Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that on 05.04.2018 the Complainant booked tickets from Ludhiana to Delhi through Opposite Party for 11th June, 2018 and said ticket was confirmed by the Opposite Party on the same day and intimation was sent to the Complainant on his email by mentioning the domestic flight number alongwith the details of arrival at airport and departure after receiving Rs.2153/- as fair charges of Ludhiana to Delhi from the Complainant. Similarly, on the same day, the Complainant further booked their international flight tickets from New Delhi Indra Gandhi International Airport to Vancouver after confirmation of the domestic flight ticket by the Opposite Party from Ludhiana to Delhi and the same was also confirmed by said airport authority as per the arrival time of the domestic flight from Ludhiana to Delhi i.e. by giving time on 1.15 AM on 12th June, 2018 for Delhi to Vancouver (After reaching the domestic flight from Ludhiana to Delhi at about 11.00 PM on 11th June, 2018 and the confirmation was sent to the Complainant vide letter dated 13.06.2018. The Complainant further alleges that as per the confirmation of the air ticket by the Opposite Party and as per the planned made by the Complainant for enjoying his summer holidays, he visited Ludhiana airport on 11th June, 2018 at about 3 PM before the arrival time given by the Opposite Party in the confirmation ticket of flight No.AL91838 dated 11.06.2018. When the Complainant reached at airport of Opposite Party at Sahnewal Ludhiana as per the confirmation, he came to know after 15 minutes that his flight No.AL91838 was cancelled by the Opposite Party without giving any prior information to the Complainant. Even upto 3.15 PM on 11th June, 2018 the flight was not cancelled as per their display board at airport. Thereafter, the Complainant asked the responsible person/ airport station manager of Opposite Party that his further flights will also be cancelled due to their fault and cancellation of the flight No.AL91838 and if he will not reach on time at Delhi as his further flight has been booked from Delhi to Vancouver at about 1.15 AM on 12th June, 2018 and his reaching and reporting time at Delhi Airport at about 10.30 PM on 11th June, 2018, but they did not pay any heed to the request of the Complainant and simply told that he can not do anything and directed the Complainant to arrange the vehicle on his own to reach at Delhi. He also requested the station manager of the Opposite Party that due to their deficiency in service, he will suffer a huge loss, but he did not bother and thereafter, the Complainant returned back to their home after consultation with his family members as there was no possibility for the Complainant to reach on time at Delhi and thereafter, the Complainant returned due to deficiency in service on the part of the Opposite Party and his tour of summer vacation missed out and due to this, the Complainant was very much upset due to the cancellation of flight from Ludhiana to Delhi and further flights. Thereafter, number of times, the Complainant made requests to the Opposite Party regarding his loss due to deficiency in service on the part of the Opposite Party, but the Opposite Party kept mum and revealed nothing in this respect to the Complainant. As such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the Opposite Party to make the payment of $ 2000 (Approx in Indian Rs.1,10,000/-) regarding the traveling expenses incurred by the Complainant from Ludhiana to Delhi and from Delhi to Vancouver and so on, alongwith interest thereon.
b) An amount of Rs.2 lakh as compensation for mental tension, harassment and agony suffered by the Complainant.
c) An amount of Rs.22,000/- as litigation expenses.
d) or any other relief to which this District Consumer Commission, Moga may deem fit be also granted to the Complainant.
2. Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that the Complainant has not come to this District Consumer Commission, Moga with clean hands and has suppressed the material facts, as such, the complaint is liable to be dismissed. In fact, the schedule departure for the flight from Ludhiana to Delhi was 16.20 hours, and the flight was cancelled de to the development of last minute technical snag in the airport. The cancellation was duly informed in advance to all the booked passengers including the Complainant. Since no other airlines operate other than Alliance Air from Ludhiana as such considering the urgency for the same, the Complainant was offered the option of surface transport by the Station manager himself alongwith all the other passengers from Ludhiana which was the only alternative available but the Complainant refused to avail the service offered by the Opposite Party to travel by road. If the Complainant would have accepted the offer by the Opposite Party of road travel then he could reach Delhi Airport easily in time in order to board the flight of air Canada which was schedule at 1.15 hour on 12.06.2018. Even the price of the ticket of Rs.2153/- has been refunded to the Complainant and hence, there is no deficiency in service on the part of the Opposite Party. On merits, it is admitted that as per the record of the Opposite Party, the Complainant booked with ticket No. 0985356628354 on 08.05.2018 at 13.09 hours with Alliance Air Flight No. 91838 from Ludhiana to Delhi only for Rs.2153/-. The scheduled departure time of the flight was 16.20 hours (11.06.2018) and the estimated arrival time at Delhi was supposed to be at 17.35 hours. However, the cancellation was pre informed at 12.42 hours on 11.06.2018, but despite of that the Complainant reached Ludhiana airport at 15.00 hours. The Opposite Parties took almost the same and similar pleas on merits as taken up by them in the preliminary objections and it is prayed that the Complaint of the Complainant deserves dismissal with costs.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C8 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Party tendered into evidence the affidavitg of Sh.Aurindam Chattopadhya Airport Manager/ Station Manager Ex.OP1, and copies of documents Ex.OP2 and Ex.OP3 and closed the evidence on behalf of the Opposite Party.
5. We have heard the ld.counsel for the parties, and also gone through the documents placed on record.
6. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that on 05.04.2018 the Complainant booked tickets from Ludhiana to Delhi through Opposite Party for 11th June, 2018 and said ticket was confirmed by the Opposite Party on the same day and intimation was sent to the Complainant on his email by mentioning the domestic flight number alongwith the details of arrival at airport and departure after receiving Rs.2153/- as fair charges of Ludhiana to Delhi from the Complainant. Further contended that on the same day, the Complainant also booked their international flight tickets from New Delhi Indra Gandhi International Airport to Vancouver after confirmation of the domestic flight ticket by the Opposite Party from Ludhiana to Delhi and the same was also confirmed by said airport authority as per the arrival time of the domestic flight from Ludhiana to Delhi i.e. by giving time on 1.15 AM on 12th June, 2018 for Delhi to Vancouver (After reaching the domestic flight from Ludhiana to Delhi at about 11.00 PM on 11th June, 2018 and the confirmation was sent to the Complainant vide letter dated 13.06.2018. The Complainant further alleges that as per the confirmation of the air ticket by the Opposite Party and as per the planned made by the Complainant for enjoying his summer holidays, he visited Ludhiana airport on 11th June, 2018 at about 3 PM before the arrival time given by the Opposite Party in the confirmation ticket of flight No.AL91838 dated 11.06.2018. When the Complainant reached at airport of Opposite Party at Sahnewal Ludhiana as per the confirmation, he came to know after 15 minutes that his flight No.AL91838 was cancelled by the Opposite Party without giving any prior information to the Complainant. Even upto 3.15 PM on 11th June, 2018 the flight was not cancelled as per their display board at airport. Thereafter, the Complainant asked the responsible person/ airport station manager of Opposite Party that his further flights will also be cancelled due to their fault and cancellation of the flight No.AL91838 and if he will not reach on time at Delhi as his further flight has been booked from Delhi to Vancouver at about 1.15 AM on 12th June, 2018 and his reaching and reporting time at Delhi Airport at about 10.30 PM on 11th June, 2018, but they did not pay any heed to the request of the Complainant and simply told that he can not do anything and directed the Complainant to arrange the vehicle on his own to reach at Delhi. He also requested the station manager of the Opposite Party that due to their deficiency in service, he will suffer a huge loss, but he did not bother and thereafter, the Complainant returned back to their home after consultation with his family members as there was no possibility for the Complainant to reach on time at Delhi and thereafter, the Complainant returned due to deficiency in service on the part of the Opposite Party and his tour of summer vacation missed out and due to this, the Complainant was very much upset due to the cancellation of flight from Ludhiana to Delhi and further flights. Thereafter, number of times, the Complainant made request s to the Opposite Party regarding his loss due to deficiency in service on the part of the Opposite Party, but the Opposite Party kept mum and revealed nothing in this respect to the Complainant and hence the deficiency is writ large on the part of the Opposite Party.
7. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that in fact, the schedule departure for the flight from Ludhiana to Delhi was 16.20 hours, and the flight was cancelled de to the development of last minute technical snag in the airport. The cancellation was duly informed in advance to all the booked passengers including the Complainant. Since no other airlines operate other than Alliance Air from Ludhiana as such considering the urgency for the same, the Complainant was offered the option of surface transport by the Station manager himself alongwith all the other passengers from Ludhiana which was the only alternative available but the Complainant refused to avail the service offered by the Opposite Party to travel by road. If the Complainant would have accepted the offer by the Opposite Party of road travel then he could reach Delhi Airport easily in time in order to board the flight of air Canada which was schedule at 1.15 hours on 12.06.2018. Even the price of the ticket of Rs.2153/- has been refunded to the Complainant and hence, there is no deficiency in service on the part of the Opposite Party. It is however admitted that as per the record of the Opposite Party, the Complainant booked with ticket No. 0985356628354 on 08.05.2018 at 13.09 hours with Alliance Air Flight No. 91838 from Ludhiana to Delhi only for Rs.2153/-. The scheduled departure time of the flight was 16.20 hours (11.06.2018) and the estimated arrival time at Delhi was supposed to be at 17.35 hours. However, the cancellation was pre informed at 12.42 hours on 11.06.2018, but despite of that the Complainant reached Ludhiana airport at 15.00 hours and hence, the Complainant are not entitled to any claim.
8. It is not the denial of the parties that the Complainant booked with ticket No. 0985356628354 on 08.05.2018 at 13.09 hours with Alliance Air Flight No. 91838 from Ludhiana to Delhi only for Rs.2153/-. It is also not denied that on the same day, the Complainant further booked their international flight tickets from New Delhi Indra Gandhi International Airport to Vancouver after confirmation of the domestic flight ticket by the Opposite Party from Ludhiana to Delhi and the same was also confirmed by said airport authority as per the arrival time of the domestic flight from Ludhiana to Delhi i.e. by giving time on 1.15 AM on 12th June, 2018 for Delhi to Vancouver (After reaching the domestic flight from Ludhiana to Delhi at about 11.00 PM on 11th June, 2018 and the confirmation was sent to the Complainant vide letter dated 13.06.2018. The Complainant further alleges that as per the confirmation of the air ticket by the Opposite Party and as per the planned made by the Complainant for enjoying his summer holidays, he visited Ludhiana airport on 11th June, 2018 at about 3 PM before the arrival time given by the Opposite Party in the confirmation ticket of flight No.AL91838 dated 11.06.2018. The only grievance of the Complainant is that when he reached at airport of Opposite Party at Sahnewal Ludhiana as per the confirmation, he came to know after 15 minutes that his flight No.AL91838 was cancelled by the Opposite Party without giving any prior information to the Complainant. Even upto 3.15 PM on 11th June, 2018 the flight was not cancelled as per their display board at airport. Thereafter, the Complainant asked the responsible person/ airport station manager of Opposite Party that his further flights will also be cancelled due to their fault and cancellation of the flight No.AL91838 and if he will not reach on time at Delhi as his further flight has been booked from Delhi to Vancouver at about 1.15 AM on 12th June, 2018 and his reaching and reporting time at Delhi Airport at about 10.30 PM on 11th June, 2018, but they did not pay any heed to the request of the Complainant and simply told that he can not do anything and directed the Complainant to arrange the vehicle on his own to reach at Delhi. On the other hand, ld.counsel for the Opposite Party has contended that the cancellation was pre informed at 12.42 hours on 11.06.2018. As mentioned and contended above, even upto 3.15 PM on 11th June, 2018 the flight was not cancelled as per their display board at airport. On the other hand, Opposite Party has no where denied this factum by filing any cogent and convincing evidence, rather admitted that the Complainant reached Ludhiana airport at 15.00 hours, but it is unbelievable if the cancellation was pre informed at 12.42 hours on 11.06.2018 to the Complainant, what was the need for the Complainant to reach Ludhiana airport. It seems to be afterthought and concocted story of the Opposite Parties to escape from their liability regarding deficiency in service on their part. Rather due to the cancellation of said flight from Ludhiana to Delhi, the another connected flights of the Complainant from Delhi to Vancouver also stands cancelled because it was not possible for the Complainant to reach Delhi via road in this very short span of time.
9. From the facts and circumstances of the case, it is abundantly clear that the flight from Ludhiana to Delhi, which the complainant was supposed to board, got cancelled, although all other connected flights from Delhi to Vancouver airport were operational. The Opposite Party Airlines have not explained anywhere whether there were any genuine reasons for the cancellation of the flight. Merely taking the plea that there were technical and operational defects, does not cut much ice in view of the fact that the other flights were operating normally and hence, the general conditions at the airport or the weather conditions etc. were conducive to the operation of the flights. The OP Airlines have also not explained anywhere whether they took any concrete steps to take care of the passengers of their cancelled flight and to make arrangements for their travel by some alternative method. The deficiency in service on the part of the OP Airlines is, therefore, writ large on the face of it, and they are liable to compensate the complainant on this score. Referring to the contention of the OP Airlines about the concluded contract etc. between the parties, reference may be made to an order passed by the Hon’ble Supreme Court in LIC of India vs. The Consumer Education and Research Centre (1995) 5 SCC 482, where it has been laid down as follows:-
“47. It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service for ever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.”
10. It is made clear from the view taken in the case cited above that if a contract is found unreasonable or unfair or irrational, the same cannot be given affect to, in view of the fact that there is clear deficiency in service on the part of the OP Airlines, as they did not take any steps to provide an alternative to the passengers. Not only this, Hon’ble National Commission, in Revision Petition No. 1396 of 2016 decided on 7th February, 2017 also held so. The harassment caused to the complainant due to the cancellation of the flight and connected flights due to the deficiency in service on the part of the Opposite Party is quite evident from the facts and circumstances on record.
11. In so far as the issue of territorial jurisdiction is concerned, the Hon’ble U.T.State Commission, Chandigarh in appeal No. 347/2015 titled Spicejet Ltd. Vs Raju Aery decided on 29.12.2015 has aptly brought out in the impugned order that part of the cause of action arose at Chandigarh, because with booking of the travel tickets on the internet, the acceptance of the contract was received by the complainant through internet at his place of business/residence. We have no reasons to differ with the view taken by the Hon’ble U.T.State Commission, Chandigarh that the District Consumer Commission, Moga has the territorial jurisdiction to handle the complaint. As per the contention of the Complainant that the tickets were booked by him online here from Moga and hence, the Complainant is consumer under the Consumer Protection Act, 2019 (as amended upto date). In this regard, the relevant para of new Consumer Protection Act, 2019 is reproduced as under:-
(7) "consumer" means any person who—
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;
12. Now come to the quantum of compensation. With regard to compensation, the Complainant has contended that due to the cancellation of his flight from Ludhiana to Delhi and connected flights from Delhi to Vancouer and Las Vegas, he was compelled to return to home due to deficiency in service on the part of the Opposite Party and his tour of summer vacation missed out and due to this, the Complainant was very much upset due to the cancellation of flight from Ludhiana to Delhi and further flights. The Complainant further contended that such loss on account of mental tension and harassment and humiliation caused in the hands of the Opposite Party can not be compensated in the shape of money, but still he claims Rs.2 lakhs on this account. Moreover, it is not difficult to visualize the kind of mental harassment and torture, the complainant would have suffered during those hours. He has suffered a lot due to his no fault and as such the conduct of Opposite Party- Air India is highly condemnable. In fact all of them adhered to un-humanitarian, barbaric approach which was contrary to the Air Traffic protocol. From a conspectus of the entire circumstances, there is no escape from the conclusion that the Opposite Party has not only committed grave deficiency in service but the said act would also amount to adoption of unfair trade practice, for which the complainant is entitled to be compensated. It is well settled that the word 'Compensation' is of very vide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him/her for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon'ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors., - (2000) 7 SCC 668 are also apposite:
"While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge."
Not only as above, under similar circumstances, a similar plea with regard to making payment of paltry compensation referred to above was negated by the Hon'ble National Commission in the case Air France Vs. O.P. Srivistava and ors., First Appeal No.310 of 2008, decided on 22.03.2018, while holding as under:-
" In so far as the question of applicability of the Carriage by Air Act, 1972, as amended by the Carriage by Air (Amendment) Act, 2009, incorporating the relevant provisions in conformity with the 'Montreal Convention', adopted on 28.05.1999, for determination of statutory compensation payable under the said Act is concerned, it has to be considered in a larger perspective, keeping in view the rapid strides in the civil aviation industry, traceable from a hot-Air balloon flights in the 18th century to the present age of super-sonic jets. In the course of these developments, a number of international instruments governing the liability of Air Carriers for injury, death, loss or damage of baggage or cargo delays etc. have evolved. India has also subscribed and ratified the Warsaw convention 1929; the Hague Protocol 1955 and lastly the 'Montreal Convention' 1999, giving effect to the same by way of appropriate legislations, such as Indian Carriage by Air, 1934; the Carriage by Air Act, 1972 and Act 28 of 2009, including the III Schedule and other amended provisions to the existing Act. With regard to the liability to pay compensation it is the 'Montreal Convention' that has brought about drastic changes in the International Civil Aviation Sector. Although signatory to both the earlier conventions - i.e. Warsaw Convention and the Hague Protocol, India took nearly two decades to take a firm decision to subscribe to 'Montreal Convention' and bring forth necessary legislation to give effect to the same, by introducing the Carriage by Air (Amendment) Bill, 2007.
A similar approach has been recommended by the Hon'ble Supreme Court in its recent decision in National Insurance Co. Ltd. v. Hindustan Safety Glass Works Ltd. - (2017) 5 SCC 776, wherein, it has been observed as follows:
"...... in a dispute concerning a consumer, it is necessary for the Courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-a-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament."
13. In this view of the matter, this Commission is of the considered opinion that the Opposite Party is liable to compensate the complainant, for their willful misconduct leading to deficiency in providing service, negligence and unfair trade practice, thereby causing mental agony, humiliation and physical harassment to him. For the reasons recorded above, we are of the view that although the complainant suffered irreparable loss & injury, mental harassment & agony, humiliation, yet, we quantify the compensation in total to the tune of Rs.10,000/-.
14. It is not disputed that the Opposite Party has refunded the air ticket amounting to Rs.2,153/- from Ludhiana to Delhi, but however, the Complainant has claimed $2000/-, spent by him on the air ticket from Delhi to Vancouver and Lass Vegas, but perusal of the record shows that the Complainant has spent money on the tickets from Delhi to Vancouver and Las Vegas worth $1773.49 (Ex.C5 and Ex.C6) and in view of this, the Opposite Party is directed to refund the amount of $1773.49 (equivalent to Indian currency as on the date of payment) within 45 days from the date of receipt of copy of this order, failing which the Opposite Party would be liable to pay the awarded amount alongwith interest @ 9% per annum from the date of filing the present complaint i.e. 30.01.2019 till its realization. Opposite Party is also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (Rupees ten thousands only) as above, on account of harassment, mental tension and litigation expenses. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
15. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as the situation arising due to outbreak of the Novel Corona virus(COVID-19).
Announced in Open Commission.
