ANIL KUMAR SANYAL vs JET AIRWAYS

THIS is a complaint under Section 17 of the Consumer Protection Act, 1986. The petitioner purchased a confirmed (O.K.) air ticket for travelling from Calcutta to Guwahati on 30.1.96 from ''Jet Airlines'' (the opposite party No. 1). On his arrival to the Airport at the scheduled hour the petitioner found to his utter surprise and dismay that in spite of possessing an O.K. ticket he was not allowed to board the Aircraft by the officials of the O.P. On enquiry the petitioner was informed that accommodation was denied to him in the scheduled Flight No. 9W-611 on account of overbooking of passengers. The petitioner insisted that he should be allowed to avail the flight as he had an urgent assignment at Guwahati on the same day. But all his efforts were in vain and the Aircraft left leaving him at the Airport. Thereafter, the opposite party No. 2 who is the Airport Manager of the opposite party No. 1 handed over a letter to the petitioner allowing him hotel accommodation for the night stay. The petitioner alleges that he tried to contact the person concerned to Guwahati over the phone but was not successful. The petitioner then returned to his residence at Calcutta and on the next day he managed to obtain a confirmed ticket for going to Guwahati after prolonged pursuasion.

UPON reaching Guwahati the petitioner contacted the Managing Partner of the Electrical Joints & Accessories (Assam) with whom he had the appointment on the earlier day but was informed that for the failure of the petitioner to be present on the appointed day the work order was issued to another party. According to the petitioner the action of the O.P. No. 1 was a gross deficiency in service on account of which he suffered both mentally and financially. He has, therefore, filed this case for a compensation of Rs. 15 lakhs (10 lakhs for business loss and 5 lakhs for humiliation and harassment) and also a cost of Rs. 5,000/-. The case is hotly contested by the opposite parties. They rely on the written printed instruction on the tickets informing that if at any stage it is found that the aircraft with the booked load or passengers etc., will be overloaded the Corporation will have the right to decide which passengers or articles shall be off-loaded and such decision shall be binding. The opposite parties denied the allegation of deficiency in service and causing harassment and mental agony to the petitioner. According to them not only the complainant but twelve other passengers were also off-loaded in the same flight and this was done by the Aircraft Authorities in exercise of their legal right. The opposite parties further state that they'' had offered an alternative accommodation to the petitioner in a five-star hotel in order to facilitate the catching of the next available plane and a confirmed ticket for Guwahati was also handed over to him. The opposite parties strongly deny the alleged business appointment by the petitioner with the Electrical Joints & Accessories (Assam) on 30.1.1996 and assert that a concocted story has been presented by the petitioner to make illegal gains out of the incident.

The points for determination are: (i) If there was any deficiency in service on the part of the O.Ps? (ii) If the petitioner is entitled to any damages claimed?

Decision

THE fact of non-availability of the flight in spite of a confirmed ticket as alleged by the petitioner is not denied. THE plea of the O.P. Airways is that they had to off-load some passengers on account of excess loading of passengers on the scheduled day. THEy have also stated that not only the petitioner, they had to off-load 12 other passengers also on the same day on the same flight. THE question is if such cancellation of the flight in spite of a confirmed ticket amounts to deficiency in service. There is no doubt that the Corporation has the right to decide whether any passengers or articles should be off-loaded in any flight in case of the Aircraft is over loaded with passengers and articles. It is, however, to be decided whether this right was bona fide exercised in this case. It a well settled practice that passengers are booked on certain fixed assessment about their possible load when they are carried in the Aircraft. The loading capacity of an Aircraft is fixed and passengers are booked accordingly. It is very difficult to digest that there was miscalculation about the possible weight of the passengers when tickets were booked and that there was unexpected over-loading on this account. There are also some set rules about the carriage of luggage by the passengers. If any passenger tries to carry enormously heavy luggages, the Aircraft has every right to deny the booking of such luggage. In such circumstances it is difficult to accept the plea that the over-loading of passengers or luggages was a sudden occurrence necessitating the cancellation of O.K. tickets. No evidence has been adduced by the Aircraft to prove what was the number of passengers allowed on that date and, if any seat was vacant. If not, it must be held that other passengers were substituted for those who had confirmed tickets.

THE petitioner cites a case decided by the State Commission, Madras reported in 1992 (2) C.P.R. (Dr. Mrs. Lalitha Kumar v. British Airways) in support of his case. Although the facts of the said case are slightly different, the following observations of the Commission in the aforesaid judgment are relevant: "THE capacity of passenger in every flight is limited and when tickets are issued to prospective passengers, the availability of seats is verified and only if seats are available a confirmed ticket is issued otherwise only ''wait listed'' is issued and the passenger has to take his chance if and when there is any cancellation or confirmation."

In the said case a ticket of the British Airways sold by a Travel Agency was shown as O.K. instead of a wait listed or chance ticket. It was found to be a deficiency on the part of the Airways. The ratio of the above case is that if a confirmed ticket is issued by an Airways it is presumed that seat will be available to the passenger concerned and that a sudden denial of the berth in the Airways is a deficiency in service. We, therefore, hold that there is a deficiency in service on the part of the opposite parties in refusing a seat in the relevant flight of the Airways. As regards the amount of compensation, the petitioner has claimed a heavy amount. He has claimed a special damage on account of his allegation that he had lost an opportunity of business deal by being absent at a proposed meeting with a party on account of deficiency of the O.Ps. According to him a business deal was fixed between him and a firm. Electrical Joints & Accessories (Assam). In this respect some correspondence has been filed before the Commission. The O.Ps vehemently objected to the filing of these documents as according to them these documents were not filed at the time of filing of complaint and these were all concocted documents. The documents purport to show that there was a negotiation for some business deal between the Diesel Injection (Assam) and the Electrical Joints & Accessories (Assam), both located at Guwahati. The petitioner Anil Kumar Sanyal examines himself as a witness and he proves the correspondence. The letters are Annexure ''A'' to ''E'' filed by the petitioner by an affidavit. Annexure ''A'' is a letter-dated 15.12.1995 from the Diesel Injection (Assam) to Mr. S. Chowdhury of Electrical Joints & Accessories (Assam). Annexure ''B'' is a letter dated 22.12.1995 from S. Chowdhury to the petitioner. Annexure ''C'' is a letter-dated 30.12.1995 from the petitioner to S. Chowdhury. Annexure ''D'' is a letter dated 19.1.1996 from S. Chowdhury to Mr. A.K. Sanyal, and Annexure "E'' is a letter dated 31.1.1996 from S. Chowdhury to Mr. A.K. Sanyal. The petitioner''s case is that by this correspondence it will be proved that he had a business negotiation which was to be finalised on 30.1.1995 but the same failed on account of his absence in the meeting. It is noted that the addresses of both the Electrical Joints & Accessories (Assam) and the Diesel Injection (Assam) (belonging to the petitioner) are at Guwahati. If the letters were sent to any other address the same should have been indicated in the letter itself. So the letters must have been sent from one address at Guwahati to another address of the same town. If this be fact, the story of making correspondence from Calcutta and finalising a meeting at Guwahati does not fit in the story. Secondly, the Annexures are all xerox copies of letters, the originals have not been produced. There is also no explanation why the originals were not called for from the person in whose custody these were. Moreover, in his cross-examination on 27.3.1997 the petitioner has stated that the correspondence which he made with Electrical Joints &Accessories (Assam) were delivered by hand and there are receipts showing the delivery. So if letters were delivered by hand the same is inconsistent with the fixation of an appointment from Calcutta and failure to attend the meeting on account of refusal to avail the flight. There is also no corroborative evidence to show that actually the letters were sent by the persons who are alleged to have written them. There is also no official file in support of the business deal, so we do not think that the alleged business deal was frustrated by the cancellation of the journey of the petitioner.

MOREOVER, the quantum of Rs. 10 lakhs as business loss is not supported by any cogent evidence. There is no proof that had he been present his negotiation would have been successful. So the loss alleged to have been caused to him is very remote and is not proved. For all these reasons we are not inclined to grant the huge amount of loss claimed on account of failure of business deal. We think that the complainant is entitled to a compensation of Rs. 30,000/- for mental agony and harassment. We further held that there was a gross deficiency in service in refusing entry in the Aircraft by the OPs against a confirmed ticket. So the petitioner is awarded a total compensation of Rs. 50,000/- (fifty thousand) for mental agony, harassment and deficiency in service, Rs. 20,000/- being the compensation for deficiency in service.

THE case is, therefore, decreed in part for Rs. 50,000/- (fifty thousand) only which must be paid by the contesting OPs within one month from the date of communication of this order. Complaint allowed.