Delhi

North

CC/132/2018

MONIKA VERMA - Complainant(s)

Versus

CHIEF EXECUTIVE OFFICER - Opp.Party(s)

RAJEEV KUMAR GUPTA

03 Apr 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No. CC/132/2018

In the matter of

1. Ms. Monika Verma

W/o Sh. Lanish Chug

C/o Sh.K.R.Verma

House No.8 (top floor)

Srinagar Extension behind Nav Bharti School

Sindhora Kalan, Delhi-110052                                                      ..........Complainant No.1

 

2.       Sh.Lanish Chug (as per memo of parties)

S/o Shri Suresh Chug

C/o Sh.K.R.Verma

House No.8 (top floor)

Srinagar Extension behind Nav Bharti School

Sindhora Kalan, Delhi-110052                                                    ..........Complainant No.2

 

3.       Ms.Shreya Jain

          D/o Sh.Tarun Jain

J-51, Phase-I, Ashok Vihar

New Delhi                                                                                  ..........Complainant No.3

Vs

1. Chief Executive Officer

          M/s Spice jet Ltd.

         319, Udyog Vihar

         Phase IV, Gurgaon,122016

                                           

2. M/s.Awagaman Travels

          Opp Roop Nagar Govt.Sr.Sec.School

          Roop Nagar, Deli-110007                                                              .....Opposite party

 

                                                         

ORDER

03/04/2023

Harpreet Kaur Charya, Member

This complaint has been filed by Ms. Monika Verma, Complainant No.1, Sh. Lanish Chug (as per memo of parties), as Complainant No.2 and Ms. Shreya Jain,as Complainant No.3 against the Chief Executive Officer, M/s Spicejet Ltd., the Air carrier, as OP-1 and M/s Awagaman Travels, the travel agent as OP-2.

1. Briefly stated the facts as mentioned in the complaint are that, the complainants are sports person playing for India. The complainants had booked tickets with OP-1, for Air travel from Delhi to Thiruvananthapuram for 09/12/2017 through M/s Awagaman Travels, OP-2.  The said travel arrangement was scheduled to attend National Shooting Championship Competition at Thiruvananthapuram.
2. It has been stated that the complainants had reached the airport for check-in, boarding passes were issued and extra luggage charges were paid, however, the complainants were not allowed to board despite having Boarding pass.  It was later revealed that some extra passengers were booked and there were no seats available in the plane.
3. The complainant has further stated that as they had to attend practice matches urgently, so they had to book tickets with Indigo Airways by paying higher consideration.  They had to wait for about 13 hours at the airport to reach their destination, Thiruvananthapuram at about 11.30 p.m. instead of 9.30 a.m.
4. The complainants were constrained to purchase the extra tickets just because of the rude, disgusting attitude and behaviour of the ground staff of OP-1.  Mr. K. R. Verma, father of the complainant No.1 contacted the Customer Care of OP-1 and sought CCTV footage of boarding and the number of passengers of the said flight. However, no satisfactory reply was given.
5. Through an e-mail, the complainants were informed that one of the passengers had fainted/became unconscious while taking them in a coach to aircraft. The complainant has further averred this to be a lame excuse and stated that the OP-1 had tendered apology and offered the refund of air tickets and a damage of Rs.1,000/- in the form of voucher to be adjusted in their air tickets. Complainants have also stated due to the act of OP-1, that they had to again spend Rs.40,000/- per person for purchasing fresh tickets, food, arranging vehicles at the destination again for the new timings, which had to re-arranged by one of the parents of the complainants.

6.   Legal notice dated 30/01/2018 was served upon OPs, which was neither replied nor complied with. Feeling aggrieved by the act/omission on the part of OPs, the complainant has prayed for directions to OPs to pay Rs.40,000/- per person as actual damage suffered by the complainant and Rs.2,00,000/- as damages on account of mental harassment and sufferings along with cost of litigation. The copy of the boarding pass, Legal notice dated 30/01/2018 has been annexed with the complaint.

7.  Notice of the present complaint was served upon OP-1 and OP-2, however  neither any reply was filed nor anyone appeared on behalf of OP-2, hence, they were proceeded Ex- parte vide order dated 21/08/2019.

8. Written Statement was filed on behalf of OP-1.  They have taken several objections in their defence such as: the complainants have suppressed material facts, the commission did not have territorial jurisdiction and complainants were well aware and conversant of the terms and conditions contained in e-tickets.  They have submitted that as per terms and conditions:

“In case passengers failing to show up for boarding at the point of transit, 20 minutes prior to the departure despite having arrived on time from the point of origin, he/she will be treated as a ‘Gate No Show’. The baggage of such passenger will be off loaded and handed over to the passengers or the relevant airport authority at the transit station, without any liability on the part of the SpiceJet”

9.       It was submitted that the complainants have ignored the terms and conditions of e-tickets,thus they are not entitled to any compensation.  It has been admitted that the complainants had booked 03 tickets in the names of Lovnish and Monika Verma, vide PNR No.Q33JWB and Shreya Jain, vide PNR No.UECF4X for travelling from Delhi to Trivendrum on 09/12/2017.  The tickets with PNR No.Q33JWB were booked on 24/11/2017 through Lalaji Travels Pvt. Ltd. for an amount of Rs.14,768/- and another ticket with PNR No UECF4X was booked on 12/11/2017  through GoIbibo Group Pvt. Ltd. for which Rs.4,885/- were charged. The scheduled time of the departure of the flight in question i.e. SG 946 was 07:05 hrs from New Delhi and the actual time of departure was 07:12 hrs.

10.     It has been admitted that the complainants had reported on time at the checking counter and thereafter boarding passes were issued. It was clearly mentioned on the boarding pass that boarding would start from Gate 5B at 06:35 hrs.  Since some of the passengers did not report till 06:45 hrs at the boarding gate, their names were announced and were requested to report at the boarding gate. It was submitted that the staff of OP-1 personally roam around in the sitting area and ask the passenger whether there is any passenger of that specific flight and if found, they help the passenger boarding the flight immediately, which was done in the instant case as well.  After the commencement of the boarding drill at 6.45 hrs, some passengers who were left out reported at the boarding gate and proceeded to board the flight and the last passenger to board the flight was at 06:51 hrs., exactly 20 minutes prior to the time of departure the boarding gates were closed and the staff was advised to off load the baggage of the passenger who had failed to report as they were ‘Gate No Show’ i.e. they failed to report at the Boarding Gate on or before the stipulated time.   

11.   It has been submitted by OP-1, that out of 190 bookings, 186 passengers boarded the flight and 04 passengers including three complainants were ‘Gate No Show’.  The complainants had in fact reported at the boarding gate at 06.56 hrs., where they were politely informed that since the boarding gate had been closed, they could not board the flight and their baggage was handed over to them.

12.   As per policy terms and conditions, OP could have forfeited the ticket amount but as a goodwill gesture and request of the complainants, the entire booking amount was refunded on 11/12/2017 through the respective travel agency, therefore, no deficiency of services or any negligence could be alleged. It was due to their own negligence, the complainants had failed to report at the boarding gate on time.  It was denied that the flight was overbooked.  They have also denied that as there were some fresh booking due to which, the complainants were not allowed to board. 

13.    OP-1 has submitted that the time schedule is to be strictly followed by the Air lines and reporting of every second is given to ATC and accordingly, ATC plans take off/landing of the flights. It has been stated that OP-1 had issued boarding passes to the complainant with specific seats and also allowed them to check-in their baggage, they could not have denied boarding to any of the complainants for any reason, whatsoever upon their compliance of the terms of carriage and adhering to the time schedule.

14.    The OP-1 has submitted that the Consumer Forum at Gurgaon will have the jurisdiction as they are situated in Gurgaon and there is no document on record to show that tickets were purchased through OP-2 nor any allegation/relief was sought against OP-2.  Rest of the contents of the complaint have been denied with the prayer for dismissal of the complaint with heavy cost. OP-1 has annexed the terms of carriage as Annexure R-1, screenshot showing the passenger counts as Annexure R-2 , with their written statement. 

15.    Rejoinder to the written statement was filed by the complainants.  They have stated that the complainants were at the gate after obtaining the gate pass and submitting the charges for extra baggage.  They have denied that there was some medical problem with one of the complainant.  They have submitted that as per the admission of OP-1 the total sitting capacity was 190, in fact was 189 which also included 3-4 staff members.  The information regarding the total seat capacity of the carrier was 189 as retrieved from the internet.  They have further alleged that OP-2 has manipulated the document, as per record level 4 was shown to have been cleared at 7.05 a.m and it is mentioned that the complainant had appeared at 6.56 a.m. They have averred that there was over booking and in order to accommodate other passengers, the complainants were not allowed boarding.

16.    The complainants have further alleged that OP -1 is liable to pay 400% of the basic fare and airline fuel charge if the complainants do not opt for alternate flight, over and above the actual amount, whereas, in the present case even alternate flight was not offered.  Contents of the complaint have been reaffirmed.

17.    Complainants have annexed email dated 12/12/2017, the printouts from the internet showing the seat capacity of the aircraft, and another email dated 10/12/2017, with the rejoinder. 

18.    Evidence by way of affidavit was filed on behalf of the parties.  The complainants have got examined Ms. Monika Verma as CW-1; Ms.Shreya Jain as CW-2 and Mr.Lovnish Chug as CW-3. 

19.    Ms. Monika Verma and Mr.Lovnish Chug have repeated the contents of the complaint and have stated that they had booked tickets through M/s Awagaman Travels (OP-2) for travel date 09/12/2017.  It has been stated that the complainants visited the airport for check in, boarding passes were issued and after completing all the formalities the complainants were not allowed to board.  Copy of the boarding pass, luggage charge receipts are Ex.CW1/1 (colly).  They have also relied on the copy of publication where it is revealed that Boeing-737-800(738) is having capacity of 189 seats and have got the same exhibited as Ex.CW1/2 with the certificate under section 65B of the Evidence Act, as Ex.CW1/3. 

20.    As the complainants were denied boarding they had to book tickets with Indigo Airways which are Ex.CW1/4.  The correspondence with the OP and Mr.K.R.Verma ( father of Ms.Monika Verma) is Ex.CW1/5 (colly).  It has been reiterated that the complainants had been offered the refund of air tickets and further offered damages of Rs.1000/- as a voucher to be adjusted in the air ticket.  Legal notice dated 30/01/2018 as Ex.CW1/6.

21. OP-1 has got examined Sh.Vijay Roy, Deputy General Manager, Legal,Spice Jet on their behalf. He has also reiterated the contents of the written statement and has got relied on the annexure filed with the complaint.  They have got the terms of carriage exhibited as Ex.RW1/1.  The document disclosing the information pertaining to the date of travel is Ex.RW1/2.
22. OP-1 has further reiterated that the boarding passes were issued to the complainant with specific seats and also allowed them to check-in their baggage, then OP-1 could not have denied boarding to any of the complainants for any reason whatsoever.  It has been repeated that the voucher of Rs.1,000/- has been offered as a goodwill gesture only and it did not amount to admission of any guilt. 
23.           We have heard the submission on behalf of the Ld.Counsel for the complainants. The complainants have stated that despite the fact they were issued Boarding passes by OP-1, yet they were denied boarding. On the other hand OP-1 in defence has stated that it was a case of ‘Gate No Show’.  
24. We have perused the material placed on record.  The complainants have placed on record the Boarding Passes (Ex.CW1/1), it is clearly evident that seat No.11F, 11D and 4D were allotted to complainants No.1, 2 & 3 respectively. It is clearly stipulated on the Boarding Pass, that the boarding gates will be closed 20 minutes prior to the departure time. The onus was on the complainants to show that they had reached the boarding gate well in time and that is when they were denied boarding.  Once, the boarding pass is issued with seat numbers the complainants cannot allege that someone else was allotted the same seat numbers on account of overbooking.  OP-1 has placed on record a screen shot (Annexure R-2) depicting the details of the said flight with respect to passengers, as per which 04 passengers were “No Show”.
25.           It has been held by Hon’ble Supreme Court in “The Branch Manager, Indigo Airlines, Kolkota & Anr. Vs Kalpana Rani Debbarma & Ors , Supreme Court, SLP(C) No.s 28600-28601 of 2018” that:

19.As aforesaid, after boarding pass is issued, the passenger is expected to proceed toward security channel area and head towards specified boarding gate on his own. There is no contractual obligation on the airlines to escort every passenger, after the boarding pass is issued to him at the check-in counter, up to the boarding gate.  Further, the airlines issuing boarding passes cannot be made liable for the misdeeds, inaction or so to say mis-understanding caused to the passengers, until assistance is sought from the ground –staff of the airlines at the airport well in time. It is not the case of the respondents that the boarding gate was changed at the last minute or there was any reason which created confusion attributable to airport/airlines officials, so as to invoke an expansive meaning of ‘denied boarding’.  The fact situation of the present case is clearly one of ‘Gate No Show’ the making of the respondents and not that of ‘denied boarding’ as such.

26. Even in the Legal Notice dated 30/01/2018, which was served by the complainant to OPs and the copy of the same was also forwarded to ‘Airport Authority of India’, with request to preserve the CCTV footage of 9^th December 2017 during 5:30 a.m. to 7:10 a.m with respect to the said flight of Spice Jet.  The said request is with regard to preserving of the CCTV footage, however no where the complainants have alleged that they had requested for the CCTV footage to Airport Authority of India and the same was not supplied to them. It is settled principle of law that the complainant has to prove his/her case, onus was on the complainants to prove that they were denied boarding.  The best piece of evidence would have been the CCTV footage from the Airport Authority of India to substantiate their allegations

27.It has been held by Hon’ble Supreme Court in “SGS India Ltd. vs. Dolphin International Ltd  in Civil Appeal No. 5759 Of 2009” that:

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a judgment of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr., this court held that the burden of proving the deficiency in service is upon the person who alleges it.

20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. , held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28.In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

  

 

28. In an email dated 12/12/2017, which have been addressed to Mr.Verma from The Office Of Appellate Authority, Spice Jet Ltd. where they have stated that a full refund of the above-mentioned PNR’s has been processed towards the same agency from which the booking was confirmed and requested the complainant to contact the same travel agency for a refund.  In the same email OP-1 has further offered a service recovery voucher of Rs.1,000/- for their next travel with Spice Jet and has sought the acceptance so that the voucher detail could be shared with the complainant in the next correspondence. The Complainants have not specifically denied about the refund on 11/12/2017. Thus, it amounts to deemed acceptance on part of the Complainants.

Therefore, in the facts and circumstances of the present complaint and from above discussion we hold that the complainants have failed to prove their allegations of deficiency in services and unfair trade practice against OPs, we find no merit in the present complaint.  Hence, the same is dismissed being devoid of merits without orders to cost.

Office is directed to supply the copy of this order to the parties as per rules.  Order be also uploaded on the website.  Thereafter, file be consigned to the record room

 

 

 

                 (Harpreet Kaur Charya)                                  (Divya Jyoti Jaipuriar)

   Member                                                            President