NEPC AIRLINES vs M.JOSEPH

FACTS as culled out from the materials placed on record may in brevity be related in order to understand the crux of the issue arising for consideration in this action.

ONE M. Joseph (complainant), it is said, is employed as Rank 3rd Engineer in Essar Sisco Ship Management Company Limited, Chennai House, 7, Esplanade, Madras-600 108. He was stated to be in the Floating Staff Payroll, OSV Division. He was drawing a gross salary of Rs. 49,701/- per mensem. On 1.11.1996 the complainant received a message from his Company to report for duty at 11.00 a.m. on 4.11.1996 at Madras Harbour for the ship leaving on that day at 12.00 noon. He, it appears, was at Madurai on 1.11.1996. Consequently he planned his journey by air travel from Madurai to Madras on 4.11.1996. He booked a ticket for his air travel on 1.11.1996 from NEPC Airlines at Madurai of which the first opposite party is the Manager, Madras while the second opposite party is the Manager, Madurai. The flight was to commence its journey on 4.11.1996 at 9.00 a.m. from Madurai to Madras. The price of the ticket was Rs. 2,272/-. The reporting time for the flight was at 8.00 a.m., that is to say, 60 minutes before the departure of the flight, which event was to happen at 9.00 a.m. on that day. He reported at the airport Madurai at 8.00 a.m.

The flight of the opposite parties airlines departed even at 7.50 a.m. at that day leaving him in the lurch.

ON inquiry, he was to learn that the flight timings got changed on Saturday itself and the staff of the said airlines told him that they had forgotten to inform him about the change in timings for the scheduled flight. The staff knowing the urgency of the complainant in going to Madras even were prepared to arrange a private car for him for his immediate journey. The complainant refused the offer so made on the ground that he could not reach Madras before the departure of the ship at 12.00 noon that day. The opposite parties are not diligent and careful to inform the change of timings of the flight. As a consequence he suffered a lot. He could not report for duty. Once he entered into the ship, he will be in the ship performing his duty for about three months. Since he has not reported for duty on that day, there is every likelihood of disciplinary proceedings initiated against him apart from his loosing the salary for three months. He also suffered mental agony and anguish as a consequence of the deficiency in service on the part of the opposite parties.

THE complainant also caused lawyer''s notice dated 5.11.1996 to be issued to the opposite parties. To the notice so issued, the opposite parties did not at all respond in sending a reply refuting the allegations made therein. In such a backdrop and setting, he knocked at the doors of the District Consumer Disputes Redressal Forum, Madurai for certain reliefs as prayed for in the complaint. The opposite parties in pith and substance would contend that even on 3.11.1996 that all the passengers including the complainant were contacted over the phone and informed about the change in the flight timings. Out of the 34 passengers, 28 passengers reported to the check-in-counter as per the information given to them about the change of departure time of the said aircraft excepting the complainant and 5 others. The complainant came to the check-in-counter after its closure for the reasons best known to him.

TO say that the complainant was directed to report at the Madurai Airport around 8.00 a.m. on the date of departure of the flight when he booked the ticket on 1.11.1996 was false. The change of timings was due to operational reasons. The complainant came to the Madurai Airport at 8.00 a.m. due to his callous negligence and if at all anybody is to be blamed, the blame is on the part of the complainant and none others and for such part of the blame he alone is to be held responsible. There is no need for the staff to arrange a private car for the complainant to go to Madras. There is no deficiency in service on their part. The complaint as such is liable to be dismissed.

THE Forum below after taking into consideration the materials placed on record, recorded a finding that there was deficiency in service on the part of the opposite parties. Consequently, the opposite parties 1 and 2 were directed to pay a sum of Rs. 1,49,103/- towards loss of salary for three months, Rs. 5,000/- as compensation for mental agony and anguish, a sum of Rs. 2,275/- towards the air-fare, a sum of Rs. 400/- towards taxi fare and Rs. 1,000/- towards the cost of litigation, all totalling to Rs. 1,57,775/- on or before 12.9.1998, failing which the opposite parties were directed to pay interest thereon at the rate of 18% per annum from 13.9.1998 till the date of payment of the amount. THE order of the Forum below is dated 11th day of July, 1998. Aggrieved by the order as above, the opposite parties resorted to the present action by engaging a Counsel of their choice, namely learned Counsel M/s. S.R. Rajagopal and S.R. Raghunathan.

On service of process, the respondent/complainant entered appearance through a Counsel of his choice, namely learned Counsel M/s. V.T. Balaji and S. Sarasumuthu.

WE heard the arguments of learned Counsel Mr. T.S. Vijayaraghavan representing learned Counsel M/s. S.R. Rajagopal and S.R. Raghunathan appearing for the appellants/opposite parties and learned Counsel Mr. V.T. Balaji representing respondent/complainant. From the pith and submission of learned Counsel appearing for the respective parties, the one and only question that crops up for consideration is as to whether the order of the Forum below is sustainable in law on the facts and in the circumstances of the case. There is no pale of controversy that the complainant booked an air-ticket on 1.11.1996 for his travel on 4.11.1996 from Madurai to Madras by the NEPC Airlines of the opposite parties. The aircraft was to commence its journey on 4.11.1996 at 9.00 a.m. The reporting time was at 8.00 a.m. on that day. All these matters are getting reflected in the xerox copy of the ticket marked as Ex. A1. On a perusal of Ex. A1, it is shown that the aircraft was to commence its journey on 9.00 a.m. on 4.11.1996. It was an O.K. status ticket. One of the conditions traceable to the ticket was that the passenger is required to report at the Airport 60 minutes earlier to the departure time. The departure time in this case being 9.00 a.m., it goes without saying that the reporting time 60 minutes before the departure time would fall at 8.00 a.m.

THE complainant reported at the airport at 8.00 a.m. on 4.11.1996. Alas ! Flight commenced its onward journey from Madurai to Madras at 7.50 a.m. itself. It is the positive case of the opposite parties that though the ticket for the journey on 4.11.1996 was issued mentioning the time of departure at 9.00 a.m., yet on 2.11.1996 the departure time was rescheduled and according to the rescheduled time, the aircraft was to commence its onward journey from Madurai to Madras at 7.50 a.m. and this aspect of the matter was informed to all the passengers inclusive of the complainant over phone. In order to substantiate such a claim, of course, no tangible material had been placed on record. However, learned Counsel appearing for the appellants/opposite parties would put forward an argument in a flamboyant style that the fact that 28, out of 38 passengers reported at the check-in-counter one hour before 7.50 a.m. on the day in question and travelled by the said aircraft is a factor to indicate that the opposite parties had taken due care and caution to inform all the passengers over phone. Such being the case, if the complainant had not reported for the rescheduled time, he has to blame himself. The argument so made wears a look of credibility on the face of it, but a little bit of probe if made into such submissions, the utter untenability taking shelter thereunder would get exposed. It is not known whether 28 passengers, who reported at the check-in-counter at the correct time for the rescheduled departure of the flight at 7.50 a.m., purchased the tickets prior to 2.11.1996 or subsequent to 2.11.1996. If the tickets had been purchased subsequent to 2.11.1996 by the passengers, the tickets issued to them would have indicated in crystal clear terms that the departure time of the flight will be at 7.50 a.m. and having purchased the tickets for a flight, for which scheduled departure was 7.50 a.m., they could have come and reported the check-in-counter one hour earlier to the scheduled departure. The case of the complainant is not like that. Admittedly, he purchased the ticket for the flight in question on 1.11.1996. On that day, the departure time was not at all rescheduled. The departure time having been rescheduled only subsequent to the purchase of the ticket by the complainant, it behoves upon the opposite parties airlines to inform the complainant about the reschedule of the departure time of the flight for which he had purchased the ticket. We have already indicated that no material had been placed on record that the complainant was duly informed about the rescheduled departure of the flight. To say as has been said by the opposite parties that the complainant was informed of the rescheduled time of the departure of the flight over phone is a contrivance of puerile nature to offer as an explanation for explanation sake in order to wriggle out of the legal consequences to be ensued against them and nothing further. It is not as if the complainant booked the ticket for his pleasure trip from Madurai to Madras on 4.11.1996. He was having a specific errand to be performed at Madras on 4.11.1996. He was to report for duty in the ship at 11.00 a.m. on that day. Such being the case, if he had been really informed over phone by the officials of the opposite parties airlines, cock sure it is, he could have reported to the check-in-counter in time in order to see that he would be reaching Madras by catching the said flight in order to join duty in the ship which was to depart at 12.00 noon on 4.11.1996. In such circumstances, preponderance of probabilities weigh more in favour of the complainant''s case in the sense of himself not having been informed over phone of the rescheduled timings of the aircraft on the day in question.

THESE things apart, the complainant did not leave the matter without taking any further action. As a matter of fact, he issued a lawyer''s notice dated 5.11.1996 to the opposite parties. The notice is marked as Ex. A3 and the notice had been received by the opposite parties 1 and 2 as proved by the acknowledgement cards marked as Ex. A4 and Ex. A5. Notwithstanding the receipt of the said notice, the opposite parties took the highhanded attitude not even making a reply to the same. A perusal of Ex. A3 would indicate in no uncertain terms about the positive case of the complainant in all material particulars without omitting any detail as mentioned in the complaint. The fact that the opposite parties did not refute the allegations in the notice so issued would in the eye of law tantamount to acceptance of the allegations so made therein. Therefore, the act of the opposite parties in not making a reply is of signal importance of probabilising the case as put forward by the complainant.

THUS, there is plithora material available pointing out the cavalier negligence or callousness on the part of the opposite parties in not properly informing the complainant the reschedule of the flight timings for the aircraft, which was to commence its journey at 9.00 a.m. from Madurai to Madras on 4.11.1996. All these aspects of the matter had been duly taken into account by the Forum below and recorded a finding that there was deficiency in service on the part of the opposite parties. The Forum below directed the opposite parties to pay to the complainant the loss of three months'' salary amounting to Rs. 1,49,103/- apart from other reliefs about which we will consider later. The salary drawn by the complainant is specifically referred to in Ex. A3 notice. That apart, what is stated therein was that as a consequence his not joining duty on 4.11.1996, there was the risk of himself facing disciplinary action apart from losoing the salary for three months'' period. We have already indicated this sort of a positive allegation had not at all been refuted at all by the opposite parties by the issuance of a reply. The complainant had also marked the salary certificate as Ex. A2 and a perusal of the same indicates that he was drawing a gross salary of Rs. 49,701/- per mensem. The Forum below directed the opposite parties to pay to the complainant Rs. 1,49,103/-, which is nothing but the salary of the complainant for three months and consequently the award so made cannot at all be found fault with.

The Forum below awarded compen-sation quantified in a sum of Rs. 5,000/- for the mental agony and anguish suffered by the complainant, which, we feel, on the facts and in the circumstances of the case, is not unreasonable calling for interference. We, therefore, confirm such part of the award.

THE Forum below also directed the opposite party to pay to the complainant air ticket fare of Rs. 2,275/-. This sort of an award cannot at all be found fault with. THE reasons are rather obvious. Having purchased the ticket he was unable to perform the journey because of the departure of the flight earlier to the departure time mentioned in the ticket. This sort of an award is also confirmed. Besides the Forum below also awarded taxi fare of Rs. 400/- and cost of litigation of Rs. 1,000/- which, we feel, is also not unreasonable calling for interference. That part of the award is also confirmed. As such, the appeal deserves to be dismissed. In fine, the appeal fails and the same is dismissed. We, however, make no order as to costs on the facts and in the circumstances of the case. We, however, make it crystal clear that the award of Forum below as confirmed by us is required to be complied with by the opposite parties within a month from the date of receipt of our order, or otherwise the complainant would be perfectly at liberty to invoke the jurisdiction under Section 27 of the Consumer Protection Act, 1986 (for short, the Act, 1986). Appeal dismissed