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Himachal Pradesh High Court · body

2018 DIGILAW 235 (HP)

Narender Kumar v. British Airways (india)

2018-02-28

P.S.RANA, VIJAY PAL KHACHI

body2018
ORDER P.S. Rana (R) President - Present consumer complaint is filed under section 17 of Consumer Protection Act 1986 pleaded therein that complainant booked British Airways flight for travelling to Zurich from New Delhi via London through opposite party No.2 on dated 07.08.2014 which was scheduled for departure on 14.08.2014 from Indira Gandhi Airport New Delhi at 10.25 AM and was scheduled to arrive at Heathrow Airport London at 2.50 PM. It is pleaded that complainant boarded flight BA 256 which took off in time from New Delhi but landed at London an hour late due to which complainant missed his connecting flight to Zurich. It is pleaded that other passengers were provided with arranged accommodation by British Airways but complainant and another Asian lady were not provided with any arranged accommodation. It is further pleaded that complainant remained in Airport London for entire night and thereafter next day took connecting flight to Zurich. It is pleaded that complainant was permitted to board afternoon BA flight to Zurich from Heathrow London. It is further pleaded that flight from Heathrow London to Zurich took off finally at 3.00 PM and complainant reached Zurich at 5.50 PM on 15.08.2014. It is pleaded that complainant suffered physical and mental agony due to deficiency in service of opposite party No.1. It is further pleaded that complainant could not attend business meeting at Zurich and conduct of opposite party No.1 has caused monetary losses to complainant. It is pleaded that thereafter complainant booked return BA flight from Toronto to New Delhi via London which was scheduled to depart on 29.08.2014. It is pleaded that connecting BA flight from Toronto to London was delayed by an hour. It is further pleaded that luggage of the complainant was also not properly handled and suitcase of the complainant was completely torned and expensive wine bottle was broken into pieces. It is pleaded that opposite party No.1 offered to pay Rs. 15000/-(Fifteen thousand) as compensatory amount relating to damage of suitcase. It is further pleaded that complainant did not accept the damage to the tune of Rs. 15000/-(Fifteen thousand). It is pleaded that opposite party No.1 informed the complainant that offer of payment of Rs. 15000/-(Fifteen thousand) as compensation could not be reviewed. It is further pleaded that preferred food i.e. Vegetarian food was not served. It is pleaded that complainant served legal notice to opposite parties. 15000/-(Fifteen thousand). It is pleaded that opposite party No.1 informed the complainant that offer of payment of Rs. 15000/-(Fifteen thousand) as compensation could not be reviewed. It is further pleaded that preferred food i.e. Vegetarian food was not served. It is pleaded that complainant served legal notice to opposite parties. Complainant sought relief of payment of Rs. 29.00 lac (Twenty nine lac). In addition complainant also sought litigation cost. Prayer for acceptance of consumer complaint sought. 2. Per contra version filed on behalf of opposite party No. 1 pleaded therein that State Commission has no territorial jurisdiction to entertain and decide the present consumer complaint. It is pleaded that Air ticket was issued to complainant at Gurgaon and was not issued at Shimla. It is further pleaded that opposite party has no establishment at Shimla. It is further pleaded that even complainant flew from Delhi to Zurich via London and thereafter travelled from London to Montreal and returned to Delhi from Toronto via London. It is pleaded that complainant filed complaint on 23.08.2016 which was time barred under Consumer Protection Act 1986. It is further pleaded that opposite party No.1 offered to pay Rs. 15000/-(Fifteen thousand) as damage to complainant. It is pleaded that carriage of wine bottle is not permitted in air flight. It is further pleaded that complainant has claimed exaggerated compensation. It is pleaded that complainant has purchased the ticket from British Airways in consideration amount of Rs. 279777/-(Two lac seventy nine thousand seven hundred seventy seven). It is pleaded that British Airways flight took off from New Delhi to London on time and flight was late by 28 (Twenty eight) minutes in arriving at London due to bad weather at London and due to fact that landing clearance by local air traffic controller was not given. It is pleaded that delay of 28 (Twenty eight) minutes was not on account of flight of British Airways but due to circumstances beyond the control of opposite party No.1. It is further pleaded that as a consequences of 28 (Twenty eight) minutes delay the flight landed at London at 3.18 PM and further connecting BA flight to Zurich which was booked by complainant was missed. It is further pleaded that thereafter boarding pass of another BA flight was given in order to minimize the delay of complainant in reaching Zurich. It is further pleaded that thereafter boarding pass of another BA flight was given in order to minimize the delay of complainant in reaching Zurich. It is pleaded that due to bad weather condition at London another BA flight was unable to take off and was cancelled. It is pleaded that regular periodic announcements were made relating to cancellation of flights. It is further pleaded that information was also flashed on the T.V screens at various locations within the airport premises. It is pleaded that complainant could not be accommodated in other BA flight. It is further pleaded that on account of bad weather several flights were disrupted. It is pleaded that it was not possible for opposite party No.1 to arrange hotel facility to all the passengers who stayed at London in view of cancelled and delayed flights. It is further pleaded that passengers were informed that airline would reimburse the expenses of stay in the hotel on furnishing bills. It is pleaded that cancellation of flight in question was not on account of deficiency in service but on account of bad weather condition which was beyond the control of opposite party No.1. It is pleaded that complainant has claimed highly exaggerated amount. Prayer for dismissal of consumer complaint sought. 3. None appeared on behalf of opposite party No.2 despite service. Opposite party No.2 proceeded ex-parte by State Commission on dated 19.10.2016. We have heard learned advocates appearing on behalf of complainant & opposite party No.1 and we have also perused entire record carefully. 4. Following points arise for determination in present complaint. 1. Whether H.P. State Consumer Commission has territorial jurisdiction to dispose of present consumer complaint on merits? 2. Final order. Findings upon point No.1 with reasons: 5. Complainant filed affidavit Ex.C1 in evidence. There is recital in affidavit that defence took by the opposite parties is without any basis. There is further recital in affidavit that complaint filed by complainant be allowed as prayed. There is recital in affidavit that opposite parties have committed deficiency in service. State Commission perused annexures C1 to C10 filed by complainant carefully. 6. Opposite party No.1 filed affidavit Ex.OP-I in evidence of Shri Sanjay Soni working as Regional Finance Manager with M/s. British Airways. There is recital in affidavit that opposite parties have committed deficiency in service. State Commission perused annexures C1 to C10 filed by complainant carefully. 6. Opposite party No.1 filed affidavit Ex.OP-I in evidence of Shri Sanjay Soni working as Regional Finance Manager with M/s. British Airways. There is recital in affidavit that tickets for travel was booked by complainant through opposite party No.2 as follows :- S. No. Date Flight No. Sector i. 14.08.2014 BA256 Delhi-London ii. 14.08.2014 BA718 London-Zurich iii. 24.08.2014 BA95 London- Montreal iv. 29.08.2014 BA98 Toronto-London v. 30.08.2014 BA143 London-New Delhi 7. There is recital in affidavit that tickets were issued by opposite party No.2 on dated 07.08.2014 at Gurgaon Haryana. There is further recital in affidavit that consideration amount of tickets was INR 279777/-. There is recital in affidavit that State Commission has no territorial jurisdiction to entertain and dispose of consumer complaint filed by complainant. There is further recital in affidavit that there is no evidence on record in order to prove that tickets were purchased by complainant from territorial jurisdiction of H.P. by way of online booking. There is recital in affidavit that tickets were issued at Gurgaon and was not issued from territorial jurisdiction of H.P. There is further recital in affidavit that British Airways has no domicile at Shimla nor has any principal place of business at Shimla. There is recital in affidavit that complainant has mixed different cause of action in the present complaint. There is recital in affidavit that complainant has mixed cause of action dated 14.08.2014 and cause of action dated 29.08.2014. There is further recital in affidavit that opposite party offered to pay Rs. 15000/-(Fifteen thousand) as damage to baggage. There is recital in affidavit that complainant has claimed exaggerated amount and flight was delayed due to bad weather. There is recital in affidavit that opposite party No.1 did not commit any deficiency in service. State Commission also perused annexures R1 to R8 filed by opposite party No.1 carefully. 8. Submission of learned Advocate appearing on behalf of complainant that part of cause of action to file consumer complaint arisen within territorial jurisdiction of H.P. State Consumer Commission is decided accordingly. State Commission has carefully perused electronic ticket receipt annexure-C-1 and annexure C-2 placed on record. 8. Submission of learned Advocate appearing on behalf of complainant that part of cause of action to file consumer complaint arisen within territorial jurisdiction of H.P. State Consumer Commission is decided accordingly. State Commission has carefully perused electronic ticket receipt annexure-C-1 and annexure C-2 placed on record. It is proved on record that confirmed electronic ticket receipts issued through opposite party No.2 to complainant at Gurgaon for travelling in British Airways. It is also proved on record that connected air flight ticket was issued to complainant by opposite party No.1 through opposite party No.2 from London to Zurich by British Airways. It is also proved on record that confirmed status ticket was also issued in British Airways from Toronto to London in favour of complainant. It is also proved on record that confirm return ticket was also issued from London to Delhi by British Airways. Total INR amount to the tune of Rs. 279777/-(Two lac seventy nine thousand seven hundred seventy seven) was obtained by opposite party No.1 through opposite party No.2 from complainant for travelling in British Airways. 9. It is proved on record that on 14.08.2014 flight did not reach at London in time and complainant could not take further flight to Zurich in time and complainant could not attend the scheduled business meeting at Zurich. 10. As per section 17(2) of Consumer Protection Act 1986 a complaint could be instituted before State Commission within local limits of whose jurisdiction the opposite party or each of opposite party resides or where opposite party carries on business or has a branch office or personally work for gain or where cause of action wholly or in part arises. section 17(2) of Consumer Protection Act 1986 is quoted in toto:- (2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,- (a) The opposite party or each of the opposite parties where there are more than one at the time of the institution of the complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain. or (b) Any of the opposite parties where there are more than one at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain as the case may be acquiesce in such institution. or (c) The cause of action wholly or in part arises. 11. In the present consumer complaint complainant purchased the electronic ticket from Gurgaon Haryana. Complainant did not purchase the electronic ticket within the territorial jurisdiction of Himachal Pradesh. Even opposite parties did not reside within territorial jurisdiction of H.P. State Consumer Commission. Even complainant did not travel in British Airways within territorial jurisdiction of H.P. 12. Submission of learned Advocate appearing on behalf of complainant that consideration amount to the tune of INR 279777/-(Two lac seventy nine thousand seven hundred seventy seven) was paid by complainant to opposite parties within the territorial jurisdiction of Himachal Pradesh by way of online booking from H.P. is decided accordingly. Complainant did not place on record any print out of electronic receipt issued by opposite parties on record in order to prove that consideration amount was paid to opposite parties within the territorial jurisdiction of Himachal Pradesh. No receipt relating to payment of consideration amount from Himachal Pradesh issued by opposite parties placed on record. No affidavit of any person who has received the consideration amount on behalf of British Airways within territorial jurisdiction of Himachal Pradesh placed on record. Plea of complainant that consideration amount of tickets was paid to opposite parties within the territorial jurisdiction of Himachal Pradesh by way of online booking is defeated on the concept of ipse dixit (An assertion made without proof). 13. Submission of learned Advocate appearing on behalf of opposite party No.1 that State Commission has no territorial jurisdiction to decide the present consumer complaint on merits is decided accordingly. It is held that no cause of action accrued to complainant within territorial jurisdiction of H.P to file consumer complaint under Consumer Protection Act 1986. See 2014 (4) CPJ 625 NC British Airways PLC vs. Gems Art Factory & Ors . It is held that no cause of action accrued to complainant within territorial jurisdiction of H.P to file consumer complaint under Consumer Protection Act 1986. See 2014 (4) CPJ 625 NC British Airways PLC vs. Gems Art Factory & Ors . See 2010 (1) SCC (Apex Court of India) 135 Sonic Surgical vs. National Insurance Company. In view of the above stated facts and case cited supra point No.1 is decided accordingly. Point No.2:- Final Order 14. In view of findings upon point No.1 above it is held that H.P. State Consumer Commission has no territorial jurisdiction to decide the consumer complaint on merits. However complainant would be at liberty to file consumer complaint before competent authority of law. Annexure-C-I and annexure-C2 will form part and parcel of order. File of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Complaint is disposed of. Pending application(s) if any also disposed of.