BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this the 18th day of May 2022
Filed on: 24/11/2016
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
CC.No.654/2016
COMPLAINANTS/PETITIONERS
1. Thomas George, S/o.M.M.George, 1C, Concert ‘O’Castle, Main Avenue, Panampilly
Nagar, Kochi – 682 036, permanently residing at Malathiparambil House,
Kozhancherry.P.O, Pathanamthitta – 689 641.
2. Cherian George, S/o.M.M.George, 1C, Concert ‘O’Castle, Main Avenue, Panampilly
Nagar, Kochi – 682 036.
(Rep. by Adv.Santhosh G.Prabhu, Govt. Press Road, Ernakulam, Kochi – 11 for
complainants.)
VS
OPPOSITE PARTIES
1. Easy Trip Planners Pvt. Ltd., Building No.223, Patparganj Industrial Area, Delhi -
110 092 represented by its Company Secretary.
(Rep. by Adv.George Varghese Kizhakkambalam, Embees Building,
Market Road(North), Ernakulam, Kochi – 682 018.)
2. Spice jet Ltd., 319 Udyog Vihar, Phase IV, Gurgaon, Haryana – 122 016 represented
by its Company Secretary.
(Rep. by Adv.Baby Abraham, Kanakassery Building, Sub Jail Road, Aluva – 683 101.)
O R D E R
Sreevidhia.T.N, Member
Brief facts of this complaint is as stated below:
The complainants are businessmen, running their separate business. On 01/06/2016, the complainants booked air tickets from Kochi for themselves through the website of the 1st opposite party. Two tickets to travel from Kochi-Mumbai dated 21/06/2016 and two return tickets to travel from Mumbai-Kochi dated 06/07/2016(PNR No.SG-C5REJP) on Spice jet airline(2nd opposite party). The ticket fare of the forward journey was Rs.5,864/- and the ticket fare of the return journey was Rs.6,160/-. The total ticket fare value for to and fro journey was Rs.12,474/-. The 2nd opposite party sent an SMS to the mobile number 9847745453 of the 1st complainant on 19/06/2016 intimating confirmation. The onward journey from Kochi to Mumbai took place as scheduled on 21/06/2016. The complainants went abroad from Mumbai on 23/08/2016 and returned to Mumbai on 05/07/2016 early morning. The complainants reached the Mumbai airport on 06/07/2016 at 2.45 pm to board the return flight. The departure time of the return flight as per the ticket was 4.15 pm. At the Mumbai airport, the counter staff on the 2nd opposite party informed the passengers that the flight to Kochi was cancelled. The passengers including the complainants, requested the Station Manager cum airport-in-charge of the 2nd opposite party, Ms.Apinder, to arrange seats in any alternate flight to Kochi on the same day. But the 2nd opposite party refused their request. The Station Manager of the 2nd opposite party told them that she can provide ticket for the next day Spice jet flight at 09.20 am and asked the complainant to wait. Since the complainants had no other option, they accepted the offer of the Station Manager and waited for receiving the ticket for the next day. During the waiting time of 3 hours at the airport, the 2nd opposite party did not provide any facilities, meals or accommodation to the complainants as prescribed in Civil Aviation Requirements issued by the Director General of Civil Aviation. At around 05.45 pm, the Station Manager of the 2nd opposite party, Miss.Apinder told the complainants that making of the ticket for the next day will take another two hours and they need not wait there. She also promised the complainants that she would personally call him and send an e-ticket. The complainants filed a written complaint with the Station Manager of the 2nd opposite party regarding the cancellation of the flight without intimation. After that they left the airport. While they were on the road, the complainants received a call from a male voice. He said that he is calling from Spice jet and, as Spice jet had initiated the refund process, it is not possible to provide ticket for the next day’s flight as promised by the Station Manager of the 2nd opposite party. The refund was processed without the consent of the complainants. Since it was too late to get tickets to Kochi on any alternate airline for the same day, the complainants were forced to book two tickets for the next day on GO Air G8 347 at a cost of Rs.12,126(additional cost of Rs.5,516). Due to the irresponsible attitude and unfair trade practice of the 2nd opposite party, the complainants were forced to stay one extra day in Mumbai. The 2nd opposite party did not provide refreshments, meals, hotel accommodation or transport. Due to the deficiency in service on the part of the 2nd opposite party, they lost the important working day immediately after two weeks of their absence. It is submitted that the action of the 2nd opposite party is in total violation the Civil Aviation Requirements issued by the Director General of Civil Aviation. The 2nd opposite party failed to inform the cancellation of the flight and also failed to provide compensation for the inconvenience caused to the complainants. The 2nd opposite party initiated the ticket refund process against the wish of the complainants, that too without intimating them. The 2nd opposite party failed to arrange alternate flight to the destination, either on their carrier or another airline. The complainants were forced to spend Rs.5,516/- additional cost for new ticket, Rs.20,000/- towards accommodation, Rs.6,500/- for food, Rs.4,500/- towards taxi fare, Rs.8,000/- towards the price of fresh cloths. Eventhough the complainants failed a complaint to the Station Manger, no steps were taken by the 2nd opposite party to compensate the complainants. So the complainants sent a detailed request to the customer care centre of the 2nd opposite party by e-mail dated 10/07/2016 for compensation. They apologized for the inconvenience caused to the complainants but informed that they are not in a position to compensate the complainants. Aggrieved by the reply of the customer executive of the 2nd opposite party, the complainants escalated the complaint by e-mail dated 11/07/2016 to the Nodal Officer of the 2nd opposite party, Ms.Ruchika Sharma, for Redressal and compensation. But there was no response from the 2nd opposite party to compensate the complainants. Hence the complainants sent an e-mail dated 18/08/2016 to the customer relations department of the 2nd opposite party and intimated that if the matter is not settled within one week to the satisfaction of the complainants, the complainants would seek judicial remedy. In reply to this, the 2nd opposite party sent an e-mail dated 23/08/2016 to the complainants and intimated that as per their records, their staff had called the complainants to inform about the flight cancellation and as per confirmation only booking was cancelled with full refund. The cancellation of the flight was conveyed to the complainants by the 2nd opposite party only when the complainants reached the airport to board the return flight. The actions of the opposite parties amount to deficiency in service and unfair trade practice on their part.
Hence the complainant approached before this Commission seeking directions to get orders directing the opposite party to pay Rs.20,000/- towards deficiency of service and unfair trade practice committed by the opposite parties and to direct the opposite parties to pay Rs.20,000/- towards the loss of business suffered by the complainants, and to direct the opposite party to pay Rs.20,000/- towards mental agony and hardship suffered by the complainants and to pay Rs.10,000/- towards cost of proceedings to the complainants.
Notice
When the case was taken on file, the Forum/Commission issued notice to the opposite parties on 07/12/2016. Opposite party 1 and opposite party 2 appeared and filed their version.
Version of opposite party 1
The present complaint is nothing but a result of frivolous, evasive and misplaced alleged facts stated by the complainant and are liable to be rejected at the outset. The instant complaint is nothing but an abuse of law and is filed with a sole motive to extort money from the opposite party 1 as it is the total fault of the opposite party 2 who did not inform about the status of the Airlines at the appropriate time to the complainant.
The complainant booked the tickets of Airlines by using online portal of the opposite party 1. Thereafter, the complainant made the payment via online portal of the opposite party 1. The same was remitted in the accounts of the Airlines. It is pertinent to mention here that the role of the opposite party 1 was limited to this stage only. The opposite party 2 acted as a facilitator in the booking process. The opposite party 1 cannot be made liable for any deficiency of service on the part of the opposite party 2. It is submitted that the opposite party 1 as per the standard practice forwarded all the details such as phone numbers, name and address of the complainant to the opposite party 2 without any delay. However, it was the total failure on the part of the opposite party 2 to update the complainants on cancellation of the Airlines. Therefore, no cause of action has been raised against the opposite party 1. The complainants themselves accepting/admitting the fact that it was the opposite party 2 who failed to contact them in regard to the return flight to Kochi. After the booking of tickets, the opposite party 1 has no role to play. Opposite party 1 acted with utmost sincerity and honesty. The opposite party 1 as being a true service provider remitted the ticket amount of Rs.6,610/- on immediate basis on 19.07.2016. As per the flight cancellation policy of the opposite party 2 as given on their website, it is quite evident that it was the bounden duty of the opposite party 2 to inform the passengers about flight cancellation atleast three hours in advance through telephone or sms. It is submitted that the opposite party 2 clearly derelict from its duties and caused the hardship to the complainant. The opposite party 1 clearly provided all the correct relevant details of the complainants to the opposite party 2. Hence, no deficiency of service is made out against the opposite party 1. There arises no cause of action against the opposite party 1. Thus the opposite party 1 be deleted from the array of parties.
Version of opposite party 2
It is submitted that all the passengers/guests of the opposite party 2 are governed by the terms of carriage contained in the e-ticket, framed in accordance with carriage by Air Act, 1972 and notification regarding application of the carriage which is Non-International. It is submitted that one of the clauses of the aforesaid terms of carriage clearly discloses the aforesaid, which is as follows:
“where bad weather or instances beyond Spice Jet control has resulted in your flight being cancelled or delayed, Spice Jet will try to assist you to get to your destination, but will not be liable in any way for the delay or cancellation.”
Another clause of the said terms of carriage further stipulates that:
“The company reserves to itself the right, without assigning any reason, to cancel or delay the commencement or continuance of the flight or to alter the stopping place or to deviate from the route of the journey or to change the type of aircraft in use, without thereby incurring any liability in damages or otherwise to the passengers or any other person on any ground, whatsoever. The company also reserves to itself the right to refuse to carry any person whom it considers unfit to travel or who in the opinion of the company may constitute risks to the aircraft or to the persons on board.”
Another stipulation in the Terms of Carriage reads as under:
“Schedule is subject to change and regulatory authority approvals”.
Once the e-ticket, which is a concluded contract between the parties, contains the aforesaid stipulations, the complainant herein, having agreed and accepted the same while booking the ticket, is now stopped from raising the alleged dispute and in view thereof, the present complaint is not maintainable. In a recent judgment, the Hon’ble National Commission in a case titled as “Spice Jet Vs. Himadri Sharma”, has specifically held that the terms of carriage is a contract binding between the parties and as such, the passengers can not dispute the same. In view of the provisions contained in Rule 19 of the Chapter XI of the notification regarding application of the carriage by Air Act, 1972 to carriage by air, which is not International. It is submitted that the said Rule 19 read as under:
“In the absence of a contract to the contrary, the carrier is not to be liable for damage occasioned by delay in carriage by air of passengers, baggage or cargo.”
It is submitted that in the present case, there is no contract contrary to the aforesaid Rule. In fact, there is a concluded contract/agreement between the parties, regarding exclusion/waiver of any liability of the carrier, in case of delay occasioned in carriage of the passengers. In view of the same, the present complaint is not maintainable and is liable to be dismissed with heavy costs. Before taken off, there is mandatory checking of the aircraft by AME team i.e. Aircraft Maintenance Engineers team. On checking a snag was found in the aircraft and the team immediately started rectifying the same. It is, however, submitted that despite best efforts and spending a lot of time, the team could not rectify the same and the aircraft was declared unfit for flying. Flying the said aircraft was dangerous for property and life of passengers and crew and as such, the opposite party had no option but to cancel the said flight. The said development was being told to all the passengers from time to time including the complainant. After the cancellation the complainant was given option of the full refund or to avail the alternate flight. The complainant adopted the full refund. The moment complainant accepted the full refund, all grievances were set at rest and he lost all his right to initiate any kind of litigation against the opposite party 2. In case of delay or cancelation, the airline has to offer either the full refund or alternate flight and in case the same are offered and the passenger avails one of the same, then the complainant is not entitled to any compensation, on any other account. In the instant case, the flight was cancelled due to last minute technical snag and it was informed by the technicians that the flight cannot be operated, which was not in control of the respondents. The complainant demanded refund of ticket, which has been processed and the entire amount has been remitted to the account from which, the ticket was booked. In the present case, the delay was appx. 10 hours. Proper refreshment etc. was provided to all passengers who chose to wait for the flight at airport only. There is neither any negligence nor any deficiency in providing any services to the complainants and other passengers and as such, the present complaint, which is vexatious, frivolous and misconceived is liable to be dismissed with heavy costs.
Evidence
The evidence in this case consists of the documentary evidence filed by the complainant which were marked as Exbt.A1 to A7. Proof affidavit filed by 1st complainant and the complainant is cross examined by the opposite party 1’s and opposite party 2’s counsels as PW1.
The opposite party 2 filed two documentary evidence which were marked as Exbt.B1 and Exbt.B2 The opposite party 2’s customer service executive Sri.Arshad.A.A filed proof affidavit and he was cross examined by the complainant’s counsel as DW1. Evidence closed and the case posted for hearing to 11/05/2018 and then adjourned to 24/07/2018.
On 24/07/2018 opposite party 2 filed a petition to re-open the evidence of opposite party 2 as IA 354/18. IA 354/2018 allowed. The authorisation letter issued by the 2nd opposite party dated 15/03/2018 in favour of the authorised agent and employer of the 2nd opposite party accepted and marked as Exbt.B3. Evidence closed on 24/07/2018 and heard the parties on 27/04/2022.
The Issues came up for consideration in this case are as follows:
(1) Whether there is any deficiency of service or unfair trade practice is proved from the side of the opposite parties towards the complainants?
(2) If so, Reliefs and Costs?
Issue No.1
The complainant Mr.Thomas George and Mr.Cherian George had booked two tickets on 01/06/2016 through the website of the 1st opposite party to travel from Kochi to Mumbai dated 21/06/2016 and two return tickets from Mumbai to Kochi dated 06/07/2016 on Spice Jet Airline(2nd opposite party) as proved from Exbt.A5. An amount of Rs.12,474/- was paid by the complainant. The onward journey from Kochi to Mumbai took place as scheduled on21/06/2016. The departure time of return flight from Mumbai to Kochi SG C5REJP scheduled for 06/07/2016 at 16.15 hrs. as per the ticket. The complainants reached the Mumbai airport on 06/07/2016 at 2.45pm to board the return flight. The complainants submits that the counter staff of the 2nd opposite party informed the passengers that the flight to Kochi was cancelled. The complainants main allegation is that there was no communications from the 2nd opposite party either on 05/07/2016 or 06/07/2016 regarding the cancellation of the return flight to Kochi. The complainants submit that the 2nd opposite party’s Station Manager told that she can provide ticket for the next day Spice Jet flight at 9.20am and asked the complainants to wait. The complainants waited for receiving the ticket for the next day. During the waiting time of the tickets for the next day, the 2nd opposite party did not provide any facilities, meals or accommodation to the complainants as prescribed in Civil Aviation Requirements issued by the Director General of Civil Aviation.
The main issue involved in the case relates to the cancellation of flight SG-C5REJP of the Spice Jet Airlines from Kochi to Mumbai on 06/07/2016. A perusal of document A1 shows that the complainant Sri.Thomas Geroge had complained to the General Manager of the Spice Jet on 06/07/2016 about the cancellation of the flight. Exbt.A2 is an e-mail sent to the customer relations of Spice Jet by the complainant asking compensation for the mental and physical agony caused, waste of a day at the end of along journey, business loss as well as monitory loss suffered due to the cancellation of the flight. Exbt.A3 is the copy of e-mail sent to the Nodal Officer of the opposite party2 by the complainant on 10/07/2016 10.42 pm asking confirmation about the refund of ticket amount Rs.6,610/- from Spice Jet Airlines and the corresponding reply from 2nd opposite party. It can be seen that on 11/07/2016 Spice Jet informed the complainants through e-mail that “since we did not have any operational flight on that day to the same sector therefore passengers were not accommodated in the next flight. While full refund of INR 6,610/- was processed in accordance to the Spice Jet policy due to involuntary flight cancellation”. The complainants submits that they were forced to book two tickets for the next day from Mumbai to Kochi from GO AIR G8347at a cost of Rs.12,126/-(additional cost of Rs.5,516/-). Exbt.A6 is the copy of the GO air ticket booked by the complainants through Ease My Trip on 06/07/2016 for the return journey(07/07/2016) from Mumbai to Koch at 10.25hrs. Exbt.A7 is the copy of the civil aviation requirements issued by the Director General of Civil Aviation dated 6th August 2010.
The 2nd opposite party produced documents Exbt.B1 and B2. Exbt.B1 is the copy of the terms of carriage. Exbt.B2 is the copy of the civil aviation requirements issued by the Director General of Civil Aviation, New Delhi dated 6th August 2010. On perusal of Exbt.B1, terms of carriage clearly shows that
In the event Spciejet:
- Cancels the flight; or
- Prepones the flight by 60 minutes; or
- Postpones the flight by one hundred and twenty(120) minutes or more,
the affected passengers shall be entitled either for:
i. full refund of the amount paid by them; or
ii. to be accommodated on alternate flights for the same sector for next or
preceding seven(07) days from the original date of journey, subject to availability and Spice Jet’s discretion.
The complainants submits that the action of the 2nd opposite party is total violation of the civil aviation requirements issued by the Director General of Civil Aviation.
The complainants main arguments are as follows:
The para.3.3 of the Civil Aviation Requirements deals with cancellation of flight. According to para.3.3.1, in order to reduce inconvenience caused to the passengers as a result of the cancellations of the flights on which they are booked to travel, whenever possible, airlines should endeavour to invariably inform the passengers of cancellation of their flights as far in advance as possible of the scheduled time of departure. According to para.3.3.2, subject to para.3.3.1, in respect of passengers who have not been informed at least three hours in advance about the cancellation of the flight on which they were scheduled to travel, i) airlines shall provide compensation for the inconvenience caused in accordance with para.3.5., and ii) refund the ticket price in the event they do not wish to travel instead on an alternate or subsequent flight of the carrier concerned or on another carrier’s flight or if so desired by the passengers, provide them alternate travel opportunities at no additional cost and iii) additionally provide them facilities at the airport in accordance with para.3.6.1(a) in the event they have already reported for their original flight and whilst they are waiting for the alternate flight. As per para.3.3.3, in respect of passengers who elect to travel to their destination on an alternate flight, the airline shall provide them with reasonable facilities during the period that they are required to wait at the airport for the alternate flights in accordance with para.3.6.1(a). Para.3.6 deals with facilities to be offered to passengers. According to para.3.6.1, passengers shall be offered free of charge a) meals and refreshments in relation to waiting time and b) hotel accommodation when necessary.
The complainant submits that they were forced to spend Rs.5,516/- additional cost for new ticket, Rs.20,000/- towards accommodation, Rs.6,500/- for food, Rs.4,500/- towards taxi fare, Rs.8,000/- towards the price of fresh cloths. The complainant did not produce any documents to prove that he had sustained loss to the tune of Rs.44,516/-.
During cross examination of PW1, he admits that he had received the full refund of the cancelled tickets. He also admits that he had raised no allegations about the deficiency of service of opposite party1 neither in the complaint nor in the proof affidavit. Alleging deficiency on the part of opposite party 2, complainant filed this complaint before the Forum. Opposite party 2 resisted complaint and disclaimed its liability to compensate the complainant and deposed through the Senior Customer Executive that the flight had cancelled on account of the Technical Snag at Mumbai airport which is beyond the control of opposite party 2.
In the absence of adequate evidence to prove that the complainant had sustained a total additional loss of Rs.44,516/-, we find that the complainant’s demand is not proved with sufficient documents. However we conceive the fact that the complainant was put to greater inconvenience due to the cancellation of the flight. The opposite party 2 had not produced any evidence to prove the factors that “There was Technical Snag and it was only when the flight landed in Mumbai airport that the Technical Snag realized”.
The flight cancellation policy of the Spice Jet as given on their website is as follows:
Spice Jet will make all reasonable efforts to ensure timely operations of its scheduled flights. However due to unforeseen circumstances causing a delay or cancellation of its scheduled operations Spice Jet shall endeavour to inform the passenger(s) about flight cancellation atleast 03(three) hours in advance through SMS or E-Mail, provided the passengers have given correct and working mobile number at the time of effecting reservation.
As per the flight cancellation policy of the opposite party No.2, it is clear that it is the bounden duty of the opposite party No.2 to inform the passenger(s) about the flight cancellation atleast 3 hrs. in advance through telephone or SMS. So deficiency of service is proved from the 2nd opposite party towards the complainants.
On a thorough evaluation of the facts of the case, we are of the opinion that eventhough the complaints got full refund of the ticket of the cancelled flight, the complainant could not reach Kochi in time. It is deficiency of service from the part of opposite party 2 that the complainants could not reach Kochi in time. There was no document to establish the technical snag. The complainants were not informed about the cancellation of flight. DW1 during cross examination admits that the passengers were informed about the cancellation of flight only when they arrives to board the flight on 06/07/2016. DW1 during cross examination also admits that they have not produced any documents before the Commission to prove that Spice Jet have given information to the passengers about the cancellation of flight in the right time. In the instant case the cancellation of the booked flight without giving prior information to the complainants caused great inconvenience, mental agony and other difficulties to the complainants.
Since no allegations are raised against opposite party No.1, opposite party 1 is excluded from the liability to give compensation and cost of proceedings to the complainant.
In the result, we partly allow the complaint.
- We direct the opposite party 2 to pay Rs.15,000/- as compensation to the complainant.
- Cost of proceedings Rs.5,000/- is to be paid to the complainant by the opposite party 2.
The above order shall be complied with, within 30 days from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 9% per annum from the date of receipt of this order till the date of realization.
Pronounced in the Commission on this the 18th day of May 2022.
Sd/-
Sreevidhia.T.N, Member
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
s/ Forwarded/by Order
Despatch date:
By hand: Assistant Registrar
By post:
APPENDIX
Complainants Exhibits:
Exbt. A1 | Copy of the complaint dated 06/07/2016 given by the complainants to the Station Manager of the 2nd opposite party. |
Exbt.A2 | Copy of the E-mail sent by the complainants to the 2nd opposite party’s customer relations dated 10/07/2016. |
Exbt.A3 | Copy of the E-mail sent by the complainants to the 2nd opposite party’s Nodal Officer dated 11/07/2016. |
Exbt.A4 | Copy of the E-mail sent by the complainants to the 2nd opposite party’s customer relations dated 18/08/2016 |
Extbt.A5 | Copy of the Spice Jet airline ticket |
Extbt.A6 | Copy of the GO air ticket |
Exbt.A7 | Copy of the civil aviation requirements issued by the Director General of Civil Aviation dated 6th August 2010. |
Opposite party's Exhibits:
Exbt.B1 | Copy of the terms of carriage. |
Exbt.B2 | Copy of the civil aviation requirements issued by the Director General of Civil Aviation dated 6th August 2010. |
Depositions:
PW1 - Thomas George
DW1 - Arshad.A.A
