PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act 1986 (hereinafter referred to as, ‘the Act’) is at the behest of Opposite Party to impeach the final order/judgment being order No. 14 dated 26.11.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, ‘Ld. District Forum’) in Consumer complaint No. 372 of 2017. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent under Section 12 of the Act with a direction upon the Opposite Party/appellant to refund the amount of Rs. 42,024/- only to the complainant/ respondent along with compensation of Rs. 10,000/- and litigation costs of Rs. 5,000/- to be payable within 30 days from date, in default, the amount shall carry interest @8% p.a. over the entire sum due to credit of the complainant/respondent till its realisation.
The respondent herein being complainant lodged the complaint before the Ld. District Forum stating that on 10.03.2017 he along with six family members was travelling from Kolkata to Delhi by IndiGo flight No. 6E-6766. The mother of the complainant who was on wheelchair entered through one security gate and the other members entered through another security gate. First group being serial Nos. 1to 4 entered through one security gate and the group in serial Nos. 5 to 7 entered through another security gate. The first group being serial Nos. 1 to 4 reached the boarding gate in time but the complainant did not find other group mentioned in serial No. 5 to 7 to board the flight. On enquiry, complainant was told by OP that the other group members, namely- Smt Ratna Roy Chowdhury, Sri Prashanta Sarkar and Smt Manjushree Sarkar were not allowed to board the flight for their late arrival at the boarding gate despite having boarding passes and luggage loaded in the said flight. In such a situation, those three passengers had to avail another flight for which the Opposite Party charged an amount of Rs. 55,284/-. The complainant brought the entire fact to the notice of the Opposite Party and asked for refund of the amount for committing deficiency in services on their part but OP did not pay any heed to the same. Hence, the respondent approached the Ld. District Forum with prayer for several reliefs, viz.- (a) to direct the Opposite Party to refund Rs. 55,284/- towards the excess charge for three passengers; (b) to pay compensation of Rs. 30,000/- for harassment and mental agony; (c) to pay litigation costs of Rs. 5,000/- etc.
The Opposite Party by filing a written version disputed and denied the materials allegations levelled by the complainant contending inter alia that as per terms and conditions of carriage, the complainant along with the other passengers should have reached before the boarding gate prior to 25 minutes of departure time. The OP has stated that the schedule time of the flat was 14.55 hours and the complainant along with three passengers reported at the gate at 14.03 hours but the other three passengers did not report within the schedule time and the gate had been closed and declared ‘gate no show’. Then missed passengers were offered to accept the fare of Rs. 42,024/- on the basis of recommendation charges and were accommodated in flight No. 6E-6516 at 19.00 hours. The Opposite Party had stated that as there was no deficiency or negligence on the part of them the complaint should be dismissed.
After assessing the materials on record the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the Opposite Party, as indicated above. To assail the said order Opposite Party has come up in this commission with the instant appeal.
Mr. Ved Sharma, Ld. Advocate for the appellant has submitted that the flight was scheduled to depart at 14.55 hours. The respondent along with the passengers, viz.- Smt Bhaswati Bose, Smt Parul Bose and Smt Parul Ghosh completed their check in formalities and reported in the boarding gate at 14.03 hours. However, the other three passengers, viz.- Smt Ratna Roy Chowdhury, Sri Prasanta Sarkar and Smt Manjushree Sarkar arrived at the boarding gate at 14.50 hours and thus they were declared ‘gate no show’ in accordance with the terms and conditions of IndiGo CoC. Referring to Article 8.2 and 8.3 of IndiGo CoC he has further submitted that as per the said Article the travellers were under obligation to report the counter for boarding before 25 minutes from the time of schedule departure and when the three passengers have filed to appear within the schedule time, there was no deficiency of services on the part of Opposite Party and the Ld. District Forum without considering the same, has passed the order which should be set aside. In support of his contention, Ld. Advocate for the appellant has placed reliance to a decision of Hon’ble Supreme Court reported in (2011) 7 SCC 463 (M/s. InterGlobe Aviation Limited –vs- N. Satchidanad).
Out of seven passengers against whom a single PNR had been issued being No- KFND3H, only one Sri Rabindra Bose has lodged the complaint. He appeared in person and has submitted that had there been any serious attempt on the part of the appellant to trace out the remaining three passengers, those three passengers would not have missed the flight and, therefore, the impugned order being a reasoned one, should not be interfered with.
We have given due consideration to the submission made by the Ld. Advocate for the appellant and the respondent, who appeared in person and scrutinised the materials on record.
Undisputedly, respondent along with six passengers were booked to travel on 10.03.2017 and 15.03.2017 from Kolkata to New Delhi and New Delhi to Kolkata on board IndiGo flight Nos. 6E-6766 and 6E-307 respectively. The said booking was done under a single PNR referred above. The schedule departure time of IndiGo flight No. 6E-6766 form Kolkata Airport was 14.55 hours. It also remains undisputed that on the date of travel the respondent along with three passengers namely Smt Bhaswati Bose, Smt Parul Bose and Smt Parul Ghosh after completion of their check in formalities reported at the boarding gate at 14.03 hours. However, the remaining three passengers, viz.- Smt Ratna Roy Chowdhury, Sri Prashanta Sarkar and Smt Manjushree Sarkar arrived at the boarding gate at about 14.50 hours just prior to five minutes of schedule departure of the flight.
Needless to say, the booking of flight of the respondent was governed by certain agreed terms and conditions of carriage known as IndiGo CoC. In other words, the IndiGo CoC form a binding contract between the respondent and Interglobe Aviation Limited. Since the same are duly made available to the respondent at the time of booking. Further, the IndiGo CoC is available on the official website of Interglobe Aviation Limited and also available at the Airport on request. In this regard, the decision referred by the Ld. Advocate for the appellant in connection with Interglobe Aviation Limited (supra) appears to be relevant where it has been held:
“Placing the conditions of carriage on the web-site and referring to the same in the e-ticket and making copies of conditions of carriage available at the Airport counters for inspection is sufficient notice in regard to the terms of conditions of the carriage and will bind the parties. The mere fact that a passenger may not read or may not demand a copy does not mean that he will not be bound by the terms of contract of carriage. .....”
The relevant provisions of the condition of carriage are reproduces hereunder:
“8.2- Boarding
In order to maintain schedules, the boarding gate will be closed 25 minutes prior to the departure time. The Customers must be present at the boarding gate not later than the time specified by IndiGo when they check in or any subsequent announcements made at the airport. Any Customer failing to report at the boarding within the aforesaid timelines shall be treated as a “Gate No Show” and the ticket amount for such Booking shall be forfeited by the Company. The Customers are, however, entitled to a refund of the Government and Airport Fees and/or Taxes (if applicable).”
Therefore, respondent along with the accompanying passengers were under obligation to report to the boarding gate for their flight not later than 25 minutes prior to schedule time of departure. The evidence on record speaks that the respondent along with three other passengers reported at the boarding gate at 14.03 hours which was 52 minutes prior to the schedule departure of the flight. However, the other three passengers arrived at the boarding gate at about 14.50 hours i.e. only 5 minutes prior to the schedule departure time for which boarding gate had been closed and those three passengers were thus declared, “gate no show”. In accordance with the terms and conditions of the IndiGo CoC since those passengers arrived at the boarding gate 5 minutes prior to departure of their flight, the staff of Interglobe Aviation Limited were rightly unable to accommodate them on their flight.
Needless to say, passenger’s failure to report to the boarding gates with their flight is in no way attributable to any fault on the part of Interglobe Aviation Limited. The staff of Interglobe Aviation Limited have acted in accordance with the rules of IndiGo CoC while providing services to the respondent. Therefore, the Ld. District Forum should not held the appellant liable for their alleged negligence. The observation of the Ld. District Forum- “if the staff of OP were vigilant and were sincere to find out the person, who received the boarding passes from the counter on that date would have detected those passengers and should have sent those passengers at the gate of the flight for boarding” appears to be an observation based on surmise and conjecture without any evidence and having no sanction in the eye of law.
Having heard the Ld. Advocates for the parties and on going through the materials on record we find that the Ld. District Forum has passed the impugned order without considering the provisions of condition of carriage and the evidence placed before it by the parties and as such the impugned order being not conformity with the facts and law, it is liable to be set aside.
For the reasons aforesaid the appeal is allowed on contest. However, there will be no order as to costs.
The impugned final order/judgment is hereby set aside.
Consequently, the complaint stands dismissed.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Dispute Redressal Forum, Kolkata Unit-I for information.
