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



Vijay Roy, Sr. Manager (Legal) v/s Abdul Azeez


Company & Directors' Information:- B K ROY PVT LTD [Active] CIN = U51909WB1955PTC022135

Company & Directors' Information:- B K ROY PVT LTD [Active] CIN = U45100WB1955PTC022135

Company & Directors' Information:- H ROY PVT LTD [Strike Off] CIN = U33112WB1980PTC033128

Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- A C ROY & CO PVT LTD [Active] CIN = U51109WB1956PTC011739

Company & Directors' Information:- K K ROY PVT LTD [Strike Off] CIN = U51396WB1961PTC024954

Company & Directors' Information:- VIJAY J AND K PRIVATE LIMITED [Strike Off] CIN = U52100GJ1974PTC002504

Company & Directors' Information:- M K ROY CO LTD [Strike Off] CIN = U10200WB1948PLC017236

Company & Directors' Information:- A K ROY PVT LTD [Strike Off] CIN = U45202WB1948PTC017291

Company & Directors' Information:- J N ROY & CO PVT LTD [Active] CIN = U36911WB1949PTC017614

Company & Directors' Information:- H C ROY & CO PVT LTD [Strike Off] CIN = U51109WB1951PTC019818

Company & Directors' Information:- A B ROY & CO PVT LTD [Strike Off] CIN = U60210WB1948PTC016734

Company & Directors' Information:- ROY AND CO PVT LTD [Strike Off] CIN = U31103WB1932PTC007445

Company & Directors' Information:- ROY & CO PVT LTD [Strike Off] CIN = U74900WB1957PTC007042

Company & Directors' Information:- C S ROY LTD [Strike Off] CIN = U51900WB1933PLC013082

Company & Directors' Information:- D VIJAY AND COMPANY LIMITED [Dissolved] CIN = U99999MH1933PTC002056

    Appeal No. 394 of 2016

    Decided On, 19 August 2020

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. JUSTICE K. SURENDRA MOHAN
    By, PRESIDENT & THE HONOURABLE MR. K.R. RADHAKRISHNAN
    By, MEMBER

    For the Appellant: Baby Abraham, Advocate. For the Respondent: --------



Judgment Text

K. Surendra Mohan : PresidentThis is an appeal filed by the opposite party in C.C. No. 346/2013 challenging the final order dated 19.11.2015 of the Consumer Disputes Redressal Forum, Malappuram (hereinafter referred to as the District Forum for short). As per the order appealed against, the complaint filed by the respondent herein has been allowed and compensation has been ordered to be paid.2. The short facts leading up to the filing of the complaint by the respondent are summarized as follows:3. The respondent had booked tickets for travelling on the Airways of the respondent from Kozhikode to Delhi on 28.09.2013. He had booked four tickets for the travel of himself, his wife, his daughter Dr. Ruby and her infant daughter. The purpose of their travel was for enabling Dr. Ruby to appear for the Entrance Examination conducted by the National Board of Examinations for admission to Post Graduate Medical Courses. The examination was scheduled to be held on 29.09.2013. They had also booked their return tickets for 30.09.2013. Accordingly they had reached the airport on time and had boarded the aircraft which was scheduled to depart at 15.25 hours. While waiting for the aircraft to take off they were informed that the aircraft had some technical problem as a result of which, there would be some delay. Later on the passengers were asked to alight and wait in the Airport terminal. The passengers thus waited for more than five hours whereupon they were informed that the flight would take off at 20.50 hours to Chennai. The onward flight to Delhi would be available only at 11 am on 29.09.2013. Since Dr. Ruby had to report to the Examination centre at 9 am on 29.09.2013, which had become impossible, the respondent cancelled the tickets. Consequently, Dr. Ruby lost her chance to appear for the Entrance Examination during the year 2013. According to the respondent Dr. Ruby had prepared well for the examination and would have obtained admission to a Post Graduate course, had she appeared for the examination. She was prevented from doing so by the deficiency in service on the part of the appellant. Therefore the respondent claimed compensation for the mental agony and hardships that were caused.4. The complaint was contested by the appellant by filing a version disputing the allegations made in the complaint. According to their version, the respondent was not entitled to claim any compensation from the appellant for the reason that, as per the provisions of Carriage by Air Act 1972 and the notifications thereunder a carrier like the appellant was not liable for any damage occasioned by the delay in the carriage by air of passengers, baggage or cargo. It was further contended that, before departure every aircraft had to be checked by the Aircraft Maintenance Engineers who had to certify that it was flight worthy. It was during such a checkup that, a technical problem was detected in the aircraft. Since some time was required for setting right the technical problem, all passengers were requested to alight from the aircraft. Thus, according to the appellant, the flight was delayed purely due to the technical snag in the aircraft which had to be rectified, considering the safety of the passengers. Therefore, they were not liable to compensate the respondent for the inconvenience or loss. According to them, they had refunded the ticket fare to the respondent. They contended that, as per the terms and conditions that form part of each ticket purchased by a passenger, no liability could be fastened on the Airways for the delay or cancellation of a flight due to circumstances beyond their control. Since the delay in the present case had occurred due to circumstances beyond their control, it was contended that the complaint was liable to be dismissed.5. Both parties let in evidence on the above pleadings. No oral evidence was adduced by either of the parties. On the side of the respondent, Exts. A1 to A5 documents were marked. On the side of the appellant, Exts. B1 and B2 were marked. However the District Forum has proceeded on the mistaken impression that there was only one document on the side of the appellant. The said mistake is therefore corrected. Ext. B1 is the copy of the Terms of Carriage, stated to be part of every ticket issued by the appellant. Ext. B2 is a copy of the Technical Delay Report.6. The District Forum considered the contentions of the parties in the light of the evidence on record and found that there was deficiency in service on the part of the appellant, as a consequence of which, losses and hardships were caused to the respondent, entitling him to compensation. The District Forum also found that though it was contended that the ticket fare had been refunded by the appellant no evidence of any such refund was available. Therefore, the entire ticket fare of Rs. 31,453/- has been ordered to be refunded with interest thereon at the rate of 6% per annum from 28.09.2013 till the date of payment and to further pay an amount of Rs. 1,00,000/- as compensation for the mental agony and hardships caused. It is aggrieved by the said order that the appellant has filed this appeal.7. According to the counsel for the appellant the District Forum has seriously gone wrong in awarding compensation to the respondent. According to the learned counsel, the reason for the delay in the flight was solely due to the technical snag detected in the aircraft. Taking into account the safety and security of the passengers, it was not possible to commence the journey without rectifying the defect. The rectification work took a longer time than expected. Therefore, it is contended that the delay was due to circumstances beyond the control of the appellant. As per Ext. B1 terms and conditions, there is an exclusion of liability of the Airways for delay or cancellation of the flight due to circumstances beyond their control. It is also pointed out that under the Carriage by Air Act, 1972, the Airways was entitled to cancel any flight for any reason. It is further contended that the ticket fare of Rs. 31,453/- had been refunded subsequently and therefore the direction to refund the said amount was to be vacated.8. Though notice was served on the respondent, since he did not appear, he was called absent. Therefore, we have not had the benefit of the contentions of the respondent. We have heard the counsel for the appellant. We have also perused the records and considered the contentions advanced before us, anxiously.9. The facts in this case are admitted. It is admitted that the respondent, his wife, daughter Dr. Ruby and granddaughter Farlin had booked air tickets with the appellant for travelling from Kozhikode to Delhi on 28.08.2013. Their return flight was also booked from Delhi to Kozhikode on 30.09.2013. The appellant had collected an amount of Rs. 31,453/- as ticket charges. It is also not in dispute that the respondent and his family had reached the airport on time and had even boarded the aircraft. However, the flight was delayed for more than five hours due to a technical snag in the aircraft. The flight finally took off at 20.50 hours. But it was informed that the flight would proceed only to Chennai and that the onward flight to Delhi would be available only at 11 am on the next day, 29.09.2013. Since the daughter of the respondent had to report at the examination centre by 9 am on 29.09.2013 which could not be accomplished, he cancelled the tickets. Consequently his daughter was prevented from appearing for her Entrance Examination of 2013 and was compelled to lose one year in the process.10. It is vehemently contended by the counsel for the appellant that, the appellant had no knowledge of the purpose of travel of the respondent and his family or that his daughter had to appear for an examination on the next day. Therefore, they could not be blamed for the said loss. It is also pointed out that they could have planned their travel for the previous day and avoided the complications. Reliance is also placed on the provisions of law to disclaim liability pay compensation.11. However, what requires to be examined is whether there was any deficiency in the service provided by the appellant. Any shortcoming in the conduct of the respondent cannot absolve the appellant of liability, if there was deficiency in their service.12. It is no doubt true that, the technical snag detected in the aircraft and the consequent delay in rectifying the same can only be termed as circumstances beyond the control of the appellant. However, it is necessary to note that the rectification process took more than five hours which was inordinate. The omission on the part of the appellant to make other arrangements for the conveyance of the passengers in view of the delay cannot be countenanced. Had the magnitude of the delay been brought to the notice of the respondent promptly, he could have resorted to some other means of travel to reach Delhi as per his requirement. Even after the aircraft was repaired and made flightworthy, it was scheduled to fly only up to Chennai. Had the appellant made arrangements for the flight to complete its journey up to Delhi as scheduled, the loss caused to the respondent could have been avoided. To a pointed question as to why the aircraft that could fly up to Chennai could not travel up to Delhi, the counsel had no answer. Therefore, the deficiency in service on the part of the appellant was in not providing and making alternative arrangements for the travel of the passengers in view of the technical defect that prevented the scheduled flight from taking off. It is clear from Ext. B2 report that the technical snag, that was detected, was with respect to the air conditioner. The snag was rectified by replacing it with another unit. Therefore, we do not find any reason why the aircraft could not have carried on its journey up to Delhi from Chennai, though the original schedule had been altered. There is nothing on record to show that, any attempt had been made by the appellant to ensure that the passengers reached Delhi on the same day itself.13. We also take into account the fact that as a consequence of the inability of the respondent to reach Delhi as scheduled, his daughter was prevented from appearing for her Entrance Examination during the year 2013. Ext. B1 terms and conditions exclude only liability for delay or cancellation of flight due to circumstances beyond the control of the Airways. However, in this case, the delay was not due to circumstances beyond the control of the appellant. The appellant has no explanation as to why the aircraft that was repaired and made flight worthy after a long wait of more than five hours could not have flown the passengers up to Delhi on the same day itself. Therefore, we do not find any infirmity in the conclusion of the District Forum that there was deficiency in service of the appellant. As a result of such deficiency the respondent’s daughter was prevented from appearing for her Entrance Examination for the year 2013. The respondent had booked his tickets two months in advance. Therefore, it is evident that he had pla

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nned his journey well ahead of his schedule and had prepared for it. In view of the above, the appellant cannot escape liability by pleading that the delay was caused due to circumstances beyond their control.14. According to the counsel for the appellant, the refundable portion of the ticket fare has been returned to the respondent after the filing of the complaint. However, there is nothing on record to prove that any such refund has been made. Considering the circumstances in which respondent had to cancel his tickets, it is not sufficient that only the refundable portion of the tickets are returned. It is only in the fitness of things that the entire ticket fare was returned, which was admittedly not done. Therefore, we do not find any grounds to interfere with the direction of the District Forum to return the amount of Rs. 31,453/- to the respondent. We also do not find any grounds to interfere with the quantum of compensation ordered to be paid by the District Forum. We find that the amount ordered is only reasonable.For the foregoing reasons, we are not satisfied that the order appealed against suffers from any infirmity warranting an interference in appeal. The appeal fails and is accordingly dismissed. No costs.
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