State Consumer Disputes Redressal Commission
Amit Kumar Mukherjee vs The General Manager, Air Decan on 8 April, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/369/2009 DATE OF FILING: 22.9.09 DATE OF FINAL ORDER: 08.04.2010 APPELLANT Amit Kumar Mukherjee Flat No.804, Mainak P-17B A.C. Avenue Kolkata 700 019 RESPONDENT 1) The General Manager Clear Trip, 126, Mahalaxmi Silk Mills Mathuradas Mills Compound N.M. Joshi Marg, Lower Parel Mumbai 400 013 2) The General Manager Air Deccan 25, Cunningham Road, Opp. Canada Bank Bangalore 560 052 3) The General Manager Air Deccan N.S.C. Bose Airport, Dum Dum P.S. Dum Dum Airport Kolkata BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER FOR THE APPELLANT : Mr. P. Banerjee, Advocate FOR THE RESPONDENTS : Mr. A.K. Mukherjee, Advocate (No.1) Mrs. K. Mukhopadhyay, Advocate (No.2 &3) : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed against order dated 16.7.09 passed by District Consumer Disputes Redressal Forum, North 24-Parganas in D.F. Case No.125/2007 whereby the complaint was dismissed on contest against OPs.
The case of the complainant, in brief, is that the petitioner planned a holiday trip of ten days to Goa and obtained accommodations booked and, thereafter booked through travel agent clear trips on Internet by Deccan Airlines on 10.2.07 and 17.2.07 for the to and fro journey as also booked rail tickets from Mumbai to Goa. On 08.2.07 an information was sent that the said flight on 10.2.07 had been cancelled. Even on personal approach at the airport office no convenient booking was available.
The other booking for return journey also had to be cancelled. Alleging mental stress and harassment for such cancellation of trip complaint was filed and a compensation of Rs.4 lacs was asked for @ Rs.1 lac per passenger.
In the written version filed by OPs 2 & 3 jointly on behalf of Air Deccan, the cancellation of flight was admitted but it was stated that the said flight on 10.2.07 was cancelled due to force majeure reason which was out of control of the OP Airlines. In the last paragraph of the written version it was stated that cancellation was due to technical reasons which were beyond control of the Respondent Airlines.
Mr. P. Banerjee, the Ld. Advocate for the Appellant contended that the cancellation of flight caused mental agony and harassment to the complainant and the OPs disclosed only reason for flight cancellation as force majeure without actually explaining as to why the flight had to be cancelled. Even stating technical reason as the ground for cancellation of the flight does not clear the position. In the circumstances in absence of any explanation for cancellation of the flight, the OPs are liable to pay compensation to the complainant.
Mrs. Mukhopadhyay, the Ld. Advocate for the Respondent Nos.2 & 3 contended that the complaint itself is not maintainable at the instances of one petitioner only though a trip of four passengers have been alleged and compensation has been asked for. The second contention is when the entire amount towards the price of the ticket have been refunded and the complainant did not raise any protest, the complaint for compensation subsequently filed is not maintainable.
The third contention of the Respondent Airlines is that though a prayer for compensation has been made but no basis for such compensation has been disclosed and, therefore, no relief can be granted to the complainant. In support of such contention reliance was placed on the judgment in the case of Rekhi Tour and Travels Pvt. Ltd.-Vs-Yasmin E. Tavaria reported in 2006(3) CPJ 235 decided by the Honble National Commission.
Mr. A.K. Mukherjee, the Ld. Advocate for the Respondent No.1 contended that as in the cancellation of the flight the Respondent No.1 Travel Agent has no contribution, no relief can be claimed against Respondent No.1.
After considering the respective contentions I find that it has not been disputed by the Respondent that complainant having booked tickets in their flights for a holiday trip to Goa and having purchased requisite train tickets from Mumbai to Goa, cancellation of the trip certainly affects. It appears from the complaint that the sole complainant himself purchased the tickets for the four persons and, therefore, he being the consumer is entitled to file the case. Even refund of the price of the ticket itself does not deprive the complainant from any consequential benefit arising out of cancellation of the journey as compensation amount is not included in the price of the ticket nor the compensation has been asked for alleging loss of money for purchase of the tickets.
As regards the conduct of the Respondent Nos.2 & 3 it is found that they admitted the flight had been cancelled and it was intimated two days ahead of the journey. Undoubtedly such prior communication saves the passengers from taking the hazard of journey to airport but mental agony for cancellation of a holiday trip cannot be presumed to be non-existent.
The contention as regards quantum of compensation is not tenable as mental agony on cancellation of a holiday trip cannot be substantiated by producing evidence for fixing the quantum. There cannot be any proof of actual damage in case of mental agony. The judgment relied on by the Respondent Nos.2 & 3 have not indicated any basis for assessment of such compensation. In paragraph 10 of the said judgment, relied on by the Ld. Advocate for the Respondent Nos.2 & 3, has rejected a claim for reimbursement of a claim for expenditure in absence of proof of such expenditure and, therefore, the said judgment is not applicable in the present case.
As the Respondent Nos.2 & 3 have not disclosed the reason for cancellation of the flight and application of force majeure clause is not permissible unless the actual reason is disclosed on which an assessment can be made by the Forum/Commission as regards application of the said clause. Except making a statement that there was no control of the Respondent Nos.2 & 3 in the matter of cancellation of the flight, the actual reason has not been disclosed giving an opportunity to the Forum/Commission to consider acceptability of the said ground.
Considering the contentions of the parties and keeping in mind that the cancellation of flight was communicated two days ahead of the date of journey I feel that compensation of Rs.10,000/- per passenger will be sufficient compensation in the present facts available.
Accordingly, the appeal is allowed and the impugned judgment is set aside. The complaint is allowed and the OPs 2 & 3 are directed to pay compensation of Rs.40,000/- to the complainant within a period of 60 days from the date of this order and in case of non-compliance by OPs the complainant will be entitled to recover the said amount in accordance with law along with an interest @ 9% per annum for the period of default.
(S. Majumder) (Justice A. Chakrabarti) MEMBER(L) PRESIDENT