ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging deficiency in service and seeking  refund of Rs.74,754/- being the Air Fare for getting tickets in another flight and for refund of the ticket fares due to the cancellation of the flight, Rs.3,00,000/- as compensation for causing inconvenience and Rs.50,000/- towards litigation expenses and cost along with interest at 12% per annum on the above and other reliefs as the Forum deems fit.

2.     The brief facts of the complaint are that: Complainant No.1 and 2 are husband and wife. They booked a ticket to travel from Leh to Delhi on 02.07.2014 by Air with O.P.No.1 for the flight No.G8194. When they reached airport at Leh on 02.07.2014 well in time, O.P informed them that the flight has been cancelled due to bad weather and rescheduled to next day i.e. on 03.07.2014. Till informing the cancellation of the flight, complainants and other passengers were not served with food and water and no assistance was given to them by O.P at the airport.  They were stranded in the airport for several hours. After receiving the information regarding cancellation of the flight. They had to make their own accommodation for stay overnight as no accommodation was provided by the O.P.  The staff of O.P were totally incompetent and ill-equipped to handle the situation. Even though they requested the O.P and its management to accommodate them in the passenger lounge and to provide lodging facility in the nearby hotel and to provide food and water, they did not responded to their request.  Hence they had to make their own arrangements by getting a lodge on rent and hiring a taxi to go to the lodge for which they had to spend Rs.400/- for to and fro to the lodge and Rs.1,000/- towards food at Leh and Rs.5,556/- for lodging.  They had to cancel the onward journey by flight from Delhi to Bengaluru on 02.07.2014 due to the cancellation of the flight by O.P at Leh and had to loose Rs.10,840/- on that account.

3.     It is further alleged that on 03.07.2014 when they came back to the airport to board the rescheduled flight by O.P., they had to wait endlessly in the airport.  They were assured that the flight to Delhi would take-off in a short time as there were some technical glitch. The management and the O.P did not explain as to what was the technical glitch.  By that time, they had already spent 6 hours in the airport. Again at the end, O.P declared that the flight to Delhi has been cancelled due to bad weather and they cancelled the flight whereas the flights operating by the other operators were operating. When the complainant enquired at the airport, they found that the flights operating from the other agencies were not cancelled whereas the flight from O.P was cancelled.  When confronted with O.P., they denied all their responsibilities and did not assist them in any manner.

4.     Since there was urgency for them to come back to Bengaluru, they booked ticket in the immediately available  flight of different agency by paying Rs.35,000/- to fly from and also had to pay Rs.22,800/- as flight charges from Delhi to Bengaluru on 03.07.2014  and reach Bengaluru at 10.30 pm by spending huge amount, sleepless nights and anxious moments. Had the O.P taken and shown any concern to the complainants and other passengers, and shown some diligence and given the true and correct information, the complainant could have avoided unnecessary expenditure and could have avoided mental, physical and emotional trauma. O.P have acted in a negligent, careless manner without making any alternate arrangement for travelling and providing them tickets for the alternate flights. They have totally suffered loss of Rs.74,754/- on account of  O.P cancelling the flight on the 02.07.2014 and not arranging any accommodation and not providing any food and further on 03.07.2014 when they again cancelled the flight and not assisted them in accommodating them  in the next available flight. There is unfair trade practice, deficiency in service, negligence and carelessness in respect of the passengers.

5.     Hence they had to issue notice demanding the damages for deficiency in service and for the act of omission and commission for which they remained silent. There is gross negligence on the part of the O.P in not providing complete information about the cancellation of the flight on 02.07.2014, not taking care of the passengers and including themselves in providing food and shelter when they cancelled the flight on 02.07.2014 and causing delay of 6 hours in informing the cancellation of flight on 03.07.2014 and further not providing  reason for such a cancellation and for not making any arrangement for them to fly in other aircrafts and hence the complaint.

6.     Upon the service of the notice, O.P. appeared before the Forum through its advocate and filed the version contending that the complaint is not maintainable, filed on false, mischievous grounds, is devoid of merits, only filed to extract money from the O.P. there is no deficiency in service on its part.  The alleged incident occurred in Leh Airport on 03.07.2014 and hence this Forum has no territorial jurisdiction to decide this complaint.  The cause of action mentioned is at Leh Airport. The complaint ought to have dismissed for non-joinder of necessary party since the ticket were booked through the agent and not by O.P. Further the complainant and his wife purchased ticket whereas the complaint is filed only by complainant Mr.Deepayan DasGupta and hence his wife is also necessary party and without her filing the complaint, no relief can be given to her. The relationship between this complainant and the another passenger has not been established.  The complainant kept silent for two years and afterwards has filed this complaint.  The tickets are issued subject to the terms and conditions.  In clause 5 of the terms and conditions regarding cancellation and rescheduling of flights, it is stated that “Go Air Shell on a best effort basis operate the flights as per the schedule, provided that it reserves the right to cancel reschedule, postpone, prepone the schedule of the flights or alter the stopping place or deviate from the route of the journey and customer shall not raise any dispute or grievance against go Air in any manner whatsoever.” Hence complainant filed this complaint is not maintainable.

7.     It is further contended that, from the complaint it appears that two tickets for the complainant and for Mrs. Aditi Das from Leh to Delhi on 02.07.2014 was purchased through a travel agent.  O.P is not aware of the further travel plans. While operating the flight, airlines has to take several factors into consideration such as, flight being in flying condition with all its machinery / motor running properly, good weather condition and air traffic etc.

8.     It is further contended that, on 02.07.2014 due to the inclement weather, despite all attempts made by O.P, the flight could not takeoff. Hence they had to cancel the same and the same was informed to the passengers who had booked the tickets.  The cancellation happened in the last moment. Till then, they were trying to operate the aircraft.  Basic service have been provided in the airport and the complainant has to prove the deficiency in respect of not providing food and shelter.It is further contended that, the passengers were informed regarding cancellation and rescheduling of the flight on 3^rd July 2014.Unfortunately on that day also, due to bad weather they had to cancel the flight. The option of flying out on 04.07.2014 was offered to the passengers, whereas the complainant did not chose to avail the said opportunity.  They operated the flight on 04.07.2014. The cancellation of the flight on 02 and 03.07.2014 was only due to the bad weather and in other wards it was a force majeure.

9.     As per clause 1.4 and 1.5 of DGCA regarding cancellation of delay of the flight, no compensation to be provided to the passenger in case of force majeure.   O.P cannot be held responsible for such a cancellation. Inspite of it, as a goodwill gesture, they refunded Rs.5293/- to the travel agent through whom complainants booked the ticket on 17.09.2014 itself. Probably the said travel agent has kept the complaints in dark in that respect. The claim made by the complainant is exorbitant and without providing proof of expenses, the Forum cannot order for payment of the said amount. The complainant is put to strict proof of the allegations made and hence prayed the forum to dismiss the complaint.

10.   In order to prove the same, Complainant filed his affidavit evidence and produced documents whereas OP filed version did not chose to file evidence and documents.  Perused the evidence. Heard the arguments. The following points arise for our consideration:

1) Whether this forum has territorial jurisdiction to decide this complaint and   whether cause of action has taken within the limits of this forum.

2) Whether the complainant has prove deficiency in service on the part of the Opposite Party?

3)  Whether the complainant is entitled to the relief prayed for in the complaint?

11.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative.

POINT NO.2 and 3: Do not survive for consideration

                                 For the following.

REASONS

POINT No.1-

12.   At the first instance, this complaint was filed by Mr.Deepayan Das Gupta. After filing of the version by O.P taking objection that complaint is not maintainable in view the co-passengers/co-ticket holder is not made as a party, he made an application to implead, Aditi Das his wife as 2^nd Complainant.  In view of this the contention raised by the O.P that the complaint is bad for non-joinder of necessary party is set at rest.

13.   O.P has taken-up the contention that this Forum has no territorial jurisdiction to decide this complaint as no cause of action taken  place within the jurisdiction of this Forum and hence prayed the Forum to dismiss the complaint. On the other hand, it is the case of the complainants that they booked the ticket online from Leh to Delhi and Delhi to Bengaluru. On Perusing the documents filed by the Complainants and the evidence adduced, no documents worth believing to show that the complainants have booked the tickets online from Bengaluru and cause of action has taken place within the jurisdiction of this Forum. On the other hand, the complainants purchased the tickets at Leh and the flight was cancelled on 02.07.2014 and rescheduled to 3.07.2014 and further cancelled on that day also, and the complainant were asked to fly on 04.07.2014 which they did not accept.  Though the act of the O.P in not providing suitable accommodation and food due to the cancellation of the flight, not accommodating them in the next earliest available flight, and not operating their flight when the other airlines operated to Delhi which amounts to deficiency in service, since no cause of action has taken place within the jurisdiction of this Forum, Complainants are not entitle for any of the relief claimed and further the Complaint is not maintainable before this Forum. Hence we answer POINT NO.1 IN THE AFFIRMATIVE. In view of the above, no useful purpose will be served in discussing on POINTS No.2 and 3 and hence we are of the opinion that the said points do not survive for our consideration and proceed to pass the following:-

ORDER

1. The Complaint is dismissed for want of jurisdiction. Parties to bear their own cost.

2. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 24^th JANUARY 2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex.P1: Copy of the mail correspondences.

Ex.P2: Copy of the Coupon and board pass.

Ex.P3: Copy of Air ticket and boarding pass

Ex.P4: Copy of email dated 25.07.2014 by OP.

Ex.P5: Copy of legal notice dated 27.07.2015.

Ex.P6 & P7:Copy of the email dated 04.08.2014

Ex.P8 & P9: Copies of E-Tickets (2 Nos.).

Ex.P10 & P11: Copies of coupon record(2 Nos.)

Ex.P12 & P13: Boarding passing (2 Nos.)

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: - Nil -

Copies of Documents produced on behalf of Opposite Party/s

• Nil –

MEMBER                        PRESIDENT