State Consumer Disputes Redressal Commission
Air France vs Bharat Kapur on 22 July, 2010
1 IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 22-07-2010 Case No. FA-08/891 (Arising from the order dated 05-08-2008 passed in CC No. 1105/05 by the District Consumer Redressal Forum ( New Delhi) Barracks, K.G.Marg, New Delhi). AIR FRANCE - Appellant An airline company with its branch office at 8th Floor, Tower C, Building No.8 DLF Cyber City Phase-II, Gurgaon 122002 THROUGH MR. PIETER DE MAN, GENERAL MANAGER , INDIA Versus MR BHARAT KAPUR, - RESPONDENT R/O BP 103 Pitampura, New Delhi Now relocated at: 23- Sukhmani Enclave, P.O. Rajguru Nagar, Ludhiana - 141012 CORAM : JUSTICE BARKAT ALI ZAIDI - President SHRI M.L. SAHNI - Member 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? JUSTICE BARKAT ALI ZAIDI (ORAL) ORDER
1. Air France, the OP No.1 before the District Forum, K.G. Marg, New Delhi, have come in appeal against order dated 05-08-2008, whereby the complaint of Respondent Shri Bharat Kapoor has been allowed granting him the following reliefs:-
i) The OP will pay Rs.34,250/- for offloading under European Union Regulations to the complainant.
ii) OP will pay Rs. Three lakhs towards compensation for causing him mental agony, harassment and for deficiency in service.
iii) OP will pay Rs. 20,000/- towards cost of litigation to the complainant.
2. Briefly stated the case of the Respondent/Complainant is that the complainant was holding a ticket of Air France to travel to Delhi-Paris on 24th January, 2005 by flight N AF-147 and Paris-Delhi on 5th February 2005 by flight N AF-148 both sectors with confirmed status alongwith confirmed seat numbers.
3. That having checked in time on 5th February, 2005 for the return journey at Paris Airport the complainant could reach the counter before 0920 hours as on the particular date only two counters were working of economy class passengers for the flight AF-148.
4. That after having reached the counter the journey coupon foil taken out/torn from the ticket jacket, luggage accepted and was issued with the baggage tag N. AF 680318-0057680318. But thereafter he was told that he was being 0ff-loaded on account of late arrival.
At this point the complainant requested many times for an explanation from the counter staff and the reason for not taking him on-board despite having been issued/affixed the baggage tag and the confirmed presence recorded in the hand-held machine by the staff member checking the passenger standing in the queue before reaching the counter.
In vain to obtain any answer the complainant approached the Supervisor (who later on identified herself as T2C Supervisor Ms Nathalie) but she was rather more assertive to enforce the offloading process.
5. That instead of giving any soothing response, the complainants requests only evoked humiliating and insulting behaviour from the said Supervisor. With her aggressive postures, she went to the extent of physically brushing up the complainant. At this point the complainant could only utter that you dare not touch me and did not loose cool because of the imbibed cultural and educational background. Even after the departure of the flight, the complainant had waited for one hour to meet the senior most Supervisor but of no avail.
6. That the next day i.e. on 6th February 2005, the complainant was flown to Delhi after being accorded a free night stay in the hotel.
However the purpose of flying back on 5th February 2005 to Delhi to attend a special function on 6th February, 2005 was totally lost for which he had purchased an expensive class/segment economy ticket for flight No. AF-148 dated 5th February 2005.
7. That after his return to Delhi, the complainant submitted a complaint with the Regional Manager, Air France detailing the unfortunate experience. After receiving an unsatisfactory reply, the complainant visited Air France Office to meet the concerned officials for their attention to the serious issue of the misconduct of the airline staff. The subsequent telephonic talks with the General Manager also did not bring any positive redressal.
8. Appellants case is that the complainant arrived at a check-in counter three minutes prior to the closure of the same for a flight from Paris to New Delhi. By this time, the airline had released his seat and without resting any blame on the complainant re-booked him on the next available flight for New Delhi one day later while also accommodating him in a hotel.
The OP/appellant airline offered Euros 300 as standard compensation for the foregoing and the same was refused by the complainant.
9. That all airlines are compelled to make arrangement for no-shows/cancellations etc by marginal overbooking which is an international practice whereby boarding may be denied to a few confirmed ticket holders for which the airlines pay compensation in accordance with international norms. This industry-wide practice is notified in various warnings on the ticket jacket of all passengers, or the internet and also in the General Conditions of Carriage of the Appellant Airline. The complainant/respondent was accommodated in a hotel in Paris and was carried on board the appellants flight the very next day on 6th February 2005.
10. That the honble National Commission has held in a number of judgments that overbooking is an international practice resorted by all international airlines and further that the international practice is to provide both hotel accommodation etc and to fly out the passengers on the first available flight and apart from that to pay compensation ranging US $300 to $400.
11. That in the absence of bodily/physical injury, mental agony, harassment etc claims are excluded by the Warsaw and Hague Conventions that have the force of law in India under the Carriage by Air Act, 1972. it is not the case of the complainant that he suffered any injury to his person and yet the learned District Forum awarded Rs. Three lakhs under this head.
12. That, awarding cost of litigation to the complainant is in contravention of the provisions of the Carriage by Air Act, 1972 in this regard.
13. We have heard the Ld. Counsel for the Appellant and the Respondent in person.
We have also gone through the impugned order as well as the following observations made by this Commission while admitting the appeal. It shall not be inapposite to restate these observations made in this case vide order dated 01-01-2008 which are as follows:
we have been impressing upon the District Forum not to award compensation much higher than the actual loss suffered by the consumer.
But there are certain District Forums who are not adhering to the observations and giving compensation at their whim and caprice, which causes delay in disposal of the cases and unnecessarily burdens this Commission with appeals and at the end of the day it is the consumer who suffers as the service provider raises such a plea in the appeal.
In similar cases, we have made basic criteria for awarding compensation but the same is not being adhered to and followed by the District Forum, particularly by the District Forum that has passed the impugned order. It is made clear, if such orders are received in future, adverse comments are likely to be made against the functioning of the District Forum. Protection of rights of consumer does not mean enriching them unjustly. The consumer is to be compensated reasonably for the actual loss, mental agony and harassment suffered by him.
14. We have examined the case of the parties in the light of above observations, and we came to the irresistible conclusion that though the impugned order suffers from no infirmity, yet the award of compensation appears to us illogical, without basis founded only on the whim and capriciousness. Compensation of Rs.3 lakhs is based on no cogent evidence.
The hypothesis and premise for granting the compensation by the District Forum is only that the Respondent must have been having a very heavy heart having missed the occasion when his daughter was to be felicitated at Springdale School which was graced by ex-Prime Minister but otherwise to be graced by President of India? Such occasions are not frequent and once they are missed one does not survive to repent upon it.
15. Considering the admitted facts of the case that the Respondent had a confirmed ticket for 05-02-2005 from Paris to Delhi. The OP has taken the stand that the complainant arrived the airport counter at 0925 hours where as according to the complainant he joined the queue at 0817 hours at the designated counter of Air France flight AF 148 to Delhi. According to the complainant,only two counters for the economy class passengers were operative for three airlines passengers, namely Air France, Delta Air and Air India, it took the complainant the time from 0817 hours to 0920 hours to reach the Desks.
16. We find that there was deficiency in service on the part of the Appellants for which they even apologized vide their letter dated 21-02-2005 (Annex-IX). However, we do not agree with the Appellant that in view of the draft preferred by the Government of India, Office of the Director General, Civil Aviation regarding facilities to be provided to passengers on account of denied boarding or cancellation of flights or delay in flight, Respondent could be awarded compensation of Rs.4,000/- or the value of the ticket.
17. Appellants have relied on 1 (2003) CPJ 24 (NC) Rajender Pal Jauna (NRI) vs Secretary G.O.I & Anr, facts of which are quite identical to those of the present case.
18. We have thoughtfully considered Respondents grievance and we feel that ends of justice shall be fully met if the impugned order is modified to the following extent.
The Respondent is not entitled to refund of the value of the Ticket because, he admittedly was flown back to India on the same ticket next day of the Appellant. Hence the Appellant can be held liable only to compensate him for the harassment, mental and emotional sufferings. In our estimation, a sum of Rs.1,00,000/- in lump-sum will be quite just compensation for the same.
19. Accordingly we direct the Appellant to pay a sum of Rs.1,00,000/- (One lakh) within 30 days of the receipt of order else they shall be liable to pay interest @ 12% per annum till realization. The Respondent shall also be entitled to cost of litigation, as imposed by the District Forum i.e. Rs.20,000/-.
20. The Appeal is allowed partly.
21. Bank Guarantee/FDR, if any, be returned to the appellant after completion of due formalities.
22. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
23. Announced on 22nd July 2010.
(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (M.L. SAHNI) MEMBER AV