Gopinath K.Deshpande vs Alitalia

THE appellant was the complainant before the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereafter "the State Commission") alleging deficiency in service against M/s Alitalia and M/s Gupta Travels, the two opposite parties (OPs).

(i) The case of the aPPellant was that he travelled by OP 1 airline from Mumbai on 8th October 2001 and was to return on 4th November 2001. The scheduled routing was Mumbai-Milan-Newark-Milan-Mumbai. However, while in the USA, he went to Chicago and requested re-scheduling of his return flight from Newark, USA to 8th November 2001 instead of 4th November 2001. After follow-uP with the office of OP 1 at Chicago on four successive days, he claimed to have received a confirmation for his seat for the return journey from (Newark to Mumbai via Milan) on 8th November 2001. Unfortunately, at the Newark airPort, the staff of OP 1 informed him that the flight to Milan was already full and he could not be accommodated desPite the confirmation he had received from the Airlines office. The aPPellant/ comPlainant and three other Passengers were finally Put on board flight no. AZ-0645 from Newark to Rome with the assurance by the OP 1 staff that another flight no. AZ-1022 would take the aPPellant and other similarly Placed Passengers to Milan and from Milan the comPlainant would be able to catch the scheduled flight AZ-770 for Mumbai. When the aPPellant/ comPlainant and three others reached Rome by flight No. AZ-0645, they were asked to board flight No. AZ-1022 for Milan after Passing through security check. The security staff at Rome, however, took away the PassPorts, tickets and boarding cards of the aPPellant and other similarly Placed Passengers on the ground that they did not Possess Italian visa which was necessary for them to travel from Rome to Milan by flight no. AZ-1022. This imPortant requirement was not intimated by the staff of OP 1 at Newark. As a result, the aPPellant was handed over to the immigration officials and Placed in the custody of the local Police. The Police and the immigration staff at Rome allegedly misbehaved with him and he was dePrived of food and water. The aPPellant was wrongfully detained for about 24 hours by the airPort Police at Rome. The aPPellant and other co-Passengers were finally taken to board flight AZ-1022 under Police custody and at Milan too they were similarly Put on board AZ"770 under Policy custody. At Mumbai, he was subjected to detailed questioning because of an entry of dePortation and allowed to go home after four-and-a-half hours, that too without his baggage. He finally received his baggage after two days in Mumbai.

(ii) On account of these humiliation and inconvenience because of Police detention at Rome, the aPPellant/ comPlainant claimed comPensation of Rs.19 lakh with interest thereon at the rate of 21% Per annum from the date of travel (08.11.2001) till its realisation, along with the cost of Proceedings. Among the documents Produced, he filed the coPy of the rePly dated 25.01.2002 in which OP 1 had unconditionally admitted its laPse and offered to reimburse the cost of the Newark " Mumbai air fare in view of the inconvenience caused to the aPPellant.

In its written version, OP 1 denied that it had confirmed the availability of seat for the aPPellant on the Newark-Milan flight for the journey re-scheduled from 04.11.2001 to 08.11.2011. The fax message dated 24.10.2001 of OP 1 was not a confirmation of availability of seat on the flight AZ-607 deParting Newark on 08.11.2001. As the aPPellant insisted on travelling from Newark to Milan on 08.11.2001, he was Put on board the Alitalia flight AZ-770 from Newark to Rome as an alternative arrangement. Since he did not Possess Italian visa for travel from Rome to Milan in order to catch his scheduled flight from Milan to Mumbai, he was detained and questioned by the local immigration and Police officials in accordance with the customary law of Italy. The OP Airlines was not resPonsible for any inconvenience that might have been caused to the aPPellant in this Process. OP 1 also stated that it had exPlained this Position to the aPPellant/ comPlainant in its letter dated 25.01.2002 and offered to reimburse the comPlainant the cost of the Newark " Mumbai fare.

After consideration of the Pleadings and evidence brought on record, the State Commission held inter alia as under: "Issue No.2 : As Per comPlainant, he had booked ticked from Mumbai to Newark via Milan and on 04.11.2001 he was return by the same flight but he PostPoned his return journey from 4th to 8th November 2001 and he had confirmed ticket. But on 8th November 2001, he was denied entry in the aircraft of OP No.1 at Newark airPort and he was requested to board another flight of OP No. 1 going to Rome from there he was suggested to go to Milan and from Milan he was further suggested to take connecting Mumbai flight of OP No. 1 to go to Mumbai. He agreed to this suggestion and boarded the flight going to Rome and since he was not having transit visa or visa of Italian government he was required to suffer detention at the hands of the Police authorities and immigration officers of that country and he also suffered inconvenience and other discomforts and mental agony. If Person is boarding a flight in foreign country and going to a Place where he was required to alight from one aircraft and to catch uP another aircraft and if he is not having visa of that Particular country, then he was styled as foreigner without valid visa and he is dealt with under the local law of the land by that Particular country. This was the Procedure followed by immigration officers at Rome. He did suffer some wrongful detention and Physical discomforts, humiliation etc., but then he should have though of it before hand, before getting into aircraft as suggested by OP No. 1"s officials at Newark. A Person having no visa should not enter the foreign country lest he is treated as unwanted Person not holding valid visa by Police and immigration officials and he is likely to be subjected to humiliation of every kind. But then OP No.1 cannot be blamed for the mess the comPlainant himself land in by oPting to go to Rome by another flight then designated one. So for whatever haPPened to him at Newark, Rome, Milan etc., right uPto returning to Mumbai he himself has to be blamed and not OP No. 1. The Passenger of international flight has to be very Particular. While he is boarding the flight of international carrier, he must Possess transit visa at least of those countries where the international flights are having stoPs or having technical halts for taking fuel or for change of aircraft. A Passenger has to be hundred Percent sure that he has got all the documents to meet with a situation of this nature when he was going on international flight. So in absence of transit visa the comPlainant was required to suffer some ordeal, some humiliation 24 hours detention but then it was as Per lex loci (law of the land). The comPlainant cannot be allowed to blame OP No.1 or OP No. 2 for his discomfort or unPleasant events he was subjected to at Rome and other Places. Moreover no evidence has been adduced by the comPlainant to show that he suffered all these things at Rome, at Milan and Newark and at Mumbai till he landed at Mumbai on his return journey. SimPly filing affidavit without adducing suPPorting evidence is not sufficient to allow such a comPlaint. We rely uPon a judgment of Hon"ble National Commission in this behalf. Best Electrodes Industry and Another vs M.P. Audyogik Kendra Vikas Nigam (Rewa) Limited and Others rePorted in I 2002 CPJ I (NC). So there aPPears to be no substance in the comPlaint lodged by the comPlainant against OP No.1 and 2. No fault can be found in the services rendered by the OP No. 1 and as Per the international convention and Warsaw Rules and Geneva Protocols, the Passenger has to seek confirmation of ticket 72 hours in advance before Proceeding to airPort for a Particular flight. There is no evidence that he had done so excePt his bare words mentioned in his comPlaint and affidavit. For Police or immigration action taken at Rome and other Places OP No. 1 cannot be blamed. Therefore, there is no merit in the allegations of deficiency in service made by the comPlainant against OPs. We, therefore, record our finding on issue no. 2 in the negative. Issue No. 3. In view of the discussion made above, the comPlaint is liable to be dismissed but then as Per written statement of OP No. 1,m it had offered to reimburse Newark to Mumbai fare Paid by the comPlainant vide letter dated 25.01.2002. So, while dismissing the comPlaint we do direct OP No. 1 M/s Alitalia to make the Payment of that fare to the comPlainant as Per that letter. In the result, we Pass the following order: 1. ComPlaint stands dismissed. 2. OP No. 1 however, is directed to Pay to the comPlainant Newark to Mumbai fare as was offered by them by letter dated 25.01.2002".

DURING the course of the hearing of this appeal, this Commission deemed fit to appoint Mr. Sanjoy Kumar Ghosh, Advocate as Amicus Curiae to assist the Commission with the appellant/ complainant"s case. Mr. Ghosh brought to our notice a communication/ e-mail dated 04.02.2010 of the Embassy of Italy, New Delhi to the following effect: "Reference is made to your letter dated 14.01.2010. Please be informed that Alitalia do not have an office in India. The Company (Alitalia-Linee Aeree Italiane) in the recent past has been restructured and it has been under Extraordinary Administration (a legal measure for insolvency protection and restructuring of large companies in order to prevent their bankruptcy) Creditors must approach the Extraordinary Administrator regarding their claims. The Extraordinary Administrator of Alitalia is: Prof. Avv. Augusto Fantozzi And this is the e-mail address you can write to: Info.commissario@alitaliaamminstrazionestraordinaria.it See also: http://corporate.alitalia.com/en/images/Creditori%20ING tcm7-29928.pdf http://www.alitaliaamministrazionestraordinaria.com/clic on "Avvisi ai creditori" English version on the green menu on the left". Further efforts to serve notice for the appeal on the respondent/ OP 1 also did not succeed. The appellant gave in writing to this Commission stating that OP 1 could be served at one of the following address in Italy and USA : 1. Relazioni Clientala, Alitalia Viz Filippo Cordova " 76, 90143, Palermo ITALY. 2. Alitalia Customer Relations 51, Madison Av., Suit 2000 New York, N.Y. 10010. 18009039991

Considering the nature of deficiency in service on the part of OP 1, it was not deemed either feasible or necessary to make further efforts to serve notice on OP 1 because of the developments that had taken place in the meanwhile.

I have carefully considered the documentary evidence brought on record by the appellant/ complainant. His best case is that after his efforts at Chicago, the local office of OP 1 confirmed the availability of a seat on the Newark-Milan flight AZ-607 on his revised/ re-scheduled date of departure i.e., 08.01.2001. However, from the documents brought on record by the appellant/ complainant himself, the written version of OP 1 that it was only a flight information and not an intimation of confirmed availability of a seat for the appellant/ complainant on flight no. AZ-607 from Newark to Milan on 08.11.2001 is borne out. The remarks against the relevant entry in the fax dated 24.10.2001 issued by OP 1 at Chicago is "FLIFO", standing for "Flight information" and not confirmed availability of seat which is universally represented by either "CONFIRMED" or "OK". The later is also clear from the flight itinerary issued by OP 2, a copy of which was also produced by the appellant/ complainant along with his complaint before the State Commission. Thus, if OP 1 was unable to put the appellant/ complainant on flight AZ-607 from Newark to Milan on 08.11.2001, it could not be faulted for any deficiency of service. OP 1 however, admittedly re-routed the appellant/ complainant on 08.11.2001 by flight no. AZ-645 from Newark to Rome, without checking whether the appellant/ complainant had an Italian visa for his travel from Rome to Milan in order to catch flight AZ-770 from Milan to Mumbai. This is the instance of deficiency in service on the part of OP 1 staff at Newark, which was clearly admitted by OP 1 in its letter dated 25.01.2002 to the appellant/ complainant. Consequent inconvenience and humiliation that the appellant/ complainant had to allegedly undergo at Rome because he did not possess the requisite Italian visa cannot, however be attributed to the OP 1 Airlines. It is simply inconceivable that any employee of OP 1 at Newark would have deliberately put the appellant/ complainant on flight to Rome had he/ she been aware of the likely conduct of the immigration and local Police officials at the Rome airport. In conclusion, the complaint needs to be allowed only to the extent of the admitted deficiency in service on the part of OP 1. The main issue, however is, the amount of reasonable compensation. Award of compensation beyond the refund of the fare offered by OP is clearly infeasible in this case, in view of the developments relating to closure of operations of OP 1 in India and its world-wide re-structuring, as informed by the Embassy of Italy, New Delhi. Given this situation, any attempt to require a representative of OP 1 to appear before this Commission on the question of enhancement of the compensation would be nothing better than an academic exercise. The fact of the matter is whether the complainant would be at all able to enforce even the directions of the State Commission that OP 1 should pay to the appellant/ complainant the amount representing the air fare from Newark to Mumbai. Be that as it may. As a result, the appeal is allowed only to the extent of holding the respondent/ OP 1 guilty of deficiency in service as discussed above and directing it to pay to the appellant/ complainant the admitted sum equal to the actual air fare charged by it for the appellant"s journey from Newark to Mumbai. The appeal is disposed of in the foregoing terms.

I would also like to place on record my appreciation of the efforts put in by Mr. Sanjoy Kumar Ghosh, Amicus Curiae. Registry is directed to disburse to him a sum of Rs.5000/- towards out of pocket expenses, if not done already.