Ethopian Airlines vs Naveen Singh Grewal

AS the facts of the case in these two Revision Petitions are similar and they emanate from the same common order passed by the State Commission, we propose to hear them together and pass a common order.

FOR the sake of simplicity we will refer the case of Shri Harpreet Singh Giani. Shri Giani had purchased a return air ticket from M/s. Ethopian Airlines through its agent M/s. Paul Merchants Ltd. for New Delhi -Peking (Beijing), New Delhi. He was invited to present papers at the Biennial Conference of the Pacific Basin Consortium, Peking University, Beijing (China).

THE dispute relates to the return journey from Beijing to New Delhi. Shri Giani reached Beijing airport at 17.25 p.m. on 1.11.2007 and was shocked to know from the official at check -in -counter of M/s. Ethopian Airlines that the route of the flight had been changed and the aeroplane would fly directly from Beijing to Addis Ababa as there were not enough passengers for disembarking at New Delhi. When Shri Giani and other passengers protested, the duty manager of the airline consented to provide alternative seats on Air China flight for 2.11.2007 and also provided a room and meal in the hotel during the period of delay subject to getting necessary endorsement on the ticket for transfer to other Airline from Beijing city which was more than an hour''s drive costing about 100 Yuan as taxi fare. However, on reaching the hotel they expressed their inability to either provide separate room or separate meal. He hired a taxi and reached the office of Ethopian Airlines office in the city, which provided endorsement enabling him to fly to India by late evening flight. He had to waste the train ticket already booked for the journey from New Delhi to Chandigarh. He had to appear in large number of cases in the Punjab and Haryana High Court on 2.11.2007 and also as the insurance cover had elapsed, he remained without protection of the coverage. Further in China Airlines, he was allowed a baggage of only 20 kgs. as against 40 kgs. in Ethopian Airlines. Accordingly he had to discard a number of his belongings and gifts in order to avoid excess baggage charges. A complaint was filed before the District Forum alleging deficiency in service by M/s. Ethopian Airlines inter alia, with the following claims: (i) A sum of Rs. 2,50,000 equivalent in value to ten times the cost of the airline ticket for the highly arbitrary, illegal and high handed decision to change the flight plan without any notice or information to the complainant, causing harass -ment, inconvenience and loss to the complainant;

(ii) A sum of Rs. 1,00,000 for exposing the complainant to travel without insurance cover and putting his life and property to risk; (iii) A sum of Rs. 20,000 being the estimated value of belongings and gifts the complainant had to abandon in Beijing to avoid paying excess baggage charges;

(iv) A sum of Rs. 3300 equivalent in value to the published tariff for one room in the Sino -Swiss Hotel, Beijing, on account of the failure of the opposite party No. 1 to provide accommodation to the complainant in the first instance as required under law and promised by the opposite party''s duty manager; (v) A sum of Rs. 836 equivalent in value to 152 Yuan, being the taxi fare (and highway toll) to and from the Sino -Swiss Hotel to the Beijing office of the opposite party;

(vi) A sum of Rs. 357.28 equivalent to 64.94 Yuan, being the amount of money the complainant had to spend in order to make the telephone call to his family in Chandigarh, India; (vii) A sum of Rs. 308.50, being the amount of money the complainant had spent on a train ticket from New Delhi to Chandigarh and which had to be wasted;

(viii) A sum of Rs. 1,500 being the amount of money the complainant had to spend on hiring a taxi to take him from New Dehi to Chandigarh since the complainant was unable to book alternative train tickets.

M /s. Ethopian Airlines contested the case by stating that the flight route of the airline from Beijing to New Delhi on 1.11.2007 was changed for reasons beyond its control as the traffic rights to transport passengers from Beijing to Delhi for security reasons were refused by IGI Airport, New Delhi. Therefore, the complainant and other passengers were immediately informed and suitably accommodated in the next available flight to Delhi on the next day by Air China and they were provided five star hotel and other facilities.

SHRI Naveen Singh Grewal, who is a journalist by profession, filed another complaint on the similar grounds. However, he further took the plea that he is a senior journalist by profession and due to delay in flight, he was issued a show -cause notice and subsequently he was assigned to other duties in view of violation of sanctioned leave. He had produced copy of the show cause notice also.

AFTER hearing the Counsel for the parties, District Consumer Forum passed separate orders accepting the complaints of Shri Giani and Shri Grewal and awarded Rs. 25,000 each against M/s. Ethopian Airlines along with interest @ 12% p.a. from 2.11.2007 till the date of actual payment. Further Rs. 2,200 was also awarded in each case.

DISSATISFI ED by the order of the District Forum, the complainants have filed appeals before the State Commission for enhancement of compensation whereas M/s. Ethopian Airlines filed appeals for setting aside the order of the District Forum.

THE State Commission observed as follows: "Allegation of the complainants on the other hand is that there were not enough passengers disembarking at New Delhi and the route on that date for Ethopian airlines from Beijing to New Delhi had become uneconomical and as such route was changed from Peking to Addis Ababa without touching New Delhi. Since, no documentary evidence has been produced by M/s. Ethopian Airlines to substantiate its plea, it shall be presumed that it was all a made up story and the route of flight had been changed for some other reasons. The reason according to complainants was that there were not enough passengers who were to disembark at New Delhi and in all there were four passengers, so airline changed route from Beijing to Addis Ababa. Thus, certainly it is deficiency on the part of M/s. Ethopian Airlines as they cancelled the flight from Beijing to New Delhi without any valid or sound reason. It is only for saving some amount that they had cancelled the flight and thus, put the passengers who were to disembark at New Delhi to a great difficulty and harassment for which they cannot be compensated by way of money."

THE State Commission also observed that tension caused to the complainants due to expiry of insurance cover and also reduction of the baggage, discomfort suffered by them, and due to delay in flight Shri Grewal was issued a show cause notice. The State Commission held that compensation awarded by the District Forum is very meagre. Accordingly, the State Commission enhanced the compensation to Rs. 3.00 lakh to each one of them along with interest @ 12% from 2.11.2007 till the date of payment. The State Commission also awarded Rs. 20,000 cost against the Airlines to be paid to each one of the complainants. The appeals filed by the Ethopian Airlines were dismissed being merit -less.

AGGRIEVED by the order of the State Commission, M/s. Ethopian Airlines has filed these Revision Petitions before us. Submission of the learned Counsel for the petitioner

MR . Anil K. Kher, learned Senior Counsel for the petitioner submitted that the complainants have wrongly stated as follows: "That the duty manager of the opposite party No. 1 at the Airport in Beijing specifically disclosed the reasons for this abrupt change, and said that this was done since there were not enough passengers disembarking at New Delhi. It was also made abundantly clear that the change in flight plan was occasioned purely by monetary considerations and not because of any regulatory, statutory or security circumstances."

MR . Kher strongly urged that the compensation awarded by the State Commission, is too high. In this case the District Forum awarded reasonable compensation and the State Commission has awarded abnormal compensation, which has no relationship with loss or mental agony suffered by the complainants. He showed us the certificate issued on 9.1.2009 by the Airports Authority of India issued by Shri Avinash Chandra, Manager (ATC) (For GM (ATC), which reads as under: "To whomsoever it may concern This is to certify that Ethiopian Airlines Flight No. ET604 arrived at 0922 IST on 1st November, 2007 and flight No. ET605 arrived at 0150 IST on 2nd November, 2007 at IGI Airport as per our record." Mr. Kher quoted another document issued by Beijing Office of the Ethopian Airlines, which reads as under: "No Traffic rights between CAN/BKK on ET606/607 every Monday, Tuesday, Thursday and between BJS/DEL on every Thursday".

He stated that 1st November, 2007 was Thursday and they did not have traffic rights on that day to fly to Delhi from Beijing.

MR . Kher further submitted that the hotel and transport expenses were kept ready and the relevant details of the next available flight of air journey were also kept ready and given to the complainant. However, he did not comment on reduction of baggage allowance. He also stated that single room was given to each one of the passengers.

MR . Kher quoted the judgment in the case of Indian Airlines Ltd. v. Travlinx Travels Pvt. Ltd. and Ors., III (2008) CPJ 285 (NC), wherein it was held as under: "In the absence of any material we find that this was a case in which the complainants were denied boarding despite having confirmed tickets and not to permit them to travel despite having confirmed tickets becomes a case of Denied Boarding''. In view of law settled in catena of judgments of this Commission, the complainants would be entitled to Denied Boarding'' Compensation, besides, refund of the cost and tickets. It is admitted position that the latter part of the order has already been complied with.

Hence, the complainant shall be entitled to Denied Boarding Compensation, which this Court has fixed equivalent to 300 US dollars in the case of Rajinder Pal Jaura (NRI) 29, Lady Bower Crescent, Scarborough, Ontario Canada (Through S.S. Chauhan, Authorised Respresentative) v. The Secretary, Union of India and Air India through its Commercial Manager, Himalaya House, Kasturba Gandhi Marg, New Delhi, I (2003) CPJ 24 (NC): 2002 (2) CLD 1771, decided by this Commission which in this case, will go to 1200 U.S. dollars."

This Commission in Rajinder Pal Jaura (NRI) v. Secretary, Union of India & Anr., I (2003) CPJ 24 (NC), has held as under: "In the present case, however, nothing had been alleged that complainant was off -loaded to accommodate any relative of the pilot or any free ticket holder. Admittedly, no amount of compensation till this date has been awarded to the complainant. There was no justification for the Air India to withhold payment of DBC even if the complainant had not asked for it. Since it is the practice, unless agreed to otherwise, to give DBC, in our view Air India should have offered US $ 300 on 30.8.1997 itself. But then while denying boarding to a confirmed ticket holder on the aircraft, Air India takes shelter behind the international practice of over booking, it should also follow the international practice of paying DBC."

HENCE , he submitted that the complainants could have been awarded only US $ 300 in each case, as it is a simple case of denial of boarding. Submission of Mr. Giani

MR . Giani, learned Counsel for the respondent relied upon the very same documents produced by the learned Counsel for the petitioner, namely the certificate issued by Shri Avinash Chander, Manager (ATC) on 9.1.2009 as well as the details furnished by the Beijing Office of the Ethopian Airlines that no Traffic rights between BJS/DEL on every Thursday, to support his contention that flight No. ET 605 of the Ethopian Airlines had taken off just before mid night on 1.11.2007 and had landed in the early hours of 2.11.2007 at New Delhi and the arguments advanced by the learned Counsel for the petitioner shows clear contradiction and it is misleading statement to harass the complainants. The complainants were unnecessarily misled and harassed by the Ethopian Airlines by making false statement.

MR . Giani relied upon the judgment of the Apex Court in the case of M.C.D. v. State of Delhi and Anr., IV (2005) SLT 282=II (2005) CCR 226 (SC)=120 (2005) DLT 1 (SC)=AIR 2005 SC 2658, wherein it was held that "a person whose case is based on falsehood can be summarily thrown out at any stage of the litigation". Similar view was held in the case of Hamza Haji v. State of Kerala and Anr., AIR 2006 SC 3028.

IN the case of Jodhpur Vidyut Vitran Nigam Ltd. v. Rameshwar Prasad Vaishnav and Ors., II (2007) CPJ 280 (NC), it was held as under: "However, for filing false and incorrect affidavit before the Consumer Fora that the telephone was shifted from Chandigarh to Kurukshetra, appropriate action is required to be taken against the petitioner. It should be borne in mind that Consumer Fora are required to decide the matter speedily and render equitable justice to the consumer. We direct the respondents to pay punitive damages of Rs. 1,50,000."

IN the case of Reliance India Mobile Ltd. v. Hari Chand Gupta S/o. Shri Sharvan Kumar, III (2006) CPJ 73 (NC), it was held as under: "However, for filing false and incorrect affidavit before the Consumer Fora that the telephone was shifted from Chandigarh to Kurukshetra, appropriate action is required to be taken against the petitioner. It should be borne in mind that Consumer Fora are required to decide the matter speedily and render equitable justice to the consumer. The practice of making false and incorrect statements and the practice of denial of each and every sentence submitted by the claimant/complainant without any justifiable ground, requires to be controlled. For false affidavits or misleading statements in a pending proceedings deponents are required to be dealt appropriately by imposing punitive damages so that in future they or others may not indulge in such practice.

In this view of the matter, punitive damages are required to be enhanced."

IN the case of Cox and Kings (I) Pvt. Ltd. v. Joseph A. Fernandes and Anr., I (2006) CPJ 129 (NC), the National Commission held as under: "All the above options are only theoretical options and the only real option available to the respondents and the other tourists like them, is to mutely suffer the false and misleading advertisement given by the tour operators."

The practice followed by the revision petitioner falls squarely under the unfair trade practice as defined in Section 2(r ) of Consumer Protection Act, 1986 which reads as under: (r) Unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or deceptive practice. It is only a rare tourist/consumer who is vigilant and conscious of his rights under the Consumer Protection Act and who prepared to take the route of legal proceedings that knocks at the Consumer Fora. What the petitioner did amounts to equating one minute of service with service of 23.59 hrs. can one minute service ever be construed as a full day service? The claim of the revision petitioner that issuance of such advertisement is a universal practice compels us to condemn the practice even in stronger terms and we hold it does not make any difference as far as the Consumer Protection Act is concerned. In our view, this practice by the petitioner is not only a case of misrepresentation through misleading advertisement but also an unfair trade practice in the eyes of Consumer Protection Act."

Findings

THE documents quoted by the learned Counsel for the petitioner relates to ET 606 and 607 and not ET 605 the flight in which the complainants were issued tickets for travel from Beijing to Delhi and for this flight there was no embargo. Further, there is a clear contradiction in his statement that there was no traffic rights between Beijing to Delhi for the Ethopian Airlines on 1st November and hence they could not fly on that day. It was a late evening flight and the apparent contradiction is clear by the documents submitted by them (letter dated 9.1.2009 which is a certificate issued by the Manager, Area Traffic Control on behalf of General Manager, Area Traffic Control on the letter head of Airport Authority of India) where it is clearly mentioned that ET 605 arrived at 0150 IST on 2nd November, 2007. This shows that Ethopian Airlines have misled these passengers and accordingly it is a clear case of unfair trade practice.

IT is also clear that misleading and false statements were made by the Ethopian Airlines right from the District Forum upto this level. The documents filed by them show that they are a bundle of contradictions. Apparently, they must have issued confirmed tickets much beyond their seating capacity. Immediately they should have offered to refund amount so that the passengers should have taken a flight of any other Airlines or should have given them at the spot confirmed tickets by another Airlines rather than misleading them run to their office in the city on the next day for taking confirmed tickets by another airline which offered lesser baggage allowance. The plea taking by the Airlines was that for security reasons, they were not allowed to land at New Delhi, is a dangerous remark about the security situation in India especially in the capital city by an Airline, which has no regard to a sovereign country, which belives in providing utmost security.

THE practice followed by the revision petitioner falls squarely under the unfair trade practice as defined in Section 2 ( r) of Consumer Protection Act, 1986 which reads as under: "(r) Unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: (i) The practice of making any statement, whether orally or in writing or by visible representation which (vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

(ii) Permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is. and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement".

Accordingly, the judgments quoted by the learned Senior Counsel for the petitioner are not applicable to the case on hand as those judgments pertain to a simple cases of denial of boarding whereas in this case there is a clear misrepresentation of facts and false statements were made by Ethopian Airlines not only to the complainants when they went for obtaining boarding passes at Beijing Airport but they persisted with the same before the Consumer Fora. There is no denial of fact that the complainants had suffered mental agony and harassment even though the petitioner had gone to the extent of doubting the integrity of the complainants. This is a clear -cut case of unfair trade practice.

THEREFORE , we direct the petitioner to cease and desist from such practice in future. Even then we find that the compensation awarded by the State Commission appears to be on the higher side. Accordingly, we direct the petitioner to pay compensation of Rs. 1,50,000 to each complainant along with 9% p.a. interest from the date of denial of boarding till the date of payment along with costs ordered to be paid by the Slate Commission. The amount already paid by the petitioner in compliance with our interim order may be deducted and only the balance amount should be paid within a period of four weeks from the date of this order, otherwise the interest payable would be enhanced to 15% p.a.