Antonio Joao Fernandes vs FLIGHT INCHARGE, JET AIRWAYS

THE appellant has assailed the order dated 13.4.2000 made by the District Forum South Goa, in Complaint No. 76/98.

AT the time of final hearing, none appeared for the appellant while Mr. A. Lourenco appeared for the respondents and filed written arguments. We, therefore, proceed to dispose of this appeal on merits. For convenience, parties to this appeal shall be referred as arrayed before the District Forum.

The case of the complainant, stated in a nutshell, is that he had a confirmed okayed ticket issued in his favour by the opposite parties on 2.6.1996 from Goa to Mumbai by Flight No. 9W 472. The complainant checked in himself and his luggage on 2.6.1996 and was issued a boarding pass. The complainant passed through the security check at the airport and proceeded to the tarmac to board the aircraft. When the complainant was about to enter the aircraft, he was informed by the staff of the opposite part that there was no seat available on the said flight. The complainant was, therefore, refused entry on the said flight.

THE complainant pleaded with the opposite parties to accommodate him on another flight but this fell on deaf ears. Since the complainant had to resume his duties at Abu Dhabi on 3.6.1996, he was forced to hire a taxi to travel from Goa to Mumbai. The complainant thereafter entered into correspondence with the opposite parties through his travel agent in Abu Dhabi and issued a legal notice through his Advocate demanding compensation; the opposite parties failed to comply and hence the complaint.

PER contra, the complaint was resisted by the opposite parties who raised preliminary objections that M/s. Micco Travels, Abu Dhabi ought to have been made a party; that the tickets were not purchased from the parties nor any of the agent in Goa and, therefore, the Forum had no territorial jurisdiction and that the opposite party No. 3 was not a necessary or proper party. On merits it was admitted that the complainant was booked to travel from Goa to Mumbai on Flight 9W 472 on 2.6.1996, on a ticket purchased from M/s. Micco Travels, Abu-Dhabi. It was also admitted that the complainant checked in himself and his luggage for the said flight. It was however submitted that after checking in, the complainant did not report to the boarding gate in time and that several attempts were made by the opposite party officials to locate the complainant. Since one of the objectives of the opposite parties is to ensure timely departure of their flights, and since there was a specific time slot allocated by Air Traffic Controller for the said flight, the flight had to take off without the complainant. Since the efforts made to locate the complainant were futile and not to inconvenience to other passengers, the complainant was off-loaded by cancelling his name from the passenger manifest sheet and was treated as "Gate no show". Besides the complainant and other passengers were also similarly off-loaded.

IT was averred that the complainant might have had a security stamp but that the said security stamp did not show the time and as such it would not be confirmed with certainty that the complainant was denied boarding merely because he had a boarding pass with a security stamp. IT was reiterated that the complainant was denied boarding solely on account of his own negligence in not reporting at the boarding gate in time.

THE District Forum considered the affidavits of the parties, and after framing the points for determination, came to a finding that there was no deficiency in service on the part of the opposite parties, and dismissed the complaint. The District Forum framed two points for determination of the matter, namely "whether the complainant proves that in order to accommodate some other passenger he was denied entry inside the plane by the officials of the opposite parties despite having complied with all the formalities" and secondly, "whether the opposite parties prove that it was on account of the failure of the complainant to report at the boarding gate in time he was refused entry inside the aircraft". The District Forum came to its above findings for reason of lack of supporting evidence that ought to have been produced by the complainant.

In our opinion, the findings of the District Forum are not commensurate with the evidence produced by the complainant. The complainant has produced copies of documents issued by the opposite parties which clearly show that the complainant was issued a boarding pass and even went through the security check, as can be seen from the security stamp on the boarding pass. It is also an admitted fact that the complainant checked in his baggage and the same was also given "Security Checked" by the opposite parties. From this documentary evidence on record, it is clear that the complainant checked in himself and his baggage and also passed through the security check at the airport with one piece of hand baggage and entered the departure lounge. Having done so, it is impossible for the complainant to have exited from the departure lounge without boarding the aircraft.

IN our opinion, the said documentary evidence, being the boarding pass and baggage labels duly stamped by the security agencies is adequate for the complainant to prove his case. Further, the complainant has also produced copies of his air tickets by Gulf Air from Mumbai to Abu Dhabi which show that the complainant was booked on the flight departing on 2.6.1996 at 8 p.m. It is also seen from the records that the complainant finally travelled to Abu Dhabi on 3.6.1996 by flight No. GF 1069.

IN these facts and circumstances, there is no doubt in our minds that, for reasons best known to the opposite parties, the complainant was denied entry into the aircraft despite having duly checked in and even entered the departure lounge after security check. The complainant has discharged his burden of proof by documentary evidence. Further, the fact that the complainant passed through security check has not been denied by the opposite parties. It is well settled law that a consumer has only to show the preponderance of probability of his case. In our opinion the evidence produced by the complainant herein goes much further.

THE opposite parties have not produced any evidence or made any averments in their pleadings to show what was the fate of the baggage piece that was checked in and, in all probability, was already loaded into the aircraft. In what circumstances this baggage was claimed by the complainants.

IT is interesting to note that at para 11 of their written version last sentence, the opposite parties stated thus: "these opponents state that the complainant could not be accommodated on any other flight of the opponents". This averment leads to a presumption that the complainant did approach the opposite parties for accommodation on the other flights, but was turned back. As discussed above, the evidence clearly reveals that there was deficiency in service by the opposite parties for having denied passage to the complainant who had a confirmed ticket, had duly checked in himself and his baggage on being given a boarding pass and even passed through the security check and presented himself at the departure lounge.

The complainant prayed for a direction to the opposite parties to pay him an amount of Rs. one lakh for various tangible and intangible expenses and losses suffered by him. In our opinion the complainant would be entitled to refund of the ticket fare of Rs. 2,500/- and taxi charges from Goa to Mumbai of Rs. 6,000/-. As for the other intangible expenses claimed by the complainant, we are unable to grant the same as no supporting evidence has been produced.

THE complainant had to face the ignominy and frustration and above all the humiliation caused by the deficiency in service on the part of the opposite parties. Having regard to the facts and circumstances, in our considered opinion, the complainant is entitled to an amount of Rs. 25,000/- towards mental suffering and hardship and stress. In view of what is discussed above, we pass the following order; (i) This appeal is partly allowed. (ii) The impugned order dated 13.4.2000 is hereby quashed and set aside. (iii) The Complaint No. 76/1998 on the file of the District Forum, South Goa is partly allowed. (iv) The opposite parties jointly and severally are directed to pay to the complainant an amount of Rs. 8,500/- along with interest @ 15% p.a. from 2.6.1996 till full payment within 30 days. (v) The opposite parties jointly and severally are directed to pay to the complainant an amount of Rs. 25,000/- as compensation for mental suffering, etc. within 30 days failing which the said amount shall carry interest @ 15% p.a. (vi) The opposite parties jointly and severally are directed to pay to the complainant an amount of Rs. 5,000/- as costs of this litigation.

Appeal partly allowed.