State Consumer Disputes Redressal Commission
Satish Sethi vs J&K; Tourism on 29 October, 2009
J&K STATE CONSUMER DISPUTES REDRESSAL COMMISSION SRINAGAR J&K STATE CONSUMER DISPUTES REDRESSAL COMMISSION SRINAGAR Honble Mr.Justice (Retd) G.D.Sharma. .. President and Mrs. Rifat Aijaz .. Member
File No.Complaint No.23/2005.
Date of Institution. 07.9.2005.
Date of decision 29.10.2009.
Satish Sethi S/O Sh.C.L.Sethi, .. Complainant.
R/O2807.20,/saraswati Marg,Karol Bagh New Delhi.
Vs
1.Jammu & Kashmir Tourism Dev.Corporation .. O.Ps.
Civil Secretariat Srinagar/Jammu.
2.Managing Director Jammu & Kashmir Tourism Dev.
Corporation Srinagar.
___________________________________________________________________ Counsel for the parties:
Mr.Noor-ul-Amin,Advocate for the complainant.
Mr.Tasaduq Khawja,Advocate for the OPs.
Whether to be reported in Press/Media. YES Whether to be reported in Digest/Journal YES ___________________________________________________________________ Per Justice G.D.Sharma:
The complainant, namely Sh.Satish Sethi, is a Chartered Accountant by profession and resides in New Delhi.
His case is that on 26.6.2005, he alongwith family members consisting of his wife and two sons had booked four helicopter tickets from Baltal to the holy cave of Shri Amar Nath shrine for undertaking to and fro journey on the next date i.e. on 27.6.2005 and paid Rs.40,000/-as air fare. At the time the tickets were bought, the complainant was told orally by the concerned representative of the OPs to present themselves at Baltal helipad at 6 AM on 27.6.2007. They had done so but were made to wait there at the helipad upto 10.50 AM when they were allowed the boarding in the helicopter and they alighted at the helipad of the Shrine at 11.05 AM. They had been told to come back at the helipad before 11.30 AM for resuming back journey at the helipad and accordingly they were punctual to arrive five minutes earlier. The allegations made in the complaint are that in their presence helicopter came twice at the helipad but other passengers were allowed the boarding. The pilot had noticed their presence and specifically waived them to wait for the next sortie of the helicopter, which never materialized. They were allowed there upto 3 PM to bite their nails with abated breath hoping against hopes to avail the return journey which ended in a damp squib. The complainant has stated that he is hefty and sufficiently over-weight with the result that no horseman agreed despite many entreaties being made to allow him journey on the horseback. His wife is asthmatic patient. They had never mentally and physically prepared themselves to undertake return journey of a very highly arduous and risky nature. The whole family got segregated while undertaking the journey and got united at about 1.00O clock of the night (i.e. on 28.6.2006) at the top of a mountain, which abounds the camp area of Baltal. The harrowing experience was like a nightmare for the whole family. The complainant and his wife felt like having a fresh lease of life in this mundane world after undergoing great mental and physical trauma. While resuming return journey the complainant lodged report of the incident in Police Station Kangan where case was registered under FIR No.7/2005. All the money for undertaking the journey was lying in the pocket of the complainant and on his separation his wife met the necessary needs of consumptions by resorting to the method of begging monetary help from the fellow pilgrims and the poney wallas who were accompanying them. It thus proved to be an incident of worst kind of unforgettable humiliation and degradation of personal honour and dignity. After reaching Srinagar on 29.6.2005 the complainant lodged a protest in the OPs head office but casual and shabby treatment was meted out to him.
The following reliefs are claimed by the complainant:-
1- Refund of Rs.40000/-paid as air fare for helicopter journey;
2- Refund of air travel expenses amounting to Rs.50000/-which the complainant and his family members had paid to undertake journey from Delhi to Srinagar and back;
3- Payment of Rs.2.50 lacs towards cost of extended journey;
4- Compensation in the sum of rupees one crore for mental pain, agony and trauma caused to the complainant and his family members.
The OPs have contested the case and in the written version. The sale of four air tickets in favour of the complainant and his family members is admitted on the qualification that they were sold reluctantly on the insistence of the complainant because there was heavy booking. Besides the weather conditions were bad and technical snags were surfacing in the craft. That the complainant and his family members were very late in reporting themselves at the helipad of Baltal and at the outset they were frankly told that chance of their return journey was very bleak. Their names had figured at the end of passengers list. The weather conditions were also worsening. The complainant had undertaken the journey showing his willingness to avail only one-way ongoing journey while leaving the return journey to chance. That the complainant and his family members had reported at the helipad at holy cave at 12O clock for resuming the return journey but by that time weather conditions had deteriorated and it was impossible for the helicopter to take another sortie. The risk of undertaking air journey against the advice of air traffic control authority could not be taken. The OPs had refunded more than rupees ten lacs which they had collected as airfare charges to those pilgrims who could not avail the air travel facility due to bad weather and technical snag. It is denied that the complainant and his family members were discriminated.
In support of the complaint, the complainant filed his own affidavit and let in the evidence on affidavits of his wife,Smt.Sangita and sons Master Sachin and Master Sahil Sethi. All of them were present in the Commission but counsel of the OPs cross-examined only the complainant and showed his unwillingness to corss-examine the others. OPs have examined Sh.Basharat Rashid Bhat, Barkat Ahmed Bhat and Ghulam Nabi Wani as their witnesses.
Complainant, Sh.Satish Sethi in his affidavit has supported the averments made in the complaint and in cross-examination has denied that there was great rush for purchasing air travel tickets for the yatra. He reiterated that direction of the staff of Ops was complied by him and his family members because all of them had reached the helipad at the holy cave within 30 minutes. That return journey was resumed by him on foot upto the base camp of Baltal from where he boarded taxi which already had been hired by him to undertake the ongoing journey. He emphatically stated that mal-treatment was given to him at the head office of the OPs and no offer was made for refund of return journey fare. That no explanation was given to him for not taking them back from the holy cave upto Baltal. He has further stated that when they were waiting at the helipad at the holy shrine to undertake the return journey, choppers of other companies were noticed frequently landing and taking off with passengers.
Smt.Sangita Sethi corroborated the complainant in her averments made in the affidavit and further stated that her husband could not hire any horse for riding because being over weight, whereas she and her two sons could hire horses. Her husband was compelled to walk on foot which was an awful event for him and caused him physical, mental, torture. They were separated from each other while resuming return journey. All the money was with her husband and she alongwith her sons were made to beg even for a piece of bread or glass of water. They had not taken sufficient clothes with them to face harsh weather conditions at that difficult mountainous region. Similar are the depositions made by Sachin Sethi and Sahil Sethi.
Sh.Basharat Rashid Bhat has deposed that he was temporarily posted as Incharge of Helipad in Baltal in the year 2005 and was detailed to make arrangements for yatries who were availing helicopter services for going and coming back from Sh.Amar Nath Ji yatra. That the complainant had approached him on 27.7.2005 with four tickets at about 10.30 AM and wanted to board helicopter. Passengers were taken on board according to the serial numbers of their tickets and turn of assuming journey of the complainant came at 11 AM. According to him normally it takes more than one hour to return to the helipad after having darshan of the deities. The weather conditions after 11.30 normally deteriorates there. According to this phenomenon, there was no chance left out for the complainant to resume return journey. At 12 noon of the day, the concerned pilot of the helicopter had refused to make another sortie for getting back the left over passengers which included the complainant and his family members. The complainant had undertaken the journey on trial basis at his risk and had shown his willingness to take one way flight only. In cross-examination he admitted the contents of his affidavit but showed ignorance as to who had drafted or attested it. He admits that after reading the contents of the affidavit, he had put his signatures thereon. He is categoric in stating that as per his knowledge last chopper which had brought the passengers back from Sh.Amar Nath cave to Baltal had reported at Baltal at about 1.00o clock in the afternoon. That there is no particular schedule prescribed for a particular helicopter as to how many sorties it may take. He was shown the contents of the affidavit in the open commission and admitted them as true. Passengers Manifest Document attached with his affidavit had not been prepared by him personally and he had no knowledge whether it was attached with his affidavit and was signed by him.
Sh.Barkat Ahmed Bhat has stated that the complainant and his family members had approached him on 26.7.2005 and requested for the issuance of four tickets. Out of four passengers, two of them were children. The ticket were bought for undergoing journey on 27.7.2005 from Baltal to holy cave and back. He had refused to issue any ticket on the ground that already there was full bookings for that day. He was also told that ordinarily helicopter cannot fly after 12 noon due to bad weather conditions and return journey was not possible but the complainant insisted for the issuance of those tickets which were issued. In cross-examination he admitted the contents of his affidavit as true and correct based on his personal knowledge.
Sh.Ghulam Nabi Wani has stated that he was temporarily posted as Assistant at Helipad located near Sh.Amar Nath Ji cave in the year 2005 and was detailed to make arrangement for yatries who were availing helicopter service for the yatra. According to him the complainant and his family members were last to reach at the helipad on 27.6.2005 at 11.15 AM. Normally it could take more than one hour for a passenger to go from helipad and return back after having darshan because helipad was located 50 feet away from the staircase, which has 170 steps. That the complainant might not have been able to avail helicopter service for resuming return journey as normally weather conditions change soon after 11.30 AM.
The complainant and his family members returned at about 12.15 PM and were the last passengers to report for return journey. He had contacted Incharge Baltal helipad and after eliciting information from him had informed the complainant that weather conditions had deteriorated and pilot had refused to make another sortie because of safety reason. He had advised the complainant to avail boarding lodging facility, which were specifically arranged by his department for such pilgrims who are unable to perform journey on the same day. In his cross-examination he has stated that it takes ten minutes from Baltal to helipad at holy cave for each sortie and same time is consumed while coming back. He sticks to his deposition that weather normally changes after 11.30 AM and on that date also it had changed at 11.30 AM. That on 27.6.2005,two helicopters were pressed into use by the OPs and at 11.30 PM they were not put to use for bad weather.
Heard the arguments.
Mr.Noor-ul-Amin, the learned counsel for the complainants has contended that the allegation made in para 3 of the complaint to the effect that the complainant alongwith his family members had returned back at the helipad within 25 minutes to resume the return journey stands corroborated by him in his evidence given on oath. His wife Smt.Sangita Sethi and two sons, namely,Sachin Sethi and Sahil Sethi have also deposed alike in their deposition s on affidavits and they were not cross-examined on behalf of OPs.The OPs in their written versions have taken a clear stand in para 3 that the complainant and his family members had reported at the helipad of the holy cave at 12oclock,to resume return journey. In order to prove this fact,the OPs led the evidence of their three witnesses namely Basharat Rashid Bhat, Barkat Ahmed Bhat and Ghulam Nabi Wani.
Sh.Basharat Rashid Bhat has stated that weather conditions changed at 12 noon and thereafter pilot refused to make any more sortie. In his cross-examination he has made contradictory statement by stating that from Shri Amar Nath cave helipad the chopper reported at Baltal helipad at 1O clock in the afternoon. He has admitted that it takes ten minutes to undertake the journey in question. From this deposition a reasonable presumption which can be drawn is that the chopper had left the helipad at 12.50 PM. Even if after the deposition made by the witness is taken as wholly true the complainant and his family members ought to have reached the helipad of holy cave at 12.50 PM His deposition is contradicted by the other witness namely, Sh.Gh.Nabi Wani who in para No. 4 of affidavit has stated that the weather conditions changed soonafter 11.30 AM and the helicopter stopped plying therafter. Not only that, the deposition made by witness Gh.Nabi wani to the effect that the journey was undertaken on 27.6.2005 stands contradicted by other witnesses namely Basharat Rashid Bhat and Barkat Ahmed Bhat who in one voice have stated that journey was undertaken only on 27.7.2005.They remained steadfast to this position even in their cross-examination made at length. Concluding his arguments he has submitted that because of unfair trade and practice a happy family of four pilgrims was forcibly separated and submitted to anxiety, harassment on the pilgrimage trip. The unfair trade was being practised at such an aggravated form that even the amount of fare for the return journey in the sum of s.20000/-was not returned to the complainant.
In rebuttal Mr.Khawja has argued that consistent stand taken by the OPs is that weather conditions had deteriorated at 12 noon and no helicopter could land at the helipad of holy cave. The complainant and his family members had returned after 12 PM at that helipad after having darshans of the dieties. They were offered free boarding/lodging facility but refused to accept any. The complainant has annexed with the complaint annexure 5 which contains statement of fact made by an employee of the OPs immediately after the time of the alleged incident and it recites that complainant alongwith his family members had reached the helipad of the holy cave at 12 Noon .It is also recorded therein that after their arrival no sortie of helicopter reached there and out of 16 passengers only 12 could come back. The writing of annexure 5 is of utmost importance because at that time no case was filed in any forum. He has further argued that Sh.Basharat Rashid Bhat witness of the OPs has made a statement after five years from the date of incident and must not have remembered all the details because human memory fails but the evidence given by him has to be read as a whole and not in parts. An admission made by him in his cross-examination to the effect that the helicopter had reached Baltal at 1O clock cannot be taken as a gospel truth. He has in his cross-examination admitted the contents of his affidavit. There is no visible contradiction in the deposition of Gh.Nabi Wani, and other two witnesses namely, Basharat Rashid Bhat and Barkat Amed Bhat because they have stated that on the the day of incident weather had worsened at about 12 noon whereas Ghulam Nabi Wani has stated that normally weather conditions changes at 11.35 AM. While concluding his arguments he has stated that according to the admission made in his complaint and supported in his deposition the complainant alongwith his family members had reached the helipad of holy cave at about 11.15 AM and after taking judicial notice of the topography of the area as well as great rush of pilgrims it can be inferred that it might have taken at least one hour by them to reach back at the helipad. Cummulative effect of the whole evidence is that the contents of annexure 5 are correct and the complainant has failed to prove his case. The complainant had not made any demand for the refund of the air fair so it could not be refunded. The complainant has not proved anything regarding special damages he had suffered but at the most in case his complaint is to be allowed then he is entitled to damages on physical and emotional counts. According to him this principle has been laidown by the Honble National commission in the case titled Air India vs Abdul Majid, reported as IV(2003)CPJ 144 as well as AIR 1965 SC 1981 and the judgment of the Honble High Court of J&K passed in LPA No.19/2009 on 14.7.2009 have to be followed.
We have considered the respective contentions of the counsel appearing for the parties and gone through the record. It is found that the evidence of the complainant in order to prove the factum of negligence on the part of the OPs stands corroborated in material particulars by the evidence of his family members namely, smt.Sangita Sethi,Sachin Sethi and Sahil Sethi. All of them have given a graphic and consistent account of their sufferings. They are one in saying that they were earlier by five minutes to arrive at the helipad of holy cave than the appointed time. Each of them have spoken how a man made tragedy of unfathomable magnitude had befallen upon them. Each of the family member got segregated and three of them were rendered penniless while undertaking return journey on horsebacks. They had to beg or food and for other necessities. Smt.Sangita Sethi has narrated the horrifying experiences in detail. They had not sufficient warm clothes to face the vagaries of weather at that high altitude during night hours. The complainant was undertaking the journey on foot while carrying a heavy body load with him. He had faced problems of feeling breathless and other allied connected problems of hypertension as described by him In order to escape from the legal consequences of their acts of malfeasance and misfeasance the OPs had taken the defence that the complainant and his family members had reached the helipad of the holy cave not in time but by half an hour late than the appointed time of 11.30 PM. They have miserably failed to prove the fact about their alleged arrival at 12 PM at the helipad. Their witnesses have cancelled each others version. Sh.Basharat Rashid Bhat has stated that the last flight from helipad of Sh.Amar Nath cave had taken at about 12.50 PM as it had reached at the helipad of Baltal at 1 PMSh.Gh.Nabi Wani has stated that journey was undertaken on 27.6.2005 whileas the other two witnesses have stated that the journey was undertaken on 27.7.2005. It seems that the witnesses produced by the OPs are hired witnesses and were examined in the Commission as an idle formality. Their depositions do not inspire any confidence. Instead of advancing the cause of the OPs they have weakened it as truth has surfaced from the debris of falsehood.
Jurisdiction of consumer Fora extends to cases of services rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office and Fora have statutory obligation to award compensation. The fora must determine that the loss or injury suffered by citizen is due to mala fide or capricious or oppressive act and then direct the authority concerned to pay compensation following LDA case (1994) 1 SCC 243. It acts as a check on arbitrary and capricious exercise of power .It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the officer/public servant. No authority can arrogate to itself in power to act in a manner, which is arbitrary. Under our constitution sovereignty vests in the people. Every limb f the constitutional machinery is obliged to be public oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable to their behaviour before authorities crated under the statute like the State Consumer Commission or the courts entrusted with responsibility of maintaining rule of law.
Viewing the case in hand on the touch-stone of the above stated legal principles we find that the concerned official/officials of the OPs who have acted in a mala fide and capricious manner are accountable to the complainant and his family members for the legal wrongs done to them. Hence, we allow the complaint and direct the OPs to return to the complainant the balance amount of Rs.20000/-(Rs.twenty thousands) lying with them unauthorisedly for the willfully denied journey by air alongwith interest at the rate of 8% P.A. from the date of its receipt till payment is made. Besides that they are directed to pay compensation in the sum of Rs.10.00 lacs (Ten lacs) to the complainant and his three family members at the rate of Rs2.50 lacs (Two lacks and fifty thousands) each for undergoing mental, physical, emotional as well as financial sufferings, trauma and losses. OPs are directed that after making the payment of the said amount to the complainant and his family members at the first instance they should subsequently recover the amount from the delinquent official/officials who were responsible for perpetuating/inflicting the above stated uncalled for miseries/sufferings to the complainant and his family members. This mode would hopefully change their out-look towards the genuine consumers whose status under the Act is that of a king and latters status for adopting oppressive, capricious and arbitrary behaviour is like that of their morally depraved subjects The facts of the case have disclosed that instead of giving a human healing touch for such discriminatory and oppressive treatment even the complaint was not officially registered at the headquarter. All such official/officials are accountable to the authorities. A suitable action of the present nature against them is the need of the hour to improve the work culture in the organization. The OPs are also liable to pay litigation expenses to the complainant in the sum of Rs.10, 000/-(rupees ten thousands). A copy of the order be sent to the Chief Secretary to the Government of J&K for information and necessary action. The complaint is consigned to records.
*SABUNIA*PS MEMBER PRESIDENT