DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

Dated this the 17^th day of July 2024.
                                                                                                Filed on: 09.01.2023

PRESENT:
Shri. D.B. Binu,                                                      President
Shri. V. Ramachandran,                                         Member
Smt. Sreevidhia. T.N,                                            Member

C C 107/2023

Complainant:
Peter M. Skariah, Mudavanathil House, Pazhathotam P.O., Ernakulam Dt, Kerala, 683565

(By Adv.Dr.K.Radhakrishnan Nair, Adv.Sibin C.Varghese, Justice Bhagawathi Centre for Legal Aid & Allied Services, Radheyam, 69/3075, S.R.M.Road, Cochin-18)

Opposite Parties:

1. M/S. Air Asia India Ltd, Kempe Gowda International Airport, Ground Floor Alpha-3, Building, Devanahalli, Bengaluru, Karnataka, India
2. Air Asia, Cochin International Airport, Nedumbassery, Ernakulam, Kerala, Pin - 683111
3. Infinity Travel Care, Kottayam, Paranani Building, Central Junction, Erattupettah, Kottayam.

                                          FINAL ORDER
D.B. Binu, President

1) A brief statement of facts of this complaint is as stated below:

The complainant filed a complaint under Section 35 of the Consumer Protection Act, 2019. The complainant had purchased an AIR ASIA INDIA flight ticket to travel from Gauhati to Kochi on 29th January 2022. The complainant was on an onward journey from Kochi to Gauhati on 23rd January 2022 as part of a group tour with twenty-four travellers. This journey was completed without any issues or inconveniences. However, the return trip ended in a fiasco due to the deficiency in service by AIR ASIA INDIA, resulting from the abrupt cancellation of the scheduled flight, causing irreparable injury and inconvenience.

On 26th January 2022, the complainant received an unpleasant message from AIR ASIA INDIA stating that their flight was cancelled due to operational issues. On 28th January 2022, another SMS was received by the complainant for web check-in. The third opposite party was directed to check the same and issue the boarding pass. However, the third opposite party confirmed the flight's cancellation. Due to this unexpected and unreasonable flight cancellation, the complainant suffered irreparable damage and underwent ineffable stress, strain, and mental agony.

The opposite parties neither took any positive steps to arrange alternative travel facilities nor refunded the money in time, nor did they convey any gestures to pacify the complainants. The opposite parties showed no realization of the complainant's difficulties, amounting to serious deficiency in service. It also appeared that the opposite parties exploited the complainant and made unjust enrichment. Despite several attempts to contact the opposite parties for adequate compensation, the complainant had to incur a heavy financial loss to return to their hometown. In the absence of any response from the opposite parties, the complainant sent a lawyer's notice on 13/04/2022 and 29/04/2022, which were disregarded, except by the third opposite party.

Upon meticulous scrutiny and investigation, it was revealed that undesirable service is prevalent, with methods like overbooking and canceling tickets bought at economy prices for resale at exorbitant rates. This unfair trade practice was evident from the events and records, amounting to unfair trade practices and deficiency in service. It was noted that on the same flight with a different number, six persons could travel as scheduled. Other persons from Trichur also suffered and are seeking justice.

Being aggrieved, the complainant had to spend Rs. 10,000 for a return flight, which is double the original fare, besides mental agony. The actions of the opposite parties are nothing but a deficiency in service and unfair trade practices. The complainant seeks to be indemnified for financial losses, mental agony, and other hardships. According to the doctrine of restitution in integrum, the complainant is entitled to just compensation as nearly as possible. The complainants pray for an award of Rs. 5,000/- as excess fare spent with 12% interest and Rs. 25,000/- with 12% interest as compensation for mental agony. The complaint should be allowed, awarding the relief prayed for, with a cost of Rs.5,000/-.

1. Notice:

The Commission issued notices to the opposite parties, and their receipt was acknowledged. However, the opposite parties failed to file their responses within the statutory period. Consequently, the opposite parties have been set ex parte.

2. Evidence:

The complainant submitted a proof affidavit along with seven documents. The documents in the complaint are marked as Exhibits A1 to A7.

• Exbt. A1 - Cancelled Flight details
• Exbt. A2 - Return Flight Details
• Exbt. A3 - Lawyer's notice dated 13/04/2022
• Exbt. A4 - Lawyer's notice dated 29/04/2022
• Exbt. A5 - Reply dated 18/04/2022
• Exbt. A6 - Postal Receipts with A D Cards
• Exbt. A7 - Passenger Charter.

3. Points for Consideration:

 The main points to be analyzed in this case are as follows: i) Whether the complaint is maintainable or not? ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant? iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party? iv) Costs of the proceedings if any?

4. Argument Note by Dr. K. Radhakrishnan Nair, Learned Counsel for the Complainant:

The complainant had purchased an AIR ASIA INDIA flight ticket for their return trip from Gauhati to Kochi on 29th January 2022 under reference no. PNR EV7INFE Ticket - 1044 IF21111020060650-5cl do 3 by Flight (15-673). Tickets were booked on 2nd November 2021 for a group tour with a total of 24 travellers. On 26th January 2022, the complainant received an unpleasant message from the first opposite party stating that their flight was cancelled due to operational issues without specifying the exact cause. On 28th January 2022, another SMS was received for web check-in, where the third opposite party was directed to recheck and confirm the same and issue the boarding pass. The third opposite party confirmed the flight cancellation, leaving the complainant unable to face the challenge posed by the opposite parties.

The opposite parties did not take any steps to arrange alternative travel facilities or refund the money in time. They showed no realization of the difficulties suffered by the complainants due to the unexpected and unreasonable flight cancellation. The complainant suffered mental agony, financial loss, and injury. Despite several attempts to contact the opposite parties for redressal and compensation, the complainant received no positive response. Lawyer's notices sent on 13th April 2022 and 29th April 2022 were disregarded, except by the third opposite party. As a last resort, this complaint was filed, seeking compensation for the excess fare spent and mental agony caused by the cancellation of the flight.

The case was admitted, and notices were issued to the opposite parties. The third opposite party appeared in person, while the first and second opposite parties did not cooperate with the proceedings. The second opposite party was declared ex-parte. The first opposite party's written statement was not taken on file due to being time-barred. The case was then posted for the complainant's evidence. The complainant personally appeared before the Commission and filed a proof affidavit along with documents such as Ext. A1 to A7.

In appreciating the evidence, reference is made to the Passenger Charter issued by the Ministry of Aviation, which provides the rights of passengers. Airlines must inform passengers of flight cancellations at least two weeks before the scheduled departure and arrange an alternate flight or refund, besides giving adequate compensation. The opposite party airlines neither refunded the ticket fare in time nor gave any compensation to the complainants, leaving them unattended and without alternate arrangements.

Exbt. A1 (cancelled flight tickets) shows clear evidence that the return trip of the complainants ended in a fiasco due to the opposite parties' unethical and planned business practices, including overbooking and denial of boarding. The SMS on 26th January 2022 was unpleasant and legally unsustainable, as it generalized the cause of cancellation as "operational issues" without specifying the exact reason, contrary to a Supreme Court ruling against such generalizations in a case against the Railways. The SMS on 28th January 2022 directed the complainants and the third opposite party to do a web check-in, which confirmed the flight's cancellation.

Exbt. A2 shows that the complainants incurred Rs. 10,074 in lieu of the original fare of Rs. 5,972, suffering a heavy financial loss and mental agony. Exbt. A3 and A4 are the lawyer's notices, disclosing the complainants' demands against the opposite parties. The callous attitude of the first and second opposite parties is evident from their disregard of the complainants' grievances. Exbt. A5 is the only reply received from the third opposite party.

Upon examining all documents, it is evident that the opposite parties' actions constitute serious deficiency in service and unfair trade practices. The complainant has proven their case, while the first and second opposite parties failed to provide a valid defense or evidence. The deficiency in service and unfair trade practice are proven beyond doubt.

6.The issues mentioned above are considered together and are answered as follows:

C. Appreciation of Evidence

The Passenger Charter issued by the Ministry of Aviation mandates airlines to inform passengers of flight cancellations at least two weeks before departure and arrange an alternate flight or refund. The opposite parties neither refunded the ticket fare in time nor offered any compensation, leaving the complainant in distress.

• Exhibit A1 proves the return trip was disrupted due to overbooking and unethical business practices.
• The SMS messages on January 26 and 28, 2022, were legally unsustainable, and the first opposite party failed to provide a specific reason for the cancellation.
• Exhibit A2 shows the complainant incurred Rs. 10,074 instead of Rs. 5,972 for the return flight, suffering financial loss and mental agony.
• Exhibits A3 and A4 disclose the complainants' demands, which were ignored by the first and second opposite parties.
• Exhibit A5 is the only reply received, from the third opposite party.
• The evidence shows serious deficiency in service and unfair trade practices by the opposite parties.

          We have carefully heard the submission made at length by the learned Counsel representing the complainant and have also considered the entire evidence on record.

The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite parties. Therefore, the complainant's claims were considered credible and supported by the evidence. The opposite party's conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations levelled against them. The case of the complainant stands unchallenged by the opposite parties. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).

7. Analysis and Legal Reasoning:
   1. Maintainability of the Complaint: In the present case, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant provided the copies of the canceled flight ticket details and return flight details (Exhibits A1 and A2), thereby establishing themselves as consumer as defined under the Act. Hence, the complaint is maintainable.
   2. Deficiency in Service and Unfair Trade Practice

The complainant's flight was cancelled due to unspecified operational issues, and a subsequent message on January 28 confirmed the cancellation without providing alternatives or a timely refund, causing significant distress and financial loss. Multiple attempts to contact the airline and legal notices sent were largely ignored, except by the third opposite party. Consequently, the complainant initiated legal action to seek redress for the deficiencies in service and the engagement in unfair trade practices by the opposite parties.

C. Liability of the Opposite Parties

The complainants have successfully proved their case, and the opposite parties failed to provide a valid defense. Previous decisions by the Hon’ble National Commission and State Commissions, such as Express Travels vs. MR Shah (2002) 3 CPJ 39 and Indian Airlines vs. Femina Zai (2007) 111 CPJ 284 NC, support the complainants' claims. In these cases, the cancellation of a flight without due notice to passengers was held to be a deficiency in service. Additionally, in Vazhapadi Ramamurthy MP vs. NEPC Airlines (1995(2) CPR 140), it was held that the opposite parties cannot claim a technical snag as a reason for flight cancellation without proper evidence.

D. Deficiency in Service and Unfair Trade Practice:

The complainant has successfully proved their case, and the opposite parties failed to provide a valid defense. Previous decisions by the National Commission and State Commissions, such as Express Travels vs. MR Shah (2002) 3 CPJ 39 and Indian Airlines vs. Femina Zai (2007) 111 CPJ 284 NC, support the complainants' claims. In these cases, the cancellation of a flight without due notice to passengers was held to be a deficiency in service. Additionally, in Vazhapadi Ramamurthy MP vs. NEPC Airlines (1995(2) CPR 140), it was held that the opposite parties cannot claim a technical snag as a reason for flight cancellation without proper evidence.

The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite parties. Therefore, the complainant's claims were considered credible and supported by the evidence. The opposite party's conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations levelled against them. The case of the complainant stands unchallenged by the opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).

E .Costs of Proceedings:

The complainants have endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite parties. The opposite parties are liable to compensate the complainant for the costs of the proceedings.

With a deep sense of empathy, the Commission observes that the complainant, ordinary citizen with rightful expectations of service, were subjected to severe distress due to the negligence and unfair trade practices of the opposite parties. The abrupt cancellation of their flight, without adequate notice or assistance, led to significant financial loss, mental agony, and physical hardship. Such experiences not only disrupt travel plans but also deeply affect the mental well-being of the affected individuals, undermining their trust in service providers. The complainants' repeated but ignored pleas for redress highlight a grave deficiency in service and a lack of consideration for customer welfare. The Commission, therefore, emphasizes the need for accountability and fair treatment, underscoring the fundamental rights of consumers to be treated with respect and dignity.

 We determine that issue numbers (I) to (IV) are resolved in the complainant’s favour due to the significant service deficiency and the unfair trade practices on the part of the opposite parties. Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite parties.

In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.

Hence, the prayer is partly allowed as follows:

1. The opposite parties shall pay compensation of ₹5,000 (Rupees Five Thousand Only) to the complainant towards the excess fare suffered due to negligence, unfair trade practice, and deficiency in service on the part of the opposite parties.
2. The opposite parties shall pay ₹20,000 (Rupees Twenty Thousand Only) as compensation for monetary loss, mental agony, and hardship suffered by the complainant. This amount is awarded for the deficiency in service and unfair trade practices, as well as for the mental agony and physical hardships endured by the complainant.
3. The opposite parties shall also pay the complainant ₹10,000 (Rupees Ten Thousand Only) towards the cost of the proceedings.

The opposite parties are jointly and severally liable for the fulfilment of the above orders, which must be executed within 45 days from the date of receiving this order. Failure to comply with the payment orders under points I and II will result in interest at the rate of 9% per annum from the date of filing the complaint (09.01.2023) until the date of full payment realization.

Pronounced in the Open Commission on this the 17^th day of July 2024

Sd/-

                                                                             D.B.Binu, President

Sd/-

V. Ramachandran, Member

Sd/-

Sreevidhia.T.N, Member

Forwarded by Order

Assistant Registrar

APPENDIX

Complainant’s evidence

• Exhibit A1 proves the return trip was disrupted due to overbooking and unethical business practices.
• The SMS messages on January 26 and 28, 2022, were legally unsustainable, and the first opposite party failed to provide a specific reason for the cancellation.
• Exhibit A2 shows the complainants incurred Rs. 10,074 instead of Rs. 5,972 for the return flight, suffering financial loss and mental agony.
• Exhibits A3 and A4 disclose the complainants' demands, which were ignored by the first and second opposite parties.
• Exhibit A5 is the only reply received, from the third opposite party.
• The evidence shows serious deficiency in service and unfair trade practices by the opposite parties.

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