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	Consumer deprived of any relief for non-inclusion of necessary parties. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI FIRST APPEAL NO. 432 OF 2012 (Against the Order dated 14/06/2012 in Complaint No. 6/2010 of the State Commission Goa) JET AIRWAYS (INDIA) LTD. Sahar Airport Road, Andheri (East), Mumbai-400099. Maharashtra ...........Appellant(s) Versus ETHELWAD O. MENDES 12, Anand Ashiyana, Off Airport Road, Chicalim, Goa ...........Respondent(s) BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER Dated : 12 Feb 2018 ORDER PER DR. B.C. GUPTA, MEMBER This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 14.06.2012, passed by the Goa State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. 06/2010, vide which, the said complaint filed by the present respondent was allowed and the appellant Jet Airways (India) Limited were directed to provide compensation to the complainant for the alleged deficiency in service made by them. 2. Briefly stated, the facts of the case are that the complainant Ethelwald O. Mendes, who is a practising Advocate, purchased air tickets from an agent M/s. Trade Wings Limited for himself, his wife, daughter and son (4 persons) to travel to Toronto, Canada from Mumbai via London-Heathrow by Jet Airways flight, having arrangements for code-sharing with the Air Canada etc. The journeys were to be performed between 10.05.2008 to 15.06.2008. It is stated that the complainant along with his family travelled by Jet Airways flight, 9W 0118 from Mumbai to London and then, on code-sharing flight AC 0859 of Air Canada from London to Toronto. The complainant had booked six pieces of checked-in baggage for the said travel, but on his arrival at Toronto at about 22:00 hrs, the complainant found that his baggage had not arrived. He lodged a complaint with Air Canada, whereupon he was informed that the baggage had not been loaded on the flight from London to Toronto and the said baggage would arrive by the next flight from London to Toronto and would be delivered to their holiday address at Scarborough, Toronto, the next day. It is alleged that the baggage was delivered to them after 3 days. The complainant and his family members had to undergo a lot of inconvenience as their personal effects, including essential items were all in the checked-in baggage. Moreover, they had to purchase clothes and toiletries etc. in emergency. The complainant and his family spent approximately 592.43 Canadian dollars on the purchase of clothes and another 43.04 Canadian dollars for snacks and refreshment. The Airline agreed to provide them only 100 US$ and that money was also to be given at the address in India. The complainant has alleged that during those three days, they were unable to go anywhere and enjoy their holidays, because they did not have any change of clothes etc. 3. The complainant further stated that on their return journey on 31.05.2008, the Air Canada flight was to depart at 0800 hrs. from Toronto for London. They were given the boarding passes without seat numbers at Toronto Airport. However, when they reached the embarking gate after going through the security check, they were told that the said flight of Air Canada was overbooked and hence, they could not be accommodated in the same. They were made to travel by Air Lufthansa flight to Heathrow – London via Frankfurt on the next date, i.e., on 01.06.2008 and that also in the evening at 18:00 hrs. They were given some vouchers for refreshment etc. but the same were inadequate. The complainant has stated that since they were late in arriving at London, their relative who was a Doctor in Nottingham, could not come to pick-them up and hence, they had to hire two taxis for going from London-Heathrow to Nottingham. The complainant alleged that when their flight reached Heathrow Airport at London from Frankfurt, they found that two pieces of their luggage had not arrived. The said luggage was delivered to them at Nottingham after a delay of 36 hours, causing great harassment/inconvenience to them. On return to India, the complainant sent a legal notice to the opposite party (OP) Jet Airways (India) Limited, but did not get any reply. The complainant filed the consumer complaint in question, alleging deficiency in service on the part of the OP Airlines, seeking directions to them to pay a compensation of ₹25 lakh along with interest @6% p.a. from the date of the complaint, which included ₹75,000/- as expenditure made on the purchase of clothes and taxi fare, ₹24 lakh as compensation for mental harassment and ₹25,000/- as legal expenses etc. 4. The complaint was resisted by the OP Jet Airways by filing a written statement before the State Commission, in which they stated that the incident relating to the late arrival of baggage and the re-scheduling of flights etc. had taken place with the Air Canada and not with the Jet Airways Limited. Although there was a code-sharing arrangement between Jet Airways and those Airlines, the said arrangement was on principal to principal basis and hence, Jet Airways had no liability in the matter, vis-à-vis, the complainant. It has been stated that the complainant should have impleaded Air Canada and Lufthansa Airlines as necessary parties in the case, since there was no role of Jet Airways in the whole affair. Since there was no negligence/deficiency in service on their part, the complaint against them should be ordered to be dismissed. 5. The OP also stated that the complaint was barred by limitation under section 24A of the Consumer Protection Act, 1986. Moreover, the complainant was debarred under section 30 (1) of Chapter III, Liability of the Carrier, II Schedule of Carriage by Air Act, 1972, to make any claim for damages after two years from the date of travel. 6. The State Commission, after considering the averments of the parties, passed the impugned order dated 14.06.2012 and stated as follows:- “In view of the above discussion, we allow the complaint partly. The complainant is held entitled to a sum of Rs. 635.47 Canadian dollars (to be paid in equivalent Indian rupees as on the date of payment), and Rs. 3000/-, by way of pecuniary losses and Rs. 2 lacs by way of non pecuniary losses, in terms of Section (14)(1)(d) of the C.P. Act, 1986. The complainant is also held entitled to a sum of Rs. 5000/- by way of cost of this complaint. The compensation herein awarded shall be paid by the O.P. in the hands of the complainant within a period of 4 weeks and in case, it is not paid the same shall carry interest at the rate of 7% until it is paid.” 7. Being aggrieved against the above order of the State Commission, the OP Jet Airways is before this Commission by way of the present first appeal. 8. During arguments, it was contended by the learned counsel for the appellant/OP Jet Airways that the consumer complaint filed by the respondent/complainant was not maintainable, being bad for non-joinder of necessary parties. It was true that Jet Airways had a code-sharing arrangement with Air Canada and Lufthansa Airlines, but the appellant were not responsible in any manner, if there was any deficiency in service on the part of the said Airlines. Under the code-sharing arrangement, their relationship with the said Airlines was on Principal-to-Principal basis. The complainant should, therefore, have impleaded the said Airlines as the necessary parties. In so far as the late delivery of luggage by 3 days during onward journey was concerned, the Air Canada was accountable for the same, if any deficiency in service was proved against them. For the return journey as well, if the complainants could not be accommodated in the flight due to overbooking etc., Air Canada was accountable for the same. Similarly, in the case of late arrival of some part of the luggage at Heathrow–London, the responsibility was that of Lufthansa Airlines. Since there was no deficiency in service in any manner on the part of the appellants/OP Jet Airways, the complaint against them should be ordered to be dismissed. 9. The respondent, who is an Advocate by profession argued his case in person and stated that they had made booking with the OP Jet Airways for the entire journey, for which a single PNR had been issued and the money had also been collected by Jet Airways. In so far as the code-sharing agreement between Jet Airways and other Airlines was concerned, it was an internal arrangement between the OP Jet Airways and those Airlines. The order passed by the State Commission was, therefore, in accordance with law and should be upheld. 10. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 11. The main issue that merits consideration in the matter is whether under the code-sharing arrangement, the OP Jet Airways, is to be held accountable for any deficiency in service on the part of the participating Airlines, which in this case are Air Canada and Lufthansa Airlines. In this regard, we had a look at a document called “Worldwide Slot Guidelines,” 8th Edition, English Version, effective from 1 January 2017, published by the International Air Transport Association (IATA). In clause 8.14, entitled “Shared Operations”, it has been stated in clause 8.14.5 as follows: “The operating airline is responsible for all usage and performance requirements.” 12. From the above provision, an impression is gathered that the operating Airlines, which in this case were Air Canada and Lufthansa Airlines, when the alleged deficiency in service took place, are responsible for the usage and performance requirement. In any case, for taking a just decision in the consumer complaint at hand, it is absolutely necessary that the version of the operating Airlines should be on record, so that a rational assessment about their deficiency in service, if any, could be made. The impugned order passed by the State Commission is simply based on the version given by the complainant, because in the written statement filed by the appellant Jet Airways, they have simply denied the allegations for want of knowledge. We, therefore, do feel that Air Canada and Lufthansa Airlines are necessary parties in the case and it is necessary to obtain their version, before taking any decision in the consumer complaint. The appeal in hand, is, therefore, allowed and the impugned order passed by the State Commission is set aside, being perverse in the eyes of law, as the same had been made without taking into account the version of the necessary parties. The consumer complaint in its present form is ordered to be dismissed. However, liberty is given to the complainant to file a fresh complaint, if he desires to do so, by impleading the other Airlines as necessary parties. There shall be no order as to costs. Top

Consumer deprived of any relief for non-inclusion of necessary parties.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

FIRST APPEAL NO. 432 OF 2012
(Against the Order dated 14/06/2012 in Complaint No. 6/2010 of the State Commission Goa)

JET AIRWAYS (INDIA) LTD.
Sahar Airport Road, Andheri (East),
Mumbai-400099. Maharashtra ...........Appellant(s)
Versus
ETHELWAD O. MENDES
12, Anand Ashiyana, Off Airport Road, Chicalim,
Goa     ...........Respondent(s)

BEFORE:
    HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER
    HON'BLE MR. DR. S.M. KANTIKAR,MEMBER

Dated : 12 Feb 2018

ORDER

PER DR. B.C. GUPTA, MEMBER

          This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 14.06.2012, passed by the Goa State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. 06/2010, vide which, the said complaint filed by the present respondent was allowed and the appellant Jet Airways (India) Limited were directed to provide compensation to the complainant for the alleged deficiency in service made by them.

2.       Briefly stated, the facts of the case are that the complainant Ethelwald O. Mendes, who is a practising Advocate, purchased air tickets from an agent M/s. Trade Wings Limited for himself, his wife, daughter and son (4 persons) to travel to Toronto, Canada from Mumbai via London-Heathrow by Jet Airways flight, having arrangements for code-sharing with the Air Canada etc. The journeys were to be performed between 10.05.2008 to 15.06.2008. It is stated that the complainant along with his family travelled by Jet Airways flight, 9W 0118 from Mumbai to London and then, on code-sharing flight AC 0859 of Air Canada from London to Toronto. The complainant had booked six pieces of checked-in baggage for the said travel, but on his arrival at Toronto at about 22:00 hrs, the complainant found that his baggage had not arrived. He lodged a complaint with Air Canada, whereupon he was informed that the baggage had not been loaded on the flight from London to Toronto and the said baggage would arrive by the next flight from London to Toronto and would be delivered to their holiday address at Scarborough, Toronto, the next day. It is alleged that the baggage was delivered to them after 3 days. The complainant and his family members had to undergo a lot of inconvenience as their personal effects, including essential items were all in the checked-in baggage. Moreover, they had to purchase clothes and toiletries etc. in emergency. The complainant and his family spent approximately 592.43 Canadian dollars on the purchase of clothes and another 43.04 Canadian dollars for snacks and refreshment. The Airline agreed to provide them only 100 US$ and that money was also to be given at the address in India. The complainant has alleged that during those three days, they were unable to go anywhere and enjoy their holidays, because they did not have any change of clothes etc.

3.       The complainant further stated that on their return journey on 31.05.2008, the Air Canada flight was to depart at 0800 hrs. from Toronto for London. They were given the boarding passes without seat numbers at Toronto Airport. However, when they reached the embarking gate after going through the security check, they were told that the said flight of Air Canada was overbooked and hence, they could not be accommodated in the same. They were made to travel by Air Lufthansa flight to Heathrow – London via Frankfurt on the next date, i.e., on 01.06.2008 and that also in the evening at 18:00 hrs. They were given some vouchers for refreshment etc. but the same were inadequate. The complainant has stated that since they were late in arriving at London, their relative who was a Doctor in Nottingham, could not come to pick-them up and hence, they had to hire two taxis for going from London-Heathrow to Nottingham. The complainant alleged that when their flight reached Heathrow Airport at London from Frankfurt, they found that two pieces of their luggage had not arrived. The said luggage was delivered to them at Nottingham after a delay of 36 hours, causing great harassment/inconvenience to them. On return to India, the complainant sent a legal notice to the opposite party (OP) Jet Airways (India) Limited, but did not get any reply. The complainant filed the consumer complaint in question, alleging deficiency in service on the part of the OP Airlines, seeking directions to them to pay a compensation of ₹25 lakh along with interest @6% p.a. from the date of the complaint, which included ₹75,000/- as expenditure made on the purchase of clothes and taxi fare, ₹24 lakh as compensation for mental harassment and ₹25,000/- as legal expenses etc.

4.       The complaint was resisted by the OP Jet Airways by filing a written statement before the State Commission, in which they stated that the incident relating to the late arrival of baggage and the re-scheduling of flights etc. had taken place with the Air Canada and not with the Jet Airways Limited. Although there was a code-sharing arrangement between Jet Airways and those Airlines, the said arrangement was on principal to principal basis and hence, Jet Airways had no liability in the matter, vis-à-vis, the complainant. It has been stated that the complainant should have impleaded Air Canada and Lufthansa Airlines as necessary parties in the case, since there was no role of Jet Airways in the whole affair. Since there was no negligence/deficiency in service on their part, the complaint against them should be ordered to be dismissed.

5.       The OP also stated that the complaint was barred by limitation under section 24A of the Consumer Protection Act, 1986. Moreover, the complainant was debarred under section 30 (1) of Chapter III, Liability of the Carrier, II Schedule of Carriage by Air Act, 1972, to make any claim for damages after two years from the date of travel.

6.       The State Commission, after considering the averments of the parties, passed the impugned order dated 14.06.2012 and stated as follows:-

“In view of the above discussion, we allow the complaint partly. The complainant is held entitled to a sum of Rs. 635.47 Canadian dollars (to be paid in equivalent Indian rupees as on the date of payment), and Rs. 3000/-, by way of pecuniary losses and Rs. 2 lacs by way of non pecuniary losses, in terms of Section (14)(1)(d) of the C.P. Act, 1986. The complainant is also held entitled to a sum of Rs. 5000/- by way of cost of this complaint. The compensation herein awarded shall be paid by the O.P. in the hands of the complainant within a period of 4 weeks and in case, it is not paid the same shall carry interest at the rate of 7% until it is paid.”

7.       Being aggrieved against the above order of the State Commission, the OP Jet Airways is before this Commission by way of the present first appeal.

8.       During arguments, it was contended by the learned counsel for the appellant/OP Jet Airways that the consumer complaint filed by the respondent/complainant was not maintainable, being bad for non-joinder of necessary parties. It was true that Jet Airways had a code-sharing arrangement with Air Canada and Lufthansa Airlines, but the appellant were not responsible in any manner, if there was any deficiency in service on the part of the said Airlines. Under the code-sharing arrangement, their relationship with the said Airlines was on Principal-to-Principal basis. The complainant should, therefore, have impleaded the said Airlines as the necessary parties. In so far as the late delivery of luggage by 3 days during onward journey was concerned, the Air Canada was accountable for the same, if any deficiency in service was proved against them. For the return journey as well, if the complainants could not be accommodated in the flight due to overbooking etc., Air Canada was accountable for the same. Similarly, in the case of late arrival of some part of the luggage at Heathrow–London, the responsibility was that of Lufthansa Airlines. Since there was no deficiency in service in any manner on the part of the appellants/OP Jet Airways, the complaint against them should be ordered to be dismissed.

9.       The respondent, who is an Advocate by profession argued his case in person and stated that they had made booking with the OP Jet Airways for the entire journey, for which a single PNR had been issued and the money had also been collected by Jet Airways. In so far as the code-sharing agreement between Jet Airways and other Airlines was concerned, it was an internal arrangement between the OP Jet Airways and those Airlines. The order passed by the State Commission was, therefore, in accordance with law and should be upheld.

10.     We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

11.     The main issue that merits consideration in the matter is whether under the code-sharing arrangement, the OP Jet Airways, is to be held accountable for any deficiency in service on the part of the participating Airlines, which in this case are Air Canada and Lufthansa Airlines. In this regard, we had a look at a document called “Worldwide Slot Guidelines,” 8th Edition, English Version, effective from 1 January 2017, published by the International Air Transport Association (IATA). In clause 8.14, entitled “Shared Operations”, it has been stated in clause 8.14.5 as follows:

“The operating airline is responsible for all usage and performance requirements.”

12.     From the above provision, an impression is gathered that the operating Airlines, which in this case were Air Canada and Lufthansa Airlines, when the alleged deficiency in service took place, are responsible for the usage and performance requirement. In any case, for taking a just decision in the consumer complaint at hand, it is absolutely necessary that the version of the operating Airlines should be on record, so that a rational assessment about their deficiency in service, if any, could be made. The impugned order passed by the State Commission is simply based on the version given by the complainant, because in the written statement filed by the appellant Jet Airways, they have simply denied the allegations for want of knowledge. We, therefore, do feel that Air Canada and Lufthansa Airlines are necessary parties in the case and it is necessary to obtain their version, before taking any decision in the consumer complaint. The appeal in hand, is, therefore, allowed and the impugned order passed by the State Commission is set aside, being perverse in the eyes of law, as the same had been made without taking into account the version of the necessary parties. The consumer complaint in its present form is ordered to be dismissed. However, liberty is given to the complainant to file a fresh complaint, if he desires to do so, by impleading the other Airlines as necessary parties. There shall be no order as to costs.