CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 20th day of May, 2017
PRESENT : SMT. SHINY.P.R, PRESIDENT Date of filing:04/03/2016
: SMT.SUMA K.P, MEMBER
: SRI.V.P.ANANTHA NARAYANAN, MEMBER
CC/34/2016
Gireeshan Thekkath,
S/o Kunjan Thekkath, : Complainant
Avittam, MLA Road, Kanhikulam,
Kalladikkode, Mundur,
Palakkad.
(By Adv.C.Sreekumar&Adv.B.Gangadharan)
Vs
- Go airlines(India) Ltd,
Rep.by its Managing Director,
Go Air Head Office, 1st Floor, C-1
Wadia International Centre(WIC),
Nearest Deepak Talkies Worli, Mumbai 400 025,
Board Line:6741 0000.
- Make My Trip India Pvt.Ltd.
Rep.by its Managing Director, : Opposite parties
Head Office at Tower A,
SP Infocity Pandurang Budhkar Marg 243,
Udyog Vihar, Phase 1
Gurgaon, Haryana-122016, India.
(By Adv.K.Dhananjayan)
- Apollo Munich Health Insurance Co.Ltd.
Rep.by its Managing Director,
-
Udyog Vihar, Phase-111, Gurgaon,
Haryana 122016.
(By Adv.Ullas Sudhakaran)
O R D E R
By Sri.V.P.Anantha Narayanan, Member
Brief facts of the complaint.
The first opposite party is engaged in domestic passenger airline service in India, the second opposite party is a company engaged in online flight booking service etc. and the third opposite party is an insurance company, who is liable to disburse the insurance amount in such events as mentioned in the policy. This petition is filed against the opposite parties for deficiency in service and unfair trade practice.
In the month of November 2015, the complainant booked two flight tickets from the first opposite party as flight No.G8-192, from Srinagar to Delhi on 16.12.2015 by using the online service of the second opposite party vide invoice No.NF76441 and booking ID No.NF 7202164414956. The airline PNR number of the said flight was KW7D5A. The complainant and his teenaged daughter, named Vishnu Priya had to travel all the way from Srinagar to Coimbatore, Tamil Nadu. The departure time of the above said flight was at 09.35 hrs on 16.12.2015 from Srinagar and the arrival time at Delhi was at 10.45 hrs on 16.12.2015. Since the arrival time of the above said flight in Delhi was at 10.45 hrs on 16.12.2015, the complainant booked 2 tickets through the 2nd opposite party, as a connection flight from Delhi to Coimbatore in Indigo airlines. The departure time of the said connection flight from Delhi to Coimbatore was at 13.50 hrs on 16.12.2015 i.e. more than three (3) hours time interval. During the booking of the above said flight tickets, the third opposite party offered an insurance policy during his journey for an amount of Rs.249/-. The complainant availed the insurance offered by the 3rd opposite party. The 3rd opposite party issued a certificate of insurance, bearing no: A000000468/641899. As per the said certificate of insurance, the policy Number is 900001/35001/A000000468. The journey of the complainant and his daughter was within the Risk period under the said insurance policy, even the flight cancellation risk was also covered as per the said policy.
On 16.12.2015, when the complainant reached the Airport at Srinagar, he came to know that the first opposite party cancelled the said flight booked by the complainant which was to departed at 09.35 hrs on 16.12.2015, without any prior intimation. No intimation, indication or warnings were given to the complainant by the 1st opposite party or the second opposite party. This was a shock to the complainant. They ought to have informed the complainant about the cancellation of the flight earlier and made necessary arrangements for travelling. The above said acts on the part of the first and second opposite parties amounted to deficiency in service and unfair trade practice. The second opposite party is also duty bound to intimate the complainant about any changes in the time schedule of the flights or about the cancellation of the flights booked through them. Due to the said acts, the complainant and his daughter were not even permitted to enter inside the Airport, that too during the heavy winter season in Srinagar. This caused immense mental as well as physical agony to the complainant and his daughter.
In desperation, complainant made several requests at Srinagar Airport. At Srinagar Airport the officials allowed him and his daughter to enter the Airport. When the complainant enquired with the first opposite party’s staff at the Srinagar Airport about the alternate arrangements, they paid no attention, as if it was not their concern at all. The first and second opposite parties are liable to arrange another flight to the complainant for no cost and also to do other services to the complainant, since it was not the fault of the complainant . The first and second opposite parties had not taken any effort to book another flight for the journey of the complainant and his daughter. The office bearers were not even ready to hear the complainant and they were not ready to arrange another flight or to return the ticket charges. At last on repeated requests of the complainant, the office of the first opposite party arranged two tickets for the complainant and his daughter in another flight which departed only at 11.35 hrs on 16.12.2015. The complainant informed the office bearers of the first opposite party that the flight arranged by them is too late to get the connection flight from Delhi to Coimbatore which would depart at 13:50 hrs from Delhi International Airport. But the office bearers were not ready to hear the same. They informed the complainant that they were not liable for the same. The office bearers treated the complainant in an impolite manner and they were however trying to avoid the complainant.
The complainant and his daughter were forced to travel from Srinagar to Delhi in the flight arranged by the first opposite party. The said flight was not a direct flight and it was via Jammu and the same reached at Delhi airport only at 14:10 hrs. By that time the connection flight booked by the complainant in Indigo Airlines bearing No.6E-286 from Delhi to Coimbatore departed from Delhi airport at its scheduled time i.e.13:50 hrs. When the complainant asked for a refund from the Indigo Airlines, they refused to do so. Complainant had to reach his home on 16.12.2015, to attend to many of his personal as well as family matters. In the said circumstance, the complainant had no other option but to book another flight to continue his journey to his home. But unfortunately, during the said time there were no flights from Delhi to Coimbatore. Hence the complainant had to book another flight from Delhi to Chennai by paying an amount of Rs.18,874/-for two tickets. From Chennai to Coimbatore complainant had to travel by train by spending an amount of Rs.1815/- for two tickets and had to spend an amount of Rs.900/-towards Taxi fare from Chennai Air Port to Chennai Railway Station. The complainant and his 17 year aged daughter had suffered much hardship, mental agony, financial loss and inconvenience. The entire above said incident happened due to the negligence, deficiency in service and unfair trade practice on the part of the opposite parties. First and second opposite parties are liable for all the hardship, mental agony, financial loss and inconvenience caused to the complainant and his daughter. Even though the mental agony, hardship and inconvenience caused to the complainant cannot be calculated on monetary basis, the complainant restricts his claim to an amount of Rs.2 lakhs on that head and the first and second opposite parties are liable to pay the same to the complainant. The first and second opposite parties are also liable to pay the above said amounts of Rs.18,874/-, Rs.1,815/-and Rs.900/-being the additional amount burdened due to the deficiency in service and unfair trade practice on the part of the first and second opposite parties. Thus the first and second opposite parties are jointly and severally liable to pay a total amount of Rs.2,21,589/-to the complainant and the complainant is entitled to receive the same.
The complainant had duly insured his journey with the third opposite party and the journey of the complainant and his daughter is within the risk coverage period of the said insurance policy. In the said circumstance, the complainant is also entitled for the benefits under the insurance policy of the third opposite party bearing policy Number 900001/35001/A000000468. The benefits include cancellation of flight, trip delay and flight delay. Hence the complainant claimed the Insurance policy amount and furnished all the relevant documents. But the third opposite party had not even responded to the complainant’s plea till this date. The said act of the third opposite party is highhanded and it amounts to deficiency in service and unfair trade practice. The complainant suffered much hardship, loss and mental agony due to the said act of the third opposite party. The third opposite party is liable to compensate for the same. The third opposite party is liable to disburse the policy benefits to the complainant under policy Number:900001/35001/A000000468 and certificate of insurance bearing number A000000468/6418900 and to pay an additional amount of Rs.1 lakh to the complainant as compensation for mental agony, loss, inconvenience and hardship, despite the amount claimed above.
All the opposite parties are jointly and severally liable for all the claims made by the complainant.
The cause of action for the complaint arose on 13.11.2015, the date on which the complainant booked the flight tickets, on 16.12.2015, the date on which the flight booked by him was cancelled and thereafter at Palakkad Taluk, Palakkad District from where the flight tickets were reserved by the complainant by using the internet connection of his house which is within the jurisdiction of this Hon’ble Forum.
Hence it is humbly prayed that this Hon’ble Forum may be pleased to pass an order:
- Directing the opposite parties to pay a total amount of Rs.2,21589/- with 18% interest to the complainant as compensation by making all of them liable jointly and severally;
- Directing the third opposite party to disburse the policy benefits to the complainant under policy Number:900001/35001/A000000468 and certificate of insurance bearing number A000000468/641899 and to pay an additional amount of Rs.1,00,000/- with 18% interest to the complainant as compensation.
- Allowing the cost of this complaint
- To granting such other reliefs that the complainant may pray from time to time and the Hon’ble Forum deems fit and proper to grant.
The complaint was admitted and notices were issued to opposite parties. Although notice to 1st opposite party was served on them, their name called absent and therefore they were set ex-parte.
In their version 2nd opposite party contend the following:
2nd Opposite party deny all the allegations contained in the complaint save and except to the extent the contends thereof are specifically admitted.
It is submitted that the present complaint filed by the complainant is not maintainable either on merits or as per law qua 2nd opposite party and is liable to be out rightly dismissed as the complainant herein has no where alleged about the deficiency in services which could have been caused at the end of 2nd opposite party. It is submitted that the contents of the complaint are wholly misconceived, vexatious, misleading, misrepresented, unsustainable, false, frivolous qua 2nd opposite party and are nothing but a flagrant abuse of the process of law. There is no deficiency of service on the part of the 2nd opposite party and therefore no cases are made out against the 1st opposite party under the provisions of the Consumer Protection Act, 1986. The present complaint is therefore liable to be in limine with exemplary costs thereto under section 26 of the Consumer Protection Act, 1986 for dragging a reputed and highly acclaimed Tour and Travel Company in an unnecessary, unwanted and speculative litigation.
Without prejudice to the submission/relief sought in the present complaint, irrespective thereof that no specific allegations have been put forth against 2nd opposite party, the 2nd opposite party herein seeks leave of this Ld. DF to refer and rely upon the Jurisdiction clause of the Terms &Conditions of the User Agreement; agreed between the complainant and 2nd opposite party at the time of booking in question. It may be noted that though no specific allegations have been leveled against 2nd opposite party, it is pertinent to take into consideration that even thereof this Hon’ble Forum does not have jurisdiction to entertain the present dispute qua 2nd opposite party. As per the Jurisdiction clause of the User Agreement, only the Courts of NCR Delhi have the territorial jurisdiction to entertain the disputes, if any, arising out of the bookings qua 2nd opposite party. The relevant extract of the terms and condition as necessary for the adjudication of the present dispute is reiterated hereunder for the ready reference of this Hon’ble Forum.
JURISDICTION
MMT hereby expressly disclaims any implied warranties imputed by the laws of any jurisdiction or country other than those where it is operating its offices. MMT considers itself and intends to be subject to the jurisdiction only of the courts of NCR of Delhi, India. The Hon’ble Supreme Court in catena of judgment have held that in case two courts have the territorial jurisdiction to entertain the disputes and parties have mutually oust the jurisdiction of one court, then the other court(as the present Ld. Forum)cannot entertain the disputes. In view thereof, the present complaint merits dismissal qua 1st opposite party on this the ground of the Lack of Territorial Jurisdiction by this Ld.DF, the reliance is also placed on a decision by the Hon’ble Supreme Court Vide order dated October 20, 2009 passed in “Civil Appeal 1560 of 2004 Sonic Surgical Vs.National Insurance Company Ltd.[reported in 2010 CTJ 2 (Supreme Court) CP].
The opposite party discharged its complete liability by issuing confirmed tickets as per complainant’s request, the same is not in dispute.
The complainant could not utilize the bookings made by him as the flight booked by him was cancelled directly by the concerned Airlines i.e.1st opposite party. The same fact has been admitted in para 3 of the complaint. 2nd opposite party had no control over the operations of 1st opposite party Airlines. It is pertinent to mention here that no information regarding flight cancellation was shared by the 1st opposite party with the 2nd opposite party. Hence 2nd opposite party was not in a position to intimate the complainant about the same. That the 2nd opposite party had discharged its duty and its complete liability by issuing confirmed tickets as per the request of the complainant. Hence it is denied that there has been any deficiency on part of 2nd opposite party. It is pertinent to mention that the 2nd opposite party merely acts as a facilitator for facilitating booking through respective service providers like Airlines, Hotel, etc. In the event of default by the service provider, the 2nd opposite party cannot be held liable.
The contents of para 3 of the complainant, are not denied to be extent that the flight booked by the complainant was cancelled by the 1st opposite party Airlines for reasons best known to them. 1st opposite party Airlines never informed the 2nd opposite party about any cancellation and therefore the 2nd opposite party was not in a position to inform the same to the complainant. The contents of para 4 are wrong and hence denied. The flight in the instant case was cancelled directly by the Airlines because of the reasons best known to them. The 2nd opposite party being a facilitator has no role to play in the cancellation. Therefore the responsibility to provide an alternate in the case of cancellation of the flight also hinges upon 1st opposite party. The complainant escalated his concerns to the 2nd opposite party. Therefore the 2nd opposite party could not have offered any assistance . The contents of para 5 are denied due to lack of knowledge. The alternate was offered by 1st opposite party and 2nd opposite party had no role in the same. It was 1st opposite party’s responsibility to offer a suitable alternate in the event of cancellation of flight by them. No liability can be imposed on the 2nd opposite party in the event of cancellation by 1st opposite party. The contents of paragraph 6 are also denied. As per the user agreement accepted by the complainant at the time of booking, insurance ,if any , provided as a part of the service/product by the 2nd opposite party is as per the terms and conditions of the 3rd opposite party. The complainant shall hold
the 3rd opposite party which is the insurance company, liable directly for any claim or disputes. The contents of para 7&8 are denied fully.The prayer of providing compensation to the tune of Rs.2,21589/- and Rs.1,00000/-is denied entirely. The complainant has not substantiated his claim and has only entered this figure to pressurize the opposite party without considering their earlier communication with the complainant.
Therefore, it is respectfully prayed by the 2nd opposite party that this Hon’ble Forum may be pleased to dismiss the complaint qua 2nd opposite party with punitive and exemplary clause being awarded to the 2nd opposite party and in that behalf and pass such other appropriate order(s) and direction as the Hon’ble Forum may deem fit and proper in the facts and circumstance of the present case.
In the version filed by the 3rd opposite party before the Hon’ble Forum the following are contended by them.
Save those which are expressly admitted here under, all the averments in the above complaint are hereby denied.
The above complaint is not maintainable either in law or on facts.
The allegations as stated in paras 1 to 5 are not within the knowledge of this opposite party and hence this opposite party reserves the right to deny the same as and when found.
The benefits relating to the trip covered under the policy taken by the complainant amongst the other benefits are trip cancellation, trip curtailment, flight delay and trip delay. The following benefits are available under the trip cancellation, trip curtailment, flight delay and trip delay of the policy. The policy also states about the conditions for obtaining the benefits. According to the conditions of the policy, “Section.7 Trip Cancellation”- if an insured person’s outward journey as a fare paying passenger(as shown on his original travel booking and ticket) on a Carrier is unavoidably cancelled because of: a) The death of the Insured Person or the travelling Insured Person’s Immediate Family Member or travelling companion, or b). The Hospitalization of the Insured Person or the travelling Insured Person’s parent, spouse or child due to a sudden illness or injury where a Medical Practitioner has recommended that due to the severity of the medical condition, it is necessary to cancel the trip. Then the 3rd opposite party will reimburse up to the Trip Cancellation Sum Insured, for those travel and accommodation expenses that the Insured Person has paid and cannot recover or for which no value can be derived or he is liable to pay.
Section 8 Trip Curtailment- if an Insured Person’s journey as a fare paying passenger (as shown on his original travel booking and ticker) on a Carrier is unavoidably curtailed during the Risk Period before completion and after it has commenced because of : a ) The death of the Insured Person or the travelling Insured Person’s Immediate Family Member or travelling companion, or b) The Hospitalization of the Insured Person or the travelling Insured Person’s parent, spouse or child due to a sudden illness or injury where a Medical Practitioner has recommended that due to the severity of the medical condition it is necessary to curtail the trip. Then 3rd opposite party will reimburse up to the trip Curtailment Sum Insured, for those travel and accommodation expenses that the Insured Person has paid and cannot recover or for which no value can be derived or he is liable to pay.
Section 9 Flight delay- if an Insured Person’s journey on a Carrier as a fare paying passenger is delayed for a continuous and completed 6 hour period beyond its scheduled departure or scheduled arrival time during the Risk Period because of any of the reasons below, then 3rd opposite party will reimburse up to the flight Delay Sum Insured for those expenses incurred by the Insured Person for meals and accommodation provided that neither meals nor accommodation were offered by the Carrier or any other person without charge: a) Delay of the Carrier due to any severe weather conditions. b) Delay caused by strike or industrial action by the employees of the Carrier. c) Delay caused by any sudden or unforeseen breakdown of the Carrier’s equipment. Special Condition to Section 9 a) The Insured Person must provide 3rd opposite party with written confirmation from the Carrier of the length and exact nature of the delay. Special Exclusions to Section 9 -3rd opposite party will not make any payment for any claim in respect of any Insured Person directly or indirectly for, caused by, arising from or in any way attributable to a) Facts or matters of which the Insured Person was aware or should have been aware might result in a delay at the time the Insured Person booked his tickets. b) Any delay arising from the order or action of any Government, Civil Authority or official Government Body. c) Voluntary suspension of services by the Carrier.
Section 10 Trip delay- if an Insured Person’s journey on a Carrier or Scheduled Railway as a fare paying passenger is delayed for a continuous and completed 6 hour period beyond its scheduled departure or scheduled arrival time during the Risk Period because of any of the reasons below, then 3rd opposite party will reimburse up to the Trip Delay Sum Insured for those expenses incurred by the Insured Person for meals and accommodation provided that neither meals nor accommodation were offered by the Carrier or Scheduled Railway or any other person without charge: a) Delay of the carrier or Scheduled Railway due to any severe weather conditions. b) Delay caused by strike or industrial action by the employees of the Carrier or Scheduled Railway. c) Delay caused by any sudden or unforeseen breakdown of the Carrier or Scheduled Railway’s equipment. Special Condition to Section 10 a) The Insured Person must provide the 3rd opposite party with written confirmation from the Carrier or Scheduled Railway of the length and exact nature of the delay. Special Exclusions to Section 10-3rd opposite party will not make any payment for any claim in respect of any Insured Person directly or indirectly for, caused by, arising from or in any way attributable to: a) Facts or matters of which the Insured Person was aware of ,should have been aware might result in a delay at the time the Insured Person booked his ticket. b) Any delay arising from the order or action of any Government, Civil Authority or Official Government Body. c) Voluntary suspension of services by the Carrier or Scheduled Railway”.
The conditions and exclusions of the policy show that the complainant is not entitled to the benefits of trip cancellation, trip curtailment, flight delay and trip delay because the conditions mentioned “ in the terms and conditions of the policy” are not being fulfilled. The conditions of the policy show that the benefit of trip cancellation is provided if the outward journey is unavoidably cancelled because of the death or hospitalization of the persons mentioned in the section on trip cancellation. The conditions of the policy show that the benefit of trip curtailment is provided if the outward journey is unavoidably cancelled because of the death or hospitalization of the persons mentioned in the section on trip curtailment. The benefit of flight delay is provided if the journey is delayed for a continuous and completed six hour period beyond its scheduled departure or scheduled arrival time due to delay, due to any severe weather conditions, delay caused by strike or industrial action by the employees of the carrier, delay caused by any sudden or unforeseen break down of the carrier’s equipment. The condition also states that the Insured Person must provide the company with written confirmation from the carrier of the length and exact nature of the delay. The exclusions to the conditions on flight delay excludes claim arising from in any way attributable to facts or matters of which the Insured Person was aware or should have been aware might result in a delay or voluntary suspension of services by the carrier. The complainant has admitted that the flight of the complainant from Srinagar to Delhi on the carrier of the 1st opposite party was voluntarily suspended by the carrier and hence it is excluded by the policy. The benefit of trip delay is provided if the journey is delayed for a continuous and completed 6 hour period beyond its scheduled departure or scheduled arrival time due to delay due to any severe weather conditions, delay caused by strike or industrial action by the employees of the carrier, delay caused by any sudden or unforeseen breakdown of the carrier. However, none of the conditions mentioned were complete in the case in hand. The condition also states that the Insured Person must provide the company with written confirmation from the carrier of the length and exact nature of the delay. The exclusions to the condition on flight delay excludes claim arising from or in any way attributable to facts or matters of which the Insured Person was aware or should have been aware might result in a delay or voluntary suspension of services by the carrier. The complainant has also admitted that the flight of the complainant from Srinagar to Delhi on the carrier of the 1st opposite party was voluntarily suspended by the carrier and hence it is excluded by the policy.
The allegations in para 6 of the complaint that the 3rd opposite party has not responded is false and hence denied. This opposite party had sent a letter dated 09.02.2016 intimating the complainant that the claim of the complainant was rejected as it does not fall under the purview of the policy. The further allegation that the act of the 3rd opposite party is high handed and amounts to deficiency in service is false and hence denied. There has been no deficiency in service on the part of this opposite party. The allegation that the complainant suffered much agony and mental hardship due to the act of the 3rd opposite party is false and hence denied. The allegation that the 3rd opposite party is liable to compensate the same is false and hence denied. The 3rd opposite party is not liable to compensate the complainant. The allegation in the complaint that the 3rd opposite party is bound to disburse the policy benefits and compensation is false and hence denied. The conditions of the policy are to be strictly construed. Even assuming without admitting liability, the liability of these opposite parties is limited to the terms, conditions and limitations of the policy. There is no cause of action for the alleged complaint and the cause of action as stated in the complaint is imaginary. The complainant is not entitled to any of the reliefs as claimed in the complaint in the section on prayer. The complainant is no entitled to Rs.2,21,589/-with interest @18% or to an additional amount of Rs.1,00,000/-. These opposite parties are not liable to pay any interest, compensation and cost to the complainant.
Therefore it is humbly prayed that this Hon’ble Forum may accept the contentions of this opposite party and to dismiss the complaint with cost as regards this opposite party.
Although registered notice was sent to 1st opposite party and served on them; their name was called absent and they were set ex-parte.
Complainant submitted affidavit and additional affidavit. 3rd opposite party filed chief affidavit along with documents. 2nd opposite party also filed affidavit. From the side of the complainant Exts.A1-A6 were marked , Exts.A4 and A5 in series . From the side of opposite parties Exts.B1-B5 were marked. 3rd opposite party also filed notes of arguments.
In this case the following issues arise.
- Whether there is any negligence and/or deficiency in service from the part of opposite parties?
- If so, what is the relief?
Issues 1&2
In Nov. 2015, the complainant booked two flight tickets from the 1st opposite party on flight no. G8-192 from the Srinagar to Delhi on 16/12/2015 by using the online service of the 2nd opposite party vide invoice No.-NF 76441 and booking Id No. NF7202164414956 vide Ext. A1. The passengers in the fight were complainant and his teenage daughter. The departure time of the said flight was 09.35 hours on 16/12/15 from Srinagar and its arrival time at Delhi was at 10.45 hours on 16/12/15. Since the complainant and his daughter had to travel from Srinagar to Coimbatore , the complainant booked two tickets through the 2nd opposite party on a correction flight from Delhi to Coimbatore in Indigo Airlines whose departure time from Delhi to Coimbatore was 13.50 hours on 16/12/15. During the booking of the aforesaid flight tickets 3rd opposite party offered an insurance policy for his journey for Rs. 249/- which the complainant availed from the 3rd opposite party. 3rd opposite party issued a certificate of insurance bearing no.–A000000468/641900 which shows the policy no.as 900001/35001/A000000468 . Photocopy of the insurance certificate policy was marked as Ext.A2 as per the policy, journey was within the risk period and the fight cancellation risk was also covered. When the complainant reached Srinagar Airport, he came to know that the 1st opposite party cancelled the flight booked by him which was to depart from Srinagar at 09.35 hours on 16/12/2015 without any prior intimation . According to the complainant no intimation, indication and warnings were given to him by the 1st opposite party or 2nd opposite party which shocked him. According to him, not informing the complainant about the cancellation of the flight earlier and not making necessary arrangements for the travelling amounted to deficiency in service and unfair trade practice on the part of 1st and 2nd opposite parties. After several requests made at the Srinagar airport by the complainant, the Airport officials allowed the complainant and his daughter to enter the airport. According to the complainant , opposite parties 1&2 were liable to arrange another flight to the complainant for no cost and to do him other services; they did not take any effort to book another flight for the journey for him and his daughter or to return the ticket charges. Consequent on his repeated requests 1st opposite party’s office arranged two tickets for the complainant and his daughter in another flight which departed only at 11.35 hours on 16/12/15. The arranged flight was not a direct flight and hence it reached Delhi airport only at 14.10 hours , by which time the connection flight booked by the complainant from Delhi to Coimbatore departed at its scheduled time of 13.50 hours. The Indigo Airlines refused to provide refund to the complainant ,although demanded by him. Since the complainant had to attend to personal and family matters, he had to reach his home on 16/12/2015 itself. During the said time, there were no flights from Delhi to Coimbatore. Hence the complainant had to book another flight from Delhi to Chennai by paying Rs.18874/-for two tickets vide Ext.A3. From Chennai to Coimbatore the complainant had to travel by train spending Rs 1815/- for two tickets as per Ext. A6 and had to spend Rs. 900/- towards taxi fare from Chennai airport to Chennai railway station . He pleads that he and his seventeen year old daughter suffered much hardship , mental agony, financial loss and inconvenience which happened due to negligence and deficiency in service and unfair trade practice on the part of opposite parties 1&2 . He claims Rs. 2,00000/-(Rupees two lakhs only) from opposite parties 1&2 for the mental agony, hardship and inconvenience caused to him and his daughter; they were also liable to pay an additional amount of Rs. 21,589/- (Rupees twenty one thousand five hundred and eighty nine only) for their deficiency in service and unfair trade practice. The opposite parties 1&2 are jointly and severely liable to pay the complainant Rs.2,21,589/-(Rupees Two lakh twenty one Thousand Five hundred and Eighty Nine only). As per Ext. A4 series , the Go airlines boarding pass are indicated; Indigo airlines boarding pass produced are marked as Ext. A5 series and the train ticket produced was marked as Ext. A6.
The complainant continues his pleading that he has insured the in question journey with the 3rd opposite party and the journey of himself and his daughter was within the risk coverage period . As per the said insurance policy and by virtue of that the complainant was entitled for the benefits under the said insurance policy which includes cancellation of flight, trip delay and flight delay . Insurance amount was claimed by the complainant furnishing all the relevant documents ; but the 3rd opposite party did not respond to his plea till date. The said act of the 3rd opposite party amounts to deficiency in service and unfair trade practice . The complainant suffered much hardship and loss and mental agony due to that act for which opposite party No.3 is liable to compensate the complainant . The complainant pleads for Rs.1,00,000/- (Rupees one lakh only)as compensation for mental agony , loss , inconvenience and hardship . Hence, the complainant humbly prays to the Hon’ble Forum to pass orders directing the opposite parties to pay Rs. 2,21,589/-(Rupees two lakh twenty one thousand five hundred and eighty nine only) with 18% interest to the complainant as compensation by making all of them jointly and severally liable; directing the 3rd opposite party to disburse the policy benefit to the complainant under the policy No. :900001/35001/A000000468 and certificate of insurance bearing no. : A000000468/641900 and pay additional amount of Rs. 1,00,000/-(Rupees One lakh only) with 18% interest to the complainant as compensation , allow the cost of this complaint and grand such other reliefs that the complainant prays from time to time and the Hon’ble Forum deems fit and opposite party to grant .
According to the 2nd opposite party the Deputy Manager ( Legal) of the 2nd opposite party company has been authorized to file the chief affidavit and to follow up all the legal proceedings in cases filed by and against 2nd opposite party by virtue of the Board of Directors resolution dated 02/03/2015 marked as Ext. B1 . The 2nd opposite party contend that the complainant agreed to the terms and condition of user agreement at the time of ticket booking. As per the user agreement’s terms and conditions marked as Ext. B2 , the complainant cannot claim any compensation or damages . According to 2nd opposite party, they had no intimation from the 1st opposite party regarding cancellation of flight from Srinagar to Delhi and hence they could not inform the complainant . It is the responsibility of the 1st opposite party to intimate in advance about cancellation of the said flight to the complainant and 2nd opposite party. It is also contended by the 2nd opposite party that their responsibility is only to the extent of booking and issue of confirmed tickets required by the complainant which they submit that they have done. It is the duty of the 1st opposite party as service provider airlines to carry the passengers including the complainant to the booked destination and they have no control over the administration and flight control of 1st opposite party airlines and are only authorized for booking and issue of air tickets to the complainant . 2nd opposite party act only as facilitator for booking tickets through 1st opposite party. Hence they contend that they have not committed any deficiency of service towards the complainant and the 2nd opposite party remitted the ticket amount received from the complainant to the account of the 1st opposite party airlines at the time of booking tickets by the complainant . Hence 2nd opposite party pray to the Hon’ble Forum to dismiss the complaint against them in the interest of justice and equity.
According to the 3rd opposite party the complaint is not maintainable either in law or on facts. The allegation as per paras 1 to 5 are not within the knowledge on the 3rd opposite party and hence they reserve the rights to deny the same as and when they are found. 3rd opposite party also contend that they are liable to compensate only according to the terms and conditions of the “Easy Domestic Travel Insurance Policy” issued to the complainant, which is marked as Ext. B3 . The benefits relating to the trip covered under the policy mentioned above, taken by the complainant include those relating to trip cancellation, trip curtailment flight delay and trip delay . The policy also states about the conditions to be fulfilled by the complainant for obtaining the benefits under the policy . They are mentioned in section 7 regarding trip cancellation , section 8 regarding trip curtailment , section 9 regarding flight delay and section 10 regarding trip delay. 3rd opposite party contend that as per the conditions and exclusions of the above mentioned policy , the complainant is not entitled to the benefits of trip cancellation , trip curtailment , flight delay and trip delay because the complainant has not satisfied the conditions mentioned in the ‘terms and conditions ‘of the above mentioned policy. Moreover , as admitted by the complainant , the flight of the complainant from Srinagar to Delhi on the 1st opposite party airline was voluntarily suspended by the 1st opposite party and hence it is excluded by the policy . Complainant has submitted the claim form to 3rd opposite party which is marked as Ext. B4 . 3rd opposite party intimated the complainant through a letter dated 9/2/16 , marked as Ext. B5 , about the repudiation of the claim because it does not come within the purview of the above mentioned policy . 3rd opposite party also contend that there is no deficiency in service on the part of this opposite party. They also contend that the complainant is not entitled to any of the reliefs as claimed by him in his prayer to Hon’ble Forum . The complainant is not entitled to Rs. 221589/- ( Rupees Two Lakhs Twenty One Thousand Five Hundred and Eighty Nine only) with 18% interest or to an additional amount of Rs. 1,00,000/-(Rupees one lakh only). Hence 3rd opposite party pray to the Hon’ble Forum to accept their contentions and dismiss the complaint with cost.
From the above, we understand that 1st opposite party has cancelled the flight from Srinagar to Delhi on 16/12/2015 without prior intimation and as a result of cancellation of the flight complainant and his daughter suffered a lot of inconvenience and hardship . Because of the sudden cancellation of the flight from Srinagar to Delhi, the complainant missed a correction flight from Delhi to Coimbatore which caused him to spend a big amount for booking two tickets by another flight from Delhi to Chennai and for booking tickets by train for travelling from Chennai to Coimbatore , in addition to mental agony and hardship suffered by the complainant and his daughter . We also observe that the 1st opposite party have not intimated earlier to the complainant about the booked flight cancellation; they also have not arranged another flight to the complainant from Srinagar to Delhi sufficiently early, so that the complainant had to miss the connection flight between Delhi and Coimbatore. Had the 1st opposite party arranged another flight from Srinagar to Delhi sufficiently early, the complainant would not have missed the connection flight between Delhi and Coimbatore and complainant and his daughter would not have undergone a lot of mental agony, hardship and inconvenience which they suffered? More over 1st opposite party have also not seen refunded to the complainant the air ticket fare between Srinagar and Coimbatore . In the light of all of the above we view that 1st opposite party have committed grave deficiency in their service towards the complainant .
We also observe that 2nd opposite party is responsible to the extent of booking and issue of confirmed tickets . They have no control over the administration and flight control over the 1st opposite party airlines. Further they did not have any prior intimation from the 1st opposite party regarding the flight cancellation between Srinagar and Delhi which the complainant was supposed to travel by on 16/12/2015. Similarly the complainant has not seen fulfilled the conditions mentioned in “Easy Domestic Travel Insurance Policy” issued by the 3rd opposite party to the complainant . Hence we do not find any deficiency in service /unfair trade practice on the part of 2nd and 3rd opposite parties.
Therefore the complaint is partly allowed.
We order the 1st opposite party to pay to the complainant Rs. 20,689/- (Rupees twenty thousand six hundred and eighty nine only) towards the air ticket fare spent by the complainant for travelling between Delhi and Chennai and train ticket fare spent by the complainant for travelling between Chennai and Coimbatore ; further we also order the 1st opposite party to pay to the complainant Rs. 25000/- (Rupees twenty five thousand only) for mental agony and hardships suffered by him and his daughter and Rs. 5000/- (Rupees five thousand only)towards litigation expenses incurred by the complainant . We also order that 2nd and 3rd opposite parties are exonerated from their liability in this case .
This Order shall be executed within a period of one month from the date of receipt of the order; failing which interest @ 9% per annum should also be paid to the complainant from the date of the order till realization. .
Pronounced in the open court on this the 20th day of May 2017.
Sd/- Shiny. P.R
President
Sd/-
Suma. K.P Member
Sd/-
V.P.Anantha Narayanan Member
Appendix
Exhibits marked on the side of complainant
Ext.A1- invoice No.-NF 76441 and booking Id No. NF7202164414956 dated 13/11/15
Ext.A2 – Photocopy of the insurance certificate policy dated 13/11/2015
Ext.A3- Payment details of Indigo dated 16/12/2015
Ext.A4 series- The go airlines boarding pass(2 Nos)
Ext.A5 series- Indigo airlines boarding pass dated 16/12/2015(2Nos)
Ext.A6- Train ticket dated 16/12/2015
Exhibits marked on the side of opposite party
Ext.B1- the board of directors resolution dated 02/03/2015
Ext.B2- user agreement
Ext.B3- The terms and conditions of the “Easy Domestic Travel Insurance Policy”
Ext.B4- Claim form submitted by the complainant to 3rd opposite party
Ext.B5- Intimation letter send by the 3rd opposite party to the complainant dated 9/2/16
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite party
Nil
Cost allowed
Rs. 5000/- as cost
