INDIAN AIRLINES LIMITED vs GAUTAM ACHARYA

THE present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against an order dated the 9th April, 1997, passed by the District Forum-II in Complaint Case No. 1662/ 94/11186 entitled Sh. Gautam Acharya v. THE Secretary, Civil Aviation, Ministry of Civil Aviation and Tourism, Government of India, New Delhi & Ors.

THE facts relevant for the disposal of the present appeal, briefly stated, are that the respondent, Sh. Gautam Acharya, a practising Advocate of the Supreme Court, had filed a complaint before the District Forum averring that he had booked a ticket through Marvwell Tours and Travels, an authorised agent for the appellant, for 4.3.1994 by Flight No. I.C. No. 497 from Delhi to Bhubaneshwar which was to leave Delhi at 10.40 a.m. on 4th March, 1994, reaching the same day via Varanasi at 1 p.m. It is stated by the complainant, that as per schedule, on the morning of 4.3.1994, he reached I.C. Domestic Airport an hour before the scheduled departure of the flight i.e. at about 9.40 a.m., for reporting. It is further stated that on reaching the airport, the complainant was informed that the flight was delayed by a couple of hours and would take-off only at 1 p.m. It is further averred that the complainant, having no other option, had to wait in the lounge of Airport till 1 p.m. It is further stated that as the flight was to take-off at 1 p.m. the complainant, along with other co-passengers went to check-in of their luggage and thereafter went for security check and finally proceeded for boarding the air-craft. It is alleged that when all the booked passengers had boarded the place including the complainant and the plane was ready for take-off, an announcement was made by the Captain from the flight-dack that due to some technical fault they were returning to the base. After reaching the base, the passengers were informed by the Captain of the air-craft that the generator system of the air-craft had failed and it would take about 3 hours for the system to be rectified. THE passengers, as per the case of the complainant, were asked to disembark from the air-craft and proceed to the lounge of the air-port. It is alleged that it was only at 3 p.m. that an announcement was made by the airlines staff that the passengers who were travelling by I.C. 497 to Varanasi and Bhubaneswar could obtain their lunch coupon and have their lunch which was being served on the first floor of the Airport. It is stated that service of the lunch at 3 p.m. in the afternoon made the passengers which included many V.I.Ps., disgusted as they were made to wait in the Airport from 9 O''Clock till 3 p.m., having nothing to eat. It is stated that the plane finally could take-off at 5 p.m. and reached Bhubaneswar via Varanasi at 8 p.m. It is further stated that in the process the entire day starting from 8 a.m. in the morning to 8 p.m., was wasted by just sitting idle in the Airport and practically 1doing nothing. THE complainant, in the complaint, filed by him before the District Forum, prayed for the following reliefs : (i) that the Indian Airlines must under take to provide for safe, reliable and dependable service to the travelling passengers; (ii) that the Indian Airlines must undertake to inform the intending passengers well in advance about the change of schedule of the flight timings; (iii) that the Indian Airlines must provide suitable accommodation including food to the stranded passengers immediately without any delay; (iv) that the Indian Airlines must take suitable action against those employees who have neglected their duties in looking after the maintenance of the aircraft and the conforts of the standard passengers; and (v) that the Indian Airlines be directed to pay compensation of Rs. 50,000/- to the complainant for the loss suffered by him.

The complaint filed in the District Forum, was contested by the appellant. The appellant, in the written version/written statement, filed before the District Forum, has taken certain preliminary objections with regard to the maintainability of the complaint. On merits, it has been stated by the appellant that there was no negligence or deficiency in service on the part of the appellant. The learned District Forum, vide impugned order, has held that the appellant was guilty of deficiency in service for changing the departure time of the flight in question from 10.40 a.m. to 1.15 p.m. as the appellant has not given appropriate reasons for late availability of the air-craft. The District Forum, on the basis of the above finding, has awarded the compensation of Rs. 2,500/- to the complainant and litigation expenses of Rs. 1,000/-, to be paid by the appellant.

Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act. Notice of the appeal was issued to the respondent/complainant who has filed a detailed reply in the form of an affidavit.

WE have heard the learned Counsel for the appellant and the respondent, Mr. Gautam Acharya, at length and have also carefully gone through the documents/material on record. The learned Counsel for the appellant, during the course of arguments, has placed reliance on the decision of the National Commission in case Indian Airlines v. Sh. Rajesh Kumar Upadhyay, I (1991) CPJ 206 (NC), and the decision of this Commission in cases V.K. Sharma v. M/s. Indian Airlines, IV-1993 (1) CPR 642; Indian Airlines v. S.R. Sonawalkar, Complaint Case No. 106/93 decided on 29.7.1994, and Sangeeta Dhawan v. Air India, Complaint Case No. 25/92 decided on 29.2.1996. The respondent, on the other hand, submitted that no fault can be found with the findings of the District Forum, being impugned in the present proceedings and the appeal filed by the appellant deserves to be dismissed with costs. The respondent has placed reliance on a decision of the National Commission in case The Station Manager, Indian Airlines v. B. Dass, reported as I (1992) CPJ 183 (NC). After hearing the learned Counsel for the appellant, the respondent, Mr. Gautam Acharya and also after taking into consideration the material on record, in our opinion, the only point which arises for our consideration in the present appeal is as to whether in the facts and circumstances of the present case, it can be stated that there was any deficiency in service on the part of the appellant.

AS already stated, the learned District Forum, in the order, being impugned in the present proceedings, has held the appellant guilty of deficiency in service for changing the departure time from 10.40 a.m. to 1.15 p.m. on the ground that the appellant had not given appropriate reasons for late availability of the air-craft on 4th March, 1994. The learned District Forum has also held that the Forum did not find any other negligence or deficiency in service on the part of the appellant. On the basis of the above finding, the learned District Forum has awarded the compensation and litigation expenses to the respondent. In our opinion, the above findings of the learned District Forum cannot sustain the test of judicial scrutiny because in the written version/ written statement itself filed by the appellant before the District Forum, it has been clearly mentioned that there was no negligence on the part of the appellant as the flight in question was delayed due to late availability of the air-craft and other factors beyond the control of the appellant. The learned Counsel for the appellant, during the course of arguments, stated that on 5.3.1994 one air-craft (VT-EPC A320) was grounded due to technical reasons and as such, was not available for operations and the other air-craft (IC 436 (VT-ESC) which was detailed to operate on the route and was to arrive from Muscat, arrived late. It was submitted by him that due to above reasons, the flight in question got delayed from 10.40 a.m. to 1.15 p.m. In the presence of the above facts, it cannot be stated that the appellant had not given ''appropriate'' reasons for the late availability of the air-craft in question. In the written version/written statement, filed on behalf of the appellants, before the District Forum, it has been specifically stated that the staff of the appellant made announcement on Public Address System for the passengers of delayed flight (IC 497) and also made several requests to them on Public Address System to have snacks, soft drinks etc. from the Snacks Bar. It is also apparent on the basis of the material on record that the staff of the appellant, besides making announcements on Public Address System also took timely steps by RAPID action (a mode of automatic communication whereby the PNR Nos. are fed in the computer and through automatic dialing, the passengers are informed about the revised departure timings) to inform the passengers about the delayed departure of the flight in question. The National Commission, in case Indian Airlines v. Sh. Rajesh Kumar Upadhyay (supra), has held- "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 Airline staff etc., all of which may be factors beyond the control of the Airlines. In such cases 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 Airline staff. It is not the law that mere fact that a flight is operated late will ipso facto render the Airline liable for payment of compensation to the passengers."

(Emphasis supplied) The decision of the National Commission in case The Station Manager, Indian Airlines v. B.B. Dass (supra), referred to by the respondent is distinguishable and the ratio in that case is, therefore, not applicable to the facts of the present case. In the above case of Station Manager, Indian Airlines (supra), it has been held that in the absence of telecommunication system it was the duty of the officers of the Indian Airlines to use the telephones to find out the departure time of the flight from Delhi which duty was not performed by them and at Bhubaneswar nobody bothered about the plight of the passengers. It has been further held in the above said case by the National Commission that the passengers had to starve at the Raipur Airport upto much beyond 4.30 p.m. though the Airlines Officials had come to know at about 2 p.m. that the air-craft had developed a snag and was not fit to be taken further. It was further held by the National Commission in the aforesaid case that the officers of the appellant ought to have looked after the stranded passengers, who were cramped in an ill-ventilated lounge in the summer season, in a proper manner. Thus the facts of the above said case are distinguishable from the present case and in no way helps the cause of the respondent.

IN view of the above discussion, the present appeal, filed by the appellant, has to be allowed and the order passed by the District Forum, being impugned in the present proceedings, has to be set-aside. Accordingly, the appeal is allowed. The impugned order of the District Forum, is set-aside and the complaint filed by the respondent, Shri Gautam Acharya, is directed to be dismissed. IN the facts and circumstances of the case, the parties are left to bear their own costs. A copy of this order, as per statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room. Appeal allowed. __________________