TEJAS P. BHATT vs Alitalia

-BY way of this complaint the complainants have prayed for following reliefs: "(a) To refund the money of the tickets paid by the complainant i.e., Rs. 20,500/- to the opponent for journey from New York to Bombay, together with interest @ 18% p.a. thereon from 6.5.1995 till the date of actual payment thereof. (b) To pay Rs. 2,50,000/- to the complainant No. 1 for not providing him the vegetarian food and not making the necessary and relevant arrangements in time for the alternate arrangements and for making the same after inordinate delay and for the mental tension, harassment, mental agony, mental and physical stress caused to the complainant No. 1. (c) To pay Rs. 2,50,000/- to the complainant No. 2 for not giving any information about his son who was to go to Bombay and for the mental tension, harassment and incon-venience and mental agony and stress caused to the complainant No. 2. (d) To pay Rs. 10,000/- to the complainants towards the cost of this complaint."

IT has been the case of the complainants that the complainant No. 1 wanted to go to U.S.A. on visitor''s visa and the complainant No. 2 was to go to U.S.A on Immigration visa. Complainants, therefore, approached Vyas Travels Pvt. Ltd., who had booked tickets through Ajanta Travels Pvt. Ltd., the general sale agents of Alitalia Airlines (opponents). The complainants paid Rs. 1,23,000/- by way of ticket charges. They travelled on 19.5.1995 and stayed in U.S.A. for four months. They had return tickets from New York to Bombay and the same were confirmed on 17.9.1995 under confirmation No. JT4 SJ1. Complainant No. 1 had informed the opponents that he would be taking vegetarian food. Complainant No. 1 travelled from New York to Rome by Alitalia Airlines Flight No. 611. The departure time was 5.30 p.m. However, the flight was delayed upto 8.00 p.m. resulting into delay of 2 hours. Besides, during the journey from New York to Rome complainant No. 1 was informed that his name was not shown in the list of passengers taking vegetarian food. It has also been the case of the complainants that complainant No. 1, a young man of about 24 years, travelled all alone as he had missed the connecting flight on account of delay caused by the opponents. From inquiry made by him he was informed that he would have to wait for half an hour to get the information regarding his connecting flight. Ultimately he was informed that he would have to go to Frankfurt from Rome and from Frankfurt the opponents would make arrangement to send him to Bombay through Lufthansa Airlines. Complainant No. 1 also informed the concerned officer of the opponents (Alitalita) at Rome that his luggage did not arrive and the officer informed and assured that his luggage would be taken care of and would be sent through the flight to Frankfurt. Complainant No. 1 had no other alternative except to wait and travel from Rome to Frankfurt, which he did. Even that flight from Rome to Frankfurt was late by 30 minutes and the complainant again missed the flight from Frankfurt to Bombay. His luggage was also not transferred. No one cared to attend to him when contacted. Not only that the concerned officer rudely informed the complainant No. 1 that flight of AIR INDIA was going and if he wanted to travel by that flight he might have to go for that. Ultimately the complainant No. 1 reached Bombay by Air India Flight No. 150 from Frankfurt to Delhi and from Delhi to Bombay on 19.9.1995. It has, therefore, been alleged by the complainant that on account of such delay and deficiency on the part of the opponents he has suffered a lot. He suffered mental agony and torture. He sustained physical stress coupled with uncertainty for a long period of six hours. He had to pass the entire period without food as no vegetarian food was supplied, though he had given choice for vegetarian food as stated above. Under such circumstances the complainants have prayed for compensation as aforesaid.

Complainant No. 2 had enquired from the opponent''s New York office about the complainant No. 1 reaching the destination. Complainant No. 2 did not get any reply and had also to suffer severe mental tension and harassment on account of apprehension of his son aged 25 years missing for some time.

OPPONENTS have resisted the complaint by filing reply dated 9th June, 1997 with affidavit of the opponent''s General Manager with V.P. Exh. 11. While denying the allegations contained in the complaint, opponents have asserted that this Commission has no jurisdiction to hear this complaint as the opponent Alitalia has not been carrying on any business in the city of Ahmedabad as alleged and as no part of the cause of action has arisen in the State of Gujarat, that Alitalia has been wrongly joined as respondent No. 1 inasmuch as Ajanta Travels Pvt. Ltd. has a separate entity and that this complaint cannot be entertained against Alitalia. It has been asserted that there was some delay in the operation of the flights of the said opponents and the complainant No. 1 was not provided with vegetarian food due to lack of appropriate communication, that the delay was on account of strikes by the Control Tower at Rome resulting into disruption of several flights of the opponents and that the tickets issued to the complainants were stated as subject to General Conditions of Carriage International and that Condition Nos. 1 and 2 reproduced by the opponents, would apply to this case. Same read as under: "1. Carrier undertakes to use its best efforts to carry the passenger and his or her baggage with reasonable despatch and to adhere to published schedules in effect on the date of travel.

If due to circumstances beyond its control Carrier cancels or delays a flight, is unable to provide previously confirmed space, fails to stop at a passenger''s stopover destination point or causes the passenger to miss a connecting flight on which the passenger holds a reservation, Carrier shall either- (a) carry the passenger on another of its scheduled passenger services on which space is available; or (b) reroute the passenger to the destination indicated on the ticket or applicable portion thereof by its own scheduled services or the scheduled services of another carrier, or by means of surface transportation. If the sum of the fare, excess baggage charge and any applicable service charge for the revised routing is higher than the refund value of the ticket or applicable portion thereof, Carrier shall require no additional fare or charge from the passenger and shall refund the difference if the fare and charges for the revised routing are lower; or (c) make refund in accordance with the provisions of Article XI and shall be under no further liability to the passenger."

It has also been asserted that the complainants failed to inform about their choice regarding vegetarian food. The complainant No. 1 was provided with Alitalia''s flight of Lufthansa Airlines including Air India. His luggage also reached Ahmedabad, though belatedly after four days. The complaint was accordingly sought to be dismissed.

COMPLAINANT No. 1 has been cross-examined at Exhibit-14. No one appeared on behalf of the opponents so as to enable cross-examination by/on behalf of the complainant. Written arguments have been submitted. We have also heard the learned Advocates and gone through the material placed on record. What is important to be noticed in this case is the factual aspect of the matter. In his cross-examination the first complainant has admitted that the opponent No. 3 Alitalia had made arrangements for the flights via Frankfurt to Bombay. He reached Bombay though considerably at belated point of time. He had asked for vegetarian food on telephone but he had not been provided with the same. He received his luggage after five days of his arrival at Ahmedabad. These facts of the present case run in a narrow compass and we will shortly consider this.

THE first question which has been raised on behalf of the opponents is with regard to territorial jurisdiction of this Commission against the opponents Alitalia. It is not in dispute that the tickets (return tickets) were purchased from Ahmedabad. THE complainant has specifically alleged that the opponent Alitalia was carrying on business through Ajanta Travels Pvt. Ltd., who acted as the agent of the opponent Alitalia. It has categorically been alleged that the consideration for the return flights was paid at Ahmedabad. THE complainants travelled by the flights of the Alitalia as per the tickets so issued though the aforesaid Ajanta Travels Pvt. Ltd., of the opponents at Ahmedabad. It clearly appears that the Alitalia carried on business through Ajanta Travels Pvt. Ltd. in the city of Ahmedabad. Thus, it appears on the face of the record that the cause of action or part of the cause of action has arisen in the city of Ahmedabad as opponent Alitalia was carrying on business at Ahmedabad and as its tickets were issued at Ahmedabad in the state of Gujarat. Thus this Commission would have jurisdiction to hear and entertain this complaint. If necessary, reference may be made to a decision of the Hon''ble National Commission in the case of Shakumbhri Exports v. Leif Heegh & Co., reported in II (2004) CPJ 28 (NC)=(2004) 9 CLD 91 where it has been observed that where Indian agent of foreign principal enters into a contract in India, unless contrary is proved, Courts in India will have jurisdiction over the disputes arising therefrom. We, therefore, find that this Commission has jurisdiction to hear and entertain this complaint.

AS stated above the factual aspect of the present case runs into a narrow compass. The deficiency on the part of the opponents is with regard to the delay caused to the complainant No. 1 in reaching Ahmedabad. There is no counter defence of the opponents with regard to this aspect of the case except that there were strikes at Rome which cause has not been established by adducing evidence. It was for the opponent Alitalia to show and establish this case. Thus, this is a clear case where delay caused to the complainant No. 1 has remained unexplained by the opponents. In our considered opinion the opponents are liable to reasonably compensate the complainant No. 1 with regard to deficiency in service as aforesaid. Insofar as complainant No. 2 is concerned he cannot be said to be a ''consumer'' or a beneficiary of the complainant No. 1''s return ticket. (See decision of the Hon''ble National Commission in the case of Jaswant Rai Chopra v. Air Canada, reported in (2003) 5 CLD 474.

In our considered opinion the claim set up by the complainant is highly exaggerated. Ordinarily such a claim would have to be rejected at the threshold. However, since this Commission is required to go through the merits of the matter and since this Commission had to find out facts concerning deficiency in service on the part of the opponent Alitalia it would be just and proper to award reasonable compensation in favour of the complainant. We have appropriate guidance in this respect also in the case of Dr. Arjun Jain v. Thai Airways International Ltd., reported in II (2003) CPJ 201 (NC) where the flight was overbooked resulting into non-issuance of boarding card. The complainant in that case claimed Rs. 35/- lakhs from the other side and filed complaint before the Hon''ble National Commission. The Hon''ble National Commission held the claim to be highly exaggerated and dismissed the complaint while referring to denied boarding compensation in the sum of 300 US $ paid by the Air India to the customer. In our considered opinion, therefore, the maximum equivalent amount in respect of deficiency of delay caused in making available the connecting flights would not exceed in the sum of Rs. 15,000/- insofar present case is concerned. We, therefore, propose to award Rs. 15,000/- by way of compensation to the complainant No. 1 from the opponent Alitalia. We also propose to award interest @ 9% p.a. relying upon the decision of the Hon''ble Supreme Court in the case of Kaushnumma Begum v. New India Assurance Co. Ltd., reported in I (2001) SLT 300=I (2001) ACC 150 (SC)=2001 (1) Supreme Today P-5. We finally propose to award cost in the sum of Rs. 2,000/-.

IN view of what is stated above and bearing in mind the facts and circumstances of the case we pass following order: Opponent Alitalia through its various offices stated in the complaint is directed to pay to the complainant No. 1 Rs. 15,000/- with interest @ 9% p.a. from the date of complaint till payment and cost quantified at Rs. 2,000/- within eight weeks from today. This complaint is accordingly partly allowed. Complaint partly allowed.