S.R.SATHYA KUMAR vs AIR INDIA

THIS is a complaint under Sec. 17 read with Sec. 12 of the Consumer Protection Act.

THE complainant purchased a Round the World Ticket from the Opposite Party''s office at Madras on 20.4.90 at the special fare of Rs. 27,609/- for the trip from Madras to Frankfurt-Boston-New York-Detroit-Cincinnati-Detroit-San Francisco-Tokyo-Singapore-Madras. THE complainant left Madras on 22.4.1990 and stayed at Frankfurt on the first lap of his journey. When he started from Frankfurt to Boston by N.W. Orient Lines Flight, he found his passport missing. He could not therefore undertake his journey. THE Air India Office at Frankfurt uplifted all the remaining coupons of the Round the World Ticket and re-issued a ticket from Frankfurt-Bombay-Madras and charged Rs. 30,288/-. THE complainant returned to Bombay by Air and from Bombay to Madras by train. On 12.6.1990, he requested the Air India to re-instate the Round the World Ticket. But the opposite party did not respond to his requests. This according to the complainant amounts to deficiency of service and negligence. He claims to have suffered business loss and put to much mental pain and agony. He has therefore filed this complaint to return and refund the uplifted coupons in the complainant''s ticket for the remaining part of the journey from Frankfurt-Boston-New York-Detroit-Cincinnatti-Detroit-San Francisco-Tokyo-Singapore-Madras, after collecting the then fare from Frankfurt to Bombay to Madras and pay damages in the sum of Rs. 8 lakhs. The claim is resisted by the Opposite Party Air India. It is pointed out that under the'' Round World Ticket purchased, the complainant has to travel by several Airlines and those airlines are also necessary parties to this complaint. The complaint filed without impleading them has to be dismissed in limini. It is denied that there was any negligence or deficiency of service on the part of the opposite party. There has been utter negligence only on the part of the complainant in losing his passport at Frankfurt. The Opposite Party though not obliged in order to help the complainant boarded him on its flight to Bombay and to Madras. The fare from Frankfurt-Bombay-Madras is Rs. 30,288/- which the Opposite Party did not collect from the complainant. The actual payment made by the complainant for the purpose of Round the World Ticket is only Rs. 27,509/-. Therefore, the complainant has to pay the difference of Rs. 2,779/-. There is no question of re-instating the original tickets. After utilisation of the same, the claim for refund of the ticket for the untravelled portion is mischievious and no question of refund arises. The allegations against this Opposite Party are baseless, unfounded and the complaint has to be dismissed with full costs.

Exhs. A1 to A7 and B1 to B3 are marked by consent. Proof affidavits are filed. No oral evidence has been let in.

THE preliminary point is raised by the Learned Counsel for the appellant that the right of the complainant is extinguished by virtue of Rule 30(1) of Second Schedule to the Indian Carriage by Air Act of 1972 which reads thus: "THE right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped."

THE applicability of the Rule has been the subject matter of two decisions by this commission in M/s. Taha Leather Products v. Air India Cargo Office & Another (O.P. 109/92 dt. 10.7.92) and M/s. Ashwin Textiles v. Air India (O.P. 75/ 93 dt. 16.9.93) where this Commission has upheld the validity of this Rule. THE Complainant''s Round the World trip ended in Frankfurt in May 1990 when he lost his passport and had to return to India. Time has to be reckoned from May 1990 and the complaint ought to have therefore been filed in or before May 1992, whereas this complaint has been filed only on 29.3.93. As pointed out by this Commission in M/s. Taha Leather Products v. Air India Cargo Office & Another (O.P. 109/92 dt. 10.7.92) referred to above, the language of this Rule is clear and categorical which spells out the discharge of the Opposite Party from all liabilities in respect of the complainant''s claim to damages. In other words, the liability of the Opposite Party for the damages totally disappears on the expiry of this period and the remedy automatically vanishes. It is very appropriate to say that the right of the complainant to sue for the damages in respect of his inability to complete his Round the World journey has ceased to exist rather than saying that the suit is barred by time. THEre is no scope for application of Articles 10 & 11 of the Limitation Act in regard to Carriage by Air Act which operates to extinguish the right to damages, if action is not brought within 2 years as spelled out therein. We hold therefore that the claim is extinguished as the complainant has not filed this complaint in or before May 1992. On merits to, we find no substance in the complainant''s claim. The Complainant has purchased a Round the World Ticket on 20.4.90, on the first lap of his journey he has proceeded from Madras to Frankfurt by Air India. After completing his work at Frankfurt he wanted to go to Boston by N.W. Orient Airlines, when he found his passport missing. He could not therefore, continue his travel under the Round the World Ticket. The Opposite Party Air India has uplifted the remaining coupons and issued to the complainant a ticket from Frankfurt to Bombay-Madras at a cost of Rs. 30,288/- without collecting the charge. It is a gesture made by the Opposite Party and the gratitude shown by the complainant is the filing of this complaint. There has been no deficiency of service or negligence on the part of the Opposite Party. The entire default was that of the complainant in losing his passport and thus depriving himself of the benefit of the Round the World trip. The fare from Frankfurt-Bombay-Madras is Rs. 30,288/- which Air India has not collected from the complainant. The complainant has paid only Rs. 27,609/- for the whole of the Round the World Ticket and he has therefore, to pay the difference of Rs. 2,779/- as rightly contended by the Opposite Party. If we take into consideration, the fare for the first lap of the journey undertaken by the complainant from Madras to Frankfurt the amount payable by the complainant will be more. Where is then the question of the complainant claiming refund for the uplifted coupons for the remaining portion of this Round the World trip? The claim for refund has no legal or moral basis. The compensation in the sum of Rs. 8,00,000/- claimed against the Opposite Party for no default on the part of the Opposite Party, is , to say the least, atrocious. Taking advantage of the beneficial provisions of the Consumer Protection Act, the complainant has come forward with this false, frivolous and vexatious claim. This is an abuse of the process of the Consumer Protection Act and cannot be too strongly condemned. In our view this is a fit case for invoking Sec. 26 of the Consumer Protection Act as amended by the amending Act of 1993 and awarding exemplary costs against the complainant in the sum of Rs. 5,000/-.

IN the result the complaint fails and is dismissed with costs of Rs. 5,000/-. The complainant shall pay the costs of Rs. 5,000/- to the Opposite Party within one months from the date of receipt of this order. Complaint dismissed with costs.