State Consumer Disputes Redressal Commission
Tarachand Kosle vs National Aviation Of India Limited, ... on 10 January, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/11/2850)
Appeal No.569/2011
Instituted on : 17.10.2011
Tarachand Kosle, S/o Shri Gambhir Das,
R/o : Katoratalab, Dayanand Nagar,
Near Mother Teresa School,
Raipur (C.G.) .... Appellant.
Vs.
1. National Aviation of India Limited,
Airlines House, 113 Gurudwara,
Rakabganj, New Delhi Nagar,
Bhartiya Jeevan Bima Bhawan, Pandri,
Raipur
2. Hotlines Tours and Travels,
First Floor, Vijeta Complex, Shastri Bazar,
Raipur .... Respondents.
PRESENT :
HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Shishir Bhandarkar, for appellant.
Shri Mohit Diwan, for respondent No.1.
Shri Mukesh Virani, for respondent No.2.
ORDER (ORAL)
DATED : 10/01/2012 PER :- HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT This appeal is directed against, order dated 22.09.2011 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.381/2010, whereby the complaint of the appellant herein, seeking compensation from // 2 // respondents, on account of their not permitting the complainant to travel in a particular aircraft in Flight No.I.C.205 and thereby committing deficiency in service, has been dismissed.
2. The case of the complainant/appellant before District Forum was that on 15.05.2009, he purchased a ticket for Flight No.I.C. 205 for 17.05.2009 for catching a flight from Kolkata to Dibrugarh, where his younger brother was studying in a Medical College. The complainant was required to go there to attend his ailing younger brother. When he reached to Calcutta Airport to catch Flight at the scheduled time and went to boarding pass counter, then he was unnecessary detained their and was not provided boarding pass. When reason was asked by him for not providing boarding pass, then he was instructed to contact Station Master. When he contacted Station Master, then it was informed that on account of certain administrative reasons, he was not permitted to travel. The ticket purchased by him was cancelled and he was not permitted to travel on that particular aircraft. When he demanded refund of fare, then it was stated that there is no provision for refund of fare, but, he can travel on next day with the help of same ticket after paying Rs.500/- extra. As there was no flight of Air India on next day, so he was required to stay at Kolkata for a day and was to bear the expenses. Then he traveled to Dibrugarh by Jet Airline's aircraft and was to spend Rs.4,200/- on purchase of ticket. He could not reach to Dibrugarh in time and his brother was to suffer mentally // 3 // as well as physically. He claimed Rs.49,997/- as compensation on account of detention at Kolkata, which amounts deficiency in service and for expenses of hotel air ticket etc.
3. The respondents in the reply have denied the allegations leveled by the complainant in the complaint and averred that complainant failed to reach to the check-in counter in time. It has also been averred that the District Forum, Raipur was not having jurisdiction to entertain the complaint, as cause of action, as per averments in the complaint has arisen at Kolkata and not at Raipur. The journey was also not commenced from Raipur. The ticket was also purchased from Akbar Travels, Mumbai, who has not been made party in this case. The real facts of the case have been concealed by the complainant in his complaint. In fact he was carrying a gun, which was not separately and safely packed and sealed, but, was carrying by the complainant in person. Thus, instructions issued by B.C.A.S. vide Circular No.38/205 were violated by the complainant. When it was found that he was carrying gun, then he was asked to cancel his journey for non-adherence of the guidelines of B.C.A.S. He could not reach to check-in counter in time and therefore, boarding pass could not be issued to him. Thus, no deficiency in service has been committed by the OPs/respondents.
// 4 //
4. Learned District Forum, has agreed with the contentions raised by the OPs/respondents before it and dismissed the complaint by the impugned order.
5. Before us, the complainant/appellant has filed an application under Order 6 Rule 17 read with Section 151 CPC, along with few documents and submitted that this application be allowed and the complainant/appellant be permitted to amend the complaint and the documents filed along with application be also taken on record as additional evidence on behalf of the complainant/appellant.
6. We have heard arguments of all parties on this application and considered it in the light of pleadings of respective parties before District Forum and the documents filed there.
7. We find that in the complaint, nothing has been stated that the complainant/appellant was carrying a gun or was taking a huge hard cash along with him during journey. The affidavit filed by the complainant/appellant, in support of his complaint is also not containing any such description.
8. In the reply filed by the respondent No.1 before District Forum, it has been clearly stated that the complainant/appellant failed to report at the check-in counter in time and so boarding pass could not be issued to him. Later on, an application for amendment in written // 5 // version was moved by the respondent No.1 before District Forum and in that application, it was clarified that in fact the complainant/appellant was guilty of suppression of material facts and he has not sated that he was carrying his personal weapon with him inside a soft bag and wanted to carry it with him. As he was carrying a gun, so he was prevented to travel. The gun was also not properly packed and therefore, he was not permitted to fly in that particular aircraft. When such application was moved by the respondent No.1 before District Forum, then opportunity for filing reply of the application, was granted to the complainant/appellant and in the reply nothing has been stated by him as to whether he was carrying any gun with him when he wanted to travel from Kolkata to Dibrugarh and whether the gun was separately, properly packed and sealed or not. Thus, when first opportunity was available to the complainant/appellant, then he failed to mention any of these facts and in the reply of the application, only application has been opposed on technical grounds, without admitting or denying the facts of the proposed amendment. Thus, it becomes a case of concealment of material facts. In fact it was duty of the complainant/appellant to have stated all true facts in the complaint itself, because he wanted to avail a discretionary relief from Consumer Forum, which is not in very strict sense a complete Civil Court and which requires to conduct the proceedings according to principle of natural justice. Principle of natural // 6 // justice demand that everyone should come before District Forum with clean hands stating bonafidely every fact without any concealment. If any concealment of material fact, is found on the part of any of the party, then, such party can not be granted any discretionary relief under the provisions of Consumer Protection Act, 1986.
9. The proposed amendments, application, which has been moved by the complainant/appellant before us at the appellate stage, shows that in fact the complainant/appellant was carrying a gun and was also carrying huge hard cash with him, when he wanted to travel in the aircraft. It has been mentioned in the proposed amendment that the licensed gun was kept in soft VIP brief case, but, there is nothing on the basis of which it can also be presumed that said gun was properly packed as per rules. As gun was there, as per saying of the complainant/appellant himself in a soft VIP brief case in open condition, so the conduct of the OPs/respondents, cannot be faulted. Ultimately, when a person wanted to go to a disturbed area like Dibrugarh by flight and who also belongs to an area which is also naxalite affected, then if the Airlines, take precautions that the passengers will not carry gun with them, unless the same is properly packed as per rules, then their such action cannot be branded as deficiency in service.
// 7 //
10. Thus, considering the matter from all angles, we are not inclined to allow the application under Order 6 Rule 17 CPC filed by the complainant/appellant at this stage, because he was having an opportunity of moving such application before District Forum, which he missed. He is also guilty of suppression of material fact and had not come before District Forum, with clean hands and as per admitted facts, he was carrying a gun with him and it is alleged that it was not properly packed. In these circumstances, if he was prevented to fly at a particular time, then the action of respondents does not come in the category of deficiency in service.
11. Thus, considering the matter from all angles, we do not find any substance in this appeal or any reason to disturb the findings recorded by the District Forum in the impugned order. The appeal fails and is hereby dismissed. No order as to the cost of this appeal.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/01/2012 /01/2012