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Alliance Air Limited Vs. Daljit Singh Nirman (Delay)...

 

 
IN THE STATE COMMISSION: DELHI

(Constituted under section 9 clause (b) of the Consumer Protection Act, 1986)

                                                                             Date of decision: 28.11.2006

Appeal No.492/2000

(Arising from the order dated 18.08.1999 passed by District Forum(West) Janak Puri, New Delhi in Complaint Case No.575/1997)

 

1 M/s. Alliance Air Limited         …         Appellants
Safdarjung Airport ,          through Mr. Lalit Bhasin
Terminal Building                with Mr. Praveen
Safdarjung, New Delhi .                    Kumar and Ms. Anupama
Advocate.
2 General Manager(Commercial)
Indian Airlines Ltd.
I.G.I. Airport , Terminal-I,
New Delhi
  Versus
  Sh. Daljit Singh Nirman         …         Respondent.
A-1/322, Janakpuri,
New Delhi .

CORAM:     

                    

            Justice J.D. Kapoor,                     ...            President

            Ms. Rumnita Mittal              …            Member

1. Whether reporters of local newspapers be allowed to see the judgment?   
Yes

2. To be referred to the Reporter or not?
Yes

Justice J.D. Kapoor, President(ORAL)

1 On account of late running of the flight, the District Forum has vide impugned order dated 18.08.1999 held the appellant guilty for deficiency in service and directed it to pay Rs.5,000/- as compensation and Rs.1,000/- as cost.
2 Feeling aggrieved the appellant has preferred this appeal.
3 There is no dispute that the respondent booked himself by Flight No.ICCD 421 scheduled to leave Delhi on 26.09.1996 at 10.10 hours for Jammu and when he reached the airport for check in, he was informed that flight shall leave at 12.00 hours, whereas it actual took off at 14.00 hours and therefore he suffered physical discomfort, mental agony by waiting for about six hours and as a result he could not reach Jammu in time nor could he attend the meeting at Jammu, for which he was going there.
4 In its defence the appellant took the plea that the flight in question was clubbed with flight No.IC423 as one of the aircrafts was grounded at Khajurao due to technical reasons and the flight No.407 that had reached Khajurao at 8.30 a.m on 25.09.1996 could not proceed further due to failure of Hydrologic system and therefore the respondent had to perform the journey on 26.09.1996  and late running of the flight was announced on public address system  and as such there was no deficiency on the part of the appellant in terms of Consumer Protection Act 1986 as delay was beyond its control.
5 In this regard the counsel for the appellant has relied upon the rule  3(1) and rule 3(3) of Non International Carriage (Passenger and Baggage) Regulations Act 1992. These rules are as under: -
 

Rule31): The passenger ticket issued by the Corporation will be valid only for the service for which it is issued and shall not be transferable.

Rule3(3): The Corporation reserves to itself the right, without assigning any reason to cancel or delay the commencement or continuance of the flight or to alter the stopping place or places or to deviate from the route of the journey or to change the type of aircraft in use without thereby incurring any liability in damages or otherwise to the passengers or any other person on any ground whatsoever. The Corporation also reserves to itself the right to refuse to carry any person whom it considers unfit to travel or  who in the opinion of the Corporation may constitute risk to the aircraft or to the person on board.

6 On the premise of aforesaid rule, the counsel for the appellant has also placed reliance upon judgement of National Commission 1-1991(1) CPR page 46 – Indian Airlines Vs Rakesh Kumar Upadhyay. Relevant para reads as under:
  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 Airlines staff etc. all of which may be factor beyond the control of the Airlines. In such case 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 Airlines staff.
7 Another judgment relied upon by the counsel for the appellant is I(1992) CPJ 5 (NC) P. Gopinath Vs The Chairman, Air India, which reads as under:
It often happens that flights of Airlines are delayed due to various reasons as have been time and again stated by them. The consumer should have made enough allowance for such a contingency.
8 In this regard we deem it necessary to refer to the legal provisions framed for the agencies like the appellant that does not absolve them from any such kind of deficiency, which has been explained and taken resort to in the instant case.  Relevant rules in this regard are as under:-
 
a Second Schedule of Chapter-III – Carriage by Air Act

the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

b The carrier is not liable if he proves that he and his servants or Agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
9 There is no doubt that no service provider can be held guilty for deficiency in service, if the shortcoming, fault or imperfection is the result of circumstances which are beyond its control particularly the circumstances that are acts of nature or God.
10 So far as the aforesaid rules cited by the counsel are are concerned these are administrative rules and do not bind the consumers vis-à-vis the service provider.
11 International Carriage Rules are binding on the passenger if the relevant terms of such contract are printed on the ticket. The terms only printed on the ticket are the terms of the contract, which are applicable and binding and not the booklet or plethora of Rules printed in the shape of book. No consumer is expected or supposed to purchase the book of National or International Carriage Rules before purchasing the ticket or undertaking the flight.
12 If the negligence is man made a consumer is entitled to compensation as in that eventuality any kind of fault, imperfection, shortcoming, inadequacy in the quality and manner of performance which is required to be maintained by provider of service it verges on the offence of deficiency in service as defined by Section 2(1)(g) of the Consumer Protection Act 1986 which is as under:
  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service.
13 The word ‘deficiency’ defined by the legislature prescribes very high standard of service which means that railways, airlines or for that purpose any transport service should be in very prefect and flawless manner particularly as to schedule of time or departure or arrival of flights.
14 If the argument and the contention of the counsel is accepted as it is, then every service provider will take one excuse or the other and stereotype excuse of technical snag or any other such excuse. Such an insensitivity or casual or indifferent attitude shall always leave the consumer high and dry and suffer immensely.  If such excuses are allowed then whole object and purpose of bringing the Consumer Protection Act 1986 on the statute book would be rendered nugatory and meaningless. It was for keeping such service providers on tenterhook and to protect the interests of the consumers that very stern standards of ‘service’ and ‘deficiency’ were provided.
15 Not only that, remedy under the Consumer Protection Act 1986 is irrespective of any immunity provided to the service provider under any law as it is an additional and independent remedy and as per section 3 of the Act is not in derogation of any other law for the time being in force. Main component of this remedy is an amount of compensation as to the actual loss or injury, which includes mental agony, emotional suffering, harassment and physical discomfort due to negligence or deficiency in service on the part of the service provider. Such a relief is available to the consumer by virtue of Section 14 of the Consumer Protection Act 1986, which provides as under:
  14(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the serv­ices are proved, it shall issue an order to the opposite party directing him to 2[do] one or more of the following things, name­ly:—
  to pay such amount as may be awarded by it as compensa­tion to the consumer for any loss or injury suffered by the consumer, due to the negligence of the opposite party;
16 Term ‘Compensation’ has wide connotation. Supreme Court in Ghaziabad Development Vs Balbir Singh reported as1986-2004 Consumer 8287 (NS) has widened this term.
  “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 consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.”
17 Every act of omission or commission by the service provider has to be ascertained on the anvil of definition of ‘deficiency’ as provided by section 2(1)(g) of the Act and not on any other premise. Thus from this aspect also service provider like the appellant cannot take advantage of either rule 3 or any other rule or law as to its liability qua the consumer.
18 Proceeding on that premise, the non-maintenance or the poor maintenance of carrier or any other reasons viz. technical snag or failure of mechanism itself amounts to deficiency in service as it is the duty of the service provider to see that these are always kept in perfect order in order to observe and adhere timing of the flights. If they cannot preserve these services in perfect manner it is likely to result in cancellation of flight, inordinately long delay in the flight or the train. Only saviour to these services providers is the act of nature or God like bad weather, poor visibility, bird hits etc. and no other excuse. Every other plea or defence has to be proved by way of convincing evidence.
19 Consumer is not concerned what action the service provider may take against its maintenance staff for failure of the system, which is well within the human control. So far as consumer is concerned, he has to be compensated adequately for cancellation of the flight or its late running unless until the said cause is beyond the control of human being and is result of an act of nature or God.
20 To keep a consumer waiting for hours together without any valid reason and without any direct proof by the service provider that the service could not be provided well in time as per contract due to reasons which were beyond their control.
21 The emotional suffering, physical discomfort, loss of business, time and occupation consumer suffers is not assessable in terms of money. Though compensation in terms of money cannot be taken as panacea but it does mitigate the mental agony or suffering of person. In our view the reasons given by the appellant for the delay in the flight was not such a reason, which was beyond its control or act of nature.
22 Here the consumer was kept waiting for six hours whereas he had already left for the airport two hours before the scheduled time. The District Forum has taken very conservative view while awarding paltry compensation of Rs.5,000/- as the mental agony, physical discomfort and emotional sufferings were enormous.
23 Aforesaid reasons persuade us dismiss the appeal being devoid of merit.
24 Late running and cancellation of flights, offloading of consumers with confirmed status of tickets, traffic congestion in the Air and on the ground is becoming order of the day. Since there are large number of consumers who suffer enormously in terms of time, mental agony, harassment and physical sufferings and discomfort by missing professional or business meetings and connecting flights, we by this general order give the following directions:
  That every Airlines operating from Delhi shall pay minimum compensation of Rs.10,000/- to every domestic passenger in case there is delay in departure and arrival of two hours or more than the schedule time and Rs.20,000/- in case of International flights of Airlines of this Country, if delay is more than four hours or so. Condition is that such a delay should not be the result of bad weather or act of nature, poor visibility, tyre burst or bird hits and the like as every other cause of delay is man made and is within the control of human being.
25 We have passed this general order in terms of Section 12, read with Section 14(h b) of the Consumer Protection Act 1986, where numerous and potential consumers have similar interests and sufferings and are not conveniently identifiable. In case no such payment is made and consumer approaches the Consumer Forum, the Airlines shall be visited with heavy punitive damages.
26 Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
27 Copies of this order be sent to the Chairman/Managing Director of all the National/International Airlines of the Country Viz. Air Sahara, Indian Airlines, Jet Airways, Kingfisher Airlines, Air Deccan etc.
28 A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
29 Copy be sent to all the National dailies for the information of services providers and benefit of the consumers.


Announced today on 28th day of November 2006.
   

(Justice J.D. Kapoor)
President

(Rumnita Mittal)


Member