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2017 DIGILAW 953 (JK)

Ab. Karim Tantray v. Go Airlines

2017-10-23

D.K.KAPOOR, SUNIL HALI

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JUDGMENT : 1. Challenge in this appeal is to order dated 23.09.2015 titled Abdul Karim Tantray and Others vs. Go Airlines and Others, passed by District Forum Jammu whereby it allowed above titled consumer complaint titled passing an award in favour of the complainants and against opposite parties nos. 1 and 2 in terms of the following order: "Therefore in view of the foregoing reasons the complaint filed by the complainants for redressal of their grievance is allowed and opposite parties are jointly and severally directed to pay to the complaints an amount of Rs. 14,550 (Rs. 17,460-2910 = Rs. 14550). The complainants are also entitled to compensation of Rs. 5000/- to complainant No. 1 to 5 i.e. a sum of Rs. 25000/- and litigation charges of Rs. 5000/-. The opposite parties shall jointly and severally comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties free of cost. The complaint is accordingly disposed of and file after its due compilation be consigned to record." 2. Not satisfied with the above order of District Forum Jammu, complainants have assailed the above order before this Commission on the grounds, inter alia, that instead of Rs. 20,484/- paid by complainant as airfare, District Forum has ordered the refund of Rs. 17,460/- that litigation expanses awarded are far low than to be reasonable and that complaint of complainant No. 6 is arbitrarily dismissed. It is prayed to enhance the damages and to suitably compensate complainant No. 6. 3. Respondents did not appear to contest the appeal although duly served. They have also not challenged the above order. 4. Heard. 5. Sh. Sheikh Aleem learned advocate appearing for the appellants has reiterated the grounds pleaded in the memo of appeal and while addressing arguments led us through record on file. 6. Controversy between the parties is very short and can be summarised thus. Complainants had confirmed air ticket for travelling by Go Air from Jammu to Delhi on 07.03.2011. They reported at Airport on right time and were issued boarding passes for Flight No. G8-154. However boarding pass was declined for Ms. 6. Controversy between the parties is very short and can be summarised thus. Complainants had confirmed air ticket for travelling by Go Air from Jammu to Delhi on 07.03.2011. They reported at Airport on right time and were issued boarding passes for Flight No. G8-154. However boarding pass was declined for Ms. Naseema Bibi ostensibly on the ground that due to her serious sickness (cancer and severe jaundice) she was unable to withstand journey by air and that no certificate of fitness to travel by air was produced on her behalf which is sine qua non in such cases. This irked the rest of the complainants (fellow travelers) so they too allegedly declined travelling in the said flight. Concerned Airline authorities at the airport declared them as a "no show" case, as per rules. The appellants grieve that due to non-travelling by said flight, Ms. Naseema Bibi breathed her last on 14.03.2011 i.e. a week after. A legal notice on behalf of the complainants was served on the respondents through advocate but the same was not responded to. 7. Aggrieved appellants filed consumer complaint as abovesaid and after condoning a delay of about 49 days DF Jammu passed abovesaid award. 8. The controverted facts are that appellants had confirmed tickets for travelling by air in Go Air flight No. G8-154 from Jammu to Delhi on 07.03.2011 and they had reported on time at the travelling counter of the OPs at Jammu Airport. They however did not travel as OPs denied boarding pass to Mst. Naseema Bibi on the ground of her serious sickness for which no certificate of fitness to travel by air from the treating physical etc. was produced. All the ticket holders therefore preferred not to undertake journey. This is an admitted fact that Mst. Naseema Bibi passed away on 14.03.2011 i.e. within a week from the date of above incident. While dealing with the factual position, learned Dist. Forum Jammu has very succinctly appreciated the point of controversy in para 2 of the impugned order at page 6 as under: "Now coming to the merit of the case, it is to be noted that complainant is on admission that complainant No. 6 was only amongst complainants, who had fallen ill and was to be taken to Delhi for medical checkup. As a corollary, of denial by OP 1 and 2 to issue boarding passes to complainants, the health condition of complainant No. 6, deteriorated, who unfortunately died on 14.03.2011, i.e. after eight days of denial of boarding passes by OP 1 and 2. Therefore, as per admission of complainants, only complainant No. 6 was suffering from life threatening disease, which proved fatal to the life of complainant No. 6. As per Condition No. 10 of terms and conditions of contract of carriage between customer and Go Airline India Pvt. Ltd., the Go Air reserves the right to refuse the boarding to customer, inter alia, where Go Air believes that denial of boarding is necessary for the safety, protection and comfort of other customers. Further such passengers who are refused to board will be treated as "NO SHOW" and Gross fare paid will be forfeited." Now that it is an admitted fact that passenger Ms. Naseema Bibi was indisposed and no fitness to travel by air certificate etc. was produced on her behalf by any of the co- passengers/complainants/attendants, which is sine qua non, as adumbrated in the air ticket generated through on-line process by travel agent of the appellants. There is no gain denying the fact that all airlines have the right to refuse to carry passengers with health conditions that may worsen, or have serious consequences, during the flight and may insist for medical clearance from their medical department/adviser if there is an indication that a passenger could be suffering from any disease or physical or mental condition that may be considered a potential hazard to the safety of the aircraft; adversely affects the welfare and comfort of the other passengers and/or crew members; requires medical attention and/or special equipment during the flight; may be aggravated by the flight and MEDIF Form (Medical Information Form) is required to be furnished duly filled by customer so on and so forth. As a matter of abundant caution the airlines have, inter alia, incorporated such conditions on tickets/jackets which form part of contract between the concerned Airlines and the passengers and have to be adhered to by both the parties. 9. This takes us to the controversy as to whether all passengers, other than Mst. Naseem Bibi, were also denied boarding in the aircraft. 9. This takes us to the controversy as to whether all passengers, other than Mst. Naseem Bibi, were also denied boarding in the aircraft. In this regard the OPs have stated in W/V that they did issue boarding passes to other co-travelers/complainants but they voluntarily declined to travel without Mst. Naseema Bibi as such they were treated as "NO SHOWS" passengers as per norms and rules. The entire episode is a constituent of two components. One, whether all the complainants voluntarily opted not to travel in the said flight? Two, whether all the complainants were denied boarding passes despite the fact that they wanted to travel in the said flight? At the cost of repetition we may say that as all the complainants were taking Mst. Naseema Bibi for treatment to Delhi and she was declined boarding in the Go Air airplane, as abovesaid. Obviously therefore they cancelled their journey short of Mst. Naseema Bibi and even if OPs issued Boarding Passes in their favour, they were bound to abandon their journey. Accordingly it can be safely inferred that the complainants voluntarily chose not to travel by scheduled flight on 07.03.2013 as their purpose of taking complainant No. 6 for medical treatment to Delhi had been defeated as abovesaid. 10. Hon'ble Supreme Court has in Ravneet Singh Bagga vs. KLM Royal Dutch Airlines, 2000 (1) SCC 66 , held that "the deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Consumer Protection Act for the alleged acts of commission and omission attributable to the respondents which otherwise do not amount to deficiency in service. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Consumer Protection Act for the alleged acts of commission and omission attributable to the respondents which otherwise do not amount to deficiency in service. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot he said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service." (Emphasis is supplied) 11. Be that as it may, OPs have not assailed District Forum order whereby Forum below has held that OP 1 and 2 were deficient in service in refusing boarding passes to rest of the passengers i.e. complainant No. 1 to 5 and further observed that once complainants paid fare and their air tickets were confirmed, in that event OP 1 and 2, cannot deny the boarding on the grounds, which do not find support from the terms and conditions of carriage provided by OP 1 and 2. This being the case of deficiency in service on the part of OP 1 and 2, therefore same demand interference, we do not propose to set aside findings of facts recorded by Forum below. We however modify the impugned order to the extent that respondent 4 cannot be held liable for any deficiency in service, being a ticketing agency. We uphold order dated 23.09.2015 passed by District Forum Jammu as indicated herein and dismiss the appeal. Ordered accordingly. No order as to costs. A copy of this order be given to the parties free of costs/court fee. 12. We uphold order dated 23.09.2015 passed by District Forum Jammu as indicated herein and dismiss the appeal. Ordered accordingly. No order as to costs. A copy of this order be given to the parties free of costs/court fee. 12. Forum file be sent back without any delay and this Commission file consigned to records.