Delhi

New Delhi

CC/1238/2007

J.N. Pandey - Complainant(s)

Versus

M/S. Air India - Opp.Party(s)

07 Sep 2018

ORDER

 

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTRICT NEW DELHI,  M-BLOCK, 1^ST FLOOR,

VIKAS BHAWAN, I.P. ESTATE. NEW DELHI-1100001.

 

C.C.No.1238/2007

 

1. Sh. J.N.. Pandey,

         S/o Late Chandrika Pandey

 

2. Mrs. Krishna Pandey,

           Mandeep Singh Marwaha,

 

Both reside at:

1639, Place Des Ravins,

Otttawa, Ontario, KIC 6H2

Canada.

 

Through their General Power of Attorney Holder:

Alok Pandey S/o Sh. V.P.Pandey,

R/O E-016 IRWO Classic Apartments Rail Vihar,

Sec.57, Gurgaon-122003.                                       

                                                                        ……..COMPLAINANT

 

 

Vs.

 

 

1. AIR INDIA, NEW DELHI, 

         3^rd Floor Tower-2

        Jeevan Bharti Building,

          124, Connaught Circus,

         New Delhi-110001.

 

2. LUFTHANSA RESERVATION OFFICE

          56, Janpath, Connaught Place,New Delhi-110001.

 

3. AIR CANADA

           5-B, 5^th Floor,

           Barakhamba Road, Connaught Circus,

            New Delhi-110001.

 

          Also at: 202, IInd Floor, Ansal Bhawan,

          Kasturba Gandhi Marg, Connaught Place,

           New Delhi-110001.                                                   .........OPPOSITE PARTY

 

 

H.M.VYAS, MEMBER

 

 

O R D E R

 

 

The complainants, resident of Canada have filed the present complaint through their attorney Sh. Alok Pande, a resident of Delhi (copy of GPA attested at Ontario, Canada filed) against the O.Ps under section 12 of Consumer Protection Act, 1986. It is stated that the complainants had purchased confirmed return tickets from Skylawn Travel Montreal for their return trip to Delhi having the ‘O.K.’ status as per the Itinerary annexed.  The journey from Ottawa commenced on 26/2/2007 and the return journey had to commence on 29/8/2007 from Delhi International Airport.  The complainants had OK flight status all through between Ottawa to Delhi and back and the same was verified by Air Canada check in clerk at Ottawa International Airport. It is alleged that the return flight which scheduled to depart on 29/8/07 at 7.30 a.m. from Delhi to Frankfurt was a joint venture of OP-1 & 2 and the flight was named as A1 137 by Air India and the same Flight was named as LH 1613 by Lufthansa Airlines irrespective of the fact that the flight was operated by OP-1. 

It is further stated that the tickets were issued by OP 1 for the flight LH 1613 which was to be operated by OP-1. When the complainants on 29/8/2007 tried to check-in to board the flight at Delhi International Airport, the check in authorities informed the complainants that their names have not been mentioned in the records of Air India.  The complainants made several requests to Air India Officials but all in vain.  It is alleged that the complainants showed the confirmed tickets to all the senior Air India Officials but they were informed that Air Canada had not updated them about the flight status of the complainants.  It is alleged that the complainants were offered confirmed tickets for 15/09/2007 which was after a period of 15 days.  However, for the meanwhile no arrangements were made for the complainants to stay and for other basic needs of life in Delhi, India by OPs. It was duty of Airlines Co. to arrange for lodging of their passengers and to arrange for flights overnight or in a day.  The OPs failed to perform all their duties diligently as such there is a huge deficiency in their services. A Legal Notice dated 13/9/2007 was sent to all the OPs. A reply dated 1/10/07 was received from the OP-1 intimating that they were forwarding the letter for investigation and response.  OP-2 has stated in his letter dated 11/10/07 that there is no responsibility on their part as the flight was operated by Air India, The OP-3 in its reply dated 21/11/07 to legal notice dated 13/09/2007 informed that on 1/2/07 a message was sent by Air Canada that it was unable to confirm flight on August 29 from Delhi to Toronto due to a schedule change.  The complainants suffered unnecessarily for wrongs done by the OPs as a result of which they incurred severe losses.  Alleging deficiency in service on the part of OPs, following prayer is made:-

1. “Direct the OPs to reimburse all the losses and expenses i.e. Rupees. 1,60,000/- which are incurred by the complainants up to 15^th September, 2007.
2. Direct the OPs to pay a sum of Rs. 05,00,000/- in lieu of the damages towards the harassment and mental agony suffered by the complainants due to the gross negligence of the OPs.
3. Direct the OPs to pay a sum of Rs. 30,000/- as litigation cost.
4. Pass such other order/orders as this Hon’ble Forum deem fit and proper in the facts and circumstances of this case.”

 

            Notices were issued to all the OPs.            Complaint has been contested by all the OPs. OP-1 has pleaded in its reply that the present complaint is wholly misconceived, groundless, unsustainable in law and is liable to be dismissed.  It was further pleaded that the ticket in question was issued by OP-3 i.e. Air Canada, all the reservations on the said ticket pertain to OP-2 and OP-3.  It has pleaded that the flight in question i.e LH1613/29Aug on Delhi to Frankfurt sector was on the code share with OP-1, therefore OP-1 was only an operating carrier while Lufthansa as a marketing carrier.  Complainant had made no reservation with OP-1, thus the complainant had neither hired nor availed of services of OP-1. It is stated on merits that at the time of booking of tickets the Booking System, sabre, allowed an incorrect fare to the purchased.  Thus the complainant paid only CAD 929.85 per ticket including all taxes.  It is also mentioned that in case situation arises, the less fare paid by the passengers is honoured, however,, if the passenger wants to make voluntary changes to the itinerary for such travel, such changes are subject to correct assessment of the fare and the complainants have to pay additional charges as changing fee.  It is admitted by OP that the message to the complainant was sent on 1/2/07 stating therein that they are unable to confirm the flight i.e. AC 879 on 29/8/07 from Delhi to Toronto due to schedule change.  Consequently, travel itinerary of complainants were changed and informed accordingly.  On 23/3/07 the travel agent cancelled the flights i.e. AC 877 from Frankfurt to Toronto dated 29/08/2007 in ‘L’ class, AC 468 from

Toronto to Ottawa dated. 29/8/2007 in ‘L’ class, & LH 1613 from Delhi to Frankfurt dated 29/8/2007 in ‘W’ class and complainants informed.  At the same time on the request of the complainants the travel agent added the flights to the travel itinerary i.e. AC 877 from Frankfurt to Toronto dated 13/08/2007 in ‘L’ class, AC 468 from Toronto to Ottawa dated. 13/8/2007 in ‘L’ class, & LH 1613 from Delhi to Frankfurt dated. 13/8/2007 in ‘Q’ class. Since the changes were made on the request of the complainants, therefore the tickets should have been re-issued to reflect the new itinerary and the complainant had to pay the fair difference of $937.00 per passenger and the change fee of $200.00 per passenger. The complainants again contacted OP-3 on 31/05/2007 and requested for change in travel itinerary and so the OP-3 added the flights for the mentioned dated 16/08/2007 to their travel itinerary. However, the said flights were cancelled as the complainant did not want to pay the fees and the complainant desired to return on the original date i.e. 29/08/2007. In such situation the OP-3 added the 3 flights i.e. AC 468 from Toronto to Ottawa dated. 29/8/2007 in ‘L’ class to the travel itinerary of the complainants however, the OP-3 agent could not re-book the flight LH-1613 on 29/08/2007 due to non-availability of seats in the appropriate fare classes. The OP-3 then booked the flights to the itinerary of the complainant viz. AC 877 from Frankfurt to Toronto dated 29/08/2007 in ‘L’ class, AC 468 from Toronto to Ottawa dated. 29/8/2007 in ‘L’ class, & LH 1613 from Delhi to Frankfurt dated 29/8/2007. The complainants did not make change in their ticket according to the change made in the reservations and presented the unchanged tickets issued on 22/02/2007 before the officials of the OP-1 operating flight LH-1613 and so the complainants could not find their names in the reservation of the said flight. It is also stated in the written statement that the names of the complainants were already mentioned in the reservation list of the said flight as mentioned in fax dated 26/08/2008. The OP-1, i.e. Air India is only an operating carrier and accordingly acts as passengers carrier and therefore cannot be responsible for the reservations in computer glitches which is the sole responsibility of the marketing carrier i.e. OP-3 & 2 respectively in the present case.  

OP-2 i.e. Lufthansa reservation office has pleaded that the present complaint is based on suppression of material facts to suit the designs of the complainants.  It has pleaded that the complainants have no cause of action against the OP-2 nor any cause of action is made out in favour of the complainants as against the OP-2.  It was further contended that OP-2 was engaged in the business of transportation of passengers and cargo etc. can in no way be held responsible for whatever transpired between the complainant and other OPs.  Neither complainants’ availed any services of OP-2 nor the OP 2 provided any services to the complainant. It is stated that the complainants purchased tickets from OP-3 and the return flight from Delhi to Frankfurt being operated by OP-1, so, the OP-2 was not responsible for not mentioning the names of the complainants in the reservation. Sheer the nomenclature of the flight as LH-1613 does not fasten any liability upon the OP-2 as there is no privity of contract, thus the OP-2 is not liable to reimburse the loss or expenses to the complaint. The reply dated 8/12/2007 to the legal notice was sent with AD card.

In its reply, OP-3 has stated that the complainant could not take the return flight on August 29, 2007 from Delhi to Frankfurt operated by OP-3.  It has further pleaded that the document filed by the complainant belies his own position when in the letter addressed to the conference committee he stated that “I REGRET TO INFORM YOU THAT I HAVE MISSED MY LUFTHANSA FLIGHT FROM DELHI TO FRANKFURT. MY NEXT FLIGHT IS ON SEPTEMBER 15, 2007”. This clearly proved that fact that complaint has made a concocted story to suit his ends and to make illegal gains.  It has alleged that the complainant has out of his own free will chose to fly on 15/9/07 due to flight having been missed on 29/8/07.  It is also beyond imagination as to how and why he did not chose to fly on the very next day i.e 30/8/07 and instead chose to wait until 15/9/2007, which proves that the complainant has not come with clean hands and is guilty of suppression of facts. It  further alleged that complainant has no cause of action against OP as the flight between Delhi to Frankfurt was operated by Air India and not by Air Canada.  It has been denied by OP-3 that any legal notice was sent on 13/8/07.  It has been pleaded that the travel agent sent a message  to the complainant that the flight AC 879 of 29/8/07 could not be confirmed due to schedule change.  It has been pleaded that the allegations made in the complaint are  baseless and false and cannot be relied upon.  OP-3 has prayed for dismissal of complaint. 

The complainant filed rejoinder to the written statement of all OPs affirming its averments and denying the averments of the OPs not conforming to the text of complaint. All the parties have filed their respective evidence by way of affidavit

We have considered the material placed before us in the case and the submissions of the Ld. Counsels for the parties. The undisputed facts are that the flight LH1613 between Delhi and Frankfurt is not Lufthansa operated flight and it is operated by Air India (A-7 with the complaint).  The reply dtd. 21/11/2007 of Air Canada to the legal notice of the Advocate of the complainant clearly mentions that “ Tickets were issued on 18/01/2007 by ‘Voyages Garth Allen Marksted”.  When these tickets were issued, the booking system, Sabre, allowed incorrect fare to be purchased. The fare allowed was CAD 992.85 per ticket including all taxes.  The correct fare was CAD 929.85 per ticket including all taxes”.  It is also mentioned that some message dated 1/2/2007 was sent that Air Canada was unable to confirm the flights due to a Schedule change and the tickets were changed to reflect the new itinerary by ‘Voyages Garth Allen Marksted”  and at the same time the agency added substitute flights.  Due to such circumstances Air Canada agent could not rebook flight LH 1613 on 29/8/2007 due to non availability of seats in the appropriate fare class.  All the OPs are shirking their respective responsibility & liability on each other.

None of the OPs has placed any document showing the intimation to the complainants regarding change in schedule & itinerary before or after the alleged complainant’s request for preponement of the date of travel was declined.  Further there is clear admission of error in the booking software allowing incorrect fare for the ticket.  The argument of the OP3 relied upon the communication dated 29/8/07 of the complainant to the ‘Conference Committee’ informing that he missed the Lufthansa flight from Delhi is misplaced in the facts & circumstances of the case.  Having missed the flight by complainant cannot be understood to be out of his free will as is clear from the other text in the same communication about his inability to attend the conference due to unforeseen circumstances. The objection regarding the validity of GPA of the complainant is declined as the same gives the  authority to the GPA holder, a Delhite to contest the litigation along with their lawyer on behalf of the complainants who are residents of Canada.  The complainants have clearly mentioned in the GPA that the signatures of Sh. Alok Pandey in this case will be binding on them.

Hon’ble National Commission in the case of RP No. 636of 2012 titled as Air India formerly known as Indian Air Lines Ltd. Vs Dr. Mary Ramasamy & others reported as 2(2012)CPJ421(NC)  observed that in absence of any communication or verification from the complainants, the petitioner/Airline could not cancel the reservation of O.K. tickets booked before several days in advance.  It was really unfair and unjust on the part of the Airlines to do so. The cancellation of O.K. tickets in such circumstances is the manifest act of deficiency in service on the part of petitioner/Airlines.

In view of above discussions we hold OP-1 & OP-3 to be jointly deficient in service and direct to pay in equal proportion an amount of Rs. 1,60,000/- along with simple interest @ 10 % p.a. with effect from the date of filing of the complaint till the date of realization and Rs. 10,000/- as litigation cost.  The orders shall be complied within 30 days from the date of receipt of this order failing which the said amount shall be paid with simple interest @ 12% p.a. from the date of filing of complaint till realization.

Announced in open Forum on  07/09/2018.

The orders be uploaded on www.confonet.nic.in.

 

File be consigned to record room.

 

      ( ARUN KUMAR ARYA)

      PRESIDENT

 

                         (NIPUR CHANDNA)                                                               (H.M. VYAS)

                            MEMBER                                                                              MEMBER