Tamil Nadu
South Chennai
CC/419/2015
M/s.Chamraj Sukumar - Complainant(s)
Versus
The Manager Empirates Airlines - Opp.Party(s)
Party in Persion
17 Feb 2020
ORDER
Date of filing : 02.11.2015
Date of Disposal : 17.02.2020
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)
@ 2ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.
PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L. : PRESIDENT
TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER
C.C. No.419/2015
DATED THIS MONDAY THE 17TH DAY OF FEBRUARY 2020
Charmraj Sukumar,
S/o. Mr. P.V. Chamraj,
No.73/14, Luz Church Road,
Mylapore,
Chennai – 600 004. .. Complainant.
..Versus..
1. The Manager,
Emirates Airlines,
Prestige Palladium Bayan,
Ground Floor, Door No.129-140,
Greams Road,
Chennai – 600 006.
2. The Manager,
All India Travel Agency (Madurai) Pvt. Ltd.,
B-6, Basement, Gemini Parsn Commercial Complex,
Chennai – 600 006. .. Opposite parties.
Counsel for the complainant : M/s. Menon & others
Counsel for the 1st opposite party : M/s. Rupa J. Tharayil
2nd Opposite party : Ex-parte
ORDER
THIRU. M. MONY, PRESIDENT
This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to refund a sum of Rs.79,000/- towards the ticket with interest at the rate of 11.25% p.a. from the date of purchase of the ticket i.e. 16.03.2015 to the date of settlement, to pay a sum of Rs.4,679/- towards the loss on account of the premium paid for travel insurance policy with interest on item 3 above at the rate of 11.25% from 10.04.2015 to the date of settlement, to pay the complainant’s return ticket from US was booked through the 1st opposite party from Austin to Chennai. The loss on this count was USD 184 incurred on 15.03.2015 with interest on item 5 @ 11.25% from 15.03.2015 to the date of settlement, Rs.1,200/- on account of taxi fare incurred by the complainant at Chennai 8th and 9th April 2015 with interest at the rate of 11.25 % from 09.04.2015 and to pay a sum of Rs.1,00,000/- towards compensation for stress, uncertainty and agony with cost to the complainant.
1. The averments of the complaint in brief are as follows:-
The complainant submits that she undertook the travel to US to assist his only daughter in her relocating from San Jose to Austin as she needed the assistance of the complainant in arranging for the relocation and for this purpose the complainant has booked a flight ticket for 12th April 2015 from San Jose to Austin through South West Airlines at a cost of US $ 184 with only 3 clear days left for the arrangement of re-location. The complainant has booked E ticket for travel on 08.04.2015 for the flight EK 543 from Chennai to San Francisco/ Austin and back to Chennai through Emirates Airlines. The flight No.049 on 09.04.2015 which was supposed to take off from Dubai at 08.50 hours did not take off at the scheduled departure time,; the complainant was orally informed by the 1st opposite party at the boarding gate that the exact departure time was uncertain. On account of this uncertainty in the departure from Dubai to Munich by EK 049, the complainant was unsure if he would be able to catch the connecting flight LH458 from Munich to San Francisco; at that stage, the complainant enquired the 1st opposite party at the gate whether he could be provided an alternate flight from Munich to San Francisco if the Dubai-Munich flight EK 049 reaches Munich at a time making it impossible for the complainant to take LH458 to San Francisco from Munich. To this query, the 1st opposite party was very harsh and rude and shouted at the complainant that could not assure any alternate flight from Munich to San Francisco nor the complainant would be able to catch the connecting flight at Munich by LH 458. The 1st opposite party has accepted the fact that EK 049 was delay for almost three hours at Dubai. Therefore, it is evident that if the complainant had taken the flight EK 049 from Dubai to Munich, he would have missed the connecting flight No.LH 458 to San Francisco at Munich as the transit time for the connecting flight at Munich to San Francisco was only 3 hours and the flight No.LH 458 would have taken off from Munich even before the flight EK 049 could land at Munich.
2. The complainant states that he would have been stranded at Munich as he would have missed the connecting flight No.LH 458 to San Francisco at Munich as the transit time for the connecting flight at Munich to San Francisco was only 3 hours and the flight No.LH 458 would have taken off from Munich even before the flight EK 049 could land at Munich. The complainant also has booked a flight ticket for 12.04.2015 from San Jose to Austin at a cost of US $ 184 with only 3 clear days left for the arrangement of re-location. In view the fact, the complainant would not have been able to fulfil the purpose of his visit on account of the delays not only at Chennai in EK 543 but also at Dubai in EK 049 and the uncertainty to take the connecting flight from Munich by LH 458 and lack of any concrete assurance regarding the flight from Munich to San Francisco, the complainant with a heavy heart and a feel of the defeat of his purpose of visit to assist his daughter in her relocation in a foreign land had been forced to decide to compulsorily return to Chennai from Dubai itself leaving his daughter to send for herself in the said relocation. On account of the above, the complainant returned to Chennai by EK 546 and reached Chennai on 9th April at 08.30 PM. On return to Chennai, the complainant wrote to the 1st opposite party via email for a full refund of the amount paid for the ticket ETKT 1768924545290-91. To the complainant’s request full refund of the fare, the 1st opposite party vide its email dated:23.06.2015 offered 20,000 goodwill miles and asked the complainant to contact the travel agent who is the second of the opposite party for a refund of the unutilized sectors of the ticket. The complainant wrote back to the 1st opposite party vide his email dated:23.06.2015 that this was not acceptable for reasons of deficiency in service the reason that the complainant could not reach the US on time to fulfil the objective for which, he undertook the journey and also since he does not accept the 20,000 goodwill miles as he does not need them.
3. The complainant sent email dated:23.06.2015 addressed to the opposite parties 1 & 2 also. On 01.07.2015, the complainant wrote a email to the 1st opposite party and 2nd opposite party stating that the offer is not agreeable that he is claiming refund of unutilized sector and requested the 1st opposite party to agree for full refund and wrote to the 2nd opposite party vide email dated:01.07.2015 claiming for the refund of the unutilised sectors of travel. On 1st August 2015, the 2nd opposite party marked a copy of its email addressed to the 1st opposite party in which, the 2nd opposite party stated that it has not received refund claimed by it on 02.07.2015 from the 1st opposite party in respect of refund number 0500818786. The complainant sent remainder to the opposite parties on 27.08.2015 and the matter of refund is still pending. The complainant submits that the claim for full refund the complainant represented again to the opposite parties 1 & 2 vide his letter dated 03.09.2015. The 1st opposite party replied vide its email dated:21.09.2015 that its position remains as “previously stated”. Therefore, the trip Chennai-Dubai become infructuous and Dubai – Chennai was not of the complainant’s voluntary or willing decision and it is clearly, solely on account of the deficiency in service by the 1st opposite party from the beginning. The complainant therefore avers that Chennai-Dubai-Chennai part is not and cannot also be considered to be partial utilization of the ticket No.ETKT 176 8924545290-91 since if the first opposite party had offered alternate flight to reach San Francisco from Dubai on time when the Dubai-Munich EK049 was delayed, the complainant would have completed his journey to US and would not have been compelled to return to Chennai from Dubai itself, in a disturbed frame of mind. The complainant incurred expenses towards taxi fare to Chennai Airport on 08.04.2015 and back to home on 09.04.2015 due to the disruption in the travel plan amounting to Rs.1,200/-. The complainant’s spouse in Chennai and his daughter in the US were also under persistent tension on account of their anxiety over the uncertain situation in respect of his travel and their worry about his health as he is a diabetic with diet constraints – that too in a foreign land and at his age as a senior citizen. The act of the opposite parties 1 & 2 amounts to deficiency in service and unfair trade practice which caused great mental agony. Hence, the complaint is filed.
4. The brief averments in the written version filed by 1st opposite party is as follows:
The 1st opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same. The 1st opposite party states that the complainant booked ticket for travel from Chennai to San Francisco on 08.04.2015 and there was a delay of the flight No.EK 543 due to the technical snag of arrival incoming air cracks due to traffic control management and irregular operation of the aircraft. Since the flight from Chennai was delayed and the connected flight was missed from Dubai to San Francisco, the technical snag and delay was informed to the complainant and made aware of the fact at Chennai Airport itself. It is also informed to the complainant that connected flight from Dubai to San Francisco may be arranged alternatively. The complainant also agreed for such alternative rerouted travel from Dubai to Munich and Munich to San Francisco by Lufthansa Airways. The tickets were rebooked in flight EK 049 from Dubai to Munich and on Lufthansa flight LH 458 from Munich to San Francisco. But unfortunately due to technical snag, the flight from Dubai to Munich was also delayed for 2 hrs 50 minutes. The 1st opposite party states that with the presumption that the delay would result missing of connecting flight etc., the complainant refused to accept the reroute travel and cancelled all his travel plans and decided to come back to India. The opposite party also changed the ticket of the complainant and allowed to return to India.
5. The 1st opposite party states that the delay of flight from Chennai to Dubai and Dubai to Munich are unexpectable due to technical snag. The 1st opposite party has taken maximum steps for providing comfortable journey to the complainant. The 1st opposite party states that the ticket availed by the complainant is not refundable. The complainant also has cancelled his journey and returned back to India at last minute. Despite this opposite party as a gesture of goodwill agreed to credited at 20000 skyward miles since the complainant is a frequent flyer. The claim of the complainant was rejected at the costs incurred were also attributable to his own action as he chose to come back to India despite his earlier schedule of returning 20 days later via New York. Therefore, there is no deficiency in service on the part of the 1st opposite party and hence, the complaint is liable to be dismissed.
6. In spite of receipt of notice, the 2nd opposite party has not appeared before this Forum and hence, the 2nd opposite party was set ex-parte.
3. To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A14 are marked. Proof affidavit of the 1st opposite party is filed and documents Ex.B1 to Ex.B4 are marked on the side of the 1st opposite party.
7. The points for consideration is:-
- Whether the complainant entitled to get refund of a sum of Rs.79,000/- paid towards ticket and Rs.4,679/- paid towards insurance policy with other expenses of Rs.1100 towards taxi fare with interest at the rate of 11.25% p.a. as prayed for?
- Whether the complainant entitled to a sum of Rs.1,00,000/- towards compensation for mental agony with cost as prayed for?
8. On point:-
The 2nd opposite party remained ex-pare. The complainant and 1st opposite party filed their respective written arguments. Heard their respective Counsels also. Perused the records namely; the complaint, written version, proof affidavits and documents. Admittedly, the complainant has booked ticket for travelling on 08.04.2015 from Chennai to San Francisco/ Austin – Chennai through Emirates Airlines. The ticket No.ETKT 176 8924545290-91 at a cost of Rs.79,000/-. Ex.A1 & Ex.A2 are the copy of the tickets dated:16.03.2015. The complainant was issued boarding pass as per Ex.A3. Before taking of flight EK543, there was delay of 3 hrs 45 minutes. After arrival at Dubai the 2nd leg of travel through flight EK 225 from Dubai to San Francisco also delayed for 2.30 hours. The opposite parties made an alternative arrangement for the travel from Dubai to San Francisco via Munich also delayed for considerable time. Hence, the complainant opted to return back to Chennai and claimed the ticket fare since, the service of the opposite parties is not satisfactory and apparent deficiency.
9. Further the contention of the complainant is that the alleged technical snag was not explained by the opposite parties then and there and bluntly informed that there was a delay due to technical snag. At the inception of travel, there is inordinate delay caused great inconvenience to the complainant also due to technical snag. The complainant booked ticket to go to San Francisco to help his daughter for re-location of house but no record. Since there was inordinate delay in flight service, the complainant was constrained to return back to Chennai without availing the trip. The complainant issued a letter as per Ex.A5 dated:10.04.2015 in detail claiming refund of the full ticket fare for which, the opposite parties has not sent any reply. On the other hand, the opposite parties sent an email dated:23.06.2015 as per Ex.A4 and admitted the inconvenience by making sincere apology for the delay and agreed for refund of the unutilized sector of the ticket. As per Ex.A6 & Ex.A7 dated:23.03.2015 & 01.07.2015 respectively, the complainant issued an e-mail requesting to pay the insurance amount and local transport charges totalling Rs.6,200/- and also claiming entire ticket amount. Thereafter, the complainant issued e-mail as per Ex.A8 which reads as follows:
“I request you to refund the Unutilised portion of fare to my account given below as I am Now in USA”. Accordingly as per Ex.A9, the opposite parties refunded the ticket amount on 02.07.2015. Thereafter, the complainant issued Ex.A10, email claiming to settle the ticket fare in full. Since the opposite party has not settled the amount, the complainant issued notice dated:03.09.2015 for which, the opposite parties has not sent any reply except e-mails stating that cannot be considered. The complainant filed this case claiming the entire ticket fare of Rs.79,000/- suppressing the amount refunded as per Ex.A9.
10. The learned Counsel for the 1st opposite party would contend that admittedly, the complainant booked ticket for travel from Chennai to San Francisco on 08.04.2015. Admittedly, there was a delay of the flight No.EK 543 due to the technical snag arrival of incoming aircraft due to traffic control management and irregular operation of the aircraft there was further delay of 3 hours and 45 minutes. Ex.B3 is the technical report to show the reason for the delay. Since the flight from Chennai was delayed and the connected flight was missed from Dubai to San Francisco, the technical snag and delay was informed to the complainant and made aware of the fact at Chennai Airport itself. It is also informed to the complainant that connected flight from Dubai to San Francisco may be arranged alternatively. The complainant also agreed for such alternative rerouted travel from Dubai to Munich and Munich to San Francisco by Lufthansa Airways. Due tickets were rebooked in flight EK 049 from Dubai to Munich and on Lufthansa flight LH 458 from Munich to San Francisco. But unfortunately due to technical snag, the flight from Dubai to Munich was also delayed for 2 hrs 50 minutes. Ex.B4 is the copy of technical report.
11. Further the contention of the 1st opposite party is that with the presumption of delay would result missing of connecting flight etc., the complainant refused to accept the reroute travel and cancelled all his travel plans and decided to return back to India. The opposite party also changed the ticket of the complainant and allowed to return to India. The claim of entire amount of Rs.79,000/- with interest at the rate of 11.25%, Rs,4679/- towards travel insurance and another sum of Rs.1,200/- towards taxi fare with compensation of Rs.1,00,000/- were imaginary, exorbitant and denied; as a gesture of goodwill offered the complainant Rs.20,000/- skyward miles was also refused by the complainant. Further the learned Counsel for the 1st opposite party would contend that the delay of flight from Chennai to Dubai and Dubai to Munich are unexpectable due to technical snag is proved from Ex.B3 & Ex.B4 for which, the claim of entire ticket amount is unreasonable. As per the Office of the Director General Of Civil Aviation rules (DGCA Rules), Article 1.4 & 1.5, the complainant cannot claim the entire amount of ticket fare. But on a careful perusal of Director General of Civil Aviation rules (DGCA Rules) Articles 1.4 & 1.5, the complainant (claimant) cannot claim compensation.
12. The 1st opposite party is not liable for any damage for the delay since, as per Article 19 & 20 of the Carriage of Air Act, 1972, which reads as follows:
“19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods.
20. (1) The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures”.
The opposite party has taken maximum steps for comfortable journey.
13. Further the contention of the 1st opposite party is that the ticket availed by the complainant is not refundable. The complainant also has cancelled his journey and returned back India. Despite this opposite party as a gesture of goodwill agreed to credited at 20000 skyward miles since the complainant is a frequent flyer. Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 & 2 shall refund the amount equalent to 20,000 skyward miles towards the unutilized portion of the air tickets with interest at the rate of 9% p.a. from the date of complainant to till the date of this order and to pay a sum of Rs.10,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant.
In the result, this complaint is allowed in part. The opposite parties 1 & 2 are jointly and severally liable to refund the amount equalent to 20,000 skyward miles towards unutilized portion of air tickets along with interest at the rate of 9% p.a. from the date of filing of this complaint (i.e.) 02.11.2015 to till the date of this order (i.e.) 17.02.2020 to the complainant and to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for mental agony, deficiency in service etc with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.
The above amounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.
Dictated by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 17th day of February 2020.
MEMBER PRESIDENT
COMPLAINANT SIDE DOCUMENTS:-
Ex.A1 | 16.03.2015 | Copy of Ticket No.ETKT 176 8924545290-91 |
Ex.A2 | 23.08.2015 | Copy of flight ticket from San Jose to Austin |
Ex.A3 |
| Copy of boarding passes issued to the complainant |
Ex.A4 | 23.06.2015 | Copy of email of the 1st opposite party |
Ex.A5 | 10.04.2015 | Copy of email from the complainant to the 1st opposite party |
Ex.A6 | 23.06.2015 | Copy of email of the complainant’s reply to the 1st opposite party |
Ex.A7 | 01.07.2015 | Copy of email from the complainant to the 1st opposite party |
Ex.A8 | 01.07.2015 | Copy of email of the complainant to the 1st opposite party requesting refund of the unutilized sectors of travel |
Ex.A9 | 01.08.2015 | Copy of email of the 2nd opposite party to 1st opposite party |
Ex.A10 | 27.05.2015 | Copy of remainder of the complainant to the opposite parties |
Ex.A11 | 03.09.2015 | Copy of representation of the complainant to the opposite parties 1 & 2 |
Ex.A12 | 21.09.2015 | Copy of reply of the 1st opposite party to the complainant |
Ex.A13 | 07.04.2015 | Copy of insurance policy of the complainant |
Ex.A14 | 10.04.2015 & 14.04.2015 | Copy of rejection of refund of the insurance company |
1ST OPPOSITE PARTY SIDE DOCUMENTS:-
Ex.B1 |
| Copy of Article 9 Conditions of Carriage of the opposite parties |
Ex.B2 |
| Copy of Article 10 Conditions of Carriage of the opposite parties |
Ex.B3 | 07.04.2015 | Copy of Technical Report |
Ex.B4 | 09.04.2015 | Copy of Technical Report |
MEMBER PRESIDENT
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