State Consumer Disputes Redressal Commission
Dr. Fernando Aluisio Das Angustias & ... vs Delta Air Lines & Another on 10 October, 2019
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
F.A. No. 39/2018
1. Dr. Fernando Aluisio Das Angustias
Fernandes, major in age, Medical
Practitioner, and his wife:
2. Mrs. Maria Celsa Tovar Furtado
major in age, retired,
both residing at H. No. 495,
Behind St. Sebastian Church,
Aquem Alto Margao, Goa. ... Appellants
v/s
1. Delta Air Lines,
Commercial Manager,
Indian Subcontinent,
Podar House, Ground Floor,
Marine Drive,
Churchgate - Mumbai - 400020.
2. Air France, with Office at
Tower - C, 8th Floor, Bldg No. 8
DLF Cyber City, Phase - II,
Gurgaon Haryana - 122002. ... Respondents
Mr. Crisanto Fernandes, Lr. Counsel for the Appellants.
Mr. L. Emmanuel, Lr. Counsel for Respondent No. 1.
Mr. J. Gomes, Lr. Counsel for Respondent No. 2.
AND
F.A. No. 05/2019
1. Air France, 8th Floor, tower C,
Building No. 8, DLF
Cyber City - Phase II,
Gurgaon - 122 002,
Haryana. ... Appellant
v/s
1. Dr. Fernando Aluision Das Angustia,
2
H.No. 495, Behind St. Sebastian Church,
Aquem Alto, Margao, Goa.
2. Mrs. Maria Celsa Tovar Furtado,
H. No. 495, Behind St. Sebastian Church,
Aquem Alto, Margao,
Goa.
3. Delta Airlines,
Commercial Manager, Indian Subsontinent,
Podar House, Groudn Floor, Marine Drive,
Churchgate,
Mumbai - 400020. ... Respondents
Mr. J. Gomes, Lr. Counsel for the Appellant.
Mr. Crisanto Fernandes, Lr. Counsel for Respondents No. 1 and 2.
Mr. L. Emmanuel, Lr. Counsel for Respondent No. 3.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated:- 10/10/2019 COMMON JUDGMENT [Per Justice Shri. U. V. Bakre, President] Both the above Appeals are directed against the Judgment and Order dated 06/04/2018 passed by the Consumer Disputes Redressal Forum, South Goa (the "Forum", for short) in Complaint No. 92/2017. The Appellants of FA No. 39/2018, who are the Respondents No. 1 and 2 of FA No. 05/2019, were the Complainants, the Respondent No. 1 of FA No. 39/2018, who is the Respondent No. 3 of FA No. 05/2019, was the Opposite Party No. 1 (OP No. 1, for short) and the Appellant of FA No. 05/2019, who is the Respondent No. 2 of FA No. 39/2018, was the OP No. 2 (OP No. 2, for short) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
2. The Complainants had filed the said Complaint praying 3 therein to direct the OPs, jointly and/or severally, to pay to them, the compensation of Rs. 5,50,000/- along with interest at the rate of 10% per annum from the date of filing of the Complaint till final realization.
3. Case of the Complainants, in short, is a follows:
The Complainant No.1 is a practising medical practitioner for the last 40 years and the Complainant No. 2, who is his wife, is a retired Banker from Bank of India and both are reputed Senior Citizens. The Complainants had planned a vacation at Raleigh Durham (U.S.) where their daughter and her husband reside. They had booked flight tickets on business/priority class directly from website of the OP No. 2 with confirmed reservation and payments were made online. The flights schedule was from Mumbai to Raleigh Durham via Paris for an outbound journey on 28/08/2017. The OP No. 2 operates the particular sector of the flight on a code share basis with OP No. 1 and both are partners. The OPs accept a joint responsibility for the flight passengers. The flight from Mumbai to Paris on 28/08/2017 was operated by OP No. 1 and the flight from Paris on 28/08/2017 was also operated by OP No. 1. The flight on the return (inbound) journey was from Raleigh Durham, NC on 12/09/2017 to Mumbai with stopovers at JFK, New York, the flight DL 4144 was operated by 'Endeavour Air" DBA Delta connection. The Complainants had two business/priority class tickets all the way through to Mumbai. Accordingly, the Complainants boarded the connecting flights on 12/09/2017 from New York to Paris, which flight was operated by OP No.
1. They remained seated in the said aircraft for nearly four hours, and thereafter they were instructed by the cabin crew of OP No. 1 to disembark from the aircraft with instructions that they should, on their own and without any assistance, approach the help desk of the OP No. 1 in vast airport of New York. The Complainants managed to find the help desk and at that time they were instructed to spend the night in a hotel 4 at New York itself and were provided with the voucher for the hotel and the return boarding passes from New York to Mumbai via Amsterdam. The Complainants managed to locate the hotel with great difficulty where they reached at midnight. The stay there was not comfortable since no meals were provided to them and they had to spend the night hungry, mentally and physically exhausted and worried about the flight from Mumbai to Goa. On 13/09/2017 the Complainants came to the airport at New York for the onward journey from New York to Amsterdam and approached the 'check in counter' where the boarding passes provided by the help desk were verified and fresh boarding passes were issued and they were asked to proceed to the gate. When they arrived at the boarding gate, the concerned staff, after verifying their boarding passes, told them to remain aside till all other passengers boarded and only thereafter they were allowed to board the flight from New York to Amsterdam by OP No. 1. The Complainant No. 1 was provided with business/priority class ticket and was allowed to proceed to sit in the business class whereas the Complainant No. 2 was downgraded to economy class inspite of having paid for business class. The Complainant No. 2 was thus deprived of the comfort of the business class travel from New York to Amsterdam and the companionship of her husband during the flight. The help desk at New York even issued a note "Interrupted Travels" to the Complainants, whereby they have orally apologized for the inconvenience caused. As per the itinerary and confirmed bookings, the Complainants were expected to reach Mumbai on 14/09/2017 but on account of the negligence and/or deficiency in service of the OPs, they arrived in Mumbai only on 15/09/2017 and therefore missed the connecting flight from Mumbai to Goa which was scheduled for 14/09/2017. The Complainants therefore had to do spot purchase of fresh tickets at exorbitant rates of Rs.
15,702/- for both from Go Air for the travel from Mumbai to Goa, on 15/09/2017. As per the bookings and information, 5 the Complainants had checked in the baggage namely two bags at the airport of Raleigh Durham and were informed that the luggage could be collected after their arrival at Mumbai on 14/09/2017. However, the baggage did not arrive when the Complainants went to collect the same at Mumbai on 15/09/2017, for which they lodged 'Missing Baggage Report' with Jet Airways at Mumbai Airport. The Complainants received their luggage, namely one bag on 24/09/2017 and the other on 26/09/2017 at Goa Airport. The Complainants had informed the OPs about the interrupted and uncomfortable travel due to inefficiency of service but in reply, the OP No. 1 expressed its apology and offered US$ 250 ETCV of 25000 miles for each of the Complainants. The Complainants are not frequent flyers of the OP No. 1 and hence have no use for the 'Air Miles'. Besides the above, after the horrible behaviour during and after the journey, have no intention of travelling by OP No. 1 in the immediate future and so the offer of ETCV to set of future purchase of Delta tickets was not acceptable. The Complainants, therefore, are entitled for just and fair compensation through the Consumer Protection Act. The Complainants are entitled for minimum compensation of Rs. 1,00,000/- for each of them for the mental torture/trauma undergone by them. The Complainant No. 2 is further entitled to a sum of Rs. 2,00,000/- for downgrading her for the flight from New York to Amsterdam, plus the sum of Rs. 50,000/- each for the late arrival of the luggage and further sum of Rs. 50,000/- for personal expenses incurred for meals in the hotel at New York as well as cost of on spot purchase of flight tickets from Mumbai to Delhi.
4. The notices were issued to both the OPs, by the Forum, to appear on 02/02/2018, by registered post A/D, however they were returned back with endorsement "refused". That was deemed to be good service, by the Forum. The OPs were absent on 02/02/2018 and the Forum ordered to proceed ex-
6parte against them.
5. The Complainants filed affidavit-in-evidence of the Complainant No. 1. The Complainants produced on record various documents namely flight booking from the website of the OP No. 2 bearing No. AF/MTJ3NZ, boarding passes of the OP No. 1, note issued by help desk of Delta at New York, tickets of Go Air dated 15/09/2017, missing baggage report issued by Jet Airways at Mumbai Airport, email of the Complainant No. 2 sent to the OP No. 1, email reply received from OP No. 1, legal notice dated 06/11/2017, two unclaimed envelopes containing the legal notice addressed to the OPs, email of the legal notice sent by Advocate Crisanto Fernandes of the OPs and email dated 02/02/2018 received by the Complainant No. 2 from the OP No.1 in reply to the legal notice sent through email. Written arguments were filed by the Complainants.
6. Vide the Impugned Judgment, the Forum held that the Complainants succeeded in proving that the OPs had defaulted in their obligation and that had resulted in deficiency of service on the part of the OPs. The Complaint has been allowed with cost of Rs. 5000/- and the OPs have been held, jointly and severally, liable and have been directed to pay compensation of Rs. 40,000/- to the Complainants along with interest at the rate of 7% per annum from 29/12/2017 till the date of actual payment. The Complainants, being aggrieved with the impugned Judgment and Order, on account of less compensation granted, filed the FA No. 39/2018. The OP No. 2, being aggrieved with the entire Judgment and Order have filed the FA No. 05/2019.
7. Records and proceedings of Complaint No. 92/2017 were called for. The Notice dated, 01/06/2018, sent to the OP No. 1, in FA No. 39/2018, was returned back with postal remark 7 "rejected to accept". However subsequent notice dated 20/09/2018 sent to the OP No. 1, at different address, was duly served. All the parties have filed written arguments, in both the Appeals. We have also heard oral arguments. Mr. C. Fernandes, Lr. Counsel argued on behalf of the Complainants. Mr. L. Emmanuel, Lr. Counsel argued on behalf of the OP No. 1 and Mr. J. Gomes, Lr. Counsel argued on behalf of the OP No. 2. we have gone through the entire material on record.
8. Vide the impugned Judgment and Order, both the OPs, jointly and severally, have been held liable and directed to pay the compensation. The OP No. 1 has not challenged the Judgment and Order. Hence the same is binding on the OP No. 1.
9. The OP No. 2 has contended that the Forum had no territorial jurisdiction to entertain and try the Complaint and that the jurisdiction is covered by the provisions of Carriage by Air Act which is a special Act. The OP No. 2 has quoted Regulation 33(1) of the Third Schedule of the Carriage by Air Act, 1972 and Clause 29(1) contained in Schedule II of Carriage by Air Act, 1972. In this regard, the OP No. 2 has relied upon the orders of the Hon'ble National Commission in the following cases:- (i).- First Appeal No. 81/2005 ("British Air Ways Vs. Gems Art Factory", 2014 SCC Online NCDRC
826); (ii) Original Petition No. 48/1996 ("Bharat S. Modi Vs. British Airways", 2001 SCC Online NCDRC 23); (iii).- Original Petition No. 167/2001 ("Govind Poddar Vs. Cathay Pacific Airways Ltd.", 2002 SCC Online NCDRC 27); and
(iv).- First Appeal No. 480/1995 ( "Indian Airlines Vs. D. P. Hazra", 2002 SCC Online NCDRC 12). we have gone through these orders. The law on this point is well settled. In the case of "Trans Mediterranean Airways Vs. Universal Exports", reported in [(2011) 10 SCC 316], one of the core issues was whether the National Commission under the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') has 8 the jurisdiction to entertain and decide a complaint filed by the consignor claiming compensation for deficiency of service by the carrier, in view of the provisions of the Carriage by Air Act, 1972 and the Warsaw Convention, or whether domestic laws can be added to or substituted for the provisions of the conventions. The Hon'ble Supreme Court concluded that the National commission has jurisdiction to decide the dispute between the parties and it is a Court. The Complainants have relied upon the Judgment of the Hon'ble Supreme Court in the case of "Virender Jain Vs. Alaknanda Cooperative Group Housing Society Limited And Others", reported in [(2013) 9 SCC 383], wherein a bench of three Judges of the Hon'ble Apex Court have observed as under:-
"15. In the last mentioned judgment, National Seeds Corpn. case [(2012) 2 SCC 506], this Court referred to the earlier judgments in Fair Engineers (P) Ltd. v N. K. Modi [(1996) 6 SCC 385], Thirumurugam Coop. Agricultural Credit Society v.
M. Lalitha [(2004) 1 SCC 305, Skypak Couriers Ltd. v. Tata Chemicals Ltd., [(2000) 5 SCC 294] and Trans Mediterranean Airways v. Universal Exports, [(2011) 10 SCC 316] and held that the remedy available under the Act is in addition to the remedies available under other statutes and the availability of alternative remedies is not a bar to the entertaining of a complaint filed under the Act."
In view of the above, the ratio laid down in the case of "British Air Ways Vs. Gems Art Factory" and other cases relied upon by the OP No. 2, is not applicable to the facts of the present case. Thus, it is not correct to say that the Carriage by Air Act prevails over the Act and on account of the same the Forum lacks territorial jurisdiction.
10. The OP No. 2 has submitted that the Complainants are 9 not consumers vis-a-vis the OP No. 2 since there was no privity of contract between the Complainants and the OP No. 2 since the tickets were never purchased from the OP No. 2 and the tickets were booked online through a portal and the consideration amount was also paid to another Airline. It has been further urged by the OP No. 2 that the Complainants only travelled with the OP No. 2 from Mumbai to Paris on 28/08/2017 without any problem or issue and the rest of the journey was covered through another Airline and therefore the OP No. 2 was not an appropriate party to the Complaint. It is another contention of the OP No. 2 that neither of the OPs had office in Goa and merely because the tickets were booked by the Complainants in Goa, the Forum could not have assumed jurisdiction. The OP No. 2 has relied upon Section 11(2) of the Act and on the order passed by the Hon'ble National Commission in the case of "Dr. Ravi Ghai And Ors Vs. M/s. Make My Trip (India) Pvt. Ltd. And Anr." (Revision Petition No. 2193-2194 of 2012 decided on 22/05/2013), wherein, inter alia, it was held that in case of purchase of tickets online through internet, only the Forum, where the Headquarter of the Opposite Party is situated, will have territorial jurisdiction to entertain and decide the complaint and booking of the ticket on the internet does not give a cause of action or a part of cause of action to that city. Section 11(2)(c) of the Act provides that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, the cause of action, wholly or in part, arises. In this regard, the Complainants have relied upon the Judgment of the Delhi High Court in CS (OS) No. 894/2008 ("Banyan Tree Holding (P) Limited Vs. A. Murali Krishna Reddy & Anr"). In the said Suit No. 894/2008, neither the Plaintiff nor the Defendants were located within the territorial jurisdiction of the Delhi High Court and the question was concerning the jurisdiction of the Delhi High Court to entertain the said Suit, which was an action for passing off. The Plaintiff was a Company having its registered office at Singapore whereas the 10 Defendants were at Hyderabad. The Plaintiff was maintaining the website www.banyantree.com and www.banyantreespa.com since 1996. The Defendants had advertised their project on their website www.makprojects.com/banyantree. Claiming that the use of the said mark and device by the Defendants was dishonest and was an attempt to encash on the reputation and goodwill of the Plaintiff and was to cause confusion and deception among the public by passing off the services of the Defendants as that of the Plaintiff, the Plaintiff had filed the said Suit. The Defendants had hosted the website which was accessible in Delhi and through which not only information could be obtained by a viewer sitting in Delhi but also a feedback could be sent to the Defendants through the said web-page. Relevant questions were framed by the Single Judge of the Delhi High Court and were referred to the Division Bench of the said High Court for decision. The Division Bench reframed the questions for consideration and, inter alia, the question No.1 was as follows:-
"(i).- For the purpose of passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a Court, in what circumstances can it be said that the hosting of a universally accessible website by the Defendants lends jurisdiction to such Court where such suit is filed ("the Forum Court)?"
After considering the jurisdiction of the Forum Court in suits involving internet related disputes as applicable in USA, Australia and India, the Division Bench of the Hon'ble Delhi High Court answered the said question No. (i) in the following manner:
"Answer:- For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a 11 long-arm statute, in order to satisfy the court that it has jurisdiction to entertain the suit, the Plaintiff would have to show that the Defendant "purposefully availed" itself of the jurisdiction of the forum court. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendants by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state."
11. The Complainants have pleaded that they had booked flight tickets on business/priority class from the website of the OP No. 2 with confirmed reservation and payments were made directly online. The Complainants have further stated that the OP No. 2 operates the particular sector of the flight on a code share basis with the OP No. 1, as partners and thus accept a joint responsibility for the flight passengers, who are booked to fly on such flights. In this regard, it should be kept in mind that since the OP No. 1 as well as the OP No. 2, though duly served, did not file written version/affidavit-in- evidence and did not produce any documents, the facts pleaded in the Complaint and not contrary to any document produced by the Complainants are to be deemed to have been admitted. The above pleadings in the Complaint show that offer was made by the OP No. 2 to purchase tickets through internet, which was accepted by the Complainants who accordingly made payments through internet and tickets were sent through internet, to the Complainants, and received by them in South Goa, Margao. Thus, the OP No. 2 has its website in use inviting the public to book air tickets with an intention to conclude a commercial transaction and based on such website, the Complainants booked the air tickets from Goa to U.S.A., which ultimately ended in the Complaint filed 12 before the Forum. In First Appeal No. 347 of 2015 ("Spice Jet Ltd. Vs. Ranju Aery w/o Sh. Abnesh Dhadwall"), the core question which fell for consideration was in a case where a consumer has purchased air tickets online i.e. through internet, in case of deficiency in providing service, at which place, he/she could file a consumer complaint for redressal of his grievance. The State Consumer Disputes Redressal Commission, U.T., Chandigarh, by order dated 29/12/2015, has relied upon the observation of the Hon'ble Supreme Court "A. B. C. Laminart Pvt. Ltd. And Anr. V.s A. P. Agencies, Salem" [1989 AIR 1239= 1989 SCR (2) 1] which is as under:-
"As per established law, contracts can be concluded through telephone, where the parties are placed at distance, without having direct access to each other. In such a situation, contract would be completed at a place, where its acceptance is communicated. Because of advancement & technology and rapid growth of new models of conducting business over the internet, it is possible for an entity to have a virtual presence at a place, which is located at a distance from the place, where it has a physical presence. In the present times, the availability of goods and services, through the website at a particular place, has virtually become the same thing, as a seller having shops, in that place, in the physical sense. Besides as above, ordinarily existence of offer and its intimation, results in a contract and a suit can be filed at a place, where acceptance was communicated. Further more performance of a contract forms a part of cause of action and grievance can be redressed by filing a suit, qua its breach at a place, where contract should have been performed."
The State Commission, U. T., Chandigarh, has observed that the Hon'ble National Commission, in "Dr. Ravi Ghai 13 and others" (supra), when rendering judgment to the contrary, did not notice the ratio of the judgment passed by the Hon'ble Supreme Court of India in the case of "A. B. C. Laminart Pvt. Ltd. And Anr" (supra). We agree with the above order of the State Commission, U.T., Chandigarh. Applying the principles laid down by the Hon'ble Supreme Court in the case of "A. B. C. Laminart Pvt. Ltd. And Anr"
(supra) and by the Delhi High Court in the case of "Banyan Tree Holding (P) Limited", (supra), it can be said that the Forum had territorial jurisdiction to entertain and decide the Complaint and the Complainants are consumers vis-a-vis the OP No. 2 as well as the OP No. 1 and we hold so.
12. It is submitted by the OP No. 2 that in the Complaint the Complainants have not stated a single fact pointing out any negligence on the part of the OP No. 2 and therefore the OP No. 2 cannot be held responsible for any unfair trade practices or for causing any mental agony or harassment to the Complainants. It is the contention of the OP NO. 2 that no willful negligence is made out against the OP No. 2 and hence the bonafide action and fair dealing cannot be termed as deficiency in service. The OP No. 2 has relied upon "Ravneet Singh Bagga Vs. KLM Royal Dutch Airline", reported in [(2001) SCC 66], wherein the Hon'ble Supreme Court has observed as under:-
"If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency in service entitling the aggrieved person to claim relief under the Act."
In the case of "Ravneet Singh Bagga" (supra), it has 14 been held that the rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. The Complainants have pleaded in paragraph 2 of the Complaint that the OP No. 2 operates particular sector of the flight on a code share basis with the OP No. 1 and as partners and that the OPs accept a joint responsibility for the flight passengers, who are booked to fly on such flights. The Complainant has stated in the Complaint about the interrupted and uncomfortable travel and about all the inconveniences and expenses incurred by them, all due to inefficiency of service. All the said facts as pleaded apply to the OP No. 2 also in view of the pleading in paragraph 2 of the Complaint. The Complainants have pleaded in paragraph 10 of the Complaint that they had informed the OPs about the interrupted and uncomfortable travel due to inefficiency of service and in reply, the OP No. 1 expressed its apology and offered US$ 250 ETCV or 25000 miles for each of the Complainants. In paragraph 14 of the Complaint, the Complainants have pleaded that both the OPs be called upon to pay compensation for the financial loss/injury/mental torture/agony suffered due to their deficiency in services both during the flight and for lack of assistance throughout and the insensitive and fraudulent offer of mitigation in the reply mail. The Complainants had issued legal notice to both the OPs calling upon them to pay the compensation as mentioned therein but the said notices returned unserved with remark "refused", which according to the Complainants, amounts to good service. What is important is that the said legal notice was also communicated to both the OPs through email. The OPs did not send any reply. All the above facts as pleaded and the documents produced by the Complainants in support of the pleadings, which duly show the negligence of both the OPs and which amount to unfair trade practice, have gone unchallenged since the OPs have not filed any written version/affidavit-in-evidence. The OP No. 2, therefore, cannot 15 be heard to say that in the Complaint the Complainants have not stated a single fact pointing out any negligence on the part of the OP No. 2 and that no wilfull negligence is made out and therefore the OP No. 2 cannot be held responsible for any unfair trade practices or for causing any mental agony or harassment to the Complainants.
13. The OP No. 2 has further submitted that the alleged issues, if any, occurred in the connecting flight from New York to Paris operated by the OP No. 1 and that the said flight suffered from mechanical faults which delayed the departure of the flight. According to the OP No. 2, mechanical problem can occur any time without human error or fault and the same is beyond the control of the Airlines. As already stated earlier, both the OPs did not file any written version before the Forum alleging that there were any mechanical faults in the connecting flight from New York to Paris which were beyond the control of the OPs. In fact, the OP No. 1, who operated the said flight, has not challenged the impugned Judgment and Order and thus has indirectly accepted the allegation of deficiency in service and unfair trade practices, on the part of both the OPs. There is absolutely no evidence on record of any mechanical faults in the said flight. Hence the above contention has no substance. The Complainants had informed the OPs about the interrupted and uncomfortable travel due to inefficiency of service and in reply, the OP No. 1 had expressed its apology and offered US$ 250 ETCV or 25000 miles for each of the Complainants.
14. It is the contention of the OP No. 2 that in view of Regulation 36 of the Third Schedule to the Carriage by Air Act, 1972, the OP No. 2 could not have been held responsible. Clauses 1 and 2 of the said Regulation 36 provide as under:-
1. In the case of carriage to be performed by various successive carriers and falling within the definition set out in paragraph 3 of Article 1, each 16 carrier which accepts passengers, baggage or cargo is subject to the rules set out in this Convention and is deemed to be one of the parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under its supervision.
2. In the case of carriage of this nature, the passenger or any person entitled to compensation in respect of him or her can take action only against the carrier which performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.
The flight from Mumbai to Paris on 28/08/2017 and back from Paris to Mumbai on 13/09/2017 was actually operated by the OP No. 2 and there was no issue or problem during this journey. The issues were during the connecting flight from New York to Paris operated by the OP No. 1 and the issue of baggage was with Jet Airways. However, the facts that the OP No. 2 operates the particular sector of the flight on a code share basis with the OP No. 1 and as partners and that the OPs accept a joint responsibility for the flight passengers, who are booked to fly on such flights, as pleaded in the Complaint, have gone unchallenged and hence the OPs jointly have assumed liability for the whole journey. Besides the above, the Complainants have not claimed any compensation for any accident or for delay. The Complainants have prayed for compensation for mental torture/trauma undergone by each of them for one night uncomfortable stay at New York without assistance and for anxiety caused to them for locating help; compensation for downgrading the Complainant No. 2 for the flight from New York to Amsterdam; compensation for late arrival of baggage and compensation for personal expenses incurred in the hotel at New York as well as cost of on spot purchase of flight tickets 17 from Mumbai to Delhi. Thus the compensation claimed by the Complainants is not for delay. Ld Counsel for the Complainants alleged that the compensation claimed by the Complainants is for personal injury covered by Article 22(1)
(a) of the Warsaw Convention as amended at the Hague in 1955, and at Guatcmala City in 1971. However, from the xerox copy of Chapter XI (Additional Protocol No. 3, 1975), produced by the Complainants, it appears that the said amended provision has not entered into force and India has not ratified the same. The Complaint of the Complainants is governed by provisions of the Consumer Protection Act, 1986 (C. P. Act, for short). Regulation 36 of the Carriage by Air Act, cannot, therefore, absolve the OP No. 2 from its responsibility.
15. It is contended by both the OPs that they were not served with the notice of the Complaint and hence the Forum erroneously proceeded exparte against them. Indisputably, the notice to the OP No. 2 was sent by the Forum by registered post A/D at the correct address which is exactly the same as mentioned by the OP No. 2 in its own FA No.05/2019. The said notice was returned back to the Forum by the postal authority with remark "Refused". Returned envelope with A/D card is in the records and proceedings, received from the Forum. A presumption of the correctness of the postal endorsement of 'refusal' can be drawn with the aid of Sections 16 and 114 of the Indian Evidence Act. Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post, unless the contrary is proved. There is absolutely no explanation from the OP No. 2 as to why and how the said notice came to be refused. The presumption has not been rebutted. Hence the Forum rightly proceeded exparte against the OP No. 2. The OP No. 1, in its written arguments filed in the FA No. 39/2018, has alleged that the address given in Complaint No. 92/2017, as of the OP No. 1 does not belong to it and the only office it has in 18 India Is in Mumbai and the principle place of business is in USA. The OP No. 1 has contended that the Judgment and Order dated 06/04/2018 was passed without affording an opportunity to the OP No. 1 to present its case and hence the First Appeal No. 39/2018 filed by the Complainants be dismissed. The OP No.1, for whatever reason it may be, has not challenged the said Judgment and Order dated 06/04/2018 i.e. the impugned Judgment and Order and the same has attained finality as against the OP No. 1. The OP No. 1 cannot therefore make a grievance that they were not served with the notice in the said Complaint.
16. The facts as pleaded in the Complaint have been duly supported by an affidavit of the Complainant No.1 and there are documents produced by the Complainants. The OPs have not filed written version/affidavit-in-evidence and have not produced any documents. There is no denial to the case of the Complainants as pleaded in the Complainant and as stated in the affidavit-in-evidence. The said facts are to be deemed to have been admitted. The Forum has discussed in detail all the said facts and we need not repeat them. There is fault, imperfection and shortcoming in the performance of the OPs. The Complainants have therefore established deficiency in service and unfair trade practice as against the OPs and that the same caused loss or injury to them.
17. Coming to the quantum of compensation, it well known that compensation is an integral part of consumer justice. However, it is unfortunate to note that many a time, the compensation for damages, as granted, is too less to be productive. The Consumer Fora need not be hyper technical. In the First Appeal No. 767 of 2000 ("Charan Singh Vs. Healing Touch Hospital and Ors."), vide Judgment dated 20/09/2000, the Hon'ble Supreme Court has held as under:-
"While quantifying damages, consumer forums are required to make an attempt to serve the ends of 19 justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends upon the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation.
It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge."
The Complainants have relied upon the Judgment of the Hon'ble Supreme Court in the case of "Ghaziabad Development Authority Vs. Balbir Singh" [(2004) 5 SCC 65], wherein it has been held as under:-
"The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the 20 consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law."
18. The Complainants had claimed compensation of Rs. 2,00,000/- (Rs. 1,00,000/- for each of them) for mental torture/trauma undergone by each of them for one night uncomfortable stay at New York without assistance and for the anxiety caused to them for locating help, on 12/09/2017. The Forum has awarded only Rs. 10,000/- (Rs. 5,000/- for of them) each, and that also for the mental agony the Complainants suffered for not having provided meals for the night and as also for purchase of meals. The Forum has awarded the said compensation as per the instructions contained in 'Civil Aviation Requirements' ('CAR', for short) issued by the Government of India. Clauses No.3.4.2 and 3.7.1 of the CAR have been quoted by the Forum and Clauses 3.2.2 and 3.3.2 have been referred to. The Forum has observed that the Complainants, not having produced the bills of the meals they had taken at New York hotel, the precise amount spent by them cannot be known. The Forum has attempted to do some guess work. In fact, the Complainant has claimed compensation under the C. P. Act. for deficiency in services. The flight on return (inbound) journey was from Raleigh Durham, NC on 12/09/2017 to Mumbai with stopovers at JKF, New York and Paris. The flight from Raleigh Durham to John F. Kennedy International Airport (JFK Airport, for short} at New York was DL 4144, which was operated by the "Endeavour Air" DBA Delta Connection. JFK Airport at New York is big and one of the busiest international Airport. More than 90 airlines operate from this airport. Just imagine how many passengers will be at the Airport. The Complainants had boarded the connecting flight on the same day i.e. 12/09/2017 from New York to Paris, bearing flight no. AF 3577 operated by Delta DL 404. The Complainants had remained seated in the said aircraft for 21 nearly four hours and thereafter they were instructed by the cabin crew of the OP No.1 to disembark from the aircraft and to approach the help desk from the aircraft and to approach the help desk but no assistance was given to them to locate the help desk in the unfamiliar JFK Airport. Though the Complainants managed to find the help desk, they were instructed here to spend a night in a Hotel at New York and were provided with boarding passes from New York to Mumbai via Amsterdam. No one led them to the shuttle service which they found on their own and managed to locate the hotel with great difficulty by midnight only to spend the night hungry since no meals were provided to them in that hotel. It can certainly be understood that the Complainants must have undergone lot of anxiety, stress, humiliation, exhaustion due to the above and worry about the flight from Mumbai to Goa. The help desk at New York even issued a note "Interrupted Travels" to the Complainants and orally apologized for the inconvenience caused. The conduct of the personnel of the OP No. 1 should also be seen. In our view, the compensation of only Rs. 5,000/- each for all the above deficiency, is too less. We are of the considered opinion that an amount of Rs. 25,000/- for each Complainant (total Rs. 50,000/-) should be awarded for this deficiency.
19. On 13/09/2017, the Complainants came to the airport at New York for onward journey from New York to Amsterdam, by business/priority class, and when they arrived at the boarding gate, they were the first ones at the gate to board their flight, inspite of which, the concerned staff, after verifying their boarding passes, since their names did not appear in the system, told them to remain aside till all other passengers boarded and only thereafter allowed them to board the flight from New York to Amsterdam, by OP No.1. However, only the Complainant No. 1 was allowed to proceed to sit in the business class and the Complainant No. 2 was downgraded to economy class inspite of having paid for 22 business class. Thus the Complainant No. 2 was deprived of the comfort of the business class travel, from New York to Amsterdam and also the companionship of her husband during the flight. On this count, the Complainants had claimed compensation of Rs. 2,00,000/- for downgrading the Complainant No. 2 and for deprivation of company of her husband. The Forum has awarded only Rs. 20,000/- to the Complainant No. 2 for depriving her of the comfort of the business class and for this the Forum has considered as to what could be the cost of the business class and economy class from New York to Amsterdam and the difference between them. In fact, what is more important is the humiliation, indignity, dishonour which the Complainant No. 2, a reputed woman, was made to undergo infront of other passengers by degradation and deprivation of comfort of business class and sufferance of discomfort in economy class for more than eight hours. The Complainants have produced the boarding classes which confirm that the Complainant No. 2 was accommodated in 'Y' class or economy class although she had purchased the ticket for 'Z' class or business class. The Complainants are reputed Senior citizens. The Complainant No. 1 is a medical practitioner for the last about 40 years and the Complainant No. 2 is his wife, a retired Banker from Bank of India. The above has to be considered along with difference in charges for business class and economy class. In our considered view, compensation of Rs. 1,00,000/- to the Complainant No. 2 should be awarded.
20. On account of unlawful action of the personnel in the aircraft, though the Complainants had purchased both the tickets of business class for enjoying the long journey in the company of each other, only the Complainant No. 1 was made to seat in business class and the Complainant No. 2 was made to seat in economy class and both were deprived of the pleasure of each other's companionship, for more than eight hours. On this count, the Forum has awarded a meagre sum 23 of Rs. 2,500/- to each Complainant (total Rs. 5,000/- only). We are inclined to increase the said compensation to Rs. 25,000/- for each Complainant (total Rs. 50,000/-).
21. The Complainants have claimed compensation of Rs. 50,000/- towards expenses incurred for meals in the hotel at New York and personal cost of spot purchase of flight tickets from Mumbai to Goa. The Complainants had to spend the night on 12/09/2017 in the New York hotel without meals. They could get meals only in the morning of 13/09/2019 for which they had to spend their money. The Forum has included these expenses for meals in the compensation of Rs. 10,000/- awarded to both the Complainants towards mental agony for one night uncomfortable stay at New York without assistance and for anxiety. In our view, that is not proper. The grant of an amount of only Rs. 10,000/- for both the Complainants, for the mental trauma, etc. due to one night uncomfortable stay in New York is itself very hurting and to include even meals in the same amount is adding salt to the injury and is very unjust. The Complainants, according to the planned programme, on their return journey, were scheduled to arrive at Mumbai on 14/09/2017 and fly for their onward journey to Goa on the same day. The Complainants have pleaded in the Complaint and the Complainant No. 1 has stated in his affidavit-in-evidence that as per the itinerary and confirmed bookings, they were expected to reach Mumbai on 14/09/2017 but on account of negligence and deficiency in service of the OPs, they arrived in Mumbai only on 15/09/2017 and thereby missed the connecting flight from Mumbai to Goa which was scheduled for on 14/09/2017. They have further stated that therefore they had to do spot purchase of fresh tickets at exorbitant rates of Rs. 15,702/- for both from 'Go Air' for travel from Mumbai to Goa on 15/09/2017. The Complainants had produced before the Forum the two boarding passes of Go Air from Mumbai to Goa on 15/09/2017 but had not produced the tickets which they 24 had allegedly purchased in advance for the flight from Mumbai to Goa on 14/09/2017. Since the tickets were not produced, the Forum refused to believe that the Complainants had already purchased the tickets for their journey from Mumbai to Goa on 14/09/2017. We are of the view that since the pleadings as well as evidence of the Complainants had gone unchallenged, there was no reason to disbelieve the Complainants. Be that as it may, to show their bonafides, the Complainants, now in their Appeal, have filed an application dated 02/07/2017 for leave to produce the two tickets of 'Go Air' for the travel from Mumbai to Goa, on 14/09/2017, saying that due to sheer inadvertence and oversight on their part, they did not rely upon and produce the said tickets. The tickets in the name of the Complainants have been produced along with this application. Genuineness of the said tickets cannot be questioned and hence we allow the said application dated 02/07/2017. The Complainants had to buy the tickets twice and their one day was wasted. The Complainants are to be compensated not only for financial loss but also for the trouble, inconvenience, discomfort, etc., caused to them on account of the said happenings. For meals in New York and for having made to purchase the tickets from Mumbai to Goa twice, and for the trauma and excitement that the Complainants had to face due to such things, an amount of Rs. 25,000/- each (total Rs. 50,000/-) should be the reasonable amount to be awarded.
22. The Complainants had claimed compensation of Rs. 50,000/- for late arrival of their luggage. The Forum has awarded compensation of Rs. 5,000/- only. As per the bookings, the Complainants had checked in two bags at the airport of Raleigh Durham on 12/09/2017 and were told that the said luggage could be collected after their arrival at Mumbai on 14/09/2017. However, the baggage did not arrive when the Complainants went to collect the same at Mumbai on 15/09/2017. The Complainants lodged 'Missing Baggage 25 Report' with Jet Airways at Mumbai Airport. The Complainants received their luggage, namely one bag on 24/09/2017 and the other on 26/09/2017, at Goa Airport. Since the 'Missing Baggage Report' was lodged with Jet Airways, it can be said that the operating carrier was Jet Airways. Jet Airways was responsible to hand over the luggage to the Complainants at the final port of destination. Hence Jet Airways was a necessary party to the Complaint. The relief for delay in delivery of baggage is bad for non- joinder of necessary party and hence cannot be granted.
23. In view of the discussion supra, First Appeal No. 05/2019 bears no substance and deserves to be dismissed. The First Appeal No. 39/2018 deserves to be partly allowed. The impugned Judgment and Order is required to be modified. The Complainants are not entitled for any compensation on the count of delay in receiving the baggage. The Compensation with regard to the other aspects, pointed out above, is required to be enhanced as above and the total compensation to which the Complainants are entitled to is Rs. 2,50,000/-. We are of the view that interest of 7% per annum as granted by the Forum is reasonable. Costs of Rs. 5,000/- awarded by the Forum is not just requires to be increased to Rs. 10,000/-.
24. Hence, we pass the following:
ORDER
(a) First Appeal No.05/2019 is dismissed.
(b) First Appeal No. 39/2018 is partly allowed.
(c) Impugned Judgment and Order stands modified to the extent of compensation and costs.
(d) The OPs, jointly and severally, shall pay to the Complainants compensation of Rs. 2,50,000/- along with interest @ 7% per annum from 20/12/2017 till the date of 26 final payment.
(e) The OPs shall pay costs of Rs. 10,000/- to the Complainants.
(f) Parties to bear their own costs of the Appeals.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre] Member President sp/-