J. Subramaniam Advocate, Chennai Vs. the Manager, Air Travel Enterprises India Ltd., Chennai and Another - Court Judgment

Excerpt:

Judgment:

HONBLE M. THANIKACHALAM J, PRESIDENT

1. The complainant in O.P.374/2004 on the file of District Consumer Disputes Redressal Forum, Chennai (South), having failed in his attempt to get any relief, has come to this Commission, as appellant.

2. The complainant/appellant had purchased an Air Ticket from the first opposite party for the flight operated by the second opposite party, on 17.09.2003, by paying a sum of Rs.29,970/-, to travel from Chennai – Dubai – Bahrain – Dubai – Chennai, having three months validity. At Dubai, due to delay in issuance of Dubai visa, the complainant could not travel on 04.10.2003 as scheduled and therefore opted to rebook for 13.10.2003 by Flight No.540 Dubai to Chennai. But, the second opposite party failed to accommodate the complainant whereas on 11.10.2003 when he approached the second opposite party, to book his return journey reservation on 13.10.2003, he was requested to approach Air India since they are having code sharing with them. But Air India refused to accommodate with this ticket, thereby, the complainant has to purchase a fresh ticket by spending a sum of Rs.13,000/-. It is the duty of the second opposite party, to give priority to its ticket holder and having failed to do so, they committed deficiency in service, causing undue hardship, sufferings, mental pain and mental agony to the complainant, which have to be compensated by the opposite parties, jointly and severally, not only by refunding a sum of Rs.13,000/-, but also by paying a sum of Rs.1 lakh as compensation. Hence the claim.

3. The first opposite party in its Written Version, denying the entire allegations in the complaint, would submit that the complainant himself had changed the date of return journey, which was not communicated to the first opposite party, that the first opposite party had got authority only for confirmation of seats sold by them and nothing more and that in this case, having sold the confirmation ticket, for the change of plan date by the complainant, the first opposite party cannot be held responsible for any alleged damages and thereby prayed for the dismissal of the complaint.

4. The second opposite party in the Written Version, questioned the correctness of various averments in the complaint, further stating that the complainant himself rescheduled his date of travel, due to delay in the issue of Dubai visa and because of non-availability of seats on 13.10.2003, he failed to get confirmed bookings at the last minute, for which, the second opposite party cannot be held responsible, that though this opposite party has code sharing with Air India, on the date, when the complainant approached the Air India, the seats allotted to this opposite party has been sold and therefore if at all the complainant would have purchased the ticket available from Air India seat share, for which, this opposite party cannot be held responsible and this being the position, claiming compensation on various heads, including the refund of money for the concession ticket made available to the complainant, is not at all maintainable, thereby, prayed for the dismissal of the case.

5. The trial Forum evaluating the pleadings and the documents produced before it for appreciation, doing so, came to the conclusion that since the ticket purchased by the complainant is non-re-routable, non-endorsable and for the non-availability of the seat on the date required by the complainant, cannot be construed as deficiency in service and that there is no deficiency on the part of the opposite parties and thus concluding, dismissed the complaint without cost, which is under challenge before us.

6. Heard the learned counsel for the appellant, and perused the documents as well as the order of the lower Forum.

7. The complainant, admittedly, purchased an Air Ticket on 17.09.2003 from the first opposite party to travel in the flight operated by the second opposite party for his journey from Chennai – Dubai – Bahrain – Dubai – Chennai, paying a sum of Rs.29,970/-. Admittedly, the complainant travelled from Chennai – Dubai – Bahrain – Dubai, where he held up for want of Dubai visa, as averred in the complaint itself, for which, the opposite parties cannot be held responsible oridinally. From Dubai to Chennai, the date of travel confirmed by “OK” ticket, is 04.10.2003. Admittedly, the complainant approached the second opposite party at their office in Dubai only on 11.10.2003 to reserve his return journey by Flight EK540, departure on 13.10.2003, having the confirmed ticket only for the journey on 4.10.2003. Because of the fact, as submitted by the second opposite party, there was no vacancy on 13.10.2003, though the ticket is valid for three months, the second opposite party was unable to accommodate the complainant in the Flight EK540 on 13.10.2003. It is not the case of the complainant, that if the ticket is not available for the travel on 13.10.2003, he requested that he should be accommodated on any other date within the prescribed period. Therefore, for non-accommodating the complainant, in the Flight EK540 on 13.10.2003, because of want of availability of seat in that Flight, no deficiency could be attributed upon the second opposite party.

8. It is the submission of the learned counsel for the appellant, that the second opposite party having code sharing agreement with Air India, should have made arrangement to travel on 13.10.2003 by using the same ticket, thereby, rendering service, for which, alone they have issued the ticket. As requested by the second opposite party, it is the case of the complainant, that he approached the Air India, who said no seats available to travel, having the same ticket and if at all he has to purchase a fresh ticket, to travel in Air India. Accordingly, he had purchased a ticket and traveled from Dubai to India and the said amount is claimed as refund. In this context, we have to see, what is the duty of the second opposite party, who had issued ticket, “OK” in nature, having valid for three months, when they were unable to accommodate the passenger on the date required by the consumer/passenger.

9. It is the practice of air service to share the seat as part of a co-operative services, based upon the agreement between two carriers, one is called ‘Operating Carrier, another is called ‘Marketing Carriers. In this case, it seems, Air India comes within the meaning of ‘Operating Carriers and the second opposite party should be called as ‘Marketing Carriers or ‘Validity Carriers. Under the code sharing, a person having valid ticket of the airline, the party to the agreement should accommodate, provided the seat, seat sharing allotted to the Marketing Carrier, is available on the date of journey, if not, there cannot be any possibility. It is the specific case of the second opposite party, that the seats sold by the second opposite party, was exhausted on the date, by the time, the complainant went to Air India and therefore unable to accommodate him, since only those seats that fell in the quota of the Air India alone were available, and Air India should have insisted to purchase a fresh ticket since the complainant wanted to travel on 13.10.2003 itself, for which, they cannot be blamed. In the Written Submission, it is the case of the complainant that there were around 20 seats vacant on Board and the opposite parties deliberately failed to produce the Flight manifest along with their Version and this view, it should be held as deficiency in service. It is for the complainant to make out a case, that the quota seat allotted to the second opposite party or shared by the second opposite party were available on 13.09.2003 and despite they have refused to accommodate him on the same ticket if it is otherwise acceptable. It should also be proved by the complainant, that the ticket which he possessed to travel with the second opposite party has the transferable right, being a normal ticket purchased under normal circumstances. On the other hand, if ticket was purchased on concession rate, such as an excursion journey, made available by the airline, on the package program, then using the same ticket, we feel, unless it is otherwise established, the complainant cannot claim it, as of right to travel in Air India, on the basis of code sharing alone. As seen from the ticket purchased by the complainant, under the endorsement/restrictions, it is stated “NONREF/NONREROUT”. Therefore, in view of the restrictions available in the ticket itself, that too, which was issued on discount basis, having the same ticket, the complainant cannot claim that he should have been accommodated and the non-accommodation in Air India under the code sharing, should be termed as deficiency in service. As pointed out by us supra, it is not the case of the complainant, that he sought for other alternative date except 13.10.2003, which the second opposite party failed. It is also not the case of the complainant, that on 13.10.2003, in the flight operated by the second opposite party, there was vacancy of seat and despite they failed to accommodate him. This being the position, when there is no default on the part of the second opposite party and the fact being that the complainant himself had changed the travel plan, no question of deficiency in service would arise, warranting return of the fair or awarding compensation, which was rightly appreciated by the lower Forum while dismissing the complaint, in which, we are unable to find any error.

8. The learned counsel for the appellant invited our attention to the decisions rendered by National Commission in “M/s.Air France Vs. M/s.Unik Traders and Anr.” in F.A.518/1995; (2). “Chandi Prasad Bhatt Vs. British Airways” in O.P.168/1996; and (3). “Indian Airlines Ltd., Vs. N.N.Kini and Anr.” in R.P.432/1997, in support of his submission for the return of fair, as well as compensation. By going through the above rulings, it is seen, all the cases related to denied boarding compensation, as well as for the lost ticket, which is not the case before us. In this view, the above rulings also failed to advance the case of the complainant, to the success. Hence, the appeal is devoid of merits and same is liable to be dismissed.

9. In the result, the appeal is dismissed, confirming the order of the District Forum. There will be no order as to cost throughout.