OP No.2 informed the complainant that it has sent the cancellation request and simultaneously issued a fresh ticket of Air India Flight No.301 for a sum of Rs.34,536/- for the return journey of complainant on 17.05.2019. Even OP No.2 admitted in letter Ann.C-12 that the old lady passenger was harassed during her journey from New Delhi to Sydney.  However, OP No.1 instead of giving refund of cancelled ticket, reject the complainant’s claim vide reply dated 16.8.2019.  Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

4.      Upon notice, the Respondent No.2/OP No.2 resisted the consumer complaint pleading that its duty being a Travel Agency, was to arrange the air ticket for the complainant, which was done as required by the complainant and nothing more was required to be done by it. Further, as per the requirement of the complainant, the wheel chair request was made by OP No.2 and the same was mentioned in the air ticket.  The dispute, if any, was between the complainant and OP No.1, the OP No.2 cannot be held liable for act & conduct of OP No.1 as it has no concern with OP No.1 airlines. It was submitted that as per instruction of the complainant, it (OP No.2) made request for cancellation of air ticket of the complainant with the OP No.2 and has arranged the fresh air ticket for the complainant and OP No.2 provided a confirmed air ticket to the complainant as per her requirement. The refund, if any, was to be processed and made by the concerned airline and refund, if any, was to be quantified by the airline and not by OP No.2. It was further submitted that most of the air tickets are non-refundable as was the case of complainant; the complainant was having confirmed air ticket of her up & down journey from India to Sydney and vice-versa. Moreover, the complainant has changed her schedule to return India i.e. before the scheduled date fixed i.e. 18.11.2019 and instructed the OP No.2 to arrange the confirmed return air ticket for 17.05.2019 and the same was arranged by it. On these lines, the cause was sought to be defended and a prayer for dismissal of the Complaint was made.

 

5.      Despite service through registered post on 25.11.2019, nobody appeared on behalf of OP No.1 before the Ld. Lower Commission, therefore, it was proceeded ex-parte on 14.02.2020.

 

6.      On appraisal of the pleadings and the evidence adduced on record, Ld. Lower Commission allowed the consumer Complaint of the Respondent No.1/Complainant, as noticed in the opening para of this order.    

 

7.      Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/OP No.1.

 

8.      In the present proceedings, pursuant to notice, none turned up on behalf of Respondent No.2/OP No.2 (Grand Travel Planners Pvt. Ltd.), therefore, vide order dated 29.03.2023, it was ordered to be proceeded against ex-parte.

 

9.      We have heard the Learned Counsel for the contesting parties at length and have gone through the evidence and record of the case, along with written arguments advanced on behalf of the Appellant/ OP No.1, with utmost care and circumspection.

 

10.      The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

11.      After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be accepted for the reasons to be recorded hereinafter.

 

12.      Ld. Counsel for the Appellant/OP No.1, inter alia, contended that the address of the Appellant/OP No.1 as given in the memo of parties filed with the Consumer Complaint was incorrect, in as much as, the Appellant/OP No.1 had vacated the premises on Barakhamba Road, Connaught Place on 31.12.2017 and fresh address of the Appellant/OP No.1 was available on the website of the Appellant/OP No.1. He has submitted that the Ld. Lower Commission passed the impugned order on the basis of presumed service on the Appellant/OP No.1. To substantiate his submission, Ld. Counsel has placed reliance upon Exhibit C-10 filed by the Complainant/Respondent No.1 along with her complaint  that the address provided by her in the memo of parties was not the correct address of Etihad Airways as the legal notice dated 06.09.2019 sent by her on the said address had been returned undelivered with the endorsement ‘left’.  A prayer has therefore been made to set-aside the impugned order dated 09.06.2021 and to remand the matter back to the Ld. District Commission for fresh adjudication.

 

13.      In this backdrop, we are satisfied that in fact, there was no service upon the Appellant/OP No.1 as envisaged by Section 38(2)(a) of the Consumer Protection Act, 2019 and Appellant/OP No.1 deserves to be afforded a fair chance of being heard to place its version before the Ld. Lower Commission. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the principle of law, laid down, was to the effect, that procedure, is, in the ultimate, handmaid of justice, and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law, is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals, have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.

 

14.      Sequel to the above discussion, present appeal is allowed. Order dated 09.06.2021, under challenge, is set aside and the matter is remitted to the Ld. Lower Commission.

 

15.      The Appellant/OP No.1 is permitted to place on record reply and evidence/ affidavit on the next date of hearing before the Ld. Lower Commission to be fixed by this Commission.

 

16.      We make it very clear that in case, reply and evidence/affidavit is not filed on the next date of hearing, no further opportunity shall be granted for the said purpose. We expect that the Ld. Lower Commission will decide the complaint expeditiously, as per law, preferably within a period of three months.

 

17.      No other point was urged, by the Ld. Counsel for the Parties.

 

18.      The Parties are directed to appear before the Ld. Lower Commission concerned on 23.08.2023.

 

19.      Complete record of complaint file be sent back to the Ld. Lower Commission alongwith certified copy of this order, so as to reach there well before the date fixed.

 

20.      The pending misc. application, if any, shall stand disposed of accordingly.

 

21.      Certified copies of this order be sent to the parties, free of charge.

 

22.      File be consigned to the Record Room after completion.

 

Pronounced

24^th July, 2023                                

Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER