| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA CC No.251 of 4-8-2022 Decided on : 05-07-2023 Himanshu Malhotra S/o Mr. Nirdosh Kumar Malhotra R/o # 17184, 40 Feet Road, Aggarwal Colony, Bathinda, Punjab, 151001. - ........Complainant
Versus HappyEasyGo India Private Limited, AIHP Palms, Plot No.242 & 243, Phase-4, Sector 18, Gurugram, Haryana, 122015. through its Incharge. GO Airlines (India) Limited, 1st Floor, C-1, Wadia International Centre, Pandurang Budhkar Marg, Worli, Mumbai 400 025, India Nearest LandMark: Deepak Talkies, through its Incharge.
.......Opposite parties
Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM:- Sh.Lalit Mohan Dogra, President Sh.Shivdev Singh, Member Present:- For the complainant : Sh.Ashok Bharti, Advocate. Opposite party No.1 : Ex-parte. For opposite party No.2 : Sh.Vikas Singla, Advocate. ORDER Lalit Mohan Dogra, President The complainant Himanshu Malhotra (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against HappyEasyGo India Private Limited and other (here-in-after referred to as opposite parties). Briefly, the facts of the complaint as pleaded by the complainant are that on 21.3.2022, he booked 3 Air tickets Online from Chandigarh to Bangalore for his own and his family (wife and their Children) for Rs.20,452/- in GO FIRST G8 3119 i.e. opposite party No.2 through portal of opposite party No.1 against invoice No.HEGFD20210744705. It is alleged that on 10.4.2022 the complainant checked the PNR status of the flight and found that flight GO FIRST G8 3119 had been cancelled for that day. He again booked 3 tickets for him and his family on the spot urgently that were much costly. It is further alleged that the complainant several time requested opposite patties to refund the amount of flight booked on 21.3.2022 for Rs.20,452/-, but opposite parties failed to refund him amount inspite of his several requests. The complainant is regularly requesting opposite parties through e-mails and calls, but they stated that they have already refunded the amount to the complainant, but the complainant has not received a single penny from them and even the refund status clearly shows that the amount is refunded, but the same has not received by him. On this backdrop of facts, the complainant has prayed for directions to opposite parties to refund the amount i.e. Rs.20,452/- to the complainant and to pay Rs.50,000/- as compensation and Rs.11,000/- as litigation expenses. Upon notice, none appeared on behalf of opposite party No.1. As such, ex-parte proceedings were taken against it. opposite party No.2 appeared through its counsel and contested the complaint by filing written version and raised the preliminary objections that this complaint is nothing, but specific and centric to the non refund of the ticket booking amount that has already been refunded by it to the travel agent of the complainant even before filing of this complaint (on 13.4.2022) that has also been admitted by the complainant and evident from the documents presented by the complainant himself before this Commission. It is the opposite party No.1 travel agent of the complainant who has not forwarded the refund amount to the complainant. As such, the entire grievance of the complainant is only against opposite party No.1 and this complaint is liable to be dismissed against opposite party No.2 straight away. The complainant has suppressed the true and material facts from this Commission. This complaint has become infructuous as the refund has already been processed to the complainant through his travel agent i.e. opposite party No.1. As such, the complaint is not maintainable and liable to be dismissed on this ground alone. It is further pleaded that the actual facts of the case are that the complainant had booked three tickets to travel from Chandigarh to Bangalore on 21.4.2022. He paid consideration towards the booking of tickets to his travel agent, Happy EasyGo India Private Limited i.e. opposite party No.1 in this case. The scheduled flight was cancelled due to operational reasons that were beyond the control of opposite party No.2. As such, opposite party No.2 was compelled to cancel the booking of the complainant for the journey. The cancellation was duly informed by opposite party No.2 to the complainant in advance. Thereafter, opposite party No.2 had duly processed refund to the travel agent of the complainant i.e. the opposite party No.1 and if the opposite party No.1 has not released the payment to the complainant, the complaint ought to have been filed exclusively against opposite party No.1. It has been further pleaded that Civil Aviation Requirements, Series 'M' Part IV issued by Office of the Director General of Civil Aviation' (DGCA) dated 6.8.2010 and effective from 15.8.2010 (hereinafter referred to as 'CAR requirements'), specifically provides for facilities to be provided to passengers by airlines due to denied boarding, cancellation of flights and delay in flights. Clause 1.4 of the said CAR requirements provides for exemption to airlines for payment of any compensation in case of cancellation of flights caused by any event of force majeure beyond the control of the Airline. Extract of clause 1.4 of the said CAR requirements is reproduced herein for ready reference: Clause 1.4 "The operating airline would not have the obligation to pay compensation in cases where the cancellations and delays have been caused by an event(s) of force majeure i.e. extraordinary circumstance(s) beyond the control of the airline, the impact of which lead to the cancellation/ delay of flight(s), and which could not have been avoided even if all reasonable measures had been taken by the airline".Clause 1.5 "Additionally, airlines would also not be liable to pay any compensation in respect of cancellations and delays clearly attributable to Air Traffic Control (ATC), meteorological conditions, security risks, or any other causes that are beyond the control of the airline but which affect their ability to operate flights on schedule. Extraourdinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft or several aircraft on a particular day, gives rise to a long delay or delays, an overnight delay, or the cancellation of one or more flights by that aircraft, and which could not be avoided even though the airline concerned had taken all reasonable measures to avoid or overcome of the impact of the relevant factor and, therefore, the delays or cancellations." It has been also pleaded that Clause 3.3.1 of the said CAR regulations provides for procedure to be followed by Airlines in case the flight is cancelled for any sector. Extract of clause 3.3.1 of the said CAR regulations are reproduced herein for ready reference: Clause 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, airline shall inform the passenger of the cancellation at least two weeks before the scheduled time of departure and arrange alternate flight/ refund as acceptable to the passenger. In case the passengers are informed of the cancellation less than two weeks be ore and to 24 hours o the scheduled time of departure the airline shall offer an alternative flight or refund, the ticket, as acceptable to the passenger. Above clause 3.3.1 makes it clear that opposite party No.2 in the present complaint is not at all liable for deficiency in service as alleged by the complainant. First of all, the reason for cancellation if flight was due to unavoidable operational reason beyond the control of opposite party No.2 and opposite party No.2 had informed the complainant about cancellation of his scheduled flight and also a refund of amount charged by the opposite party No.2 on bookings has been duly done by opposite party No.2 to the travel agent of the complainant. Opposite party No.2 under the terms and conditions for booking flights for Air tickets on its carrier that has been reproduced hereunder, has provided for cancellation of its flights for reason beyond its control and reliefs to be provided by it to the passenger in case of such cancellation. Flight Cancellation/Re-scheduling:- In case of circumstances beyond GoAir's control (including, without limitation, meteorological conditions, mechanical failures, acts of nature, force major, strikes, riots, civil commotions, embargoes, wars, hostilities, disturbances, government regulations, orders, demands or requirements, shortage of labour, fuel or facilities, or labour difficulties of GoAir or others all actual, (threatened or reported), GoAir may cancel or re-schedule a flight without notice. GoAir will endeavor to operate the flights as per schedule, however GoAir reserves its right to cancel, reschedule or delay the commencement or continuance of any flight or alter the stopping place or deviate from the route of the journey without thereby incurring any liability in terms of compensation, damages or loss whether direct, indirect, consequential or special or otherwise in any manner whatsoever. In case of any such cancellation or rescheduling of any flight due to any reason GoAir assumes no responsibility or liability for delay in carriage of baggage by air. If due to such circumstances, GoAir cancels or delays a flight beyond 2 hours, prepone's a flight by more than 60 minutes, is unable to provide previously confirmed space, or fails to stop at the Customer destination point, GoAir shall either: a) Carry Customer on alternate flights for the same sector on the previous day, same day or next day at no cost. (subject to availability) or b) Customers who wish to travel on alternate dates other than mentioned above will be accommodated. Waiver of rebooking and convenience fee will be given but fare difference, if any, will be borne by the customer or c) Make a full refund for the booking, in the same mode of payment in which the booking was received. GoAir shall be under no further liability to the customer. It is further pleaded that there is no deficiency in services on the part of opposite party No.2 and by no stretch of imagination, it can be said that opposite party No.2 had committed any deficiency in services for the reasons enumerated above. No dispute under 'Act' is caused to have arisen between the complainant and opposite party No.2 and as such, the relief prayed for, is ought to be dismissed against opposite party No.2. On merits, opposite party No.2 has reiterated its stand as taken in the preliminary objections as detailed above and after controverting all other averments of the complainant, it has prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 29.7.2022 (Ex.C-4) and documents (Ex.C-1 to Ex.C-3). In order to rebut the evidence of complainant, opposite party No.2 has tendered into evidence affidavit of Vishal Mathur dated 17.10.2022, (Ex.OP2/1) and documents, (Ex.OP-2/2 to Ex.OP-2/5). We have heard learned counsel for the complainant and gone through the record. Counsel for complainant has argued that the complainant had booked 3 air tickets from Chandigarh to Bangalore on 21.3.2022. However, on 10.4.2022, tickets were found to have been cancelled on account of which the complainant had to arrange 3 tickets from some other airline. Inspite of elapse of considerable time, opposite parties have not refunded amount of Rs.20,452/- to the complainant. It is further argued that refund status shows that the amount has been refunded, but till date same has not been received by the complainant. Counsel for opposite party No.2 has argued that amount has been refuneded to opposite party No.1 by opposite party No.2 on 13.4.2022 and as such, there is no deficiency in services and prayed for dismissal of complaint. We have given careful consideration to these submissions. It is admitted fact that the complainant had booked 3 tickets with opposite party No.2 airlines by making payment to opposite party No.1. A perusal of statement, (Ex.C9) shows that the payment has been refunded by opposite party No.2, but inspite of online status regarding refund having been made to the complainant, the amount has not been received by the complainant as refund in respect of tickets and failure to refund the amount inspite of elapse of considerable time, amounts to deficiency in services on the part of opposite party No.1, as it has failed to refund the amount inspite of having received the same from opposite party No.2. Accordingly, the present complaint is partly allowed and opposite party No.1 is directed to refund the amount of Rs.20,452/- to the complainant alongwith interest @ 9% per annum w.e.f. 21.3.2022 till realization. Opposite party No.1 is also directed to pay Rs.5000/- as compensation on account of mental tension, botheration, harassment and Rs.3000/- as cost of litigations. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced : 05-07-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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