State Consumer Disputes Redressal Commission
Aeroflot Airlines vs 1. Anil Kumar Bhai on 2 May, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 93 of 2014 Date of Institution : 12.03.2014 Date of Decision : 02/05/2014 Aeroflot Airlines, through its Commercial Manager, 510, 5th Floor, Ansal Bhawan, Kasturba Gandhi Marg, New Delhi-110001. Appellant/Opposite Party No.1 V e r s u s 1. Anil Kumar Bhai son of Sh. B.D. Bhai, R/o 88, Sector 9, Panchkula ....Respondent No.1/complainant 2. Venus Holiday Mart, SCO No.90-91-92, Level-II, Sector 8-C, Chandigarh.(Service dispensed with vide order dated 13.03.2014) ....Respondent No.2/Opposite Party No.2 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Navin Mahajan, Advocate for the appellant.
Sh. Anil Kumar Bhai, respondent No.1, in person, alongwith his Advocate Sh. Gulshan Kumar.
Service of respondent No.2, dispensed with vide order dated 13.03.2014 PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 20.11.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent No.1) and directed Opposite Party No.1 (now appellant), as under:-
As the deficiency by Opposite Party No.1 is proved, we allow this complaint against Opposite Party No.1 and direct the Opposite Party No.1 to pay a consolidated compensation of Rs.50,000/- Complainant for the harassment caused to him and his wife. The Opposite Party No.1 is also directed to pay Rs.10,000/- towards costs of litigation.
However, the complaint against Opposite Party No.2 is dismissed, as no allegation of deficiency in service or harassment by them has either been alleged or proved.
This order be complied with by the Opposite Party No.1 within 45 days from the date of receipt of its certified copy, failing which, it shall be liable to pay interest @9% p.a. on the awarded amount from the date of this order, till its realization, besides costs of litigation.
2. The facts, in brief, are that, the complainant purchased two tickets, from Opposite Party No.2, for himself and his wife, to travel on Aeroflot Airlines, from Delhi to Paris via Moscow, and return from Latvia to Delhi via Moscow. When the complainant enquired about the boarding passes, for the Aeroflot flight, at Indira Gandhi International Airport, New Delhi, he was told that the same (boarding passes) would be given to them, at Paris Airport. On reaching Moscow, the complainant and his wife were sent to the boarding gate, for the next connecting flight to Paris. However, when the travelers enquired from the counter, about their boarding passes, the staff there, without speaking anything, just gave the hand signal to wait for display of the flight name and number, on the screen. It was stated that the complainant and his wife, alongwith other passengers, kept waiting, yet, there was no such display, on the board nor any verbal announcement/call was made, in English. It was further stated that, when the Aeroflot staff was asked about the flight, the only answer given was no English. Eventually, the complainant and his wife missed the flight, on account of language problem. The complainant and his wife were, thus, left stranded at Moscow Airport, with their luggage. When they requested the employees of Opposite Party No.1, to accommodate them, on another flight, on the same air tickets, they refused to do so. It was further stated that, eventually, the complainant had to spend Rs.46,280/-, towards fresh tickets, to reach the destination.
3. When the flight reached Paris, the complainant and his wife were surprised to know that their luggage had not reached. Due to the harassment and tension, the complainant also spent a substantial amount of money, on making various international phone calls, for which a claim of Rs.29,590/- had been made. It was further stated that the complainant earlier filed the Consumer Complaint, bearing No.54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, in the District Forum, relating to the same subject matter, wherein, Opposite Party No.1, appeared, but did not file its written version, and, ultimately, the same (complaint) was dismissed in default of appearance of the complainant/Counsel.
4. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant , was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay Rs.25,590/-, i.e. the amount spent for making phone calls, from Moscow to India and Paris to Moscow, for his luggage; Rs.46,590/- spent by him, for fresh air tickets, referred to above; compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; cost of litigation, to the tune of Rs.61,000/-.
5. Opposite Party No.1, in its written version, pleaded that the District Forum, had no territorial Jurisdiction, to entertain and decide the complaint. It was stated that earlier, the Consumer Complaint, bearing No.54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, relating to the same subject matter, was filed before the District Forum, wherein, Opposite Party No.1, put in appearance, on 20.02.2012. However, the said complaint was dismissed, in default of appearance of the complainant, vide order dated 31.07.2012. It was further stated that instead of getting that order set aside, by filing an appeal, the complaint out of the decision whereof, the instant appeal has arisen, was filed, by the complainant, which was not maintainable, under the provisions of law. It was further stated that the tickets had been booked at Delhi, from M/s Rus Air, which was an authorized agent of Opposite Party No.1, at New Delhi. It was further stated that the complainant alongwith his wife had boarded the flight from Delhi to Moscow, for onward journey to Paris. The flight reached Moscow, on the scheduled time, and the connecting flight was also as per the schedule. It was further stated that there was a difference of two hours times, between the two flights. It was further stated that the display boards at Moscow Airport, were in two languages i.e. English and Russian. However, flight numbers and departure time were displayed, in English numerals, so that every person could comfortably read them. Announcements were also made in Russian and English language. It was further stated that apart from the complainant and his wife, five other passengers had boarded the same flight, who were able to take the onward flight, without any hassle or difficulty. It was further stated that, as per the normal practice, if a passenger did not avail of the ticket, for a particular flight, the unused ticket could be rescheduled or utilized to travel, on the other flight, subject to the charges and as per the Airlines Rules. It was further stated that, since no such request was made by the complainant, he was not entitled to the compensation claimed. It was denied that the complainant spent any amount, on making calls aforesaid. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.2, in its written version, admitted the booking of two tickets, for the complainant and his wife, from Delhi to Paris via Moscow and return from Latvia to Delhi via Moscow. It was stated that the booked tickets were handed over to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. The Parties led evidence, in support of their case.
8. On 15.11.2013, when the Consumer Complaint was fixed for arguments, none appeared, on behalf of the Opposite Party No.2. Therefore, the District Forum, proceeded to dispose of the complaint, on merits, under Rule 4 (8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Act (as amended upto date), even in the absence of Opposite Party No.2.
9. After hearing the complainant, in person, Counsel for Opposite Party No.1, perusal of record, alongwith the written arguments, and, on going through the evidence, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order.
10. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
11. Service of respondent No.2 (Opposite Party No.2, before the District Forum), was dispensed with, by the Commission, vide order dated 13.03.2014, for the purpose of this appeal, as it was arrayed as a Proforma respondent, and even the complaint was dismissed against it, by the District Forum.
12. We have heard the Counsel for the appellant, respondent No.1, alongwith his Counsel, and, have gone through the evidence, and record of the case, carefully.
13. The Counsel for the appellant/Opposite Party No.1, submitted that, in paragraph number 11 of the complaint, it was, in clear-cut terms, stated by the complainant, that earlier he filed the Consumer Complaint bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, relating to the same subject matter, which was dismissed in default of his appearance, on 31.07.2012. He further submitted that a specific objection was taken by Opposite Party No.1, in its written version, that earlier also Consumer Complaint, with regard to the same subject matter was filed by the complainant, which was dismissed, in default of his appearance, on 31.07.2012, yet, instead of getting that order set aside, by way of filing an appeal, the complainant ventured, to file the second complaint, which was not maintainable. He also placed reliance upon Uddalak Vs. Electricity Supply Co. Ltd. and Ors., 2013 (1) CPC 542, Ansal Housing & Construction Ltd. Vs. Indian Machinery Company, 2013 (3) CPR 207 (NC) and M/s Purusharath Builders Pvt. Ltd. Vs. M/s Uppal Housing Ltd. III (2012) CPJ 500 (NC), in support of his contention that second complaint, under the Act, was not maintainable, once the first complaint, relating to the same subject matter, was dismissed in default. He further submitted that, as such, the order of the District Forum, being illegal and invalid, is liable to be set aside.
14. On the other hand, respondent No.1/complainant, alongwith his Counsel, submitted that the proceedings before the District Forum, being summary, in nature, it was not required to go into technicalities. He further submitted that, no doubt, earlier the Consumer Complaint bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, relating to the same subject matter, was filed, by the complainant, which was dismissed, in default, vide order dated 31.07.2012. He also admitted that, no appeal against the said order was filed, but instead, the second complaint, out of the decision whereof, the instant appeal has arisen, was filed, which was maintainable. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
15. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the appellant, respondent No.1, in person, alongwith Counsel, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted and the case deserves to be remanded back, to the District Forum, for fresh decision, in accordance with law, for the reasons to be recorded hereinafter. Once, a specific plea was taken, by the complainant, in paragraph number 11 of the complaint, that he had earlier filed the Consumer Complaint bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, before the District Forum, relating to the same subject matter, which was dismissed, in default, and an objection was also taken by Opposite Party No.1, in the written version, that, in the face of the order dated 31.07.2012, vide which the first complaint relating to the same subject matter, was dismissed, in default, the second complaint, on the same subject matter, was not maintainable, it was required of the District Forum, to take into consideration this very important fact, and decide the same, in a proper manner. The District Forum did not touch such an objection, taken by Opposite Party No.1, in its written version, what to speak of discussing and deciding the same. In our considered opinion, decision of the legal question, as to whether, the second Consumer Complaint, relating to the same subject matter was maintainable, in the face of existence of the order 31.07.2012, dismissing the first Consumer Complaint, in default of appearance of the complainant, was essential. Adjudication of such a legal question may, ultimately, tilt the decision of the complaint. In these circumstances, remand of the complaint, for fresh decision, is necessitated.
16. For the reasons recorded above, the appeal is accepted. The order of the District Forum is set aside. The complaint is remanded back, to the District Forum, with a direction to decide the same, afresh, after recording its specific findings, on the point, as to whether, the second Consumer Complaint, was maintainable, in the face of existence of the order dated 31.07.2012, passed in the first Consumer Complaint, bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, relating to the same subject matter, which was dismissed, in default of appearance of the complainant, after affording an opportunity to the parties, of being heard.
17. The parties are directed to appear, before District Forum (II) on 15.05.2014 at 10.30 A.M., for further proceedings.
18. The District Forum record, alongwith a certified copy of the order, be sent back to it, immediately, so as to reach there, well before the date and time fixed i.e. 15.05.2014 at 10.30 A.M.
19. Certified Copies of this order, be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion, Pronounced.
02/05/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Appeal No. 93 of 2014) Argued by: Sh. Navin Mahajan, Advocate for the applicant/appellant.
Sh. Anil Kumar Bhai, respondent No.1, in person, alongwith his Advocate Sh. Gulshan Kumar.
Service of respondent No.2, dispensed with vide order dated 13.03.2014 Dated the 2nd day of May 2014 ORDER Alongwith the appeal, an application for condonation of delay of 54 days (as per the office report 53 days), in filing the same (appeal) has been moved, by the applicant/appellant, stating therein, that, on receipt of certified copy of the order impugned, the same was sent to its Head Office at Moscow, for approval. It was further stated that after getting the approval for filing the appeal, demand draft, in the sum of Rs.25,000/-, was inadvertently, got prepared in the name of the Registrar, State Consumer Disputes Redressal Commission, U.T., Chandigarh, which mistake was later on rectified, and, thereafter, the appeal was filed. It was further stated that, it was in these circumstances, the delay of 54 days (as per the office report 53 days), in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor willful. Accordingly, the prayer, referred to above, was made.
2. Notice of this application, was given to respondent no.1, to which reply was filed, by him, stating therein that no sufficient cause was constituted for condoning the delay.
3. Arguments, on the application were heard.
4. No doubt, there is delay of 54 days (as per the office report 53 days), in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicant/appellant. Before discussing this question, let us have a look at law, laid down by the Hon`ble Supreme Court and the Delhi High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
5. In N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
6. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353.
7 The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The stand taken up by the applicant/appellant, in the application is that, on receipt of certified copy of the order impugned, the same was sent to its Head Office at Moscow, for approval, and after grant of the same (approval), demand draft, in the sum of Rs.25,000/-, was inadvertently, got prepared in the name of the Registrar, State Consumer Disputes Redressal Commission, U.T., Chandigarh, which mistake was later on rectified, and, thereafter, the appeal was filed. It may be stated here, that the application for condonation of delay, is duly supported by the affidavit of Sh. Naveen Mahajan, Advocate. Even otherwise, the delay in filing the appeal is not so huge, as to deny the substantial justice. It is settled principle of law, that normally every lis, should be decided, on merits. When the substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. The main object of the Consumer Fora, is to dispense substantial justice, and not to throttle the same, by making it a sacrificial goat, at the altar of hyper-technicalities. Some lapse, on the part of the litigant alone is not enough to turn down his plea and shut the door against him. The explanation, furnished for delay in filing the appeal, does not smack of malafidies. When the explanation furnished for delay is bonafide, the Consumer Fora is required to adopt liberal approach, to condone the same, so as to ensure that the lis is decided, on merits, than by resorting to hyper-technicalities. In the instant case, in our considered opinion, there was no intentional and deliberate delay, in filing the appeal, by the appellants. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.
8. For the reasons recorded above, the application for condonation of delay of 54 days, (as per the office report 53 days) in filing the appeal, is allowed, and the delay is, accordingly, condoned.
9. Admitted.
10. It be registered.
11. Arguments, in the main appeal already heard.
12. Vide our detailed order of the even date, recorded separately, this appeal has been accepted. The order of the District Forum has been set aside. The case has been remanded back, to the District Forum, with a direction to decide the same, afresh, after recording its specific findings, on the point, as to whether, the Consumer Complaint, was maintainable, in the face of existence of order dated 31.07.2012, passed in the Consumer Complaint, bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, relating to the same subject matter, which was dismissed, in default of appearance of the complainant, after affording an opportunity to the parties, of being heard.
13. The parties have been directed to appear, before District Forum (II) on 15.05.2014 at 10.30 A.M., for further proceedings.
14. The District Forum record, alongwith a certified copy of the order, has been ordered to be sent back to it, immediately, so as to reach there, well before the date and time fixed i.e. 15.05.2014 at 10.30 A.M.
15. Certified copies of this order and of the main order, passed in the main appeal, be sent to the parties, free-of-charge.
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(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg.