REKHA GUPTA, PRESIDING MEMBER

          Revision petition No.2210 of 2016 has been filed by the OP No.4-Air Arabia in C.C. No.15/178 against the order dated 25.04.2016, passed by Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (short, “State Commission) in First Appeal No.185/2016. The OP no.4 has also filed Revision Petition No.2317 of 2016 against the order dated 07.06.2016 passed by the State Commission in F.A. No.79 of 2016.

2.      Revision petition No. 2254 of 2016 has been filed by the OPs No.1 to 3-Thomas Cook (India) Ltd. & Ors. against the order dated 07.06.2016, passed by the State Commission in F.A. No.79/2016.   Since these revision petitions are arising out of the order dated 27.01.2016 passed by the District Consumer Disputes Redressal Forum, Durg, Chhattisgarh (Short, “District Forum”), in C.C. No.15/178 and the facts are the same in all three revision petitions, we propose to give a common order.  R.P. No.2210 of 2016 is being taken as the lead case.

3.      The facts of the case as per complainants/respondents no.1 and 2 are that the OPs No.1 to 3 are the Tour Operators, who offered package tours throughout the world.  The OP no.4 is the Airline with which the OP No.1 had booked tickets for the complainants.  The complainants had booked a tour with the OPs for Kenya Safari Package TCKE 2305 Trip departing Ex Mumbai on 23^rd May 2014.  The complainants had paid the full amount as per package for 4 persons.  The tour’s scheduled departure was for 23^rd May 2014.  However as the complainants had to meet few friends at Nairobi and also wanted to do additional sightseeing at Nairobi (Kenya) which was not part of itinerary the complainants requested the OPs to prepone their departure by two days i.e. on 21^st May 2014 and for this the OPs had taken Rs.20,000/- as additional amount for preponement which was promptly paid by the complainants to get two additional days at Kenya.  The complainants were issued confirmation of the preponement of their departure on 21.05.2016.  The complainants had requested the OPs for a direct flight from Mumbai to Kenya by Kenya Airlines but the OPs issued the confirmed Air Tickets of Air Arabia departing on 21.05.2014 at 4:55 Hours from Mumbai to Sharjah (G9 407) and then connecting from Sharjah to Nairobi (G9407) reaching Nairobi at 13: 15 Hours on 21^st May 2014.  The complainants reached the Mumbai International Airport at 01.30 Hours on 21.05.2014 and were informed by the Executives at the Check-in Counter of Air Arabia that there was no Air Arabia flight from Sharjah to Nairobi on 21.05.2014.  The complainants were shocked at this information.  The complainants then informed the Executives at the Check-in Counter that these confirmed tickets were booked by Thomas Cook and the ticket has been issued by Air Arabia and handed over the same to them. The complainants then contacted the concerned person of Thomas Cook Bhilai and made them speak to the Executives at the Check-in Counter of Air Arabia and after that they said that the authorized person from Air Arabia would meet them in this regard.  The Air Arabia flight departure time was 04:55 so after repeated requests to meet the Air Arabia official and waiting for more than one hour then the Air Arabia official, Mr. Prashant, came. He said that Air Arabia flight No. G9 734 from Nairobi to Sharjah on 21.05.2014 had been cancelled due to some technical problem and so their Air Tickets of Air Arabia flight would be rescheduled for 22.05.2014 i.e. the next day from Mumbai to Sharjah and the connecting flight from Sharjah to Nairobi on 22^nd May 2014.  The Air Arabia official Mr. Prashant was very rude and had unsympathetic to their plight. He further stated that all passengers had been informed through email but the complainants had not received any such intimation. The complainants requested the OPs that as their flight was cancelled so they should fly them on Kenya Airlines, which also had a direct flight from Mumbai to Nairobi on 21.05.2014 in the morning but the OPs refused to consider their request and made the complainants wait at the airport. The complainants had reached the international airport on 21.05.2014 at 01.30 hours and they had to wait for more than 6 hours, that was the entire night, because of the unfair trade practice of the OPs. Further, the complainants had suffered and were insulted by the officials of Air Arabia and the Thomas Cook OPs No.1 to 3.  The entire family of the complainants including two children went through mental & physical trauma and harassment that entire night.  After the efforts made by the complainants, the OPs reluctantly made the arrangement for the stay of the complainants at Mumbai in a hotel.  The hotel which was arranged by the OPs was shabby and of a substandard offering very poor, unhygienic services.  The complainants who had already suffered mental & physical torture at the airport that night again had to experience the trauma of staying in such a shabby hotel.  The complainants contacted the OPs but the OPs overlooked the complaint and no proper arrangement was made for the complainants.

4.      On the next date 22^nd May 2014, the complainants were taken to Sharjah and then to Nairobi by the Air Arabia flight.  The complainants had lost two precious days of the trip because of the OPs in spite of the fact that they had paid preponement charges of Rs.20,000/-.  The OPs arrangements at Kenya were also of low quality and when on 23^rd May 2014, the complainants reached at Nairobi to join the rest of the group tour they were told by the executives of the OPs tour operators Safari Trails in Nairobi (Kenya) that the flight of the other members of the group was also delayed and they could not take the complainants for Nairobi City Visit (Sight Seeing) as per the original plan of 23^rd May 2014 evening.  So for the complainants the day of 23^rd May 2014 was also wasted. 

5.      On 24^th May 2014 in the morning the tour started from Nairobi to Masaimara and the vehicle (Registration No. KAS 616Q) which was given to the complainants by the OPs tour operator (Safari Trails) was a very old vehicle and was not having any pickup or power.  On 27^th May 2014, on the way from lake Nakuru to Sweet Waters the OPs driver lost its way and took some shortcut and there the vehicle of the complainants met with an accident with a local car which wasted two hours of the complainants and because of this the complainants could not reach at destination in proper time and they reached the Sweet Waters at 15:45 hours instead of 13:00 hours and hence could not fully enjoy the visit.  While returning back on 28^th May 2014 for the Nairobi Airport the vehicle (Registration No. KAS 616Q) which was giving problem since beginning of the trip had an engine breakdown and it totally stopped midway between Sweet Waters and Nairobi.  It was an isolated place and they were very far from the Airport.  This again resulted in lots of tension and mental trauma for the complainants.  The complainants requested the other vehicles passing by on the road to give them a lift/drop to the airport.  After lot of trouble another Tour Operator (Vintage Africa-another reputed tour operator in Kenya) cars were coming and the complainants requested them to stop and give them lift.  The complainants after reaching to their home made a complaint to the OPs through email on 02.06.2014 which was acknowledged by the OPs on 05.06.2014 but there was no proper response.  On 26.06.2014, the OPs sent an email as under:

a) “Air Arabia is happy to offer a credit amount of AED 200/- (to be calculated in equivalent INR on the date of new ticket issuance, as per that date’s prevailing rate of exchange) per person to you and the same to be redeemed on the next travel to any of Air Arabia’s destinations worldwide which is valid till December 2014.”

b) Post receiving feedback of the coach, our team made every endeavor to arrange for an optional coach; however due to super peak season and immediate availability proved a challenge. Nevertheless, only as a gesture of goodwill from Thomas Cook we are happy to offer you refund of USD 100 in total payable in equivalent Indian Rupee as per the rate of exchange prevailing to the date when the refund was processed.  Considering the mental and physical harassment undergone by the complainants and their family, the above compensation offered by the OPs is totally unacceptable to the complainants.  Therefore the complainants filed the consumer complaint before the District Forum with the following reliefs against the OPs:-

a) To refund the entire amount of Rs.4,50,000/- with interest @ 18% which was taken by the OPs as the package tour cost.

b) To award the amount of Rs.15,00,000/- for mental & physical harassment, deficiency in service and unfair trade practice against the OPs.

c) Any other relief, which this Hon’ble District Consumer Forum deems fit, may also be awarded in favour of the complainants as against the Opposite Parties.

d) Cost of complaint may also be awarded.

6.      The District Forum, Durg, vide their order dated 27.01.2016, allowed the complaint and passed the following order:

“Therefore, on the basis of the entire foregoing analysis of evidences, we allow the complaint presented by the complainants and order that the non-applicant Nos.1,2,3, and 4 shall pay amounts to the complainants within one month from the date of the order as under:-

i. The non-applicant Nos.1,2,3 and 4 shall jointly and severally pay Rs.4,50,000/- (Rupees Four Lakh Fifty Thousands) to the complainants.

ii. The non-applicant Nos.1,2, 3 and 4 shall jointly and severally pay interest at the rate of 18 percent per annum on the aforesaid amount from the date of filing of the complaint on 24.04.2015 till the date of payment to the complainants.

iii. The non-applicant nos.1,2, 3 and 4 shall jointly and severally pay Rs.5,00,000/- (Rupees Five Lakh) to the complainants towards compensation for mental harassment.

iv.          The non-applicant Nos.1, 2, 3 and 4 shall jointly and severally pay Rs.10,000/- (Rupees Ten Thousand) to the complainants towards cost of litigation.

7.      The OP No.4-Air Arabia filed an appeal No.185/2016 with a delay of 52 days against the order of the District Forum dated 27.01.2016 before the State Commission.  The State Commission vide their order dated 25.04.2016 dismissed the appeal as barred by limitation

8.      Being aggrieved by the order of the District Forum, the OPs No.1 to 3-Thomas Cook (India) Ltd. also filed an appeal No.79/2016 before the State Commission.  The State Commission vide their order dated 07.06.2016 partly accepted the appeal and observed as under:-

“14.       The order of the District Forum direction to refund of the amount of Rs.4,50,000/- (Rs. Four Lakh Fifty Thousand) jointly and severally to Respondent No.1 & 2/plaintiff is completely justified and there is no illegality in it.  But the interest @ 18% payable on the amount of Rs.4,50,000/- as directed by the District Forum is excessive.  As per our view, the interest @ 09% should be paid by the appellants to Respondent No.1 & 2/plaintiff.

15.        The District Forum has directed to pay Rs.5,00,000/- (Rs. Five Lakh) as compensation for mental agony.  As Respondent No.1 & 2/plaintiff are getting complete refund of Rs.4,50,000/- (Rs. Four Lakh Fifty Thousand) along with interest @ 09%, the amount of Rs.5,00,000/- (Rs. Five Lakh) as mental agony compensation is excessive, but there is no doubt that Respondent No.1 & 2/plaintiff have suffered mental agony.  In our view, in such circumstances, it will be proper and sufficient to order to pay Rs.2,00,000/- (Rs. Two Lakh only) to Respondent No.1 & 2/plaintiff.  There is no need to intervene for us in the order to pay Rs.10,000/- as legal cost as ordered.

16.        Therefore the appeal filed by the appellant no.1 to 3 is partially accepted.  The order by the District Forum regarding payment of Rs.4,50,000/- (Rs. Four Lakh Fifty Thousand) paid jointly and severally by respondent no.1,2, 3 &4 along with payment of Rs.10,000/- (Rs. Ten Thousand) as legal cost is kept as it is.  As far as interest is concerned, it is ordered that respondent no.1, 2, 3 & 4 will pay interest @ 09% in place of 18% p.a. at amount of Rs.4,50,000/- to the complainants from the date of filing of case on 24.04.2015.  It is also ordered that appellants will pay Rs.2,00,000/- (Rs. Two Lakh) as compensation for mental agony to complainants in place of Rs.5,00,000/- (Rs. Five Lakh).  Cost of this appeal will be borne by respective parties.”

9.      Hence, the three revision petitions.

10.    We heard the counsels for the petitioners Air Arabia and Thomas Cook (India) Ltd. and perused the record carefully.

11.    Counsel for the petitioner-Air Arabia in R.P. Nos. 2210 and 2317 of 2016 contended that the State Commission should have condoned the delay and heard them on merits.  He also stated that the tour was operated by the OPs. No.1 to 3 i.e. Thomas Cook (India) Ltd. for the complainants and they were only the airline that booked the tickets as the instructions of the tour operator for their journey.  The deficiency in service which is being alleged against the present petitioners is in respect of cancellation of flight on 21.05.2014.  The State Commission ignored the fact that the flight had to be cancelled due to a technical snag and therefore the same cannot be termed as deficiency in service.  However, the tickets had been booked by the Thomas Cook (India) Ltd. and the contact email and telephone number was given by Thomas Cook (India) Ltd. and they had information of the cancellation of the flight on the night of  20.05.2014 by email.   The complainants had neither directly booked the tickets from them nor there was any other allegation of deficiency against them in service except the fact that flight was cancelled on 21.05.2014 from Mumbai and rescheduled to 22.05.2014.  Hence, the fora below have erred in holding the present petitioners jointly and severally liable with the OPs No.1 to 3-Thomas Cook (India) Ltd.

12.    Counsel for the petitioners-Thomas Cook (India) Ltd. in R.P. No.2254/2016 contended that they were not responsible for the cancellation of the flight on 21.05.2014.  He also contended that tour was commencing on 23.05.2014 and the complainants had preponed it to 21.05.2014 for their own business.  The tour was successfully operated as per the plan from 23.05.2014.  Hence, the State Commission has erred in passing the order in favour of the complainants. 

13.    It is an admitted fact that Air Arabia failed to inform the complainants regarding the cancellation of their flight on 21.05.2014 and rescheduling of the same on 22.05.2014.  As a result, the complainants had to face considerable harassment at the airport for over six hours.  The counsel for the Air Arabia admitted that no intimation was given to the complainants but intimation was given to Thomas Cook (India) Ltd.  Air Arabia had not obtained the telephone numbers of the passengers, which they ought to have done so they could directly and immediately inform the passengers of any change in the flight schedule.  Air Arabia also faulted to provide any evidence of the technical snag due to which the flight was cancelled.

14.    It is also an admitted fact that the hotel provided by the OPs No.1 to 3-Thomas Cook at Nairobi was below standard.  Counsel could also not deny that the vehicle provided for the tour was very old and not in a good condition and broke down on returning from Kenya.  The City Tour on 23^rd May 2014 was also not given as per schedule. 

15.    In view of the above, we are of the view that both the petitioners i.e. Air Arabia and Thomas Cook (India) Ltd can be held guilty of deficiency in service in the quality of service rendered to the complainants.

16.    We have gone through the application for condonation of delay preferred by the petitioner, Air Arabia in R.P. No.2210/2016 before the State Commission.  For the reasons given in the application, the delay is condoned and the order of the State Commission dismissing the appeal on limitation is set aside.  For the reasons mentioned in Para 2 above, the case is not being remanded to State Commission but is being heard here with R.P. Nos.2317 and 2254 of 2016.

17.    However, in R.P. Nos. 2317 & 2254 of 2016, in the circumstances mentioned above, we find both the petitioners were guilty of deficiency with regard to the service rendered by them to the complainants.

18.    The Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., 2011 (3) Scale 654   has observed:

“ Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

19.    Thus, we find that no jurisdictional or legal error has been shown us in the impugned orders to call for our interference under Section 21 (b) of the Act.  The orders of the State Commission do not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity.  Hence, while revision petition no.2210 of 2016 is allowed, revision petition nos. 2317 and 2254 of 2016 are hereby dismissed and we uphold the order of the District Forum as modified by the State Commission vide order dated 07.06.2016 in F.A. No.2016/79.