State Consumer Disputes Redressal Commission
S.S. Radhakrishnan,No.17, 1St Cross ... vs The Sales Manager,Jet Airways (India) ... on 19 January, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.A.K. Annamalai, M.A., B.L., M.Phil., JUDICIAL MEMBER Thiru.S.Sambandam, B.Sc., MEMBER FA.36/2011 & F.A.600/2011 (Against the order in C.C.2/2004 on the file of DCDRC, Chennai [South]) DATED THIS THE 19th DAY OF JANUARY 2011 COMMON ORDERF.A.36/2011
1. S.S. Radhakrishnan, | Appellants / Complainants No.17, 1st Cross Street, 4th Avenue, | Besant Nagar, Chennai 600 090. | |
2. A. Ganesh, | New No.8 (179), 4th Street, Anna Nagar East, | Chennai 600 102. | |
3. K. Devadoss, | No.27, Iyyapillai Street, Triplicane, | Chennai 600 005. | Vs.
1. The Sales Manager, | Respondents /Ops.
Jet Airways ( India) Pvt.
Ltd., | Thaper House, 43/44, Monteith Road, | Egmore, Chennai 600 008. | |
2. The Managing Director, | M/s. Jet Airways ( India) Pvt. Ltd., | No.41/42, Makers Chambers III, Nariman Point, | Mumbai 400 021. | Counsel for the Appellants/Complainants : M/s.
Hari Radhakrishnan, Advocate.
Counsel for the Respondents/Ops. : M/s. Gupta & Ravi, Advocate.
FA.600/20111. The Sales Manager, | Appellants/Opposite Parties Jet Airways ( India) Pvt. Ltd., | Thaper House, 43/44, Monteith Road, | Egmore, Chennai 600 008. | |
2. The Managing Director, | M/s. Jet Airways ( India) Pvt. Ltd., | No.41/42, Makers Chambers III, Nariman Point, | Mumbai 400 021. | Vs.
1. S.S. Radhakrishnan, | Appellants / Complainants No.17, 1st Cross Street, 4th Avenue, | Besant Nagar, Chennai 600 090. | |
2. A. Ganesh, | New No.8 (179), 4th Street, Anna Nagar East, | Chennai 600 102. | |
3. K. Devadoss, | No.27, Iyyapillai Street, Triplicane, | Chennai 600 005. | This appeal coming before us for hearing finally on 04.01.2012, upon hearing the arguments of the counsels on eitherside and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellants/Ops : M/s.
Gupta & Ravi, Advocate.
Counsel for the Respondents/Complainants :
M/s. Hari Radhakrishnan, Advocate.
M. THANIKACHALAM J. PRESIDENT
1. The complainants and the opposite parties in C.C.2/2004 on the file of the District Forum, Chennai [South] are the appellants in F.A.36/2011 and F.A.600/2011 respectfully.
2. Facts necessary for the disposal of both the appeals:-
The complainants, having purchased Air Ticket from the first opposite party, traveled from Chennai to Bangalore on 11.05.2003 and Bangalore to Chennai on 12.05.2003, in the Aircraft of Jet Airways Flight No.9W 3508.
On 12.05.2003, when they have boarded in the flight at 20.20 hours, it was hot and the air conditioners were not functioning. Even after taking off at the slow movement on the runway, temperature continued to be high inside the aircraft, for which, explanation was given by the Air Hostess, that air conditioner was not functioning, on one side of the plane.
The Captain of the Aircraft by name Mr.Reddy also expressed his regret that the A/c was not functioning properly.
The defects were noticed before the take off, as disclosed by the Airhostess and in spite of the fact, there was defect in the Aircraft without attending and Aircraft was not having airworthiness, they have operated the Aircraft, thereby causing suffocation, physical discomfort, agony, anxiety throughout the travel for 65 minutes, which should be construed as deficiency in service, for which, each complainant is entitled to compensation of Rs.5 lakhs, which was denied, despite notice, thereby compelling the complainants to file a case, claiming compensation as said above.
3. The opposite parties in their Written Version, questioning the correctness of the complainants plea, opposed the case, stating that one of the engine is started before boarding of the passengers to ensure that the cabin is fully air-conditioned and the temperature is maintained at a comfortable level, that the A/c system in the Aircraft operated on 12.5.2003 was in a proper working condition, that if an Aircraft is not air-worthy, then under no circumstances, it will be permitted to take off since no clearance will be given by Ground Support Engineers, that in this case, Ground Support Engineers certified the air worthiness of the Aircraft, allowing to take off and in such circumstances, there is no question of carrying out any repairs or shifting the passengers to any other Aircraft and that since they have not committed any deficiency, not answerable to the imaginary claim of the complainants.
4. In the additional Written Version, the opposite parties would contend that on 12.05.2005, after landing in Bangalore, the Pilot reported a bleed-leak in one side of the aircraft, that as per the Minimum Equipment List [MEL], an aircraft can fly with one air conditioning pack, but has to maintain an altitude of 17,000 feet, where the outside temperature would be sub-zero and within 8 days or extended period now available 10 days, the defect should be rectified, that even after 12.5.2005, this Aircraft flew to several destinations, that the A/c unit in the ATR aircraft can be switched on, only after the doors are closed after the passengers boarded in aircraft, then only the effect of air conditioning will be felt by a passenger in an ATR aircraft only after a few minutes of boarding, which had happened in this case and therefore, as such, it is false to allege that the aircraft is not worthy of air-worthiness, was operated, causing any inconvenience to the passengers.
5. The District Forum, on the basis of the pleadings, supported by 9 documents produced on behalf of the complainants and 3 documents produced on behalf of the opposite parties, while evaluating the matters, came to the conclusion that the flight can fly with one pack that is with one air conditioner provided the flight level is maintained at 17000 feet, but in this case, it was not proved that the flight level was maintained at 17000 feet and in this view, the opposite parties have committed deficiency in service. On the above finding alone, not accepting the case of the complainants otherwise, a compensation of Rs.10,000/- was ordered to be paid by the opposite parties to each of the complainants, with cost of Rs.5,000/-, as per the order dated 15.03.2010, not satisfying either the complainants or the opposite parties, resulting two appeals, as said above, one for enhancement of compensation and another for upsetting the findings of the District Forum in toto.
6. There is no dispute between the parties regarding the air travel undertaken by the complainants on 12.05.2003 from Bangalore to Chennai in the Aircraft, operated by the opposite party and the Flight number being 9W 3508 ATR 72 Aircraft.
The complainants have also reached safely on the same date to Chennai, though the flight hours was extended from 45 minutes to 65 minutes as pleaded in Para 13 of the complaint. The complainants felt, after boarding and while traveling, air conditioning system of the Aircraft was not proper and that should be brought in, within the meaning of defective Aircraft, not having air-worthiness. Therefore, it is the case of the complainants, that non-carrying out of the repairs before the commencement of flight or not shifting the passengers to another Aircraft, amounted to deficiency in service, which caused suffocation, physical discomfort, agony to the complainants [vide Para 14 of the complaint]. Thus alleging, the complainants have filed a consumer case, claiming each Rs.5 lakhs. No other deficiency or defect in the Aircraft was pleaded or proved. On the other hand, it is the case of the opposite parties that even with the non-functioning of one A/c unit, the Aircraft is worthy of flying, having air-worthiness, that was also certified by the Ground Support Engineers and therefore, it is incorrect to say, that they have committed deficiency in service in operating with defective aircraft or failed to shift the passengers to some other aircraft or failed to rectify the defects, that should be construed as deficiency in service.
7. The District Forum while analyzing the records produced by the parties including documents, has not recorded a finding, that the Aircraft was not having air worthiness or it is not permitted by the Ground Support Engineers to fly with one A/c. On the other hand, it is the finding of the District Forum that the flight can fly with one air pack, that is with one air conditioner, provided the flight level is maintained by 17000 feet as prescribed. It is not the case of the complainants that because of the fact, the Aircraft has not maintained the flight level at 17000 feet, there was any problem causing discomfort, suffocation etc., and this being the position, the opposite parties were not compelled to prove that the flight flew at the level of 17000 feet. It is also not the case of the complainants, either in the complaint or in the Proof Affidavit, that due to non-maintenance of altitude level at 17000 feet, there was pressure drop in the aircraft, resulting complication. This being the position, we are unable to understand, how the District Forum, has come to the conclusion that the opposite parties have committed deficiency in service since they failed to prove that the flight flew at the level of 17000 feet, which is not the case of anybody, though the condition is attached to fly with one air pack. If that was not maintained, certainly there would have been problem while traveling, which is not the case, except the allegation, one air conditioner was not properly functioning. Therefore, the finding of the District Forum, as rightly urged on behalf of the appellants/opposite parties that the opposite parties have committed deficiency in service, not in proving the altitude level should go and if that goes, there is no deficiency even as per the order of the District Forum, which should follow the compensation or damage ordered also should vanish, compulsorily dismissing the complaint.
8. In order to appreciate the case and counter case irrespective of the finding of the District Forum, now we will find out, whether the Aircraft in which the complainants have traveled, was having air worthiness or a defective aircraft was permitted to fly or to be operated.
9. As pleaded in the complaint, on one side of the aircraft, air conditioner was not functioning. Though it was originally denied by the opposite parties, in the additional Written Version, it was admitted by the opposite parties, that the Pilot had reported a bleed leak in one side of the Aircraft, resulting in not functioning of the air pack, in one part of the Aircraft, resulting non-functioning of air conditioner, also to some extent. Since the bleed leak was disabled though the aircraft would be operated. As per the operational prescribed for ATR 72, Minimum Equipment List, as evidenced by Ex.B1 to Ex.B3, an Aircraft is permitted to operate provided flight level is limited to 17,000 feet [vide ATR 72 Minimum Equipment List-21-50-1]. Having this defect as per the Manual brought to our notice, that should be repaired within 10 consecutive calendar days also, which was done in this case as seen from Ex.B3. Unless the Aircraft have air worthiness, the Ground Support Engineer could not have permitted this flight to operate and admittedly, as per the records, the opposite parties are permitted, with certificate, to operate the flight with one pack, which cannot be termed as defective Aircraft, as urged by the learned counsel for the complainants, bringing to our notice some print out, which is applicable to USA Department of Transportation and no document was produced that is to be adopted in India also. On the other hand, the documents produced on behalf of the opposite parties would indicate that an Aircraft is worthy of flying even with one air pack provided, associated bleed valve is considered inoperative and flight level is limited as per MEL 36-11-2. Having this Minimum Equipment List, the opposite parties have operated the flight though there might have been some discomfort, which cannot be termed as deficiency in service, as if, the opposite parties have acted against the standard procedure or offending any Aircraft regulations.
10. As admitted in the Additional Written Version though there was some defect, since the same was permissible under MEL which came to the notice of the Pilot, on landing at Bangalore, since they have no time to repair with the facilities, therein, they were permitted to operate from Bangalore to Chennai, which cannot be termed, as operating defective Aircraft. As seen from the Manual and Sketches produced on behalf of the opposite parties though there was minimum air condition before taking off since one of the engine should have been in operation, the passengers should have felt the minimum air condition level while flying and that is why, no other passengers have complained about the defect in this Aircraft, though there may be general accusation against Jet Airways, which we are concerned in this case. When the opposite parties have operated their flight, with Minimum Equipment List [MEL] which comes within the meaning of airworthiness, which is impossible to brand or label the opposite parties have committed deficiency, in not rectifying the defects or in not providing another Aircraft, as contended by the complainants, which was also not accepted by the District Forum. For the above said reasons, though there might have been some discomfort, at the first instance, we are of the view that will not come within the meaning of deficiency in service, when permitted by rules and regulations, and therefore, the complainants are not entitled to any compensation as incorrectly recorded by the District Forum, which should follow, they are not entitled to any enhancement of compensation also.
F.A.36/201111. In the result, the appeal is dismissed. No costs.
F.A.600/201112. In the result, the appeal is allowed, the order of the District Forum in C.C.2/2004, dt.15.03.2010 is set aside, and the complaint is dismissed. There will be no order as to cost throughout.
13. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit in F.A.600/2011, to the appellants/ opposite parties duly discharged, since appellants succeeded, and there is no need to retain the FDR.
S. SAMBANDAM A.K. ANNAMALAI M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT