K.S. PURI vs AIR DECCAN

THE complainants were the ticket holders of Air Deccan flight No. DN-541 from Delhi to Pathankot. THE tickets were confirmed for travelling on 23.12.2006. THE complainants alleged that they were at the Delhi Airport as per the time mentioned on the tickets but the flight was cancelled and they were given a certificate enabling them to get full refund from the point of purchase. On this certificate, it was mentioned that the flight stands cancelled. No reasons have been mentioned on that certificate as to why the flight was cancelled.

STATE Commission, Delhi in the judgment M/s. Alliance Air Limited v. Daljit Singh Nirman, Appeal No. 492/2000 decided on 28.11.2006 observed as under: "24. Late running and cancellation of flights, off-loading of consumers with confirmed status of ticket, traffic congestion in the Air and on the ground is becoming order of the day. Since there are large number of consumers who suffer enormously in terms of time, mental agony, harassment and physical sufferings and discomfort by missing professional or business meetings and connecting flights, we by this general order give the following directions: (i) That every Airlines operating from Delhi shall pay minimum compensation of Rs. 10,000 to every domestic passenger in case there is delay in departure and arrival of two hours or more than the schedule time and Rs. 20,000 in case of International flights of Airlines of this country, if delay is more than four hours or so. Condition is that such a delay should not be the result of weather or act of nature, poor visibility, tyre burst or bird hits and the like as every other cause of delay is manmade and is within the control of human being.

We have passed this general order in terms of Section 12, read with Section 14 (hb) of the Consumer Protection Act, 1986, where numerous and potential consumers have similar interests and sufferings and are not conveniently identifiable. In case no such payment is made and consumer approaches the Consumer Forum, the Airlines shall be visited with heavy punitive damages.

Copies of this order be sent to the Chairman/Managing Director of all the National/International Airlines of the Country viz. Air Sahara, Indian Airlines, Jet Airways. Kingfisher Airlines, Air Deccan, etc.

Copy be sent to all the National dailies for the information of services providers and benefit of the consumers."

The appellants herein lodged claims with the Air Deccan dated 30.12.2006 and 13.1.2007. The claims were duly received by Air Deccan in Bangalore but the relief prayed for in the claims was not granted. The appellants filed an execution application before the District Forum at Hoshiarpur praying therein that the order of State Commission, Delhi, to which reference has been made above, be executed. This was on the ground that the damages for cancellation of the flights, etc. had been quantified by the State Commission, Delhi and the appellants were only wanting the execution thereof on the ground that their flight was cancelled from Delhi to Pathankot.

The District Forum vide order dated 28.2.2007 observed as under: "2. Now, it is clear that the present application-execution has been preferred without proving on record the cancellation of alleged Flight No. DN-541 on 23.12.2006, thus, they are not entitled to draw any benefit from the order dated 28.11.2006 passed by the Hon''ble State Commission, Delhi, referred to above. That mere placing on record the cancelled passenger ticket is neither sufficient to take cognizance in the matter nor to issue the process to the respondent. In the circumstances, it is held that the application is not maintainable, with the result, the same is dismissed. It be registered. File be consigned to the record room."

THEREAFTER, an order dated 28.3.2007 came to be passed by the District Forum, which for the sake of convenience is reproduced in its entirety: "28.3.2007: Present: Mr. K.R. Kaila, authorised agent of the applicants. The present application-execution has been moved by Sarv Shri K.S. Puri and Sukhbir Singh, through their authorised representative, Mr. Kuldip Raj Kaila. Admittedly, the applicants intend to take benefit of the order passed by the Hon''ble State Commission, Delhi dated 28.11.2006 in Appeal No. 492/2000, titled, M/s. Alliance Air Limited, etc. v. Shri Daljit Singh Nirman. The Hon''ble State Commission, Delhi vide para Nos. 24 and 25 of the order dated 28.11.2006 has held that every Airlines operating from Delhi shall pay minimum compensation of Rs. 10,000 to every domestic passenger in case there is delay in departure and arrival. The Hon''ble State Commission had passed this general order dated 28.11.2006 in terms of Section 12, read with Section 14 (hb) of the Consumer Protection Act, 1986, where numerous and potential consumers have similar interests and sufferings and are not conveniently identifiable. In case no such payment is made and consumer approaches the Consumer Forum, the Airlines shall be visited with heavy punitive damages.

It is settled proposition of law that firstly one is required to plead, then to prove and, therefore, if any, favourable order follows or is passed by the Court/Forum having the jurisdiction in the matter, then and then, the question of filing the execution application arises. In this case, the applicants without following the said procedure had straightaway filed/moved the present execution application. It is made clear that mere placing on record, the cancelled passenger ticket and the certificate of Travel agent is neither sufficient to take cognizance in the matter nor to issue the process to the respondent.

Now, it is clear that the present application-execution has been preferred without proving on record the cancellation of alleged Flight No. DN-541 on 23.12.2006. In the circumstances, it is held that the application is not maintainable, with the result, the same is dismissed. It be registered. File be consigned to the record room."

It is against the aforesaid order of the District Forum dated 28.3.2007 that the present appeal has been filed by the complainants.

THE question that arises for consideration is (i) Whether the judgment of the Delhi State Commission in M/s. Alliance Air Limited''s case (supra) which is allegedly in rem and not in personam can be got executed beyond the territorial jurisdiction of the Delhi State Commission? (ii) Even if the answer to the aforesaid question is to be given in the affirmative that the directions which are allegedly given in rem can be enforced beyond the territorial jurisdiction of the Delhi State Commission, is it not incumbent on a consumer to prove his case that there is a deficiency in service? So far as the first question is concerned, we are of the view that the directions which are given by a State Commission can only run within the territorial jurisdiction of that State Commission. The directions given may be to an authority which may be national, for example, if a particular State Commission gives directions to Union of India, for example, to postal authorities those will be carried out and binding only in the territorial jurisdiction of that State Commission against the Union of India/Postal Authorities, etc. Otherwise, if State Commission directions are to be taken to be applicable beyond the territorial jurisdiction of that State Commission it will amount to impinging on the territorial jurisdiction of another State Commission. Supposing this State Commission was to take a totally different view than the one taken by the Delhi State Commission in the same matter is this State Commission bound by the findings or the directions given by another State Commission? Answer is ''no''. Such a judgment may be persuasive judgment but not a binding judgment. We are only bound by a judgment given by the National Commission, Punjab and Haryana High Court or by the Supreme Court. As observed above, if the directions or findings given by one State Commission are taken to be universal in the sense that they are applicable throughout India it will amount to encroaching upon the territorial jurisdiction of another State Commission. Any consumer who is subjected to the jurisdiction of the Delhi State Commission may be able to get the benefit of the aforesaid judgment. Section 14 (hb) of the Consumer Protection Act, 1986 is in the following terms: "4(hb): to pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently: Provided that the minimum amount of sum so payable shall not be less than five per cent of the value of such defective goods sold or service provided, as the case may be, to such consumers: Provided further that the amount so obtained shall be credited in favour of such person and utilised in such manner as may be prescribed."

A reading of the aforesaid section would make it clear that the directions can be given under the aforesaid sub-section by a District Forum or for that matter even a State Commission qua large number of consumers who were not identifiable conveniently. However, such directions would only be confined within the territorial jurisdiction of any such District Forum or the State Commission as the case may be.

COMING to the second point, in all cases individually a finding has to be recorded whether there is any deficiency in service on the part of the opposite party(s) in a complaint. In a given case, the opposite party(s) can justify their action or inaction depending on the circumstances of the case which may lead a District Forum or a State Commission to come to a conclusion that there is no deficiency in service. Ipso facto if the flight is cancelled it cannot lead to a conclusion that there is a deficiency in service. As observed above, it will depend on facts and circumstances of each case. For example, in the present case, if it was to be given out by Air Deccan that there was a technical snag with the aircraft and despite taking all due efforts the flight could not take off and the same had to be cancelled and immediately no alternate arrangements could be made then under such circumstances the Court may come to the conclusion that there is no deficiency in service.

ON facts, it may be mentioned that the complainant-appellants had got the refund of the money spent by them on the tickets. For the foregoing reasons, we do not find any infirmity in the order of the District Forum. Finding no merit in this appeal the same is hereby dismissed in limine. Appeal dismissed.