State Consumer Disputes Redressal Commission
Debasish Chatterjee vs Air Deccan on 12 August, 2008
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.21/0/07 DATE OF FILING:16.5.2007 DATE OF FINAL ORDER:12.08.2008 COMPLAINANTS 1) Debasish Chatterjee S/o Late Sudhanshu Chatterjee C/o S.K. Chatterjee R.V. Enclave III, Flat No.102 Fiends Colony Nagpur 440 013 2) Dipten Chatterjee S/o Debasish Chatterjee MB 135, Master Block Shakkarpur, New Delhi 92 3) Dr. Kalidas Banerjee S/o Late Haridas Banerjee Flat No.2, 28-F, Brojen Mukherjee Road Kolkata 700 034 4) Kunal Banerjee S/o Dr. Kalidas Banerjee Flat No.2, 28-F, Brojen Mukherjee Road Behala, Kolkata 700 034 5) Subhasish Chatterjee S/o Late Sudhanshu Kumar Chatterjee C/o Mr. Lal, Dhanbad 826 001 6) Debjani Chatterjee D/o Subhasish Chatterjee, MB 135 Master Block Shakkarpur, Delhi 92 7) Samu Chakraborty S/o Late Harakingkar Chakraborty Shib Tala Para Sainthia Birbhum OPPOSITE PARTY Air Deccan Owned by Air Deccan Aviation Limited 35/2, Cunningham Road Opposite Canara Bank Bangalore 560 052 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER FOR THE COMPLAINANTS : Mr. R. Mukherjee, Advocate FOR THE OPPOSITE PARTY : : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT The facts stated in the complaint are that the petitioners along with two other persons purchased nine air tickets from Kolkata to Agartala by Flight No.675 of Air Deccan for journey on 04.3.2007. Such tickets were purchased on 17.10.2006 in Kolkata. The said journey was booked as marriage of the petitioner No.2 was scheduled to take place at Agartala on 05.3.2007. Tickets were purchased for return journey from Agartala to Kolkata on 07.3.2007.
Out of the nine persons aforesaid two cancelled their tickets before the date of journey. All the tickets were shown as confirmed.
On the date of journey all the petitioners reached the departure lounge of the domestic terminal of Netaji Subhas International Airport, placed their tickets at the check in counter of the OP who issued the boarding cards to all the petitioners. After undergoing necessary security check the petitioners boarded the flight. A few minutes before the actual takeoff some officers of the OP asked the petitioners to disembark the aircraft as all their tickets were cancelled. After argument and counter argument the petitioners were forced to disembark and the flight tookoff with other passengers. Not only tremendous harassment and humiliation the petitioners and particularly the petitioner No.2 suffered traumatic state of mind. With difficulty one ticket in a flight of Indian Airlines could be arranged for the petitioner No.2 the groom for undertaking the journey on the same day and he traveled all alone to Agartala.
Rest of the petitioners managed to obtain tickets in Indian Airlines flight on the next day and thus they could reach Agartala on the date of marriage. Reaching Agartala the petitioners found that their tickets for return journey also stood cancelled and the petitioners had to purchase fresh return tickets on Indian Airlines flight.
The OP neither communicated the petitioners anything about the said incident nor did they refund the money. The petitioners accordingly filed the present complain seeking relief of compensation of Rs.40 lakhs, further compensation of Rs.9 lakhs towards harassment, mental torture, agony etc for cancellation of the air journey and refund of Rs.22,086/- being the airfare and interest @ 12% per annum till realization.
The OP filed their written statement stating inter-alia that the OP had migrated to new software since 26.2.2007 due to which there was overbooking of the passengers and later it was found that two passengers were extra on board and hence they were offloaded. At the time of argument the Ld. Advocate for the OP stated that actually seven passengers were found extra on board and hence they were offloaded and by reason of typographical mistake reference was made of two passengers only instead of seven passengers. The OP stated in the said affidavit that the airlines was not responsible for any deficiency in service, negligence or harassment and the OP being in the business of commercial aviation does not get anything by misleading the passengers.
Affidavit on evidence was filed both by the complainant and the OP.
At the stage of hearing initially the complainant advanced their argument through their Ld. Advocate as the Ld. Advocate for the OPs reached late. Thereafter on application by the OP, matter was again heard subsequently in presence of both sides.
The main contention of the petitioners is that in the whole incident of harassment of the petitioners, they had no contribution.
The petitioners purchased tickets in October, 2006 i.e. well in advance for journey scheduled on 04.3.2007. On the date of journey the petitioners reached in time, were issued boarding cards, were allowed to occupy seats allotted and thereafter suddenly were forced to disembark being dictated by the officers of the OP alleging that their tickets were cancelled. Such alleged cancellation was never intimated to the petitioners nor they were refused boarding cards. Therefore humiliation, insult and uncertainty over and above the serious mental agony of all the petitioners and particularly the petitioner No.2 made them entitled to compensation as prayed for.
On behalf of the OP it is first contended that the complaint is bad as all the seven petitioners could not join in one complain without there being any prior permission of the State Commission. This was argued referring to the Law contained in Section 12(1)(c) of the Consumer Protection Act.
It is further contended that all the seven petitioners could not initiate the proceeding as there was no other consumer left and in support of such contentions reference was made to Section 12(1)(c) of the Act. Reference was also made to Section 2(1)(b)(iv) of the Act.
The further contention of the OP is that the records showed that the Petitioner No.1 made the entire payment for all the tickets from his credit cards and, therefore, the Petitioner No.1 is the only consumer and so the complain could not be filed by all the seven persons together.
It is further contended that this Commission does not have territorial jurisdiction as the OP has no branch functioning within the jurisdiction of this Commission. In this connection reference was made to Section 17(2)(b) of the Act. It is further stated that for application of Section 17(2)(c) no pleading is available in the complaint and, therefore, the matter did not proceed on the basis of cause of action.
Next argument of the OP is that as the cancellation had taken effect in view the fault in the new software utilized, there was no unfair trade practice or deficiency in service making the petitioners entitled to any compensation whatsoever. The Ld. Advocate for the OP further relied on the facts that the OPs offered two tickets to the petitioner NO.2 and his newly married wife by any flight of the OP to any destination within India after the marriage took place and thus the OP wanted to compensate the petitioner No.2 who could have suffered some mental agony. Having not accepted the said offers the petitioners and particularly the petitioner No.2 are not entitled to ask for any compensation whatsoever.
After considering the contentions of the respective parties we first consider the technical objections raised by the OP in respect of maintainability of the complaint. With regard to Section 12 of the Act particularly Clause (c) of Sub-Section (1) thereof, it appears one or more of the numerous consumers having same interest, can maintain a complain either on behalf of or for the benefit of all the consumers so interested provided permission is obtained from the concerned Forum. But when all the consumers joined in the complaint, no such permission is required.
In the present case as two tickets were cancelled long before the date of journey, all the petitioners who suffered by the actions of the OP, having come forward together, are very much entitled to maintain the complaint. The contentions of the OP contrary to the aforesaid are not found acceptable.
With regard to the definition of complainant as appears in Section 2(1)(b)(iv), it is apparent that all the consumers having same interest can be complainants in a proceeding. The fact that only the petitioner No.1 made the payment for all the tickets, does not render the complaint not maintainable as admittedly the other six petitioners are beneficiary and were to receive service from the OP and were harassed and, therefore, as per provisions contained in Sub-Clause (ii) of Clause (d) of Sub-Section (1) of Section 2 of the Act where a consumer means also a beneficiary of the services.
With regard to the contention as regards no negligence on the part of the OP as the new system on introduction of new software failed and there was no intentional deficiency in service, we find that admittedly the new system was introduced by the OP themselves and for its failure only OP will remain responsible. It goes without saying that the OP was required to test service of any new system before it is introduced and cause such harassment to any consumer. It is pertinent to note that the OP has not made out any case as to why the petitioners were chosen for disembarking the aircraft when admittedly the petitioners purchased their tickets long back on 17.10.2006 for a journey on 04.3.2007 as would appear from the ticket itself. The travel agent cancelled two tickets and those two tickets were shown cancelled in the records. Therefore, it is totally failure of the persons dealing with the matter on behalf of OP to insist petitioners to disembark in such circumstances. It is apparent that when petitioners were arguing before being compelled to disembark, the OPs and its Officers were required to consider the matter and the persons last booking tickets were to be offloaded in case of any overloading.
With regard to jurisdiction of this Commission the facts stated in paragraph 13 of the complaint show that this Commission has jurisdiction, particularly when there is no specific denial to the relevant pleadings.
In above circumstances considering the facts it is apparent that the OPs action amounted to gross deficiency in service.
Therefore, the complaint is allowed and the OP is directed to pay compensation of Rs.50,000/- to each of the petitioners and Rs.22,086/- being the airfare.
The OP is also directed to pay cost of Rs.5,000/-.
Such payment are to be made within a period of two months from date and in case of failure the complainants will be entitled to recover the said amount in accordance with law along with interest @ 9% per annum till realization.
(S. Majumder) (Justice A. Chakrabarti) MEMBER(L) PRESIDENT