IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.420/2023

Subhra Mohanty,

W/o: Biswajit Senapati,

                   At:Darkhapatna(Nuapada),

                 P.O:Kalyaninagar,P.S:Chauliaganj,

                      Dist:Cuttack(Odisha),Pin-753013.                                ...Complainant

                              Vrs.

1.        Golbibo Group Pvt. Ltd.,

Represented through its Chief Executive Officer,

At:Pearl Towers,4^th Floor,Sector-32,

Plot No.51,Gurgaon,Haryana,

             State :Haryana,Pin-1220022.

2.        Chairman-Cum-Managing Director,

Spice Jet Ltd.,

At:319,Udyog Vihar,Phase-IV,

                  Gurgaon,Haryana,India,Pin-122016.                  ...Opp.parties

3.        Director General of Civil Aviation,

Govt. Of India,Opposite of Safdarjung Airport,

Arobindo Marg,New Delhi, PIN-110003.….Proforma Opp. Party.

.

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

Date of filing:    20.12.2023

Date of Order:  19.07.2024

For the complainant:          Mr. B.P.Bal,Adv. & Associates.

For the O.P No.1       :          Mrs. S.Biswal,Adv. & Associates.

For the O.P No.2       :               None.

Sri Debasish Nayak,President          

Case of the complainant as made out from the complaint petition in short is that she had booked three number of air tickets in order to visit Sikkim.  Those tickets were intended to cover her to and fro journey alongwith her family members from Kolkata Airport to Pakyong Airport on 18.10.2022 which was scheduled to depart at 10.45 A.M and the boarding time was given to 10.15 A.M at Gate No.105. The passengers were the complainant, Subhra Mohanty herself who was issued PNR No. R9E7XV and seat no. 10B in Flight SG 3222.    The next passenger was her husband Biswajit who was assigned PNR No. R9E7XV and seat no.9D and the third passenger is their minor son Barun who was assigned PNR No. R9E7XV and seat No.10A.  All these air tickets were issued and they were supposed to board from Terminal No.2 of Netaji Subash Chandra Bose International Airport at Kolkata and proceed in the said Spice Jet SG 3222 on 18.10.2022.  They were also supposed to return from Bagdogra Airport to Kolkata Airport in Spice Jet no.SG3223 which was scheduled to depart at 12.40 p.m on the fixed day of return.  The total tickets costing of Rs.20,990/- was paid through her Credit Card No.6528601300001125.  The tickets were all confirmed tickets and were issued by O.P no.1 on 18.10.2022.  In the morning of 18.10.2022, the complainant and her inmates reached Kolkata Airport two hours prior to the departure of the flight but on verification they were shocked to know that the said flight SG 3222 was rescheduled due to operational reason from Kolkata Airport to Bagdogra airport and the said flight expected to depart at 2.45 p.m which would reach at Bagdogra Airport at 4.20 p.m that day.  There was serious dislocations since because the taxi arrangement was made as per the schedule time of arrival of flight at Pakyong Airport and was to receive the complainant and her inmates there.  Having no other way out, the complainant desperately waited for the rescheduled departure of the flight but again to add to her miseries there was announcement of further change and rescheduling of the said flight.  Accordingly, it would be departing at 3.50 p.m and would be reaching at Bagdogra Airport at 5.25 p.m.  The officials of O.P no.2/nodal officer of that Spice Jet was offering full refund to the passengers those who were unable to confirm their status in the said flight.  The taxi was again requested to pick them up accordingly who agreed but demanded extra remuneration in order to reschedule the earlier pick-up and to get them from Bagdogra Airport to Sikkim.  On 19.10.2022 at 2.30 A.M in the night, the complainant and her inmates managed to reach Sikkim with much difficulty and stress.  According to the complainant, there was series of disruptions in her travel plan and she had to undergo mental agony and stress since because of such callous attitude of O.P no.2.  The complainant has further mentioned that as per the display in the Website indicates “in case of any failure or discrepancy or deficiency in rendering service occurs after booking of tickets then Opp Parties were fully responsible to provide alternative arrangements and to assist passengers by providing information and providing care and assistance during the disruption such as providing meals, allowing for passengers to communicate messages and providing hotel accommodation and refund of to-and-fro fare etc. and also stated that where flights are cancelled passengers offered the choice of refund or re-routing (alternative flights) at the earliest”.  But no such arrangements were made by O.P no.2 or by his officials.  The complainant has relied upon the decision of Hon’ble National Commission in the case of Spicejet Ltd. Vs. Ranju Aery, in R.P. No.1396/2016 decided on 7^th February,2017 has held that “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 nor and hence, the general conditions at the airport or the weather conditions etc. were conducive to the operation of the flights.

The deficiency in service on the part of the Opp. Airlines is, therefore, writ large on the fact of it, and they are liable to compensate the complainant on this score.”

It is for the said reason, the complainant has come up with her case before this Commission seeking refund of the cost of her Air tickets amounting to Rs.20,990/- with interest thereon @ 18% which is to be effective from 18.10.2022 till the total amount is quantified, further compensation of Rs.2,00,000/- for her mental agony and harassment, additional expenses of Rs.18,500/- for delayed flight and change of the route and also a sum of Rs.15,000/- towards cost of her litigation.  She has also prayed for any other relief as deemed fit and proper.

          Together with her complaint petition, the complainant has annexed copies of several documents in order to prove her case.

2.       Out of the three O.Ps as arrayed in this case, as per the memo filed by the complainant, O.P no.3 has been deleted from the cause title of the case vide order dt.4.7,.2024.  Out of the other two O.Ps, having not preferred to contest this case, O.P no.2 has been set exparte vide order dt.22.2.2024.  However, O.P no.1 has contested this case and has filed it’s written version wherein he admits about the complainant booking three air tickets in the Spicejet flight SG 3222 from Kolkata to Pakyong and had paid a sum of Rs.20,990/- towards the flight booking amount.  After getting the said amount, O.P no.1 had issued booking ID bearing No.GOFLDMTANDEEE9E166254313 to the complainant.  As per the itineraries shared by O.P no.2, the flight was scheduled to depart from Netaji Subash Bose Airport of Kolkata on 18.10.2022 but it was rescheduled that day and was to proceed to Bagdogra Airport where the departure time was 2.45 p.m.  Subsequently, it was again re-scheduled to depart for Bagdogra Airport at 3.45 p.m.   O.P no.2 was offering full refund of the booking amount; but it was not availed by the complainant.   Thus, the complainant had ultimately reached at Sikkim at 2.30 A.M on 19.10.2022.  O.P no.1 through it’s written version has cited the terms of the Airlines which is as follows:

“Airlines retain the right to reschedule flight times, route, change or cancel flights or itineraries independent of and without prior intimation to MMT.  As a facilitator MMT has no control or authority over the logistics of the airlines and therefore is not liable for any loss, direct or incidental, that a User may incur due to such change or cancellation of a flight.”

Thus according to O.P no.1, he had no role to play in the rescheduling of the flight and for the inconveniences if any to the complainant.  O.P no.1 has relied upon certain decisions in order to prove its stand which are as follows:

The Hon’ble Supreme Court in the case of Polymat India Private Ltd. and Another Vs. National Insurance Co. Ltd. and Others. (AIR 2005 SC 286) has observed that “The terms of the contract have to be constructed strictly without altering the nature of the contract as it may affect the interest of the parties adversely.”

In the case of Bharathi Knitting Co. Vs. DHL Worldwide Express Courier (1996) 4 SCC 704, in which it was held that the Forums and Commissions are not entitled to modify the terms of agreement which had been arrived at between the parties and when there is an acute dispute relating to facts, the Forum and Commission ought not have done behind the terms of the agreement and should have instead referred the parties to Civil Court.  This position was reiterated by the Hon’ble Supreme Court of India in Patel Roadways Ltd. Vs. Birla Yamaha Ltd. in Appeal (Civil) No.9071 of 1996, and in Citicorp Maruti Finance Ltd. Vs. S.Vijayalakshmi, Civil appeal No.9711 of 2011.

O.P no.1 has also filed copies of several documents in order to prove the plea as taken by it.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps and if they have practised any unfair trade ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.II.

Out of the three issues, issue no. ii being the pertinent issue is taken up first for consideration here in this case.

After perusing the complaint petition, written version, written notes of submission as filed by the complainant, as well as the copies of documents available in the case record, it is noticed that infact the complainant in this case had booked air tickets for herself, her husband and for her minor son intending to proceed with her inmates to Sikkim on 18.10.2022.  As per her travel plan, she was to reach Pakyong Airport of Sikkim on 18.10.2022 by boarding the flight from Kolkata Airport that day at 10.45 A.M.  All the Air tickets those which were issued to them were confirmed tickets and she had paid the booking amount of Rs.20,990/-.  She was allotted PNR No. R9E7XV and seat no. 10B in Flight SG 3222.    Her husband was assigned PNR No. R9E7XV and seat no.9D and her minor son Barun was assigned PNR No. R9E7XV and seat No.10A. They were to board Spicejet flight G 3222 on 18.10.2022 at 10.15 A.M through Gate No.105.  But when they had gone to board the said flight, it was rescheduled showing the departure time that day at 2.45 P.M.  which would reach Bagdogra Airport instead of Pakyong Airport at 4.20 P.M and again the said flight was subsequently rescheduled which was showing the time of departure as 3.50 P.M and it would reach Bagdogra Airport at 5.25 P.M .  It is not in dispute that after much dislocations, the complainant had managed to go to Bagdogra Airport in the said flight at 3.50 P.M from Kolkata Airport and had reached there at 2.30 A.M in the night of 19.10.2022. She had to pay extra charges for the taxi which was to pick them up from Pakyong Airport to their destination and had infact picked them up from Bagdogra Airport on 18,10.2022 when the delayed flight reached Bagdogra Airport.  The complainant and her family members were to proceed from Gangtok to Lachung and all the disruptions/dislocations had caused serious embarrassment causing stress and giving tension to the complainant and her inmates thereby making them pay unnecessarily at various places including the taxi fares.

The written version of O.P no.1 clearly corroborates the journey of the complainant with her husband and her minor son and about the payment made by the complainant to the tune of Rs.20,990/- towards the flight tickets.  According to O.P no.1, Airlines retain the right to reschedule flight times, route, change or cancel flights or itineraries independent of and without prior intimation to MMT.  As a facilitator MMT(Make My Trip)(O.P no.1)  has no control or authority over the logistics of the airlines and therefore is not liable for any loss, direct or incidental, that a User may incur due to such change or cancellation of a flight.”

While perusing the copies of documents as filed by the complainant here in this case and while scanning Annexure-3 as filed by the complainant, which is a copy of the Govt. of India, office of the Director General of Civil Aviation and is effective from 1.8.2016 onwards under subject “facilities to be provided to passengers by Airlines due to denied boarding, cancellation of flights and delays of flights,   the said circular as issued by the Govt. of India, Civil Aviation Department, envisages that in case of flight cancellation it should be done two weeks before the scheduled time of departure of the flight but here in this case, there was rescheduling of the flight which is delays in flight and is laid down at 3.4 clause of the said circular.  According to the same, if the passenger has checked-in on time, and if the airlines expect a delay beyond its original announced scheduled time of departure or a revised time of departure of:

1. 2 hours or more in case of flights having a block time of upto 21/2 hrs; or
2. 3 hours or more in case of flights having a block time of more than 21/2 hrs and upto 5 hours; or
3. 4 hours or more in case of flights not falling under sub-para(a) and (b) of Para 3.4.1

3.4.2                When domestic flight is expected to be delayed for more than 6 hrs from the published scheduled time of departure or previously revised departure time (communicated more than 24 hours prior to original scheduled departure time), airlines shall offer an option of either an alternate flight within a period of 6 hours or full refund of ticket to the passenger.

3.4.3                When total delay is more than 24 hrs from the published scheduled time of departure or more than 6 hrs for flights scheduled to depart between 2000 and 0300 hrs passenger shall be offered facility in accordance with the provisions of Para 3.7.1 (b) of this CAR.

3.4.4                An operating airline shall not be obliged to adhere to Para 3.7 if the delay is caused due to extra ordinary circumstances as defined in Para 1.4 and Para 1.5 which could not be have been avoided even if all reasonable measures had been taken.

3.4.5                The burden of proof concerning the questions as to whether and when the passenger has been informed of the delay of the light shall rest with the operating airline.

Accordingly, while taking into account the facts and circumstances of this case as made out here, undoubtedly the scheduled time of SG 3222 on 18.10.22 was at 10.45 A.M. from Netaji Subash Bose Airport,Kolkata  but it went on rescheduling twice ultimately it had infact departed that day at 3.50 P.M from the said Airport.  As it is made out from the complaint petition, the complainant, her husband and their minor son had reached two hours before the scheduled time of departure which goes to show that they were there at the Netaji Subash Chandra Bose Airport in the morning at 8 A.M and had to wait till 3.50 P.M that day for the said flight to take off.  The offering of the refund of ticket money is just a ridiculous effort and cannot be appreciated in any manner.  Hence such conduct of O.P no.2 and it’s officials appears to be grossly deficient in respect of their services and their demeanour/attitude indicates practice of unfair trade by them since because they had not adhered to the provisions as laid down in the circular of the Govt. of India, Civil Aviation Department vide Annexure-3.  This issue thus goes in favour of the complainant.

Issues no.i & iii.

From the discussions as made above, the case of the complainant is definitely maintainable and she is entitled to the reliefs as claimed by her from the O.P here in this case.  Hence it is so ordered;

ORDER

The case is decreed on contest against the O.P. no.1 and exparte against O.P no.2.   The O.P no.2 is thus directed to refund the cost of the flight tickets of Rs.20,990/- with 12% interest thereon effective from 18.10.22 till the total amount is quantified.  The O.P no.2 is also directed to pay the complainant an amount of Rs.1,00,000/- as compensation for her mental agony and harassment as well as to pay a further sum of Rs.20,000/- towards the cost of her litigation.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on this the 19^th day of July,2024 under the seal and signature of this Commission.         

                                                                                      Sri Debasish Nayak

                                                                                              President

                                                                                          Sri Sibananda Mohanty

                                                                                                      Member