Haryana

StateCommission

A/103/2019

MAKE MY TRIP - Complainant(s)

Versus

CHAMAN LAL SARDANA - Opp.Party(s)

ASHWANI TALWAR

23 Aug 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                Date of Institution:21.01.2019

                                                         Date of Final Hearing: 11.07.2024

                                                     Date of Pronouncement: 23.08.2024

 

First Appeal No.103 of 2019

 

Make My Trip Pvt. Ltd. DLF Building No. 5, Tower-C, DLF Cyber City, DLF Phase, Sector 25, Gurugram, Haryana-122002, through its Authorized Signatory, Ekank Mehra, Assistant Manager (Legal), Make My Trip (India) Private Limited, Tower-A, 19^th floor, Building No. 5, DLF Cyber City, Gurugram-122002.                  .....Appellant

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Chaman Lal Sardana Son of Shri Kundan Lal Sardana resident of House No. 309, Sector 13 Extn. Urban Estate Karnal.

CORAM:             Mr. Naresh Katyal, Judicial Member

                             Mr. S.C. Kaushik, Member

 

Argued by:-       Mr. Satpal Dhamija, counsel for the appellant.

Ms. Savita Bhardwaj, proxy counsel for Mr. Narender Pal Bhardwaj, counsel for respondent.

 

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

          As per office report; there is delay of 75 days in filing of this appeal.  A separate application for seeking its condonation has been filed by the appellant, which is accompanied by affidavit.  Notice of this application was also issued to respondent/complainant vide order dated 13.02.2019, while issuing nature in appeal.  This application remained uncontested as no reply thereto has been filed.  Therefore, delay in filing of this appeal stands condoned, as cause projected in application and accompanying affidavit, constitute ‘sufficient cause’.

2.      Challenge in this appeal has been invited to the order dated 03.10.2018 passed in Complaint Case No. 325 of 2017 titled as ‘Chaman Lal Sardana Vs. Make My Trip Pvt. Ltd’. by Learned District Consumer Dispute Redressal Forum-Karnal (District Consumer Commission-Karnal).  Complainant’s complaint has been allowed.  OP/appellant has been directed to pay Rs. 50,000/- to complainant/respondent for causing mental agony and physical harassment along with Rs. 5500/- towards litigation expenses.  

 3.     Factual matrix: Complainant booked three (3) return Air Tickets through OP/appellant (for himself, son and wife) for Toronto (Canada) on 05.07.2017 for Rs. 2,48,564/-, vide booking confirmation No. NN7301619662888 of Canada through ‘Air Canada Flight’ departing from New Delhi to Toronto Via Frankfurt.  Confirmation tickets received by complainant depicted Flight No. AC9353-Air Canada, departing New Delhi on 11.07.2017 at 2:45 A.M.

4.      On 10.07.2017; complainant tried to web check-in on Air Canada site through PNR No. NHAA6V and found that there was no such reservation with Air Canada on date and time (11.07.2017 at 2:45 A.M.).  Instead, he was booked with ‘Lufthansa Airlines Flight’ No. LH0761, departing at same time on same day.  No information regarding above change was ever provided to him.  OP/appellant has/had misrepresented/concealed this information from complainant.  OP/appellant was ethically and professionally obliged towards complainant to let him know of any change in their scheduled flight.  If complainant would have any knowledge of fact that departing flight will be of ‘Lufthansa Airlines’ he would have never booked it at very first place.  He was, somehow, motivated to book the above stated ticket on the pretext of misrepresentation of flight.  He was left with no position to change/cancel tickets, since he came to know of it, 24 hours prior to date of departure.  Complainant and his wife are ‘wheel chair passengers’.  If he would not have discovered by himself about change in flight, then he would have even missed the flight since, it was not with ‘Air Canada Airlines’.

5.      On returning to India on 31.07.2017; he tried to contact OP/appellant and raised grievance.  OP/appellant’s customer care offered just to wave of connivance charges of Rs. 1497/- which further added his (complainant’s) harassment. Opposite party’s/appellant’s customer care were totally unaware about change in flight and when contacted, they still emphasized that complainant’s departing flight was with Air Canada, rather than ‘Lufthansa Airlines’. Notice dated 02.08.2017 was served upon OP/appellant and same was delivered on 04.08.2017; OP/appellant’s reply was received on 15.09.2017. He (complainant) has/had suffered mental agony, harassment and humiliation.  Deficiency in service of opposite party/appellant has been alleged on above pleaded facts.  On 11.07.2017, when he, his wife and son reached at Delhi Airport to board flight of Air Canada, he was shocked, when OP/appellant, instead of issuing boarding pass of Air Canada, issued boarding pass of Lufthansa Airlines, instead of their favorite airline-Air Canada.  By pleading cause of action, on above facts, complainant has been filed for claiming compensation of Rs. 4 Lacs.   

6.      Upon notice, OP/appellant raised contest.  In its written version; it is pleaded that: complaint is frivolous and has presented a concocted and false story.  Complainant booked Online air tickets through OP’s website and OP/appellant provided him (complainant) confirmed Air Tickets.  Complainant also completed his journey and now at belated stage is leveling false allegations against OP/appellant even in absence of any deficiency in service on its part.  It is denied that there is any misrepresentation on the part of OP/appellant.  It is asserted that OP/appellant is a travel service provider.  It facilitates booking service for its customers and its role is limited to the extent of providing smooth, convenient and efficient Online travel booking inter-face to its customers.  In no manner, it is responsible for any unexpected modifications in Flight schedule of the customers due to cancellation/delay etc.

7.      Complainant booked Air Tickets in question through online portal of OP/appellant and before confirmation; he entered into an agreement between user and OP/appellant and as per its column “Responsibilities of user vis.-a-vis. agreement” complainant has no locus standi to file this complaint as he has himself chosen to avail services of OP/appellant at his own risk.  It is pleaded that: as per record; complainant’s departing flight was with Air Canada rather than ‘Lufthansa Air Lines Flight’.

8.      It is clearly set out in User Agreement of OP/appellant and agreed to by complainant that: under exceptional circumstances, where service provider like Airline, Hotel, Transport Provider are unable to honour the confirmed booking due to various reason like: climate conditions, labour unrest, insolvency, technical issues, route and flight cancellations etc. then under such circumstances, OP/appellant if notified in advance, shall make best endeavor to provide similar alternatives.  However, OP/appellant being an agent for facilitating booking services shall not be responsible for any such circumstances and customers have to contact that service provider directly for any further resolution and refund. 

9.      Parties led evidence.  On analyzing the same; the learned District Consumer Commission-Karnal vide order dated 03.10.2018 has allowed the complaint, in a manner as stated herein before.  Felling dissatisfied and aggrieved; OP/appellant has filed this appeal, despite being unsuccessful, but still unfazed.

10.    We have heard learned counsel for parties at length.  It is urged by learned counsel for appellant/OP that impugned order dated 03.10.2018 is unsustainable on legal and factual front.  OP/appellant provided confirmed Air Tickets to complainant for journey from New Delhi to Toronto (Canada) through ‘Air Canada Flight’ departing on 11.07.2017 at 2:45 A.M. New Delhi.  Last Minute change of Airline from Air Canada to Lufthansa Airlines was not within the control of OP/appellant.  It is urged that complainant and his family (son and wife) did boarded Lufthansa Airline’s flight which also departed at same time (2:45 A.M.) as same day (11.07.2017).  Complainant and his family (son and wife) completed their journey from New Delhi to Toronto, through Lufthansa Airline’s Flight.  It is urged that there has been “Inter Airline Arrangement” between Air Canada and Lufthansa Airlines’.  It is urged that reason as to how this change had occurred regarding Airline was not known even OP/appellant, but in any case, as per contention, it will not smack out any deficiency in service of OP/appellant, much less any unfair trade practice.  It is urged that Air Canada and Lufthansa Airline’s were necessary parties to be impleaded as such, in complaint on given facts and hence complaint so filed is bad for non-joinder of necessary parties.  Lastly, it is urged that “User Agreement” entered into between complainant and OP/appellant exonerates OP/appellant from any liability.  On these submissions; learned counsel for Op/appellant has pressed for acceptance of this appeal.

11.    Per contra; learned counsel for complainant has urged that impugned order dated 03.10.2018 is the outcome of proper appreciation of facts and evidence by Learned District Consumer Commission-Karnal and same does not warrant any interference.  It is urged that OP/appellant has moral, professional and ethical responsibility to apprise the complainant on every minute to minute change/development regarding flight, till the time, complainant and his family (son and wife) reach at their destination by keeping robust track.  Since, OP/appellant has failed to shoulder its obligations towards complainant; therefore as per contention deficiency in its service has been rightly proved.  It is urged that any “Inter Airline Agreement” between Air Canada Airlines and Lufthansa Airlines should have been provided to complainant by OP/appellant at the time of booking Online ticket through its portal.   It is urged that complainant and his family (wife and son) have not only suffered harassment due to change of Airline (Lufthansa Airline’s) but had to lost their cherished desire to travel by their favorite Airline-Air Canada.  It is urged that Air tickets must have specified that in the event of any disturbance is schedule flight (Air Canada); passengers including complainant would be shifted to Lufthansa Airline’s Flight.    

12.    Admittedly, OP/appellant had provided confirmed Air ticket to complainant, his spouse and son for their journey from New Delhi to Tornoto through Air Canada Airline’s Flight which was scheduled to depart on 11.07.2017 at 2:45 A.M.  Complainant, as per his own plea had web check-in regarding status of departing flight (Air Canada Flight No. AC9353), on 10.07.2017 and found that he, his wife and son were to depart through Lufthansa Airline’s Flight No. LH0761, departing New Delhi at same time on same day i.e. (2:45 A.M. on 11.07.2017).  Meaning thereby, complainant on 10.07.2017 itself, had got prior knowledge regarding change in Airline’s Flight from Air Canada to Lufthansa Airline.  He, in his own wisdom had successfully undergone journey from New Delhi to Toronto through Lufthansa Airline’s Flight, along with his wife and son. Learned District Consumer Commission has wrongly observed that complainant had no knowledge regarding change of flight, prior to web check-in on 10.07.2017. OP/appellant has expressly pleaded in its written version that its role is limited to the extent of providing smooth, convenient and efficient Online travel booking of tickets.  It has no role to play for any unexpected modification in flight schedule of customers.  It is also OP/appellant’s specific pleaded case that as per their record complainant, his wife and son were provided confirmed Air tickets of Air Canada Flight and they (complainant, his wife and son) were to depart through that Flight, rather than Lufthansa Airline’s Flight.  Meaning thereby, OP/appellant was also not aware of any change regarding Airline else, it would have/had intimated to complainant.  There could be no deficiency in service of Op/appellant in wake of above facts, even remotely. 

13.    More so, complainant, his wife and son could not be believed to have/had suffered any harassment, torture or mental agony, owing to change in flight from Air Canada to Lufthansa Airline, because like Air Canada Flight; Lufthansa Airline Flight had also departed on 11.07.2017 at 2:45 A.M.  Exactly, at this time (2:45 A.M.) on 11.07.2017; Air Canada Flight was to depart.  It is not the case of complainant that due to change of Airline, he and his family (wife and son) were made to sit for long hours at Airport.  In any case, Lufthansa Air Line is also a high graded and well recognized Airline of great reputation and it is luxurious too.  It is not the case of complainant that by travelling through Lufthansa Airline Flight, he had reached at Toronto belatedly, i.e. much after the scheduled time at which Air Canada Air Line Flight was to reach at Toronto, thereby his agony had compounded. It is also not his case that in flight hospitality of Lufthansa Airline was bad and horrible, thereby intensifying the miseries. In real sense; complainant has/had not suffered any harassment and torture as alleged by him.  This Commission is of firm opinion that complainant’s right to fly from New Delhi to Toronto with his family (wife and son) on 11.07.2017 at 2:45 A.M. has/had never being violated in order to bring his case within the scope and ambit of Consumer Protection Act.  The contention of complainant’s counsel that: Air ticket must specify that in event of any modification regarding Flight schedule; he and his family would be made to board Lufthansa Air Line Flight instead of Air Canada Airline Flight, does not carry any credence for the obvious reason that complainant and his family had not encountered any adversaries because of this change.  Other contention that: any inter Airline arrangement between Air Canada Air Line and Lufthansa Air Line Flight must be made known to him (complainant) also does not carry any substance for the reason that complainant is not a party to such inter Airline arrangement and more so as observed above he had not suffered any inconvenience by travelling through Lufthansa Airline Flight. 

14.    Learned District Consumer Commission-Karnal has committed a fallacy while imputing liability upon appellant/OP through its order dated 03.10.2018.  This impugned order dated 03.10.2018 cannot be allowed to hold its light of day, any more.  It is accordingly set aside by accepting this appeal of opposite party. As legal corollary so flowing, the complaint filed by complainant is dismissed.  Before parting, it is observed that: complainant, by filing compliant on misconceived notions has cleverly misused the legal process to secure monetary gain for himself with ulterior motive.  Hence, he is burdened with cost of Rs. 10,000/- to be deposited by him with District Legal Service Authority-Karnal within one month from date of this order.  In case of default by complainant to deposit cost amount of Rs.10,000/- within given stipulated period (one month), then District Legal Service Authority-Karnal would initiate appropriate legal recourse to recover cost amount of Rs. 10,000/- therefore, to enable District Legal Service Authority-Karnal to carry out above exercise, in case need arises; copy of this order be also sent to it.  With above observation this appeal is allowed.  

15.    Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.

16.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

17.    File be consigned to record room.

                                    

Date of pronouncement: 23^rd August, 2024

 

 

 

                             S.C. Kaushik                         Naresh Katyal                                          Member                                 Judicial Member

Addl. Bench                         Addl. Bench