K.S. Chaudhari, Presiding Member
This appeal has been filed by the appellant against the order dated 09.03.2009 passed by the learned Delhi State Consumer Disputes Redressal Commission, (in short, the State Commission) in Complaint No. C-127 of 2001 “ Raj Kumar Sharma Vs. Emirates Airlines by which, while allowing complaint, Rs. 5,00,000/- were allowed as compensation in favour of the complainant.
2. Brief facts of the case are that complainant/respondent was working under a contract of employment with Central Hospital, Benwalid, Libya and was getting salary of Rs.65,000/- approx. In November, 1989, on account of his mothers ailment he came to India on leave and got confirmed return tickets to Djerba from Air Malta, who had flight agreement with OP/appellant and reservation tickets were as following :-
1. From Delhi to Dubai dated 6.5.1999
2. Dubai to Malta dated 7.5.1999
3. Malta to Djerba dated 7.5.1999
3. On 6.5.1999, complainant reached Indira Gandhi International Airport where he was informed by the concerned authorities that reservations from Dubai to Malta was not in the list and flight from Malta to Djerba was also cancelled, but reservation from Delhi to Dubai was still existing. Complainant contacted OP and OP asked him to get fresh confirmed tickets on payment of Rs.35,000/-, but complainant refused. Thereafter, complainant got new reservation for 13.5.1999, which was further extended to 17.5.1999 by the OP. Libya Visa Authority in India refused to extend emergency visa. Complainant served legal notice on the OP and OP replied that as complainant had not supplied telephone number for contact, they could not intimate to complainant. Alleging deficiency on the part of OP, complainant filed complaint before State Commission and claimed Rs.18,70,000/- as compensation in different heads. OP resisted complaint and submitted that OP was not a service provider qua the complainant. Tickets were obtained by the complainant from Air Malta from Tripoli/Libya on 3.12.1998 and OP was only a participating carrier from Dubai to India. It was further submitted that complainant contacted OP on 24.2.1999 and ticket from Delhi to Dubai for 6.5.1999 was confirmed, but tickets from Dubai to Malta and Malta to Djerba were not confirmed. It was further submitted that tickets from Dubai to Malta and Malta to Djerba were confirmed by Air Malta on the same day. Later on, on 19.4.1999, OP received intimation from Air Malta about change of schedule of their flights from Dubai to Malta and flight was re-arranged from 7.5.1999 to 6.5.1999. As OP was not having any contact number of complainant, complainant could not be informed. It was further submitted that OP was not in a position to influence Libyan Visa Authority for extension of visa and prayed for dismissal of complaint. Learned State Commission after hearing both the parties, allowed complaint as aforesaid against which, this appeal has been filed.
4. Heard learned Counsel for the parties and perused record.
5. Learned Counsel for the appellant submitted that no ticket was issued by OP and further submitted that from Dubai to Malta, complainant was to go by Air Malta and OP was not to provide any service to the complainant from Dubai to Malta and onwards and complainant had not impleaded Air Malta as a party; even then, leaned State Commission committed error in allowing complaint; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by leaned State Commission is in accordance with law; hence, appeal be dismissed.
6. Perusal of record reveals that complainant purchased tickets from Air Malta and he was to fly by Air Malta from Dubai to Malta and Malta to Djerba and he was to fly from Delhi to Dubai by OP Airlines. His ticket was confirmed from Delhi to Dubai and complainant has nowhere pleaded that he was not allowed to board by OP on 6.5.1999 from Delhi to Dubai. In such circumstances, no deficiency can be attributed on the part of OP as regards flight from Delhi to Dubai.
7. As far flight from Dubai to Malta and Malta to Djerba is concerned, admittedly, tickets were not issued by OP and OP was not under any obligation to arrange flight of OP from Dubai to Malta and Malta to Djerba merely because of arrangement of Air Malta with OP from Delhi to Dubai and in such circumstances, no deficiency can be attributed on the part of OP for cancellation or rescheduling flight from Dubai to Malta and Malta to Djerba.
8. Learned State Commission observed in its order that there was code sharing agreement between Air Malta and OP so, both were equally liable for tickets issued and schedule of airlines to be kept intact. No document has been placed on record to substantiate that there was any code sharing agreement between Air Malta and OP and in such circumstances, observations of learned State Commission are contrary to record. Learned Counsel for the respondent has also placed reliance on judgment of this Commission in III (2003) CPJ 40 (NC) “ Air India Vs. Dr. Kishore and Ors. in which liability was fastened on Air India as Air India issued confirmed ticket and had code arrangement with other airlines by which, complainant was to travel. This citation is not applicable to the facts and circumstances of the case, as neither tickets were issued by OP from Dubai to Malta and Malta to Djerba nor any code sharing agreement has been placed on record.
9. Learned Counsel for the respondent also placed reliance on judgment of this Commission in II (2008) CPJ 66 (NC) “ Lufthansa German Airlines Vs. SurinderKaur Bajaj in which it was held that Lufthansa should not have abrogated the responsibility of the faults and deficiencies committed by their partner Airline of several years. Learned Counsel for the respondent submitted that as Air Malta and OP were partners, it was obligatory on the part of OP to arrange travelling of complainant from Dubai to Malta and onwards as Air Malta had re-scheduled its flights. We do not find any substance in this argument because no evidence has been placed on record to substantiate that Air Malta and OP were partners and OP was under an obligation to board complainant in another flight without charges as Air Malta who had issued confirmed tickets re-scheduled its flights.
10. Learned Counsel for the appellant further submitted that complainant has not impleaded Air Malta as party in the complaint who had issued confirmed tickets from Dubai to Malta and onwards and in absence of Air Malta as party, complaint was not maintainable. We find substance in this submissions because Air Malta issued confirmed tickets for return journey from Dubai and onwards and deficiency has been attributed only on the basis of re-scheduling flights by Air Malta from Dubai onwards. In such circumstances, Air Malta was a necessary party and as complainant has not impleaded Air Malta as a party in the complaint, complaint was not maintainable against OP.
11. Learned State Commission also observed in paragraphs 21 and 22 as under:
œ21. As regards the fact that the entire contact number was provided to the carrier which has been given in the passport of Libya as well as of India, it is found that the despite knowing change of schedule for the flight on 06.05.1999 it did not inform the complainant and it was only at the time he had reported at the airport he was informed that he has not confirmed seat from Dubai to Libya and therefore was not allowed to board the flight.
22. OP has failed to produce any material as to on what account the flight was cancelled and even if the flight schedule had been changed it was the responsibility of the OP to place the complainant in another flight from Dubai to Malta and Malta to Djerba as the flight schedule from Malta was very much within the knowledge of the OP and as such it was the responsibly of the OP to arrange accommodation for the complainant so that he can reach his place due in time?.
12. We do not find any evidence on record that copy of passport was given by complainant to OP and copy of passport had his contact number in case of re-scheduling of flights. Admittedly, passport does not contain any contact number and nowhere complainant has pleaded that he supplied his contact number to OP. In such circumstances, OP could not have intimated to the complainant regarding re-scheduling of flights and at the same time, OP was not under an obligation to intimate to the complainant regarding re-schedulement of flights by Air Malta.
13. Learned State Commission has committed error in imputing deficiency on the part of OP and allowing complaint and granting compensation. In such circumstances, appeal is to be allowed.
14. Consequently, appeal filed by the appellant is allowed and impugned order dated 9.3.2009 passed by learned State Commission in Complaint No. 127/2001 Shri Raj Kumar Sharma Vs. Emirate Airlines is set aside and complaint stands dismissed with no order as to costs.