State Consumer Disputes Redressal Commission
M/S. Jet Airways (India) Ltd., ... vs Smt. Deeravath Manjula Hyderabad on 10 December, 2008
A A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A. 1265/2006 against C.C 123/2006, Dist. Forum-III, Hyderabad. Between: M/s. Jet Airways ( India) Ltd., Rep. by its Managing Director Flat No. 203, II Floor, Gupta Estates, 5-9-58 Basheerbagh Hyderabad-500 029. Present Address: M/s. Jet Airways ( India) Ltd., Reliance Krishna 5-10-197, ABC, Hill Ford Road Hyderabad. Rep. by its Airport Manager Vinod Saldanha S/o. Late Charles Saldanha. *** Appellant/ Opposite Party And Smt. Deeravath Manjula W/o. Hajinaik Dharavath Manjula Age: 33 years, House Wife R/o. H.No. 41-C, Vengalrao Nagar Hyderabad-500 038. *** Respondent/ Complainant. Counsel for the Appellant: Mr. V. Sudheer Counsel for the Resp: M/s. V. Gourisankar Rao QUORUM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT & SMT. M. SHREESHA, MEMBER
WEDNESDAY, THIS THE TENTH DAY OF DECEMBER TWO THOUSAND EIGHT Oral Order: (Per Honble Justice D. Appa Rao, President) ***** Jet Airways preferred this appeal against the order of the Dist. Forum-III, Hyderabad in directing it to pay Rs. 75,000/- towards compensation besides costs of Rs. 1,000/-.
The case of the complainant in short is that she is an NRI residing at Mineapolis, USA. She applied for green card and when it was under process she received a message from Hyderabad that her grand mother was serious and her presence was necessary. On 3.2.2005 the US Department of Justice granted parole to her from 3.2.2005 to 30.6.2005 in order to enable her to go to India with a specific date of return by 30.6.2005 (01.07.2005 as per Indian timings). She booked advance tickets in the appellant airways from Hyderabad to Mumbai and from Mumbai to Mineapolis. As per the departure schedule she had to board the flight on 29.6.2005 from Hyderabad to Mumbai at 20.10 hours. However, it was delayed by 3 hours 30 minutes and reached Mumbai at 23.30 hours in the night. She could not catch the connecting North-West flight from Mumbai to Mineapolis. on 29.6.2005. Consequently, she could not reach USA by 30.6.2005. Jet Airways left her at Hyatt Regency Hotel till 2.7.2005 assuring her that it would arrange alternative flight in order to reach USA. However, it did not arrange. In the process she lost her green card and could not get it for seven months and was constrained to leave her husband alone at USA. The appellant under the guise of technical snag delayed the flight. She has to spend the amount from her own pocket.
Therefore she issued a notice and later filed this complaint claiming compensation of Rs. 5 lakhs with interest from 24.12.2005 till realization together with costs of Rs. 10,000/-.
The Airways resisted the case. While denying that there was any deficiency of service or wilful negligence on its part in operating the flights, however it admitted that the complainant has booked the air tickets on 29.6.2005 with schedule departure at 20.10 hours. However, it was delayed due to technical snag. It could take off at 22.04 hours reached Mumbai at 23.30 hours. She was informed about it at the time of boarding.
She knew that there was every possibility of missing the connecting flight, still she has chosen to travel in the very same flight for the reasons best known. It tried its best to assist the complainant in providing all amenities by keeping her in a five star hotel at Mumbai for two days. The rules were mentioned on the ticket to the effect that in the event of delays and misconnections of flights they disclaim any liability. On 24.12.2005 when they received a letter claiming compensation, by letter Dt. 30.12.2005 they requested the complainant to send a copy of ticket for the purpose of scrutiny and investigation. However, she did not send it. They gave a reply on 3.4.2006 explaining in detail as to why the flight was delayed. They prayed for dismissal of the complaint.
The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A18 marked, while Jet Airways filed the affidavit evidence of its Duty Manager and got Exs. B1 to B10 marked.
The Dist. Forum after considering the evidence placed on record opined that it is the duty of the Jet Airways to inform about the delay due to technical snag. There was no material to show that the complainant was informed about the delay and the fact that she was accommodated for two days would show that they could not arrange the flight. Since they could not explain the exact technical snag, they were liable to pay compensation and therefore awarded Rs. 75,000/- besides costs of Rs. 1,000/-.
Aggrieved by the said order, Jet Airways preferred this appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. The fact that flight was delayed due to technical snag was informed and in fact she boarded accordingly. One Ms. Pooja had attended on her contact number informed about the revised timings. Having booked the ticket for onward journey to USA should have made alternative arrangements considering the exigencies as urged by her. She stayed at the hotel for two days in Mumbai at their own expenses. She subsequently made departure without intimation. It has always been their endeavour to follow the flight departure and arrival schedule. When the flight was delayed due to technical snag it cannot be said that there was negligence on their part. As per the terms and conditions on the ticket they will not be liable for delay or cancellation of flights due to technical snag. Compensation claimed was high and excessive and therefore prayed that the complaint be dismissed.
The point that arises for consideration is whether there was any negligence or deficiency in service on the part of Jet Airways in its flight operations?
It is not in dispute that the complainant and her infant booked air tickets from Hyderabad to Mumbai in the appellant airways on 29.6.2005 with schedule departure at 20.10 hours in order to board the North-West airlines flight from Mumbai to Minneapolis. It is also not in dispute that there was delay of flight at Hyderabad. Instead of departing at 20.10 hours it departed at 22.04 hours and arrived Mumbai at 23.30 hours.
The schedule departure of North-West airlines at Mumbai was at 00.50 hours on 30.6.2005. Consequently, the complainant and her infant could not board the flight to Minneapolis. The appellant itself gave a certificate admitting these facts by their letter Dt. 3.7.2005 which reads as follows :
This is to certify that Dheeravath/Manjula Mrs. along with Dheeravath infant travelled on flight 9W 475/29th June, 2005 to Mumbai (scheduled departure 20.10 hrs) Both Mrs. Manula Dheeravath and her infant were Through checked in on Northwest NW 41/29th June, 2005 to Miniapolis via Amsterdam (schedule departure 00.50 hours Ex-Mumbai) Due to late arrival of flight 9W 474/29th June, 2005 from Mumbai, 9W 475/29th June, 2005 to Mumbai was delayed. The actual departure of 9W 475 was at 22.05 hrs, which arrived into Mumbai at 23.30 hours. Hence, Mrs. Manjula Dheeravathi and her infant misconnected NW 41/29th June, 2005 to Miniapolis.
This certificate is being issued on request by Mrs. Manjula Dheeravath.
Sd/- ( S. RAVICHANDAR) Station Manager, Hyderabad.
The appellant alleges that the delay was due to technical snag and it could not be found fault and in the event of delay due to technical snag no compensation could be paid. In support of its contention it relied the decision in Indian Airlines Vs. Rajesh Kumar Upadhyay reported in I-1991(1) CPR-46 NC..
It was a case where Indian Airlines flight which was scheduled to start from Lucknow at 2.00 p.m. could not take off and could take off only at 6.50 p.m. as the aircraft was to come from Delhi to Lucknow and operate the return flight could and leave Delhi only at 05.15 p.m. The said fact was intimated to the complainant. Considering the evidence placed on record it was held that :
11. Flights may get delayed due to various causes such as poor visibility in the airfield, bad weather, bird hits, tyre burst while landing or take off, sudden strike by any crucial section of Airline staff etc. all of which may be factors beyond the control of the Airlines. In such cases the delay cannot ordinarily be attributed to negligence on the part of the Airlines.
There may however be other instances where the delay in operating a flight might have been caused by reason of negligence on the part of the Airline staff.
12. It is not the law that mere fact that a flight is operated late will ipso facto render the Airline liable for payment of compensation to the passengers. Section 5 (e) of Non- International Carriage (Passage and Baggage) Regulations. 1980 framed in accordance with the powers conferred by Clause (g) of Sub-section (2) of Section 45 of Air Corporations Amendment Act, 1971 inter alia, lays down that the Corporation is not liable for damage occasioned by delay in the Carriage by Air of passengers or baggage. This condition forms an essential part of the contract of Carriage of Indian Airlines with its passengers, as it is printed on the jacket of the tickets, issued to them. To what extent this provision will operate to defeat a legitimate claim for damage in a case where it is proved by adequate evidence that delay in Carriage of passengers was occasioned by reason of some gross negligence on the part of concerned Airline is a matter which we are not called upon to examine in the present case, because, as already stated, there is neither any pleading of negligence much less proof of the same in the case now before us.
Coming to the facts, appellant except stating technical snag did not explain as to exactly what was that technical snag. There was no proof that the complainant was informed about the said delay. Had there been evidence, obviously the complainant might have taken another flight by cancelling the flight booked with the appellant. Having known that the complainant and her infant had to catch another flight to go to Mineapolis and in view of the fact that she had to stay at Mumbai with her infant, it would have arranged another flight at Hyderabad itself. This undoubtedly cause untold misery and suffering. The appellant in its Meal Accommodation Transport Order has mentioned that : MISCONX ON NW 41 DUE LATE ARRVL OF IW 475 (ARRVD 23.55). Having known the timings, it could not have treated the complainant on par with other passengers leaving her high and dry. She had to necessarily book another flight and might not be available even.
The complainant alleges that she came on parole issued by Department of Justice, USA from 3.2.2005 to 30.6.2005 and that she had to report by 30.6.2005 failing which her green card would not be processed, and she was unnecessarily detained and in the process was unable to enter into USA. As such she was constrained to return to India, and away from her husband for a period of 8 months. Ex-facie when the appellant could not explain exactly as to what was that technical snag nor filed relevant documents before this Commission the terms and conditions which would apply only in cases of real technical snag, will not come to its rescue. It cannot inconvenience the passengers under the clothe of such conditions. It cannot get rid of claims of the passengers by invoking terms and conditions which are not applicable. When there is ex-facie proof of delay in departure which was not informed to the complainant in advance, she cannot be found fault for alleging that there was negligence on their part in not taking off the flight at correct time.
Though the appellant informed that one Ms. Pooja had attended on the complainant and her infant, and she was informed about the delay etc. even her affidavit evidence was not filed. All this was not substantiated. Had the complainant been informed and when she could book the ticket up to Mineapolis she would not have stayed in India that too at Mumbai in a hotel, more so her period of stay was going to be expired. The allegation that the complainant had wantonly stayed without making alternative arrangements etc. are all pressed into service in order to get over payment of compensation for their own mistake and negligence.
Even it went to the extent of raising questions like why she should reserve a ticket on the last day when she knew that her parole would be expired by 30.6.2005? It is up to the passenger to regulate her travel etc. She might have not thought the appellant would delay the flight. In cases where the appellant knew that the passengers had to board another flight to go beyond the country, necessarily they have to make such arrangements where they should not be inconvenienced. Undoubtedly this constitutes deficiency in service. The Dist. Forum was right in observing that there was deficiency of service on the part of appellant and granted an amount of Rs. 75,000/- which cannot be said to be high considering the mental agony and sufferance caused to the complainant and her infant.
We do not see any merits in the appeal. In the result the appeal is dismissed with costs computed at Rs. 2,000/-. Time for compliance four weeks.
PRESIDENT LADY MEMBER Dt. 10. 12. 2008.