Judgment:
Sham Sunder (Retd.), President:
1. This appeal is directed against the order dated 20.11.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent No.1) and directed Opposite Party No.1 (now appellant), as under:-
œAs the deficiency by Opposite Party No.1 is proved, we allow this complaint against Opposite Party No.1 and direct the Opposite Party No.1 to pay a consolidated compensation of Rs.50,000/- Complainant for the harassment caused to him and his wife. The Opposite Party No.1 is also directed to pay Rs.10,000/- towards costs of litigation.
However, the complaint against Opposite Party No.2 is dismissed, as no allegation of deficiency in service or harassment by them has either been alleged or proved.
This order be complied with by the Opposite Party No.1 within 45 days from the date of receipt of its certified copy, failing which, it shall be liable to pay interest @9% p.a. on the awarded amount from the date of this order, till its realization, besides costs of litigation.?
2. The facts, in brief, are that, the complainant purchased two tickets, from Opposite Party No.2, for himself and his wife, to travel on Aeroflot Airlines, from Delhi to Paris via Moscow, and return from Latvia to Delhi via Moscow. When the complainant enquired about the boarding passes, for the Aeroflot flight, at Indira Gandhi International Airport, New Delhi, he was told that the same (boarding passes) would be given to them, at Paris Airport. On reaching Moscow, the complainant and his wife were sent to the boarding gate, for the next connecting flight to Paris. However, when the travelers enquired from the counter, about their boarding passes, the staff there, without speaking anything, just gave the hand signal to wait for display of the flight name and number, on the screen. It was stated that the complainant and his wife, alongwith other passengers, kept waiting, yet, there was no such display, on the board nor any verbal announcement/call was made, in English. It was further stated that, when the Aeroflot staff was asked about the flight, the only answer given was no English. Eventually, the complainant and his wife missed the flight, on account of language problem. The complainant and his wife were, thus, left stranded at Moscow Airport, with their luggage. When they requested the employees of Opposite Party No.1, to accommodate them, on another flight, on the same air tickets, they refused to do so. It was further stated that, eventually, the complainant had to spend Rs.46,280/-, towards fresh tickets, to reach the destination.
3. When the flight reached Paris, the complainant and his wife were surprised to know that their luggage had not reached. Due to the harassment and tension, the complainant also spent a substantial amount of money, on making various international phone calls, for which a claim of Rs.29,590/- had been made. It was further stated that the complainant earlier filed the Consumer Complaint, bearing No.54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, in the District Forum, relating to the same subject matter, wherein, Opposite Party No.1, appeared, but did not file its written version, and, ultimately, the same (complaint) was dismissed in default of appearance of the complainant/Counsel.
4. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant , was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay Rs.25,590/-, i.e. the amount spent for making phone calls, from Moscow to India and Paris to Moscow, for his luggage; Rs.46,590/- spent by him, for fresh air tickets, referred to above; compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; cost of litigation, to the tune of Rs.61,000/-.
5. Opposite Party No.1, in its written version, pleaded that the District Forum, had no territorial Jurisdiction, to entertain and decide the complaint. It was stated that earlier, the Consumer Complaint, bearing No.54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, relating to the same subject matter, was filed before the District Forum, wherein, Opposite Party No.1, put in appearance, on 20.02.2012. However, the said complaint was dismissed, in default of appearance of the complainant, vide order dated 31.07.2012. It was further stated that instead of getting that order set aside, by filing an appeal, the complaint out of the decision whereof, the instant appeal has arisen, was filed, by the complainant, which was not maintainable, under the provisions of law. It was further stated that the tickets had been booked at Delhi, from M/s Rus Air, which was an authorized agent of Opposite Party No.1, at New Delhi. It was further stated that the complainant alongwith his wife had boarded the flight from Delhi to Moscow, for onward journey to Paris. The flight reached Moscow, on the scheduled time, and the connecting flight was also as per the schedule. It was further stated that there was a difference of two hours times, between the two flights. It was further stated that the display boards at Moscow Airport, were in two languages i.e. English and Russian. However, flight numbers and departure time were displayed, in English numerals, so that every person could comfortably read them. Announcements were also made in Russian and English language. It was further stated that apart from the complainant and his wife, five other passengers had boarded the same flight, who were able to take the onward flight, without any hassle or difficulty. It was further stated that, as per the normal practice, if a passenger did not avail of the ticket, for a particular flight, the unused ticket could be rescheduled or utilized to travel, on the other flight, subject to the charges and as per the Airlines Rules. It was further stated that, since no such request was made by the complainant, he was not entitled to the compensation claimed. It was denied that the complainant spent any amount, on making calls aforesaid. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.2, in its written version, admitted the booking of two tickets, for the complainant and his wife, from Delhi to Paris via Moscow and return from Latvia to Delhi via Moscow. It was stated that the booked tickets were handed over to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. The Parties led evidence, in support of their case.
8. On 15.11.2013, when the Consumer Complaint was fixed for arguments, none appeared, on behalf of the Opposite Party No.2. Therefore, the District Forum, proceeded to dispose of the complaint, on merits, under Rule 4 (8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Act (as amended upto date), even in the absence of Opposite Party No.2.
9. After hearing the complainant, in person, Counsel for Opposite Party No.1, perusal of record, alongwith the written arguments, and, on going through the evidence, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order.
10. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
11. Service of respondent No.2 (Opposite Party No.2, before the District Forum), was dispensed with, by the Commission, vide order dated 13.03.2014, for the purpose of this appeal, as it was arrayed as a Proforma respondent, and even the complaint was dismissed against it, by the District Forum.
12. We have heard the Counsel for the appellant, respondent No.1, alongwith his Counsel, and, have gone through the evidence, and record of the case, carefully.
13. The Counsel for the appellant/Opposite Party No.1, submitted that, in paragraph number 11 of the complaint, it was, in clear-cut terms, stated by the complainant, that earlier he filed the Consumer Complaint bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, relating to the same subject matter, which was dismissed in default of his appearance, on 31.07.2012. He further submitted that a specific objection was taken by Opposite Party No.1, in its written version, that earlier also Consumer Complaint, with regard to the same subject matter was filed by the complainant, which was dismissed, in default of his appearance, on 31.07.2012, yet, instead of getting that order set aside, by way of filing an appeal, the complainant ventured, to file the second complaint, which was not maintainable. He also placed reliance upon Uddalak Vs. Electricity Supply Co. Ltd. and Ors., 2013 (1) CPC 542, Ansal Housing and Construction Ltd. Vs. Indian Machinery Company, 2013 (3) CPR 207 (NC) and M/s Purusharath Builders Pvt. Ltd. Vs. M/s Uppal Housing Ltd. III (2012) CPJ 500 (NC), in support of his contention that second complaint, under the Act, was not maintainable, once the first complaint, relating to the same subject matter, was dismissed in default. He further submitted that, as such, the order of the District Forum, being illegal and invalid, is liable to be set aside.
14. On the other hand, respondent No.1/complainant, alongwith his Counsel, submitted that the proceedings before the District Forum, being summary, in nature, it was not required to go into technicalities. He further submitted that, no doubt, earlier the Consumer Complaint bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, relating to the same subject matter, was filed, by the complainant, which was dismissed, in default, vide order dated 31.07.2012. He also admitted that, no appeal against the said order was filed, but instead, the second complaint, out of the decision whereof, the instant appeal has arisen, was filed, which was maintainable. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
15. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the appellant, respondent No.1, in person, alongwith Counsel, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted and the case deserves to be remanded back, to the District Forum, for fresh decision, in accordance with law, for the reasons to be recorded hereinafter. Once, a specific plea was taken, by the complainant, in paragraph number 11 of the complaint, that he had earlier filed the Consumer Complaint bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, before the District Forum, relating to the same subject matter, which was dismissed, in default, and an objection was also taken by Opposite Party No.1, in the written version, that, in the face of the order dated 31.07.2012, vide which the first complaint relating to the same subject matter, was dismissed, in default, the second complaint, on the same subject matter, was not maintainable, it was required of the District Forum, to take into consideration this very important fact, and decide the same, in a proper manner. The District Forum did not touch such an objection, taken by Opposite Party No.1, in its written version, what to speak of discussing and deciding the same. In our considered opinion, decision of the legal question, as to whether, the second Consumer Complaint, relating to the same subject matter was maintainable, in the face of existence of the order 31.07.2012, dismissing the first Consumer Complaint, in default of appearance of the complainant, was essential. Adjudication of such a legal question may, ultimately, tilt the decision of the complaint. In these circumstances, remand of the complaint, for fresh decision, is necessitated.
16. For the reasons recorded above, the appeal is accepted. The order of the District Forum is set aside. The complaint is remanded back, to the District Forum, with a direction to decide the same, afresh, after recording its specific findings, on the point, as to whether, the second Consumer Complaint, was maintainable, in the face of existence of the order dated 31.07.2012, passed in the first Consumer Complaint, bearing No. 54 of 2012, titled as Anil Kumar Bhai Vs. Aeroflot Airlines and Another, under Section 12 of the Act, relating to the same subject matter, which was dismissed, in default of appearance of the complainant, after affording an opportunity to the parties, of being heard.
17. The parties are directed to appear, before District Forum (II) on 15.05.2014 at 10.30 A.M., for further proceedings.
18. The District Forum record, alongwith a certified copy of the order, be sent back to it, immediately, so as to reach there, well before the date and time fixed i.e. 15.05.2014 at 10.30 A.M.
19. Certified Copies of this order, be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.