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Arun Sangwan vs. Indian Airlines dated 2012-08-23

 

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION
NEW DELHI
 
CONSUMER COMPLAINT NO. 57 OF 2002
 
Arun Sangwan
S/o Late Col. U.P. Sangwan                            
1735, First Floor, Sector-4, Gurgaon
Present address:
C/o SGI, 321/322, MIDAS
Sahar Plaza Complex
Andheri-Kurla Road
Andheri ( E), Mumbai -59                                            …  Complainant
 
Versus
1. Indian Airlines
O/o Airport Manager
Domestic Airport
Terminal 1A (Indian Airlines)
New Delhi
 
2. I.A. Officials –
Mr. U.S. Pandey (Airport Manager)
Mr. Abhay Pathak (Manager – Commercial)            … Opposite Parties                                                    
 
BEFORE:
      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
      HON’BLE MR. VINAY KUMAR, MEMBER
 
For the Complainant        :   Mr. Arvind Minocha, Advocate
 
For the Opposite Parties :   Mr. Ravi Gopal, Advocate
 
                                                     
Pronounced on  23rd  August, 2012
 
ORDER
 
JUSTICE J.M. MALIK
1.        The Complainant, Sh. Arun Sangwan has signalled his annoyance by filing the above  said  complaint  and  is  seeking  damages in the sum of Rs.30,00,000/- (Rupees Thirty lacs only),  for deficiency in service  by  the Indian Airlines, OP1,  because  the flight of the Aeroplane IC 167 was delayed by approximately, two hours. 
 
2.      The facts of this case are as follows.  The complainant is a Sales Manager with Silicon Graphics, a Multi-National Company.  He is an  M.B.A. and  was drawing salary of Rs.5,00,000/- pack, p.a., besides other perquisites, at the time of filing of this complaint.  He has been travelling as per his business requirement.  He is an Income Tax Assesse.  He was to attend an important Conference of the Company, on 23.02.2001, at 11.00AM, at Mumbai.  Therefore, he booked his ticket from the opposite party and the flight was scheduled to depart at 8.00AM, from New Delhi.  The complainant arrived at the airport on 23.02.2001 at 6.30AM.  At 6.40AM, it was announced that the departure of the flight was delayed  but  no  rescheduled  time  was  announced.  At about 7.00AM, the counter opened and the complainant was informed that the flight would be departing at 8.20        AM.The complainant mentioned that he could go by the Jet Airlines Flight at 8.00AM, but he was misled into by the Check-in official that the flight would definitely take off at 8.20AM.  At 8.00AM, the Boarding was announced.  At about 8.30AM, pilot announced that the flight is further delayed as he was not getting clearance from the Commercial Department.  The complainant requested for being off-loaded so that he could take the Jet Airlines Flight at 9.30AM, but he was not permitted to deplane.  The pilot was specifically explained about the entire situation by the complainant and requested for transfer back to the airport to meet the officials concerned. 
 
3.      One Mr. Abhay Pathak, Manager (Commercial), arrived at the Aircraft and assured that the flight would take off at any time.  Mr.Pathak  gave some instructions to his staff who tried to forcibly herd back the passengers into the aircraft.  They used foul language, when their move  was  resisted  by the complainant.  In the meantime, U.S. Pandey, Airport Manager, came to the aircraft and informed the passengers that the flight was waiting for passengers who were to come by another Flight from Ranchi.  The flight from Ranchi was to reach the previous evening but was delayed due to technical defect.  The complainant was not allowed to transfer back to the airport for cancellation of the ticket.  The complainant wanted that he should get back the refund of the ticket, but that was declined.  No time for ‘take-off’  was indicated.  Under pressure from the complainant and other passengers, Mr. Abhay Pathak and U.S.Pandey gave  written apology at about 9.55AM  wherein it was confirmed by Mr. Abhay Pathak, Manager (Commercial) as also by Mr.U.S.Pandey, the Airport Manager that the delay was due to non-arrival of the passengers from Ranchi, at the scheduled hour. The Flight finally took off at about 10.15AM, after a delay of about 2.15 hrs and landed at about 12.15PM.  The complainant reached his destination at about 1.15PM instead of before 11.00AM.  Consequently, the present complaint was filed before this Commission on 18.02.2002, wherein the complainant claimed compensation in the sum of Rs.30,00,000/-.
 
4.      The opposite party has hotly contested this complaint.  The defences enumerated by the OPs  are these.  Ranchi-Patna-Delhi-Mumbai Flight   IC-810 developed some technical snag on 22.2.2001.  It was compelled to make an emergency landing at Patna.  For the rectification of snag, both man and material were immediately sent from Delhi on 22.2.2001 and  accordingly that  flight  was  rescheduled  to take off on 23.2.2001 at 0700 hours from Patna  for  arrival at Delhi at 08.00 hours.  The stranded passengers of IC-810 who were bound for Mumbai,  were to be accommodated on Flight No. IC-167 so as to enable them to reach Mumbai.  Consequently, Flight No. IC-167 was rescheduled to operate at 0845 hours in order to accommodate the 41 Mumbai bound passengers arriving on flight IC-810 D from Patna.  Passengers of IC-167 were duly intimated about the delay.  IC-810 D flight arrived at Delhi 0846 hours instead of expected time of arrival at 0829 hours.  The 41 passengers from Patna also had to be checked in for onward connection to Mumbai in flight No. IC-167 dated 23.2.2001.  In accordance with the Bureau of Civil Aviation Security, transfer of such passengers from one tarmac to another tarmac or from one aircraft to another aircraft are not permissible and as such the passengers were required to visit the departure hall for Check-in, security-check and then only boarding is allowed. 
 
5.      Their baggage was immediately transferred to IC-167 at about 9.00 AM and 39 passengers,  out  of  41  transit passengers after arriving into the departure hall,   checked in for Flight No. IC-167 and also boarded the same by 0910 hours.  The remaining two  transit passengers were on wheel chairs and  therefore,  the arrangements were made for providing Ambulift to the said passengers.  The passengers of  Flight No. IC-167 got annoyed and started agitating about the delay.  Mr. U.S. Pandey, Manager, Delhi Airport and Mr.Abhay Pathak, Manager-Terminal, gave written apology.  After the arrival of wheel chair passengers in boarding, the flight took off at 0950 hours.  According to the OPs, the delay caused  was only 1 hour and 20 minutes.   It is also explained that since the expected time of arrival of IC-810 at Delhi was 0800 hours and Flight IC 657 on 23.2.2001 was fully booked, therefore,  the decision was taken  to accommodate 41 stranded Delhi-Mumbai bound passengers arriving on IC 810 D from Patna on IC-167 instead of IC-657.  It is contended that there was no deficiency  or negligence  in the service of the OP.  Again, it is agreed between the passengers and the airlines that they would not call into question the delay, if any.   It is also argued that the complainant has failed to prove on record that he had suffered any loss from the above said delay.
 
6.      We have heard the learned counsel for the parties.  Learned counsel for the complainant  made the following submissions. The stance set up by the OPs is an outlandish mish-mash of half-truths and half- falsehood and contradictions. It made three announcements regarding the arrival of Ranchi Flight i.e. 8 A.M., & 8.46 A.M.  The Flight from Patna takes 55 minutes only.  The announcements were made deliberately false.  It was wrongly stated that flight No. IC-657 was fully booked.  There were only 144 passengers travelling and therefore the complainant could have been accommodated in the said flight but was wrongly declined which is clear act of unfair trade practice and deficiency in service.  It was wrongly stated that the flight IC-657 finally took off at 9.50 a.m.  This fact goes a long way to falsify their statement.  All the passengers had boarded the flight at 0910 hours but the fact that two wheel chair passengers boarded the flight at 0930 hours was wholly unjustified, which depicts the totally arrogant attitude of the opposite party.  When all the passengers had boarded the bus till 9.30 a.m., there was no justification for the further delay in taking off the aeroplane at 10.15 am.  The complainant in his written synopsis has listed the following deficiencies.
“1. Not permitting the complainant to deplane and take the Jet Airway’s flight at his own expense.
 
2.Wrongful restrant and illegal confinement.
 
3.Use of foul and insulting language and herding the complainant and other passengers back to the aircraft when they wanted to deplane.
 
4.Misleading into missing the Jet 8 A.M. flight and further refusal and/or failure to exercise the discretion to transfer the complainant to the other I.A. flight leaving at 9 A.M. when the power vests in the respondent’s official particularly when the complainant had explained the urgency of reaching Bombay in time and the essence of the matter was the timing.
 
5. Failure to give correct information and in fact giving false information.
 
6.Failure to offer tea or snacks from the time the boarding was complete at 8.30 A.M. till well after the take-off at 10.15 A.M.
 
7. Being deprived of the communication facility to communicate with his suppress about the delay.
 
8. Not permitting refund of ticket once the flight did not take off in time and the refund/ cancellation/transfer to Jet was requested more than one hour before the departure of the flight to enable the complaint to take another flight.”
 
 
7.      Learned counsel for the complainant further argued that the consequences of the above said deficiencies were these.  The complainant could not reach Mumbai in time.  He suffered disgrace and humiliation in his organisation and with the client whom he had specifically invited for pre-conference meetings.  All these meetings were fixed a fortnight earlier and re-confirmed just 2-3 days prior.  
 
8.      Again, the complainant had suffered mental distress due to the trauma and he was vomiting feeling discomfort   due to headache and neck strain.  His blood pressure was over 140/100.  He took one Alprax tablet during the flight.  He suffered physical and mental agony.
 
9.      The conditions mentioned on the ticket jacket are not applicable to the complainant.  The delay should be in respect of fog and other weather conditions, technical snag in the aircraft or in case of a hopping flight, late arrival of the aircraft.  The negligence on the part of the opposite party is writ large and they are liable to pay the compensation to the complainant.   It is contended that if delay is condoned, it would mean that the opposite party can get away with any illegal action even if their actions are contrary to law and tantamount to deficiency in service and unfair trade practice.  It is explained that such a clause is void being contrary to law.  It was argued that by virtue of that clause, the respondent cannot be permitted to harass the passengers as has been done with the complainant and others. 
 
10.    The argument urged by the counsel for the Complainant does seem attractive at the first sight but loses its sheen, the moment examined on  the touchstone of the orders rendered by this Commission, the Hon’ble Supreme Court  Rules, Regulations and Gazatte Notifications.  This is unfortunate that most of the passengers do not read the terms and conditions published on the air ticket itself.  The third condition published on the air ticket runs as follows:-
                             “The Company is not liable for damage occasioned by delay in the carriage by air of passengers or baggage.”
 
11.    The opposite party has placed on record the conditions of Indian Airlines i.e. Conditions of Contract Relating to Non-International Carriage (Passengers and Baggage) and clause 3 runs as follows:-
          “(3) The company reserves to itself the right, without assigning any reason to cancel, advance reschedule, overfly or delay the commencement or continuance of the flight or to alter the stopping place or places or to deviate from the route of the journey or to change the type of aircraft in use without thereby incurring any liability in damages or otherwise to the passengers or any other person on any ground whatsoever.  The Company also reserves to itself the right to refuse to carry any person whom it considered unfit to travel or who in the opinion of the Company may constitute risk to the aircraft or to the persons on board.”
 
Again, clause ‘f’ of conditions No. 5 runs as follows:-
“(f) The company is not liable for damage occasioned by delay in the carriage by air of passengers or baggage.”
 
12.    Moreover,  there is Gazette of India, June 8, 1985,  which, at point No. 7 mentions.
“1………..
2………..
3………..
4………..
5………..
6………..
7. No refund of fare will be made for a cancellation effected less than one hour before the scheduled time of departure of the service.”
 
 
13.    Now let us turn to the case in hand.  The key question is ”Whether the OPs  were negligent  or inactive or passive, in their  duties.  From the record, it is apparent that the departure of  flight No. IC 167 was rescheduled in order to accommodate 41 stranded passengers on board IC 810 D,  which  was delayed due to technical snag and had to make an ‘Emergency landing’  at Patna.  The flight of IC 810 D was rescheduled to arrive at Delhi at 0829 hours.  The delay must have caused some annoyance  to  the  complainant  and other  passengers  of  flight No. IC 167,  but  by no stretch of imagination,  it can be held that the delay in departure of  Flight No. IC 167 can be attributed to the negligence of OPs.  They were supposed to take care of 41 stranded passengers on board IC 810 D, which was delayed due to a  technical snag. There were two wheel-chair passengers and proper accommodation  has to be given to them.  Their case, as compared to the Complainant,  was  more serious. 
 
14.    The complainant submitted that he should have been accommodated in another flight i.e. IC 657.  One seat was vacant there.  The airport authority cannot adopt the policy of pick and choose.  How one passenger can be accommodated, when there were many other passengers who were the sufferers like the complainant?.  The accommodation  of  the complainant , only, would have caused a hue and cry amongst the remaining passengers.  In Flight No. IC 657, the people were  already On-Board. 
 
15.    It was not proper to cancel the ticket at that time.  There is no such law.  The cancellation of ticket from this aeroplane would have caused more trouble to the complainant.  The ground set up by the complainant in this regard is without any merit.  The counsel for the complainant submits that plane took off at 10.15 am, whereas Airport Record shows that  it took off  at 9.50 a.m. but the apology was  tendered by the officials of airlines at 9.55 a.m.  It appears that the learned counsel for the complainant is just splitting hairs.  The pressure was put by the passengers and complainant,  due to which the officers of the Committee were prepared  to give the written apology.  It does  entail some time.  Consequently,  it has to be assumed  that the aeroplane must have taken off  at about 10.00AM.   A dichotomy  may be visible which cuts no ice. 
 
16.    Last, but not the least, the complainant has not clarified that due to this delay, he suffered any irreparable loss.  He has not given any prescription.  He did not get himself his Blood Pressure examined at the Airport.  Alprax  is  a common medicine,  which most of the people take for removing tension.  It is also not evident that actually he took the Alprax.   Due to this delay,  the clients  had  to wait for some time.  There is no  loss  as such. 
 
17.    The  above said  view  neatly  dovetails with the following authorities.  In Mohinderjit Singh Sethi Vs. The Indian Airlines, Airlines House, New Delhi 1986-2002 CONSUMER 6263 (NS), this case, this Commission has relied upon the notification:-
“Notification No. AV 11012/5/79-A dt. 22.08.89 and further amended vide notification No. AV 11012/79-A dated 26.3.92 which is reproduced as under:
“The Company reserves the right, without assigning any reasons, to cancel, advance, reschedule, overfly or delay the commencement or continuance of the flight or alter the stopping places of to deviate from the route of the journey or to change the type of Aircraft in use without thereby incurring any liability in damages or otherwise to the passengers or any other person on any ground whatsoever”
The schedule of flight IC-484 Leh/Chandigarh was also changed from Saturday to Friday and all passengers booked for the above said flight for 02.07.94 were transferred to that of 1st July, 1994 automatically which includes the booking of complainant and his family.
On the ticket Jacket of Indian Airlines, it is printed that Company is not liable for any change reproduced above and this is also in the knowledge of the complainant.  Form the Ticket Jacket Contract, the complainant is estopped from filing the present complaint.”
 
In this case, this Commission observed:
“Stand of the petitioner has been vindicated by the State Commission holding that there was deficiency in service on the part of the Airlines and that had caused harassment and inconvenience to the petitioner.  But then petitioner has also offered no explanation as to why he could not advance his departure by one day.  If we take all these factors into consideration, we do not find it is a fit case for us to exercise our jurisdiction under clause (b) of Section 21 of the Consumer Protection Act, 1986.  This revision petition is dismissed.”
 
18.    Similar view was taken by this Commission in Indian Airlines vs. Rajesh Kumar Upadhyay, consumer protection reporter I-1991(1) wherein, it was held that ‘mere fact that a flight is operated late, will not  ‘ipso facto’ render the Airline liable for payment of compensation to the passengers, unless there is a proof of negligence on the part of the Airlines’.
 
19.    Similar view was taken by Gujarat State Consumer Disputes Redressal Commission in Patel Ramubhai Shankerlal vs. Indian Airlines Corporation I(1991) CPJ 511.
 
20.    Recently, the Hon’ble Supreme Court has taken this view in the case of Inter Globe Aviation Ltd. vs. N. Satchidanand, in civil appeal No. 4925 of 2011 arising out of SLP © No. 21108 of 2010 decided on 4.7.2011.
“41.If a flight had remained on tarmac without taking off, for eleven hours, after   boarding   was   completed,   and   if   permission   was   refused   to   send   the passengers to the Airport lounge, the Airport and ATC authorities  have to be blamed for requiring the passengers to stay on board. Normally if the aircraft has   remained   on   tarmac   for   more   than   two   or   three   hours   after   boarding   is closed, without the flight taking off, the passengers should be permitted to get back to the airport lounge to get facilitation service from the airline. Whenever there is such delay beyond a reasonable period (say three hours), the passengers on   board   should   be   permitted   to   get   back   to   the   airport   lounge.   If   for   any unforeseen   reason,   the   passengers   are   required   to   be   on   board   for   a   period beyond three hours or more, without the flight taking off, appropriate provision for food and water should be made, apart from providing access to the toilets. Congestion  in the airport  on account of the delayed and cancelled flights can not be a ground to prevent the passengers on board from returning to the airport lounge   when   there   is   a   delay   of   more   than   two   hours   after   completion   of boarding. While the guidelines issued by the DGCA cover the responsibilities of the airlines, DGCA and other concerned authorities should also specify the responsibilities of the airport and the ATC authorities to ensure that no aircraft remains  on tarmac for more than three hours after the boarding is closed and that  if  it has  to  so  remain,  then  permit  the  passengers  to  return  to  the airport lounge from the aircraft, till the aircraft is ready to take off. DGCA shall also ensure that the conditions of carriage  of all airlines  in India is in consonance with its Civil Aviation Directives.”
 
21.    Now, let us advert to the question of damages.  It is apparent that due to delay, the complainant and other passengers must have been annoyed to some extent.  The  written apology on the part of  the officials of the OPs   is reproduced below :
                             “To whom may pls concern
We sincerely apologise for the delay of flight IC-167 of 23.02.2001 which was delayed due to commercial to connect passengers from Ranchi.
Flight was finally leaving at 0955 instead of 0800.
We once again apologise.
No refund.
Sd/-
U.S. Pandey, Manager
Sd/-
Abhay Pathak.Manager
 
 
22.     There is a Protest Card by several passengers, which mentions “Better not to travel rather than travel Indian Airline”.  It was also mentioned that “due to commercial reasons, the above said delay was made, but we do not agree with them”.  This was not for commercial purpose  only, but they were to take care of 41 stranded passengers who were waiting to arrive at Delhi  to catch  the flight  at Delhi.   A bit delay should not cause any annoyance to the complainant or its passengers.   Although, we feel a twinge of sympathy with the complainant  and  other passengers, yet, we are of  the  considered  view  that apology  tendered by the Senior Officers, for no fault of them, is more than sufficient.  There is not even  a  scintilla of doubt in the mind of this Commission. 
 
23.    The  whole gamut of all the facts and circumstances of this case clearly leans on the side of OPs.  The complaint is meritless and the same is, therefore,  dismissed.  There shall be no order as to costs.
 
..…………………..………J
    (J.M. MALIK)
      PRESIDING MEMBER
 
                                                               
  ……………….……………
                                                        (VINAY KUMAR)
                                                                           MEMBER
 
md/21
 

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