National Consumer Disputes Redressal
Air India vs Sushil Kumar on 30 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 492 of 2013 (From the order dated 31.10.2012 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in First Appeal no.418 of 2012) Air India Through its Station Manager SCO 161 164, Sector 34 A Petitioner Chandigarh Through Authorised Representative Ms K A Nagamani Sr Manager GM (GH) Versus Sushil Kumar 79 Taylor Road Officers Colony Respondent Amritsar BEFORE: HONBLE MR JUSTICE AJIT BHARIHOKE PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Ms Babita, Advocate For the Respondent IN PERSON Pronounced on 30th January 2015 ORDER
REKHA GUPTA Revision petition no. 492 of 2013 has been filed against the order dated 31.10.2012 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (the State Commission) in First Appeal no. 418 of 2012.
2. The facts of the case as per the respondent/ complainant are that on 25.06.2010, the daughter of the respondent purchased an air ticket no. 0988608434365 from Amritsar to Pittsburgh for 18.08.2010 via., London, Toronto and Chicago by Air India, American Air Lines and United Air Lines with total cost of $983.59 USD on line.
3. A few days prior to the departure date, the respondent visited the office of the petitioner/ opposite party to enquire about the reporting time, luggage pieces and on the due date, i.e., 18.087.2010, the daughter of the respondent reported at Amritsar Airport at 0300 hours. After thoroughly examining all the documents at the Air India Counter, the daughter of the respondent was issued boarding card and luggage tags and she was told to proceed for immigration and security check. The immigration official after checking the documents told her that a transit visa for Toronto was required. The officials of Air India questioned the issue of boarding card who took the daughter of the respondent to his superior and explained the entire matter. Thereafter the daughter of the respondent was compelled to return the boarding card and luggage tags and respondents daughter was asked to wait outside as they will be contacting the embassy for transit visa. The daughter of the respondent kept on waiting and was later on informed that they could not get the transit visa and hence, she cannot board the flight. Consequent thereupon the daughter of the respondent informed the respondent about the entire situation telephonically and the respondent immediately rushed to the Airport and met the officials of the petitioner and told the respondent that the immigration officials objected for want of transit visa, hence, the daughter of the respondent cannot take the flight but they assured the respondent and his daughter that the daughter of the respondent will be sent in the evening flight of the same day where no transit visa was required by way of rescheduling the same ticket and further the respondent and his daughter to report city office at 10.00 hours. After waiting for some time, the luggage was brought back from the Aircraft and the same was handed over to the respondent.
4. The respondent and the daughter reported at the office of the petitioner and explained the entire matter and requested for rescheduling of the ticket for evening flight. The dealing official informed that an additional amount $1000 USD would be required to reschedule the flight but no seat is available in the coming few days. It was a great shock for the respondent and his daughter. The respondent explained the urgency to reach his daughter by 19.08.2010 to avoid any further financial loss of scholarship agreement etc. without which it was very difficult to carry on further studies but of no avail.
5. Ultimately the respondent and his daughter left Air India office around 1130 hours and started running to travel agents for help in getting Air Ticket to reach Pittsburgh by 19.08.2010. At around 1330 hours, one agent was able to give ticket no. 0051601954433 by Continental Air Lines for Rs.72,000/- which was paid by respondent, i.e., Rs.45,000/- through cheque and the remaining amount of Rs.27,000/- after borrowing from friends and the daughter of the respondent was sent at 1500 hours from Amritsar to Delhi through Jet Airways and further by Continental Air Lines.
6. Neither the respondent nor his daughter had been intimated by the petitioner about the requirement of obtaining a transit visa in time. The respondent certainly would have arranged the same and by giving no such intimation to the respondent the petitioner has committed negligent acts.
7. A detailed representation was made by the respondent on 23.08.2010 to the petitioner and other higher authorities high lighting the entire facts with request to refund the full air ticket as well as difference of additional amount of Rs.25,770/- which was paid by the respondent but with no response. Not only this, a legal notice dated 03.11.2010 was also served upon the petitioner through registered post seeking redressal of grievances of the respondent but the petitioner failed to give any satisfactory reply or to comply with the requirements of the said notice, hence, this complaint.
8. The respondent, therefore, prayed as under:
(a) The petitioner may kindly be directed to pay compensation of Rs.4 lakh from the petitioner besides refund of full air ticket amount as well as difference of additional amount of Rs.25,770/- along with interest at 18% per annum to the respondent;
(b) Cost of complaint along with litigation expenses and counsels fee may also be awarded; and
(c) Any other relief to which the respondent is found entitled under law and equity, may also be awarded to the respondent.
9. The petitioner/ opposite party in their reply before the District Consumer Disputes Redressal Forum, Amritsar (the District Forum) stated that the respondent had purchased the air ticket through internet. The air ticket was purchased online and in such cases, the responsibility of ensuring requirement of travel documents (visa etc.,) lies with the passenger and not with the Airlines.
10. The petitioner denied that prior to 18th August, the respondent or his daughter had ever visited the petitioner for the purpose of making any enquiry. The respondents daughter reported at ATQ on 18th August 2010 and the Immigration Authorities at Amritsar Airport checked the relevant documents and found that the ticket got booked by the respondent through internet had through connecting flights, i.e., from Amritsar to Toronto by Air India flights and then by United Airlines from Toronto to Chicago and then from Chicago to Pittsburgh. Since the respondents daughter was to travel by connecting flights, she was required to obtain a transit visa for Toronto. As the respondents daughter had failed to obtain any such transit visa, the immigration authorities at the Airport detained the respondents daughter. The petitioner was having direct flights from Amritsar to New York and this fact was well within the knowledge of the respondent and his daughter but instead of direct flight, they chose to book a cheaper ticket by connecting flights as detailed above. The boarding card and luggage tags were inadvertently issued to the respondents daughter and on coming to know that the respondents daughter did not have transit visa by the immigration authorities, the respondent was not allowed to board the plane. It is denied that any assurance was given by the officials of the petitioner that they would send the daughter of the respondent in the evening flight of the same day as alleged. Rather, the respondent was advised to report to city office for rebooking on direct flight to New York and the respondent and his daughter came for reissuance of ticket. However, seats were not available in AI 101 to New York in the next few days.
11. The ticket in question was got booked through internet/ on line, therefore, the responsibility of ensuring requirement of travel documents (visa etc.,) lies with the passenger and not with the Airlines. Further, it was the duty of the respondent and his daughter to arrange transit visa since respondent was to travel through connecting flights. There was no obligation on the part of the respondent to give any such information that the respondent requires any transit visa. Further the respondent or his daughter did not visit the petitioner for the purpose of enquiry before 18th August 2010. The petitioner has not committed any negligent acts as alleged nor has the respondents daughter suffered at the hands of the officials of the petitioner. The petitioner denied that the complainant was entitled for refund of full air ticket money as well as difference of additional amount of Rs.25,770/- as alleged. The petitioner further denied that the petitioner was bound to pay any such amount to the respondent as alleged. Infact fare for the onward flights of American Airlines (from Toronto to Chicago) and United Airlines (from Chicago to Pittsburgh) were non-refundable but still as a matter of good gesture and to show bonafide intention of the petitioner, the petitioner cooperated with the respondent and inquired from their Delhi Office for any refund if the rules permit the same and the Delhi office of the petitioner intimated the local office at Amritsar that since the tickets were issued abroad by Pars Service Partnership, the amount of the ticket cannot be refunded locally at all and thus, it was quite clear that there was no lapse or fault on the part of the petitioner.
12. The District Forum vide order dated 21.02.20102 while allowing the complaint directed the opposite party to reimburse Rs.72,000/- to respondent/ complainant along with interest @ 9% per annum on this amount from the date of filing of the complaint till realization of the amount. The opposite party was also directed to pay compensation of Rs.50,000/- to the complainant and his daughter for harassment and mental agony suffered by the complainant/ his daughter along with cost of litigation to the tune of Rs.2000/-. Amount be paid to the complainant by the opposite party by way of bank draft or account payees cheque.
13. Aggrieved by the order of the District Forum the petitioner filed an appeal before the State Commission. The State Commission vide its order dated 31.10.2012 dismissed the appeal with cost of Rs.5,000/-.
14. Hence, the present revision petition.
15. We have heard the learned counsel for the petitioner as well as the respondent who is appearing in person and have carefully gone through the records of the case. Learned counsel for the petitioner argued that the impugned order of the State Commission and the District Forum should be set aside as they have gravely erred because, the order dated 31.10.2012 passed the State Commission involves, adjudication of important and substantial questions of facts and law and amounts to unduly and unjustly enriching respondent which is not the intent or object of the Act and is against the very spirit of the Act.
16. The carriage of contract is subject to the provisions of Carriage by Air Act, 1972, Indian Contract Act, 1972 and Conditions of Contract Relating to Non-International Carriage (Passenger and Baggage) laid by the petitioner Airline and hence, binding on the parties to the contract. The said terms and conditions are incorporated on the electronic ticket by reference to the website of the petitioner airline. The fora below have no jurisdiction to rewrite the contract which was already entered between the passengers and the Airlines and the said interference are also in derogation of the Indian Contract Act, 1972.
17. The District Forum and the State Commission overlooked/ did not take into consideration the fact that the respondent/ complainant has had absolutely no cause for complaint, for he was himself negligent in not ascertaining the travel documents required for the itinerary chosen by him despite ample time from 25.06.2010 to 18.08.2010 and keeping the sector Amritsar/ Toronto open. The open status of first sector gives rise to the presumption that complainant was contemplating alternate routes and was holding the subject ticket only as a measure of reserve to meet any adverse situation of not getting seat on any other more economical route/ airline.
18. The IATA General Conditions of Carriage (Passengers and Baggage) Article 7 expressly provides, if the passenger fails to arrive in time at the Carriers check in location or boarding gate or appears improperly documented and not ready to travel, carrier may cancel the space reserved for the passenger and will not delay the flight. Carrier is not liable to the passenger for loss or expenses due to the passengers failure to comply with the provisions of this Article.
19. The IATA General Conditions of Carriage (Passengers and Baggage) Article 8.1.6 gives right to refuse carriage if the passenger does not appear to be properly documented.
20. The IATA General Conditions of Carriage (Passengers and Baggage) Article 14.1 expressly provide that passenger shall be solely responsible for complying all laws, regulations, orders, demands and travel requirements of countries to be flown from, into or over and with carriers regulations and instructions. Carrier shall not be liable for any aid or information given by any agent or employee of carrier to any passenger in connection with obtaining necessary documents or visas or complying with such laws, regulations, orders, demands and travel requirements, whether given in writing or otherwise; or for the consequences to any passenger resulting from his failure to obtain such documents or visas or to comply with such laws, regulations, orders, demands, requirements rules or instructions.
21. The governing IATA General Conditions of Carriage (Passenger and Baggage) Article 14.2 expressly provide that Carrier reserves the right to refuse carriage of any passenger who has not complied with applicable laws, regulations, orders, demands or requirements or whose documents do not appear to be in order.
22. The Governing IATA General Conditions of Carriage (Passengers and Baggage) exonerate the petitioner Airline from any liability, even if any representation is made by an agent or employee of the petitioner airline in the matter of travel documents, visa requirements or other countries., In these circumstances, the impugned order suffer from material irregularity and illegality and merits to be set aside.
23. The respondent who is appearing in person has stated that he was not aware that a transit visa was required for Canada and that the petitioner should have informed him. He also drew our attention to the print out placed on the file which is purportedly generated during his visit to the office of the opposite party. The print out on the file does not indicate as to when and where it was generated, though the respondent claims that it was generated in the office of Mr Iqbal Singh, Assistant Station Manager, Air India Office, Amritsar on 12.08.2010. On the said print out the top right hand corner shows the date as 25.06.2010 and on the bottom of the said print out it shows date as 08.12.2010 and time as 1:14:39 pm. It is also not the case of the respondent that in his complaint, that he visited the office of the petitioner as he wanted to enquire about the documents required. In fact, as per the complaint he stated that few days prior to the print out the complainant visited the office of the petitioner to enquire about the reporting time, luggage pieces etc.
24. It is admitted by the respondent at the bar that he held consultation with other Travel Agents regarding the documents required before buying the tickets online or that he had specifically enquired about the documents that are required from the Airlines. Article 14.1 and 14.2 are reproduced below which makes it clear that the passenger is solely responsible to get all the documents required as the Rules and Regulations of any involved country not the carrier.
14.1 General The passenger shall be solely responsible for complying with all laws, regulations, orders, demands and travel requirements of countries to be flown from, into or over and with Carriers Regulations and Instructions. Carrier shall not be liable for any aid or information given by any agent or employee of Carrier to any passenger in connection with obtaining necessary documents or visas or complying with such laws, regulations, orders, demands and requirements, whether given in writing or otherwise, or for the consequence to any passenger resulting from his failure to obtain such documents or visa or to comply with such laws, regulations, orders, demands, requirements, rules or instructions.
The carrier was also well within its rights to comply with IATA General Conditions of Carriage (Passenger and Baggage), the daughter of the respondent did not comply with the applicable laws, regulations, orders and requirement in order to obtain a transit visa to Canada.
14.2 Travel Documents The passenger shall present all exit, entry, health and other documents required by laws, regulations, orders, demands or requirements of the countries concerned. Carrier reserves the right to refuse carriage of any passenger who has not complied with applicable laws, regulations, orders, demands or requirements or whose documents do not appear to be in order.
25. The petitioner as per the written statement had offered an alternate route to USA with additional cost US $ 1000 (i.e., Rs.45,000/-). It is the respondent who instead of taking this option preferred to take Continental Airlines by paying Rs.72,000/-.
26. In view of the above circumstances, we are of the view that the Fora below have passed their orders allowing the complaint on an incorrect appreciation of facts by ignoring the IATA General Conditions of Carriage (Passenger and Baggage) and ignoring the terms and conditions of online booking. In view of this, the revision petition is allowed and the orders of the State Commission and District Forum are set aside and the complaint is dismissed.
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[ Rekha Gupta ] Sd/-
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[ Ajit Bharihoke, J.] Satish