State Consumer Disputes Redressal Commission
Mr. Vijaysinh Dilubha Jadeja vs National Aviation Company Of India Ltd. on 24 March, 2021
Details DD MM YY
Date of Judgment 24 03 2021
Date of filing 01 09 2010
Duration
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD
COMPLAINT NO. 02 of 2010
Mr. Vijaysinh Dilubha Jadeja,
6/111- Shardhadha Avenue,
Nr. Anadcan Complex,
New Ipcl Road,
Subhanpura,
Vadodara. ...Complainant
Vs
1. National Aviation Company Of India Ltd.
AIR India Ltd,
Airlines House,
113, Gurudwara Rakabgunj Road,
New Delhi.- 110001.
.
2. National Aviation Company Of India Ltd.
AIR India Ltd.
GCCI Building Compound
Opp Mercury Petrol Pump,
Ashram Road,
Mithakjali Under Bridge,
Ahmedabad 380009. ....Opponents
Coram : Mr. Justice V. P. Patel, President
Mrs. U. P. Jani, Member
Apperance : Ms. Poonam Desai , Advocate for the complainant.
Nita Shah, Advocate for the opponents.
Order : [By Mr. Justice V. P. Patel, President]
1. The complainant has filed this Consumer complaint under Section 11 and 12 of the Consumer Protection Act, 1986 (in short "The Act") against the opponents claiming main relief which reads as under:
Arpita cc-10-02 Page 1 of 13"a) Order opponent to Pay Rs.26,83,800/- to the complainant with interest @ 9% p.a. from the date of order till amount realized, towards the compensation of monetary loss and loss of opportunity to the complainant.
b) Order compensation inconvenience suffered by the complainant.
opponent to pay Rs.50,000/- towards for mental agony and stress and inconvenience suffered by the complainant.
c) Order opponent to pay Rs.15,000/- towards the cost of legal proceeding.
d) Grant any other relief as thought suitable to the honourable forum in the interest of justice"
1.1. Heard the learned Advocate Ms. Poonam Desai for the complainant and learned Advocate Ms. Nita Shah for the opponent.
Facts of the of the Complaint:
2. It is stated in the complaint that the complainant is resident of Vadodara and had got an excellent employment offer and in response to such offer had entered into an employment contract with ASSITEC ASIA, 23, peck Seals Street # 02-110, Singapore.
3. That as per the contract of employment he was to report on 12.09.2009. Therefore, he had booked his ticket with the opponent and other flight operator, the details are as under :-
Flight Date Arr/dept Airport Class
IC685 09/09/09 19.40 AHMEDABAD BUSINESS
09/09/09 23.10 MUSCAT
WY601 10/10/09 01.10 MUSCAT(MCT) BUSINESS
10/10/09 02.15 DUBAI
EK961 10/10/09 07.05 DUBAI(DBX) BUSINESS
10/10/09 08.50 SANNA(SAH)
terminal-1
Arpita cc-10-02 Page 2 of 13
3.1. On 09.09.2009 the complainant had reached at Ahmedabad airport well in advance to report in time. That opponent executive at the reception counter refuse to issue boarding pass to the complainant on the ground that he was not having visa for Muscat. That the complainant had tried to explain the opponent officials (Ms. Heena), but she refused to issue the boarding pass. He explained that there is no need of Muscat visa. At that time she called one inspector of the opponent company. The complainant has explained that he had connecting flight from Muscat within 2 hours and thus he was not required to have visa for Muscat. It was also told by him that the person only if required to stay at airport for more than six hours in that case he has to take visa. It is also alleged that lack of knowledge of the opponent officials and wrong notions the complainant could not board flight No. IC685 to Muscat.
3.2. It is also stated that the complainant immediately had approached the employer and requested for issuance of fresh visa and air route ticket but employer ASSITEC ASIA refuse vide its email dated 10.10.2009. It is also stated due to non-boarding in the flight he has to suffer monetary loss, loss of opportunity, loss of credit and reputation and suffered from tremendous mental agony and stress and inconvenience.
3.3. It is stated that the period of employment was for duration of 12 months, viz 52 weeks, That as per the terms and condition of the contract the complainant was entitled for compulsory leave for a period of 2 weeks and after every 2 months of service, and so on till contract is terminated. The salary in the said contract was Rs. 12,150/-(Rupees twelve thousand one hundred and fifty only) per working day. The complainant is drawing present salary of Rs. 15,00/- per day in India. Therefore, He has to suffer a loss of Rs. 10,650/- per day. Ha has calculated the loss of Rs. 26,83,800/- for the Rs. 10650/- * 6 working Arpita cc-10-02 Page 3 of 13 days * 42 weeks. The complaint has filed before this commission for compensation of Rs. 26,83,800/- with 9% interest.
Defense :
4. The notice was issued by this commission to the opponent. The opponent has appeared through the learned Advocate and filed written statement. The opponent has denied the allegation, averments and submission and claim set aside by the complainant. That the contentions raise in the complaint are denied unless those which are subsequently admitted.
4.1. It is stated that after checking the passport of the complainant which was found that the visa of Oman was not obtained by the complainant. At that point of time the complainant only showed the AMD-MCT sector ticket and therefore, the staff member approached the Duty Manager of the opponents. That the non-procurement of necessary transit regular visa, it is the duty of the opponent to first contact the Immigration Authority. That the complainant and the Deputy Manager who met the immigration officer. On checking all the document and ticket of the complainant, the immigration officer informed the opponents that the complainant was not holding a valid visa for Oman and therefore, he cannot be permitted to travel. That as per direction of immigration authority the complainant was not permitted to board the flight and the opponent did not issue boarding pass.
4.2. It is also submitted that the opponent has posted on the website of immigrates in respect of passport, certain notice and conditions of contract. Therefore, the opponent has to verify, ascertain and ensure his travel documents. It is stated that the complainant could not board the flight on account of his own negligence. Therefore, there is no deficiency in service of the opponent.
4.3. It is also denied in the written statement that the complainant has suffered a loss of Rs. 26,83,800/- or any other amount and also denied Arpita cc-10-02 Page 4 of 13 that the complainant is entitle to recover any damage from the opponent. It is requested to dismiss the complaint.
Evidence of the Complainant :-
5.1. Complaint has filed an affidavit in evidence dated 28.08.2011.
5.2. Complainant has produced following documents :-
Sr Particulars Date
No
1 Copy of E-ticket for complainant's travel from
Ahmedabad to SANAA via Mumbai, Muscat
and Dubai
2 Copy of entry Visa in name of the
complainant (Visa No. 110756)
3 Copy of complainant contract signed between Sept, 2009
complainant and Assitec Asia
4 Copy of mail communication between 10/10/09
complainant and Assitec Asia
5 Copy of mail communication between 05/09/09
complainant and Assitec Asia
6 Copy of salary slip of NIT for the month of March,
March, 2011
2011
7 Copy of the email correspondence (Annexure- __
A)
8 Copy of the entry visa (Annexure-B) 06.03.2020
9. E-mail __
Evidence of the Opponent :-
6.1. Documentary evidence is produced by the opponent.
6.2. Opponent has produced following documents :-
Sr. Particulars Date
No.
1 Copy downloaded from the website Annexure-1, ___
2.
Argument of the Complainant:
Arpita cc-10-02 Page 5 of 13
7. Learned Advocate for the complainant has argued that the complainant had got an excellent employment opportunity and thus entered into an employment contract. That the complainant has to report on 12.09.2009 but as there was an error in the passport No. in the visa.
The complainant was not allowed to leave the country from Mumbai Airport in September, 2009.
7.1. That on account of typographical mistake, The dates are incorrectly written as 09.09.2009 in the table of the complainant. Actually it is to be 09.10.2009. It is submitted that complainant had tried his level best to explain the opponent that his final detestation was only SANNAA in republic of Yeman and his stop/halt at Muscat was only for two hours and that too for settle connecting flight. Therefore, he was not required to obtain any kind of visa for Muscat.
7.2. That the opponent did not issue the boarding pass as resulting into the complainant could not reach at SANNAA on 10.10.2009 and thereby he has to loose employment opportunity. That the opponent is not at all justified any reasons for not issuing the boarding pass. That the airline operator has to check the ticket and issue the boarding pass. The checking of visa is done during the next process by the immigration checking staff of the airport.
7.3. It is also argued, that though the transit visa for Oman was not required if next connecting flight is within a period of 6 hours. It is further argued that the condition of travel and IATA rules clearly states that airline can refuse to carry passenger if he is not properly documented. Which was not the case in the present matter. That the complainant has all the required documents with him but the opponent staff who was not having knowledge of visa requirement and wrongly demanded for visa.
7.4. She has relied upon One Judgment of the National Commission that is II(2013)/CPJ/139(NC) in case of Lufthansa German Airlines v/s . Sunil Kothari & Anr.
Arpita cc-10-02 Page 6 of 13This Judgment is not applicable to the present case as the facts stated in the cited judgment are different from present case.
Argument of the Opponent:
8. The opponent has filed written submissions. It is argued that the complaint was denied at Ahmedabad airline on instruction of immigration authorities, On account of he has not valid transit visa for Muscat. That the opponent was informed by the immigration officer that he was not holding valid visa for Oman and therefore, he could not be permitted to travel. It is further argued that the immigration department is independent Authority appointment by the Government of India. The opponents are bound to follow instruction of the immigration authority.
8.1. That the complainant has not complied with the immigration law and therefore he was not permitted for boarding pass. She has relied upon the Judgment of Hon'ble National Commission told in case of AIR V/s. Susikumar in Revision Petition No. 492 of 2013 dated 30.01.2015.
8.2. It is also argued that the complainant is not entitle remote damages which was not incorporated in contract itself.
Merit of the Case:-
9. Complainant has produced documentary evidence on record, on perusing the same following facts are emerge.
9.1. The complainant has produced a copy of ticket at page No. 11 for travel from Ahmedabad to SANNAA via Mumbai Muscat and Dubai. On perusing the said ticket the departure time was 19.40 hours on 09.10.2009 from Ahmedabad and arrival time at Muscat was 23.10 o'clock on 09.10.2019. further the flight NO. WY601 the time of departure from Muscat to Dubai on 10.10.2009 at 01.10 o'clock. The arrival time at Dubai was 2.15 o'clock on 01.10.2009. From this ticket it can be said that the waiting period at Muscat was 2.00 hours.
Arpita cc-10-02 Page 7 of 139.2. The complainant has produced a copy of the entry visa at page No.
12. On perusing it is stated that visa No. 110756 dated 12.09.2009. this entry visa was issued on 06.03.2000 and the date of issue of visa is 12.09.2009 at the bottom it is stated that "this visa valid for 30 days from the date of issue. This permit become invalid if any alteration course in details."
9.3. The complainant has produced a copy of employment contract at the Page No. 13-15 wherein the remuneration is stated.
9.4. The complainant has also produced E-mail dated 10.10.2009 at page No. 16 sent by him to the Denial Roussillon Assitec Asia. where in it is stated as under:-
"I cannot board the flight today. Indian Airlines staff on Ahmedabad international airport refused to give me boarding pass. they are asking for Oman visa, as they are operating only upto Muscat. Further confectioning flight is not operation by them I told on duty air India officer and immigration officer that its only transit and I shown them the connecting flight tickets and final destination visa, but they were not ready to accept that and refused to give me anything in writing. I Argue with him that Like this way I fly four time past from Mumbai and also show him my last 18 sept Ticket and Boarding pass. They told they are not allowing any one from here with out VISA. This is a newly open International Air port.
Please give me one more chance with New VISA and following Rout Alr Ticket. Because expiry date of this visa is very near and may be Emigration Officer not allow expiry '' The same story is not narrated in the complaint by the complainant.
9.5. The claimant has produced pay slip for month of March, 2011 issued by NTI finance department. wherein the earning of 1000 OMR is mentioned.Arpita cc-10-02 Page 8 of 13
9.6. The claimant has produced visa rules for the copy of transit visa of Oman. it is stated that "visa required except for those continuing their journey to third country within 6 hours, provided holding tickets documents for their onwards journey and not living the transit lounge."
This document is print out from the website. This information for normal passport. it is also stated that tin additional information that the visitor most hold onward or written tickets. this is not an authenticated document.
9.7. The complainant has produced a copy of E-mail correspondence and copy of the visa with incorrect passport No. as annexure A to the written argument, wherein it is stated that in my visa passport written A5707423 but actual passport No. is A8707423.
This document shows page 3 of 3 reasons best known to the complainant, other pages are not produced.
9.8. The claimant has produced entry visa Annexure-B. On comparison of entry visa at page No. 12 (document produce with the complainant and copy of entry visa is produced as Annexure-B) following difference are noted:-
Sr Particular Entry Visa At Entry Visa With
No. Description Page No. 12 Annexure-B
1 No. 196747 196671
2 Passport No. A8707423 A5707423
3 Visa No. 110756 110756
4 Place Of Issue Ahmedabad Ahmedabad
5 Date Of Issue 12.09.2009 12.09.2009
6 Date Of Issue 06.03.2000 06.03.2000
It appears that the entry visa produced with complaint, may have produced before the opponent , the same was not true.
Arpita cc-10-02 Page 9 of 1310. Opponent has filed reply in para No. 5 it is stated as under:-
5. The Opponents further state that the Complainant was holding E-
ticket No. 1763642986811 of Emirates Airlines for travel on sector AMD/MCT by Air India. Further, the Notices and conditions of contract of Emirates Airlines as posted on the website of Emirates in respect of passports reads as under :-
"Passports Please ensure you have a passport valid for the duration of your trip. (Some destinations require your passport be valid for a certain length of time, in general, 6 months after completion of travel). You may also be required to obtain a visa for some destinations and it is your responsibility to do so.
For information on passport or visa requirements, you should contract the embassy, high commission or consulate of the country to which you will be traveling.
A failure to travel with the correct documentation could result in the passenger being refused travel, entry to the country of their destination or stop-over, deportation or incarceration and in such circumstance(s) you will be solely responsible for any cost, loss or damage which you or we (or our agents or servants) incur".
Similar conditions are also posted on the website of the Opponents. For the sake of convenience they are reproduced as under :- "Passport, Visas Ensure that your travel documents are in order. The carrier will not accept responsibility for the consequences of any irregularity.
as you may be asked to show your passport or travel documents during your journey, please keep them in an easily accessible place. "
11. The learned Advocate for the opponent as relied upon the Judgment of Hon'ble National Consumer Dispute Redressal delivered in case of AIR India V/s. Shushikumar in Revision Petition No. 492 of 2013 decided on 30.01.2015 wherein it is held as under:-
" 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 Arpita cc-10-02 Page 10 of 13 entered between the passengers and the Airlines and the said interference are also in derogation of the Indian Contract Act, 1972.
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."
12. The complainant has asked for compensation for Rs. 26,83,800/-. that is included the proposed loss in salary. It can be said that the compensation is asked for remote damages. It is beneficial to take mode of Section 73 of the Contract Act are reads as under :-
Section 73 " Compensation for loss or damage caused by breach of contract.
When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.Arpita cc-10-02 Page 11 of 13
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach."
12.1. That the compensation for the any loss or damage has to be naturally arose in usual course of things from such breach. That the party to the contract knew when they made the contract, to be likely to result from the breach of it. Section 73 of Contract Act says that compensation is not to be given for any remote and any indirect loss or damage sustained by reason of the breach.
13. Alderson B delivering the judgment of the Court of Exchequer in Hadley v. Baxendale stated as follows : -
" Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may be fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may be reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it."
13.1. This principle has embodied in Section 73 of the Contract Act. when the contract has been broken, the party who suffered by such breach is entitle to receive the compensation from the party who has broken the contract. Such compensation should be naturally arose in usual course of things, from such breach , or which the parties knew , when they made the contract , to be likely to result from the breach of it. the compensation cannot be given for the indirect loss or damage sustained by the breach. The defendant is liable only for the natural and proximate consequence of breach, such consequences are in the contract. The principle of Hadley v. Baxendale applicable to the present case.
14. Here, in this case, at the time of booking of ticket the opponents were unknown to the facts that the passenger is going to abroad for service contract. It is not the case of the complainant that he had inform to the Arpita cc-10-02 Page 12 of 13 opponent about the service contract made by him and purpose of the journey, therefore remote damages cannot be granted.
Considering the discrepancies in the principle of passport as stated in the email that the near expiry date for the visa may be reason for refusing boarding passport.
15. Considering the averment made in the complaint, contention raise in the written submission, documentary evidence produced on record, ratio laid down in the above referred Judgment, the provision of Contract Act, we are of the view that the complainant has not made out deficiency of service of the opponent.
Thus, complainant does not succeed hence following order is passed.
ORDER A) The complaint No. 02 of 2010 is dismissed.
B) No order as to cost.
C) Copy of the judgment be provided to the parties free of charge.
Pronounced in the open Court today on 24th March, 2021.
[Mrs. U. P. Jani] [Mr. V. P. Patel]
Member President
Arpita cc-10-02 Page 13 of 13