Jet Lite (India) Ltd vs Surendra Nath Rana Patgiri

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 27.09.2010, passed by the Assam State Consumer Disputes Redressal Commission (for short ''the State Commission '') in C.A. No. 87/2002, ''''Sahara India Airlines & Ors. versus Dr. Surender Nath Rana Patgiri '''' vide which the said appeal against order dated 22.12.98, passed by the District Consumer Disputes Redressal Forum, Dibrugarh, allowing the consumer complaint filed by the present respondent, was ordered to be dismissed in default for the failure of the appellant to appear before the State Commission.

BRIEF facts of the case are that the respondent/complainant Dr. Surendra Nath Rana Patgiri filed a complaint No. 46/98 before the District Forum, Dibrugarh against the then Sahara India Airlines, alleging that he purchased three tickets for the flight of Sahara India Airlines for travelling from Dibrugarh to Guwahati to attend the cremation of his father, who died on 2.07.98. He purchased the tickets for himself, his wife and his son for a total sum of Rs. 4,103/ -. The complainant and his family reported to the Sahara India Airlines airport counter at Dibrugarh airport on 02.07.98 to board the flight. The boarding cards for his family were issued by the Airlines and seat nos. 15D, 15E and 15F were allocated to them. After undergoing the necessary security check, the complainant and his family were waiting to board the aircraft. The said flight was to go from Dibrugarh to Guwahati and then to Delhi. However, when the flight was about to leave Dibrugarh Airport for Guwahati and Delhi, the Airlines authorities announced that they would not carry the passengers bound for Guwahati due to some operational reasons. However, they permitted the Delhi -bound passengers to fly to Delhi via Guwahati. The complainants requested the airlines authorities to allow his family to fly to Guwahati as a special case, because he was to perform certain rituals for cremation of his father but the Airlines did not accept his request. The complainant and his family were forced to hire a taxi from Dibrugah for his village but he could not reach in time as the dead body of his father had already been cremated. On the other hand, the said flight of Sahara Airlines duly landed at Guwahati Airport and took passengers from Guwahati to Delhi. The complainant filed the consumer complaint in question claiming a total compensation of Rs. 4,84,953/ - including the taxi fare and air fare for three tickets. In their reply filed before the District Forum, the OP submitted that the passengers from Dibrugarh to Guwahati were not allowed to board the aircraft due to some technical snag because the anti -skid system of the aircraft had become inoperational and hence the aircraft could not carry load beyond a certain limit. The denial of such boarding was neither intentional nor deliberate but it was because of unforeseen and unavoidable circumstances. The District Forum allowed the said consumer complaint vide their order dated 23.08.2002 and ordered the OPs to pay a sum of ''_1 lakh as compensation for mental agony and harassment plus refund of ''_4,103/ - as air fare alongwith interest @10% p.a. An appeal was filed against this order before the State Commission. The State Commission passed the following order on 31.05.2010: - ''''Parties are absent. As per insistence of the respondent this pending matter was taken up after a long gap of almost 8 years for which fresh notices were required to be issued to the appellant. The appeal was filed in the year 2002 in the name of Sahara India Airlines which has been subsequently merged with Jet Airlines. Notices issued to the Sahara Office at Dibrugarh and Delhi have been returned by the postal department with endorsement ''''left from the addresses ''''. In view of that a news paper publicity may be issued from the office by quoting the appeal number and the name of the appellant or the substituted company/Airlines which have taken over Sahara India Airlines to appear on the next date failing which the appeal will be liable for dismissal and the stay granted against the arrest of warrant will also be vacated. Such notice may be issued in two daily English newspapers and one in vernacular paper. Fix 5.08.10. ''''

Further, the State Commission passed the impugned order dated 27.09.2010 and stated as follows: -

''''Learned counsel for the respondent is present. The appellant is absent without steps. As per our order dated 31.05.2010 legal notice was issued to the appellant through ''''The Assam Tribune '''' on 14.07.2010 copy of which is placed in the records. The publication in other two newspapers are not yet received. However, after publication of the notice in the Assam Tribune the appellant has not responded. In view of that this appeal is dismissed for default and disposed of accordingly. The stay order granted in execution of the District Forum ''s order in C.P. 46/98 as issued by this Commission on 10.10.02 stands vacated. ''''

It is against this order that the present petition has been made.

DURING the course of arguments, the learned counsel for the petitioner stated that notice for the service on the petitioner who was appellant before the State Commission was issued through one newspaper ''''Assam Tribune '''' on 14.07.2010 and on its failure to appear before the State Commission, it was ordered to be proceeded against exparte. According to the learned counsel, the service of notice upon a party can be made in accordance with the provisions of section 28(A) of the Consumer Protection Act, 1986 only. No procedure had been prescribed in the said section regarding publication through newspapers. Further, as per order dated 31.05.2010 of the State Commission, the publication was to be carried in two daily English newspapers and one newspaper in vernacular language, but the publication was done in one English newspaper only. Moreover, the previous name of the petitioner, i.e., Sahara India Airlines was inserted in the said publication whereas the name had changed to M/s. Jet Lite (India) Ltd. in the year 2007. The said publication was, therefore, not in order and in any case, the petitioner had no knowledge about the hearing made by the State Commission on 27.09.2010. They came to know about the proceedings when Execution Application was filed by the complainant and a notice of the said application was received by their Lucknow office. The said notice was also in the name of Sahara India Airlines. The learned counsel argued that the order passed by the State Commission was not in accordance with law and they should be given an opportunity to argue the case on merits. Further, the appeal was filed before the State Commission by Sahara India Airlines in the year 2002. The same could not be followed up with the State Commission as for a substantial time, the State Commission was not functional.

IN reply, learned counsel for the complainant/respondent stated that the order passed by the State Commission was in accordance with law and the notice had been duly published in the Assam Tribune. The learned counsel further admitted that the publication was made in one newspaper only and that also in the name of Sahara India Airlines. He also stated that the order passed by the District Forum was based on a correct appreciation of the facts and circumstances on record. The flight in question, which started from Dibrugarh had landed in Guwahati and then went to Delhi from Guwahati. There was no rationale in not allowing the complainants to fly in the said aircraft for going to Guwahati.

I have examined the material on record and given a thoughtful consideration to the arguments advanced before me. The District Forum passed an order on 23.08.2002, allowing the consumer complaint in question and granting a compensation of Rs.1 lakh to the complainants for mental agony / harassment, besides the refund of the money spent on purchasing the tickets for air travel along with interest. An appeal was filed before the State Commission in the year 2002 itself, but the said appeal remained pending for a long time. The State Commission have stated in their order dated 31.05.2010 that the matter was taken up after a long gap of almost 8 years at the insistence of the respondent and it was decided to issue fresh notices to the petitioner/appellant. It has been observed in this order that Sahara India Airlines had subsequently merged with Jet Airways and hence newspaper publication be issued giving the name of the company which had taken over Sahara India Airlines. It was also ordered that the notice be issued in two daily English newspapers and one vernacular paper. At the time of arguments, the learned counsel for the respondent admitted that the order had been made in one newspaper only. He could not produce copy of newspaper publication but indicated that the publication was made in the name of Sahara India Airlines. In the light of these facts, it becomes clear that the petitioner M/s. Jet Lite (India) Ltd. did not get proper notice for hearing on 27.09.2010. I am not in agreement with the learned counsel for the petitioner that service through publication of notice in the newspapers is not permitted for cases under the Consumer Protection Act, 1986, as recourse to such a step, has to be taken if service through normal channels of sending notice through post, etc. cannot be affected. In the present case, however, it was within the knowledge of the State Commission that the name of Sahara India Airlines had changed to M/s. Jet Lite (India) Ltd. They should have, therefore, ensured that notice in proper name is published in all the newspapers as per order dated 31.05.2010.

IN view of the above discussion, this revision petition is allowed and the order dated 27.09.2010 passed by the State Commission is set aside. The case is remanded back to the State Commission for a fresh decision. Both the parties are directed to appear before the State Commission on 15.10.2014 for hearing of the appeal on merits.