Santosh Sethi And Others vs Jet Lite (I) Ltd. Community Centre And Another

REVISION petition no. 1898 of 2013 has been filed against the judgment and order dated 22.02.2013 passed by the Delhi State Consumer Disputes Redressal Commission, Delhi ( the State Commission ) in Appeal no. 911 of 2009.

THE brief facts of the case as per the petitioner/ complainant are that M/s Sahara Airlines Limited, the respondent no.1/ OP no. 1 through their massive advertisement campaign in all the leading newspapers, in January 2006, offered return tickets from Delhi to London Sector for Rs.17,692/ - each.

LURED by the aforesaid advertisement, the petitioner no. 1 booked four tickets for himself and his family members (other petitioners) on 3rd January 2006 for going to London. As per the original plan, the petitioner no.1 along with his family members was supposed to leave for London (UK) by Sahara Airlines (respondent no. 1) on 31st May 2006. The petitioner no. 1 paid a total sum of Rs.70,786/ -, i.e., Rs.17,692/ - each. Due to the final examination of his daughter Surbhi (petitioner no. 3) and important meeting of his wife Rajani (petitioner no. 2), the petitioner no. 1 was compelled to make changes in the departure date from 31st to 7th June of 2006. However, there was no change made in the date of departure of the petitioner and his younger daughter Stuti, (petitioner no. 4) which was on 31st May 2006.

AS per the original plan, the petitioner no. 1 along with his daughter Stuti was supposed to leave Delhi by Sahara Airlines. Just a day before the departure date, i.e. 30.05.2006 the petitioner no. 1 was informed that the flight to London would leave the next day at 2.45 a m and that instead of Sahara Airlines, the plane of respondent no. 2, i.e., Jet Airways would leave for London. The petitioner no. 1 had no choice, but to leave along with his daughter by the flight of respondent no. 2 at 2.45 a m on the next day, i.e., 01.06.2006. Due to this sudden change in the travel plans, the petitioner had to suffer great inconvenience and irreparable financial loss.

ON reaching London, the petitioner was supposed to take a train to Rhyl (North Wales), i.e., his ultimate destination. For this, the petitioner had booked non -refundable tickets in advance. Due to the last minute changes in the flight timings, the petitioner no. 1 and his daughter were unable to take the train and use the discounted tickets. As a result, the tickets worth GBP worth 26 each, (52 GBP) i.e., 4576/ - got wasted. The petitioner had no other alternative but to take a regular train by paying full fare of GBP 60 each ticket (Rs.5280/ - each).

FOR the return journey to New Delhi, the petitioner along with his family members were confirmed on flight leaving London on 01.07.2006 at 09.30 p m. At the last moment, the petitioner came to know on reaching London that the flight which he was supposed to take along with his family members has been rescheduled for 02.07.2006 at 09.40 A M. Again the petitioner along with his family members was to travel by the plane of the respondent.

THE petitioner requested the respondent to make necessary arrangement for lodging and boarding. The said request was not considered and the petitioners were categorically told by the respondent to make their own arrangements.

LEFT with no alternative, the petitioner along with his family members were compelled to stay in a hotel near to the Airport and pay exorbitant an amount for staying overnight. Since boarding and lodging facilities were not provided by the concerned Airlines they are liable to reimburse the amount spent, i.e., GBP 116.33 (Rs.10,190.82). From Hotel to Airport an additional sum of GBP 16 was paid to the cab. This has caused undue harassment, untold mental agony and irreparable financial loss, which is required to be adequately compensated.

IN the interest of justice, the respondent nos.1 and 2 should be directed to pay the petitioner as under: (a) Rs.10,190.82 (GBP 116.33) being the amount spent on hotel, lodging and boarding; (b) Rs.4576 (52 GBP) being the amount spent on rail ticket from London to Rhyl ( North Wales); (c) Rs.25,000/ - towards mental agony, tension and inconvenience; and (d) Rs.11,000/ - towards costs.

THE respondent no. 1 who was opposite no. 1 under the name of M/s Sahara Airlines in their reply before the District Consumer Disputes Redressal Forum (New Delhi) Barracks, ( the District Forum ) stated that there was an interline agreement between Jet Airways (India) Ltd., and Sahara Airlines Limited on 31.01.2006 which became effective on 01.02.2006, by which it was mutually agreed that they will carry the passengers of each other as and when needed to suit their convenience. In the light of the above agreement Jet Airways was responsible to take the petitioner and his family to the desired destination and it was an obligation on the part of Jet Airways to provide the petitioner and his family all the facilities available to the passengers. As such, if any, deficiency was caused then Jet Airways was solely responsible and the answering respondent was not in any way liable whatsoever for the same.

AS has been widely publicised in the section of media that Jet Airways had entered into an agreement for purchase of Sahara Airlines Ltd., in the second week of January 2006 and in the first week of April 2006 Jet Airways further entered into an agreement whereby the officials of Jet Airways were exercising their powers to schedule and reschedule the flights of various destination including London. They further took charge of the Aircraft which was flying between Delhi London Delhi sector and replaced Sahara Airlines aircraft/ flight with one of their own aircrafts. Resultantly, the entire flight schedule of Sahara Airlines Ltd. Domestic and International got affected.

FURTHER , it was stated that, the terms and conditions printed on the jacket of the ticket issued by Sahara Airlines Ltd., was a contract/ agreement and was binding on both the parties. As per one of the terms and conditions of the contract of Carriage the company reserves the right, without assigning any reason, to cancel, advance reschedule, overfly or delay the commencement or continuance of the flight or alter the stopping place or places or to deviate from the route of the journey or to change the type of aircraft in use without thereby incurring any liability in damages or otherwise to the passengers or any other person or any ground whatsoever. The company also reserves to itself the right to refuse to carry any person whom it considers unfit to travel or who in the opinion of the company may constitute risks to the aircraft or to the person on board . Hence, the petitioners cannot allege any liability over Sahara Airlines Ltd., for cancellation and/ or rescheduling of its flights.

RESPONDENT no.2 who was opposite party no. 2 before the District Forum in their reply averred that the petitioners herein have for reasons best known to them chose to remain quiet over the alleged negligence of the second respondent and without ever approaching the second respondent approached District Forum, leading to the conclusion that the complaint was not a bonafide one.

THE second respondent was not a necessary or a proper party inasmuch as the alleged dispute was only between the petitioner and the first respondent, i.e., M/s Sahara Airlines Limited (now M/s Jet Lite). The second respondent, i.e., M/s Jet Airways (India) Ltd., and the first respondent M/s Sahara Airlines Limited (now M/s Jet Lite) are two different and distinct legal entities, and therefore the second respondent M/s Jet Airways (India) Ltd., cannot be held liable for any action or deficiencies on the part of the first respondent, i.e., M/s Sahara Airlines Limited now M/s Jet Lite.

DURING May -June 2006, i.e., at the time of the petitioners travel, the first respondent had entered into a specific understanding with the second respondent that, if, for a commercial/ operational reasons, the first respondent s flight gets cancelled, the second respondent at the request of the first respondent would accommodate the passengers booked on the flight of the first respondent. However, such travel arrangements, either through the second respondent flight or through other airlines were solely upon the passenger s discretion, which interaction was handled exclusively by the first respondent. Herein the second respondent was requested by the first respondent to accommodate their passengers.

THE first respondent s Delhi London - Delhi operations were aborted with effect from 23.06.2006 and all ticket bookings were redone on second respondent s flight till a decision was taken. As per the said arrangement, the information about the rebooking was to be conveyed through agents, if bookings were done through them and by first respondent in all other cases. Further, relevant contact numbers were also provided for passengers to reconfirm or change their bookings. Hence, the second respondent only had the limited function of accommodating the concerned passengers as was requested/ instructed by the first respondent during the said arrangement.

THE District Forum vide order dated 04.08.2009 allowed the complaint against M/s Sahara Airlines Ltd., and observed as under: The complainant had decided to go in the flight of OP 1 by reserving confirmed ticket and the flight was scheduled to fly on 31.05.2006 but it departed on the next date, i.e., 01.06.2006 at 02.45 am for which complainant was informed. The OP 1 has not made it clear that as to what time the information was given at the last moment. The complainant had booked in advance the train ticket from London to Rhyl but since the flight arrived late the train was missed and the ticket went wanted which had costed Rs.4576/ -. On return journey also the flight was late by one day and OP 1 did not make any arrangement for their boarding and lodging and the complainant had to spent Rs.11,000/ - on boarding and lodging which the OP 1 is liable to pay. OP no. 1 has caused inconvenience, mental agony and harassment to the complainant. The District Forum orders as follows: (i) OP 1 will reimburse Rs.15,576/ - to the complainant; (ii) On account of mental agony and harassment, OP 1 will pay Rs.30,000/ - to the complainant as compensation; and (iii) OP 1 will pay Rs.10,000/ - to the complainant .

AGGRIEVED by the order of the District Forum, respondent no. 1 (M/s Sahara Airlines Ltd., now known as Jetlite (India) Ltd., filed an appeal before the State Commission. The State Commission observed that: 9. The only controversy before us is that while on the return journey, the complainant and his family members reached London Airport much before time in order to board to flight on 1st June, 2006 at 9.30 p.m., but at the last moment it was informed by the Jet Airways that the flight is to start on 2nd July, 2006 at 9.40 a.m. According to the allegation of the complainant, he asked officials of Jet Airways Flight to make arrangement for his stay in hotel, as there is a re -schedule of the flight, but no arrangement has been made by the Jet Airways and the complainant has to make his own arrangement for boarding and lodging in the hotel and incurred an expenditure of Rs.10,190.82. The argument advanced by the Counsel for the appellant is that the complainant never traveled in the Sahara Airlines, and if there is any deficiency, it is on the part of the Jet Airways, which has not made any arrangement, if any, on the request of the complainant for boarding and lodging at London Airport. Our attention has been invited to the agreement dated 31st Jan., 2006, between the jet Airways and the Sahara Airliens, by which Sahara Airlines has been taken over by the Jet Airways, and consequently an Interline Agreement between jet Airways, the OP No.2 and Sahara Alines Ltd., Appellant/OP No.1 was also executed on 31st Jan., 2006 by which the passengers of the Sahara Airlines shall be taken by the Jet Airways. This agreement was executed on 31st Jan., 2006. the travel was made by the complainant on 2nd July, 2006, obviously, after execution of this agreement on 31st Jan., 2006, Sahara Airlines was not in existence and all the operational work is to be carried out by the Jet Airways, which has taken the entire responsibility of Sahara Airlines. The District Forum has committed grave error in fastening the responsibility of the deficiency, if any, on Sahara Airlines i.e. the appellant. 10. Needless to mention that the registered notice was issued to the jet Airways, the respondent No.5 on 18.8.2011, but none appeared on behalf of respondent No.5 nor any counsel appeared on his behalf. 11. The material on record clearly goes to show that while returning from London, the Jet Airways flight was rescheduled from 1st July, 2006 at 9.30 p.m. to 2nd July, 2006 at 9.40 p.m. It is a matter of common observation that when the flight is rescheduled at the discretion of the Airways, it is incumbent on the part of the such airways to make boarding and lodging arrangement of the passengers. In the case in hand, the complainant and his family has to pass the whole night, for which the arrangement should be made by the Jet Airways, respondent No.5, by which the complainant and his family members has to travel, but it was not done, and the complainant/respondent No.1 -4 has made own arrangement for boarding and lodging. In this respect the respondent No.1 -4/complainant has filed the receipt of the payment of Rs.10,190.82 made to the Crown Plaza Hotel, where the complainant and his family stayed, therefore, the complainant is entitled to reimburse his amount from Jet Airways. 12. The District Forum has also awarded Rs.4576/ -, being the amount spend for rail ticket from London to North Wails. On account of the change of flight from Delhi to London, the complainant/respondent No.1 -4 could not board this train and an amount of Rs.4576/ - went waste. This is on account of sheer deficiency on account of Jet Airways, to which the respondent No.1 -4/complainant is traveling. In the complainant, the complainant/respondent No.1 -4 have claimed Rs.25,000/ - as compensation for mental agony, harassment and sheer suffering as per clause ''C of para No.12 of the complaint, but it is very strange that the District Forum has awarded an amount of Rs.30,000/ -, obviously, without any reason, the compensation, which was not asked by the complainant, was enhanced to Rs.30,000/ -. It is a matter of general observation that a complainant is not entitled to claim more then the compensation for which he has suffered a loss. In this case, the complainant could be reimbursed Rs.15,576/ -, therefore, the complainants/respondent No.1 -4 are not entitled to more then this compensation, therefore, the complainants/respondent No.1 -2 are not entitled to more then this compensation, therefore, we reduce the amount of compensation to Rs.15,000/ -. 13. The District Forum has also awarded Rs.10,000/ - by stating as: - 3. OP -1 will pay Rs.10,000/ - to the complainant for what this amount has been awarded to the complainant, no mention is made by the District Forum nor any reason has been given, and we are compelled to state that in a very arbitrarily and whimsical manner this amount of Rs.10,000/ - is awarded in favour of the complainant. 14. Under these circumstances, the appeal is partly allowed and the order dated 4.8.2009 is hereby modified to the extent that the complainants/respondent No.1 -4 are entitled to the reimbursement of Rs.15,576/ - from the Jet Airways, Respondent No.5/OP No.2 and also Rs.15,000/ - as compensation for mental agony and harassment from Jet airways, Respondent No.5/OP -2. 15. It is made clear that no payment shall be made by the appellant/OP No.1.

DISSATISFI ED by the order of the State Commission, the petitioner filed this present revision petition before us against the modification of the order of the District Forum.

WE have heard the petitioner who was appearing in person for himself and on behalf of all the other petitioners and also the counsels for respondent nos. 1 & 2. The petitioner has argued that the State Commission had made a grave error in reducing the compensation from Rs.30,000/ - to Rs.15,000/ - without giving any reasons for the same and also denying them Rs.10,000/ - awarded to them by the District Forum on the ground that the District Forum had omitted to mention the reasons for which this amount was awarded. Therefore, the petitioner wanted the restoration of the District Forum s order. Counsel for respondent no. 1 argued that he had nothing to say that in the matter as the order of the State Commission was not directed against them. Counsel for respondent no. 2 stated that the State Commission had correctly reduced the compensation from Rs.30,000/ - to Rs.15,000/ - and even in his complaint, the petitioner had only asked for Rs.25,000/ - and the District Forum had erred him in awarding the amount more than prayed for.

THE only point of dispute before us is whether the reduction of compensation from Rs.30,000/ - to Rs.15,000/ - and also denial of Rs.10,000/ - as awarded by the District Forum was unreasonable. As per the petitioner he has incurred some financial loss due to the rescheduling of the flight. It is to be noted that the amount spent by him as a consequence of the rescheduling is being refunded to him by respondent no. 2 without any protest, i.e., Rs.10,190.82 being the amount spent for lodging and boarding and Rs.4,576/ - being the amount spent for the train ticket from London to Rhyl. We see no reasons why the compensation should be almost double the loss incurred by the petitioner which is also being fully compensated.

AS regards the finding of the State Commission setting aside Rs.10,000/ - awarded by the District Forum, learned counsel for the petitioner has contended that the State Commission has erred in treating the said amount as further compensation over and above the compensation of Rs.30,000/ - awarded on account of mental agony and harassment. Expanding on the argument, learned counsel for the petitioner submitted that State Commission while setting aside said part of award has failed to appreciate that actually Rs.10,000/ - was awarded as cost and due to inadvertence, the District Forum omitted to specify that Rs.10,000/ - was awarded against cost of litigation.

WE find merit in this contention. On perusal of the operative part of the order of the District Forum, we find that the District Forum directed opposite party no.1 to reimburse Rs.15,576/ - to the complainant besides a compensation of Rs.30,000/ - was awarded as compensation on account of mental agony and harassment and it was ordered that opposite party no.1 will pay Rs.10,000/ - to the complainant. The District Forum, however, has omitted to specify as to under what head Rs.10,000/ - has been awarded. On perusal of the complaint, we find that the petitioner in the prayer clause has also prayed for Rs.11,000/ - towards the costs. As the District Forum awarded Rs.30,000/ - as compensation for harassment and mental agony, it is obvious that Rs.10,000/ - has been awarded against cost of litigation but due to inadvertence this fact has not been mentioned in the order. Thus, in our view, the State Commission has fallen in error in concluding that award of Rs.10,000/ - by the District Forum was arbitrary and whimsical. One cannot ignore the fact that every litigation entails expenses and ordinarily successful litigant is entitled to cost of litigation from the other party. In view of the above, revision petition is partly allowed and order of the State Commission is modified to the extent that amount of Rs.10,000/ - awarded by the District Forum is restored towards cost of litigation.