w w w . L a w y e r S e r v i c e s . i n



Emirates Airlines v/s Srikanta Saha & Others


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- K K SAHA AND CO PVT LTD [Strike Off] CIN = U51109WB1938PTC009499

Company & Directors' Information:- L C SAHA PVT LTD [Strike Off] CIN = U32305WB1935PTC008249

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- J K AIRLINES PRIVATE LIMITED [Strike Off] CIN = U62200MP2010PTC023926

Company & Directors' Information:- AMP AIRLINES PRIVATE LIMITED [Active] CIN = U62200MH2018PTC314254

    First Appeal No. 94 of 2013

    Decided On, 28 September 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE C. VISWANATH
    By, MEMBER

    For the Appellant: Ritu Singh Mann, Advocate. For the Respondents: R1 & R2, Sanjoy Kumar Ghosh, Advocate, R3, Nemo.



Judgment Text

This appeal has been filed by the appellant Emirates Airlines challenging the order dated 08.01.2013 passed by the State Consumer Disputes Redressal Commission, West Bengal (in short ‘the State Commission’) in S.C.Case No.CC/23/2012.2. Brief facts of the case are that the respondent Nos.1 & 2 travelled from Kolkata to Los Angeles via Dubai by the appellant Airlines on 05.08.2011. They boarded the flight from Kolkata to Dubai and they were to board another flight from Dubai to Los Angeles. Respondent No.1 was stopped and was not allowed to board the flight at Dubai. The Airline deported the respondent No.1 to India and respondent No.2 did not continue the travel to USA as she also came back to India along with her husband respondent No.1. Respondents filed a consumer complainant being S.C.Case No.CC/23/2012 before the State Commission alleging deficiency on the part of the appellant Airlines and claiming Rs.17,00,000/- for each of them as compensation along with refund of the ticket amount. The complaint was resisted by the appellant Airlines on the ground that there was no deficiency on the part of the appellant Airlines, rather, respondent No.1 was not allowed to travel further from Dubai to Los Angeles on the advice of the US Immigration Department informing that “Z” series Passport of the respondent No.1 was recalled by Government of India and the Passport was not valid. However, the State Commission vide its order dated 08.01.2013 partly allowed the complaint as under:-“Hence, it is ORDERED that the petition of complaint stands allowed in part on contest against the OP No.1 with cost of Rs.10,000/- and dismissed ex parte without cost against the OP No.2. The complainants are entitled to get Rs.4,24,280/- towards price of the airfares and Rs.4,00,000/- towards compensation for harassment and mental agony. The OP No.1 is directed to clear off the said amounts within 45 days from the date of this order, failing which the amounts will carry interest @ 9% per annum till realization in full.”3. Hence the present appeal.4. During the pendency of the present appeal, the respondent No.1 expired on 02.03.2020 and the respondent No.2 sent an e-mail communication to her counsel that she was not interested in pursuing the present proceedings after the death of her husband. Based on this communication, learned counsel for the respondents has been discharged on 11.09.2020. The learned counsel for the appellant was asked to substitute the legal heirs in place of respondent No.1. Learned counsel for the appellant has sent an e-mail informing that she had sent an e-mail to respondent No.2 to inform the LRs of respondent no.1. In response, she has received e-mail from the son and daughter of respondent Nos.1 & 2 informing that they are not interested in continuing with the present case after the death of their father. In these circumstances, the learned counsel for the appellant was heard on 11.09.2020.5. Learned counsel for the appellant stated that the Airline could not continue with further flight of respondent No.1 from Dubai to Los Angeles on account of advisory of US Immigration Department that “Z” series Passport of respondent No.1 has been recalled by Government of India and Passport was not valid. Thus, the Airline did not have any other option, but to send back respondent No.1 to Kolkata India. Though there was no restriction for further journey of respondent No.2, however, respondent No.2 herself opted to go back to Kolkata along with her husband. In these circumstances, respondents could not continue their journey beyond Dubai. Thus, there was no deficiency on the part of the appellant Airlines and there should be no question of awarding of compensation to the respondents. As the ticket was also partly utilised and respondents could not continue with the travel due to their own shortcoming and not due to any fault of appellant Airlines, the appellant Airlines is not bound to refund the ticket amount. The State Commission has ordered refund of the ticket amount of Rs.4,24,280/- and in addition, the State Commission has also asked appellant Airlines to pay a compensation of Rs.4,00,000/- to the complainants for which there is no justification.6. The learned counsel further argued that there was no written communication from US Immigration Department to the Airlines and therefore, the same cannot be filed as proof, but the fact is that due to non-clearance by the US Immigration Department, respondent No.1 was stopped from boarding the plane at Dubai for his journey to Los Angeles. She further stated that the laws of US Immigration Department which are binding on the Airlines as the Airlines is operating in USA as well, the Airlines is not supposed to disclose the reason due to security concerns. Learned counsel stated that the fact is that “Z” series Passports were recalled by Government of India and these Passports were not valid. There must have been some communication to respondent No.1, however, he did not disclose at the time of boarding at Kolkata and the Airlines was also not aware about this fact, therefore, the Airlines allowed him to board. The learned counsel further stated that she could not obtain the copy of the said notification from Government of India or from internet, therefore, the same has not been filed. She has filed certain newspapers where it is mentioned that “Z” series Passports have been recalled by Government of India. She further argued that during the earlier hearing, it was informed by the respondent that after cancellation of his “Z” series Passport, the respondent No.1 travelled to USA on a new Passport. This Commission vide order dated 13.11.2017 ordered the respondent No.1 to present his “Z” series Passport and his new Passport. The learned counsel stated that the respondents have filed certain copies of some pages of the Passport, but they are related to earlier travels and not after the incident in question. She further stated that the original Passport has not been filed, which clearly implies that “Z” series Passport of respondent No.1 was not valid and that is why he had to travel on new Passport. It was also emphasised by the learned counsel that when direct evidence is not available, one has to rely on circumstantial evidence. It was vehemently argued by the learned counsel that for defect in the travel documents, the Airlines cannot be held responsible as held by this Commission in Air India Vs. Sushil Kumar, II (2015) CPJ 75 (NC), wherein the following has been observed:-“18. The IATA General Conditions of Carriage (Passengers and Baggage) Article 7 expressly provides, “if the passenger fails to arrive in time at the Carrier’s check in location or boarding gate or appears improperly documented and not ready to travel, carrier may cancel the space reserved for the passenger and will not delay the flight. Carrier is not liable to the passenger for loss or expenses due to the passenger’s failure to comply with the provisions of this Article”.19. The IATA General Conditions of Carriage (Passengers and Baggage) Article 8.1.6 gives right to refuse carriage if the passenger does not appear to be properly documented.20. The IATA General Conditions of Carriage (Passengers and Baggage) Article 14.1 expressly provide that passenger shall be solely responsible for complying all laws, regulations, orders, demands and travel requirements of countries to be flown from, into or over and with carrier’s regulations and instructions. Carrier shall not be liable for any aid or information given by any agent or employee of carrier to any passenger in connection with obtaining necessary documents or visas or complying with such laws, regulations, orders, demands and travel requirements, whether given in writing or otherwise; or for the consequences to any passenger resulting from his failure to obtain such documents or visas or to comply with such laws, regulations, orders, demands, requirements rules or instructions.21. The governing IATA General Conditions of Carriage (Passenger and Baggage) Article 14.2 expressly provide that Carrier reserves the right to refuse carriage of any passenger who has not complied with applicable laws, regulations, orders, demands or requirements or whose documents do not appear to be in order.22. The Governing IATA General Conditions of Carriage (Passengers and Baggage) exonerate the petitioner Airline from any liability, even if any representation is made by an agent or employee of the petitioner airline in the matter of travel documents, visa requirements or other countries., In these circumstances, the impugned order suffer from material irregularity and illegality and merits to be set aside.”7. It was further emphasised by the learned counsel for the appellant Airlines that under the procedure of US Immigration Department, the passenger had directly contacted the US Immigration Authorities as would be clear from e-mail dated 09.08.2011 sent by travel agent of the respondents which reads as under:-“This is to bring to your kind notice that we had booked passengers as per PNR details given booking to travel to Los Angles on Business class. Pls note both our passengers were allowed to board the flight for Kolkata to Dubai and were issued Boarding passes at Kolkata airport for their onward travel to Los Angles. On arrival in Dubai they were waiting for their onward flight, it may be please noted that when the passenger were about to board the flight to Los Angles, they were stopped by your security staff and denied boarding due to immigration problems.The passenger had to put up at the hotel at Dubai Airport on their own expense and were sent back on the next available flight. On arrival in Kolkata the passenger Mr. Srikanta Saha called the US Embassy as was told that since, his passport was issued with a Z Series, the same was not in order for travel to USA and the airlines were aware of this.Your airport staff should have checked the passport and other relevant documents before issuing the boarding passes at the Kolkata airport to avoid the harassment and mental torture our passengers had to go through.Please look into the matter and allow full refund for the tickets issued to the passengers to avoid unnecessary further complications.”8. The learned counsel emphasised that it was thus clear that the respondent No.1 was convinced that he was stopped due to some immigration issue and not due to any fault on the part of the appellant Airlines.9. We have carefully considered the arguments advanced by the learned counsel for the appellant and have examined the record. Even though respondents are not interested in continuing with this litigation now, however, appeal needs to be decided on merits. The appellant has not been able to file any document proving that the Government of India had recalled the “Z” series Passports. Moreover, if such notification was issued by Government of India, the same would have definitely gone to all the Airlines and it was the duty of the appellant Airlines to have not allowed the respondent No.1 to board the plane at Kolkata itself. Even the travel agent of the respondents vide e-mail dated 09.08.2011 has informed the Airlines that respondent No.1 contacted the U.S. Immigration staff and he was informed that “Z” series Passport was not valid to travel to U.S.A and the Airlines knew about the same. Thus, clearly, there was negligence in allowing respondent No.1 to board the plane at Kolkata. If the travel documents of a passenger are not valid, the Airline is not supposed to allow boarding of that passenger. The negligence by the Airlines has led to great inconvenience and harassment to the complainants. The travel agent of the respondents has also recommended refund of the amount of tickets to avoid further complications. There is no doubt that the Airlines is not responsible for any defect in the travel document of the passenger, however, in the present case the Airlines negligently allowed the boarding of the concerned passenger at Kolkata Airport. The case of Air India Vs. Sushil Kumar (supra) referred to by the learned counsel for the appellant does not seem to be applicable in the present set of facts and circumstances because in that case the journey had not commenced, whereas in the present case, the Airlines allowed the journey upto Dubai. Moreover, an additional transit visa was required in the matter of Air India Vs. Sushil Kumar (supra) whereas in the present case no extra visa was required by the complainants. The IATA guidelines are equally applicable in the present case as well. However, in the present case, the complainants are being compensated due to the negligence of the Airlines for allowing them to board plane at Kolkata at first place. Had the deficiency in the passport of respondent no.1 been pointed out at Kolkata, the complainants would not have boarded the plane to avoid further harassment and mental agony as well as inconvenience. In these circumstances, clearly the order of refund of the ticket amount of Rs.4,24,280/- passed by the State Commission is justified. As enough time has elapsed, this amount needs to be paid with interest. We deem i

Please Login To View The Full Judgment!

t appropriate that this amount be paid with interest of 5% p.a. from the date of the order of the State Commission till actual payment.10. So far as compensation for mental agony and harassment is concerned, the State Commission has awarded Rs.4,00,000/- as compensation for mental agony and harassment to the complainants which seems on a high side. In fact, the travel agent of the complainants had initially written to the Airlines vide e-mail dated 09.08.2011 for refund of the ticket amount only. It gives an indication that the initial demand of the complainants was for the refund of the airfare. As the complainants had to file the consumer complaint, they definitely deserve some compensation for mental agony and harassment apart from refund of the ticket amount. As the interest has also been awarded on the amount paid for airfare, we deem it appropriate to award Rs.30,000/- (rupees thirty thousand only) as compensation for mental agony and harassment to the complainants and to cover incidental expenses.11. Based on the above discussion, the First Appeal No.94 of 2013 is partly allowed and the order dated 08.01.2013 of the State Commission is modified to the extent that the appellant Airlines shall refund the amount of Rs.4,24,280/- alongwith interest @5% per annum from the date of order of the State Commission i.e. from 08.01.2013 till actual payment to the respondent No.2 along with a compensation of Rs.30,000/-(rupees thirty thousand only).
O R