Date of filing:      03.09.2019
                                                                                                                                 Date of disposal : 27.03.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                   .…. PRESIDENT
                 THIRU.P.VINODH KUMAR, B.Sc., B.L.,                                                       .....MEMBER I
                 THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L.,                                        ....MEMBER-II
              
RBT/CC. No.137/2022
THIS MONDAY, THE 27th DAY OF MARCH 2023
(CC.No.138/2019 sent from DCDRC, Chennai North)

Mr.Pyarelal Jain,
No.42, Montieth Road,
Sindur Plaza, Egmore, Chennai 600 008.                                       ……Complainant.    
                                                                          //Vs//
IndGo Airlines (InterGoble Aviation Limited),
No.144 & 145, Maalavika Centre,
Kodambakkam High Road,
Nungambakkam, Chennai 34.
 Also at
Central wing, Ground Floor,
Tharpar House,
No.124 Janpath Road,
Janpath, New Delhi 110 001.                                                        .......Opposite party.

Counsel for the complainant                  :   M/s.A.R.Karunakaran, Advocate.
Counsel for the opposite party              :   M/s.S.Ramasubramaniam &Associates
                        
This complaint has been filed before DCDRC, Chennai (North) as CC.No.138/2019 and transferred to this commission by the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as CC.No.137/2022 and this complaint coming before us on various dates and finally on 28.02.2023 in the presence of M/s.A.R.Karunakaran counsel for the complainant and M/s.S.Ramasubramaniam &Associates counsel for the opposite party and upon perusing the documents and evidences of both parties, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service with respect to the delay and cancellation of Air tickets booked by the complainant along with a prayer to direct the opposite parties to refund the ticket cost incurred by the complainant for the return flight which was cancelled by the opposite party, to pay a sum of Rs.94,600/- along with 12% interest per annum from 31.03.2019 till payment, to pay a sum of Rs.18,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.50,000/- towards litigation expenses to the complainant.
Summary of facts culminating into complaint:-

Being dissatisfied and aggrieved by the act of the opposite party, the present complaint was filed. Complainant along with his relatives and friends wished to meet their spiritual GURU, Shri Acharya Mahashraman who was on a Padha Yatra and in course of his padha yatra was camping in a village which was about 50kms away from Tuticorin Airport. As they wanted to get their Guru’s blessings, the complainant agreed to organize the entire trip for the convenience of the entire group. Complainant booked flight tickets for himself and 38 other members of his family and friends with the opposite party for their journey on 31.03.2019 from Chennai to Tuticorin and then return from Tuticorin to Chennai as well, on the same day.  The onward flight was No.6E7183 and the return flight No.6E7188.  The entire price of the tickets for onward and return journey was paid by the complainant to the opposite party.  It was informed by the opposite party that the flight No6E7183 would depart from Chennai airport at 05:25am on 31.03.2019 and would arrive at the Tuticorin Airport at 07:20am.  Hence the complainant had arranged for a darshan at his Guru’s camping site at 08:30 am and he had also arranged for a private bus to transport him and his group from the airport to the ashram.  The bus was also scheduled to leave Tuticorin airport at 07:45 am. The complainant states that he along with his group reached the Chennai Airport as early as 03:00am on 31.03.2019.  After completing their security check and other formalities, they boarded the flight at 04:00am but to their utter shock they were made to wait inside the flight for several hours without any information about the departure of the flight.  After waiting inside the flight for several hours, the opposite party informed the complainant that the said flight was delayed, but they had no clue as to the departure time.  After several hours they were finally informed that the flight would leave by 08:00am.  The 38 other member who accompanied the complainant comprised of toddlers, elderly people, diabetic patients etc. With absolutely no facility or passenger care provided by the opposite party left with no information about the revised departure time for the flight, the complainant and his group was put to severe mental and physical agony. Since their arrival was delayed in the Tuticorin Airport the complainant along with his group could not attend the darshan which was scheduled at 08:30am.  The ashram authorities also informed the complainant that darshan at a later point in time on 31.03.2019 would be possible only if the guru was available and the same could not be guaranteed.  The complainant and their family members were severely agonized as the entire purpose of their trip became pointless. When the complainant along with his group was rushing from Tuticorin Airport to the Ashram to try to reach the Ashram on time for a darshan, if possible, the complainant received another message from the opposite party.  The complainant was informed that their return flight via IndiGo Airlines bearing flight No.6E7188 scheduled to depart that evening at 16:50hours from Tuticorin airport to Chennai was cancelled.  This was done without any alternate arrangement with respect to return travel, boarding arrangement or food arrangements by the opposite party. Complainant states that this sudden cancellation of flight had left them stranded without a return plan as group of persons were involved.  It was extremely difficult for them to find sudden alternate methods of lodging or travel.  The complainant further states that there were several elderly members and children as part of the group and they were not prepared for an overnight stay with regard to clothing, medication etc and faced great hardships. The opposite party did not even refund the ticket cost which the complainant had paid for the return flight. Due to the opposite party’s callous attitude and inconsiderate treatment towards its customers (in both the delay of the first flight as well as the cancellation of the return flight) with no alternate solution, the complainant and his group suffered great mental agony, distress and physical hardships. It was further submitted that by not being able to attend the darshan of the Guruji, the sole purpose of the journey was defeated. This has been a colossal waste of the complainant and his group’s time, money and energy. Finally the complainant and his group travelled that night from Tutirocin to Chennai in a bus for which the complainant had spent a sum of Rs.94,600/- as cost. The complainant was a prominent building promoter and business man in Chennai and on the morning of 01.04.2019 he had an important business deal with certain clients who had flown in from other states.  Due to the cancellation of the flight by the opposite party, the complainant could not attend his meeting and hence he had to cancel the same which has caused him to suffer damage to his reputation and image. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to refund the ticket cost incurred by the complainant for the return flight which was cancelled by the opposite party, to pay a sum of Rs.94,600/- along with 12% interest per annum from 31.03.2019 till payment, to pay a sum of Rs.18,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.50,000/- towards litigation expenses to the complainant.
Crux of the defence put forth by the opposite party:-
The opposite party filed version disputing the complaint allegations contending interalia that the complainant has failed to implead the other 39 passenger under PNR No.RJKN4A. Therefore, the complainant has no locus standi to raise a grievance on behalf of his accompanying passengers who have neither been impleaded in the present complaint nor have they raised any grievances even otherwise.  Further the complaint was filed against a wrong  entity in as much as the company which undertakes airline operations domestically in India as well as to certain international destination was registered under the corporate name of ‘InterGlobe Aviation Limited’.  Therefore to the extent the present complaint has been filed against “IndiGo Airlines. It was filed against a non-existent entity and it was defective and liable to be dismissed. Complaint is not maintainable before this commission as it has been filed without jurisdiction. The original scheduled time of departure of the flight of the complainant i.e. Indigo flight No.6E7183 from Chennai to Tuticorin was 05.45 hours on 31.03.2019.  The departure time of the IndiGo flight was revised from 05.45hours to 05.25 hours owing to sudden and unforeseen operational reasons, entirely beyond the control of InterGlobe Aviation Limited. The revision of scheduled time of departure of the IndiGo flight from 05.45 to 05.25 hours was duly intimated to the complainant vide an SMS sent to his registered mobile number provided to InterGlobe Aviation Limited at the time of booking.  The complainant was also given the option to choose an alternative flight to his destination or seek a full refund of the complete booking amount without any cancellation charges.  However, the complainant willingly and voluntarily opted to travel on board to IndiGo flight from Chennai to Tuticorin as per its revised schedule. Revised departure time of the IndiGo flight was further revised from 05.25 hours to 06.45 hours on 31.03.2019 owing to sudden and unforeseen operation reasons, entirely beyond the control of InterGlobe Aviation Limited. As per the official records of InterGlobe Aviation Limited which constitute the primary record of air carriage with it, 40 tickets were booked on 29.01.2019 for travel on 31.03.2019 from Chennai to Tuticorin on board the Indigo flight and return from Tuticorin to Chennai on board the onward flight on 31.03.2019.  The said tickets were booked through a third party agent, namely, South India Travels and were confirmed under the PNR No.RJK4N4 upon receipt of INR 2,50,880/-. During the waiting period at the Chennai Airport, all passengers including the complainant and his accompanying passenger were served with refreshments and meal boxes at the board gate in accordance with the applicable Civil Aviation Requirements issued by the Directorate General of Civil Aviation. The onward flight was cancelled due to ground of the concerned aircraft on the instructions of Air Transport Control, entirely beyond the control of InterGlobe Aviation Limited. In the response to the complainant’s legal notice, InterGlobe Aviation Limited once again offered to refund the booking amount for the onward flight which was cancelled on account of unforeseen and unavoidable circumstances.  It was submitted that despite being offered refund of the amount paid towards the cancelled segment, the complainant frivolously filed the present complaint and thus they sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A5. The opposite party filed proof affidavit and submitted documents Ex.B1 to Ex.B9 were marked on their side.
Points for consideration:-
Whether the complaint as filed is maintainable?
Whether the complaint allegations made by the complainant with respect to the delay and cancellation of the Air tickets booked by the complainant with the opposite party has been successfully proved by him by admissible evidence?
If so to what reliefs the complainant is entitled?
Point No.1:-
The following documents were filed on the side of complainant in support of his contentions;
Copy of the online tickets dated 29.01.2019 was marked as Ex.A1;
Copy of letter issued by the bank to the complainant dated 29.03.2019 was marked as Ex.A2;
Copy of the travel agency bill for the bus transport dated 31.03.2019 was marked as Ex.A3;
 Copy of the notice issued by the complainant to the opposite party dated 25.04.2019 was marked as Ex.A4;
Copy of the reply notice issued by the opposite party to the counsel for complainant dated 01.07.2019 was marked as Ex.A5;
On the side of opposite party the following documents were submitted in proof of their defence;
Letter of Authorization dated 30.08.2018 was marked as Ex.B1;
Copy of Board Resolution dated 30.08.2018 was marked as Ex.B2;
Fresh certificate of Incorporation consequent upon change of name on conversion to public limited company dated 11.08.2006 was marked as Ex.B3;
Indigo conditions of carriage was marked as Ex.B4
Screenshot from the official records of InterGlobe Aviation Limiting reflecting the complaint booking details was marked as Ex.B5;
Screenshot from the official records of InterGlobe Aviation Limiting reflecting the Actual time of departure of the Indigo flight was marked as Ex.B6;
Screenshot from the official records of InterGlobe Aviation Limiting reflecting the SMS sent to the registered contact number was marked as Ex.B7;
Legal notice received by the opposite party dated 25.04.2019 was marked as Ex.B8;
Reply notice sent by the opposite party dated 01.07.2019 was marked as Ex.B9;
The maintainability of the complaint is questioned by the opposite party on the ground of non-joinder of necessary parties and territorial jurisdiction.  The complainant had booked the tickets jointly in his name and his co-passengers together under a Single PNR.No.RJK4NA.  In such circumstances, when there is provision under the Consumer Protection Act for a complaint to be filed in representative capacity the present complaint filed by the complainant for himself and others could not be found fault with.  Consumer Protection Act being a Social Welfare Legislation, mere technicalities could not be permitted to defeat the purpose of welfare legislation as held in various Apex Court judgments.  Thus we hold that the complainant is maintainable.  Further the opposite party Branch office is located within the jurisdiction of commission and hence the defence as to lack of territorial jurisdiction has to be brushed aside.  The non-existence of entity defence was also not to be accepted as the complainant had filed the complaint against the party with whom he had booked the tickets.  Thus we answer this point holding that the complaint is maintainable.
Point No.2:-
Heard both learned counsels.  The crux of the oral arguments adduced by the learned counsel for the complaint is that he had booked flight tickets for 39 people with the opposite party for travel on 31.03.2019 on 05:25am and the purpose of visit was to get darshan of spiritual Guru, Shri Acharya Mahashraman.  The onward flight was from Chennai to Tuticorin and the return flight was on the same day.  When the complainant reached the Chennai Airport on 31.03.2019 as early as 3.00am after completing the security check had boarded the flight at 4.00am.  However, they were made to wait indefinitely without departure of the flight. Finally, after three hours and forty-five minutes waiting inside the airplane the opposite party informed that the flight would depart by 8.00am.  The members who came along with the complainant comprised of elderly, toddlers, diabetic patients etc.  No food or any care was given to the passengers by the opposite party and no reason was cited for the delay. Finally, when the flight departed and reached Tuticorin they could not meet the Guruji due to late arrival at Ashram, hence the sole purpose for which the booking was made defeated.  The Civil Aviation requirements (CAR) section 3 series Manager, part IV notified by the Directorate General of Civil Aviation (DGCA), which deals with the regulation of facilities to be provided to passengers by airlines with respect to denial of boarding, cancellation of light and delays in flight was cited and the complainant explained about the duties of opposite party in the case of cancellation of flights.  However, nothing was followed.  Further, the return flight to Chennai also got cancelled which aspect was never informed to the complainant and his group and also not offered any alternate flight to return to Chennai.  No refund was also made by the opposite party.  It is argued that as per the Civil Aviation requirements Section 3, Air Transport Series, ‘Manager’ Part II, Issue 1, dated 22nd May, 2008 issued by the Director General of Civil Aviation (DGCA) states that the opposite party must have refunded the ticket cost within 30 days from the date of cancellation but the opposed party did not comply with the same and the relevant portions of the said requirement are extracted hereunder;
“c) In case of purchase of ticket through travel agent/portal, onus of refund shall lie with the airlines as agents are their appointed representatives.  The airlines shall ensure that the refund process is completed within 30 working days”.
 Till date even after filing of the present complaint no refund was made by the opposite party.  Thus unilaterally cancelling the return flight and not refunding the cost is a clear case of deficiency in service on the side of opposite party.  The complainant and other group members were left stranded on cancellation of the flight and were made to book a bus to return from Tuticorin to Chennai at a cost of Rs.94,600/-. Due to the delay in return the complainant being a Building Promoter could not meet persons who had already got appointment to discuss the business deal.  The food and other facilities to be provided in case of delay and cancellation of flight scheduled was also not provided by the opposite party.  The passengers were not taken back to the lounge when the flight was delayed for departure which is highly condemnable.  This caused considerable physical hardship and mental agony to the complainant and other passengers.  Thus the complainant sought for complaint to be allowed as prayed for.
On the side of opposite party, it was argued that the complainant had booked 40 tickets and the flight departed instead of 5.25am but at 08.00am as per the complaint allegations.  However, as per record the flight departed at 7.31am.  The delay of the onward flight and cancellation of the return flight was only due operational reasons which is beyond the control of opposite party. It is submitted that as per clause 1.4 of the Civil Aviation Requirements it is stated that the operating Airlines was not responsible to pay any compensation in case of any delay or cancellation caused by any event of force majeure i.e. beyond control which could not be avoided.  Clause 1.5 was also cited that the Airlines was not liable to pay any compensation in respect of cancellations and delays attributable to Air Traffic Control, Meteorological conditions etc. Thus stating the delay and cancellation was only due to the operational reasons and they are not liable to pay any compensation, and the opposite party sought for the dismissal of the complaint.
The entire materials and pleadings was appraised by this commission.  The only defence raised by the opposite party for the delay and cancellation of flight is “Operational Reasons” As per the Civil Aviation Requirements relied upon by the opposite party under clause 3.3.1 in order to reduce the inconvenience caused to the passengers as a result of the cancellations of the flights which they booked for travel, airline shall inform the passenger of the cancellation at least two weeks before the scheduled time of departure and arrange alternate flight/refund the ticket as acceptable to the passenger.  In case the passengers are informed of the cancellation less than two hours before and up to 24 hours of the scheduled time of departure, the airline shall offer an alternate flight or refund the ticket as acceptable to the passenger. However, in the present case the cancellation of the return flight was informed only on the day of travel and also no proof was submitted by the opposite party that alternate flight or refund of the ticket was made to the passengers.
Further as per clause 37.1 of Civil Aviation Requirements the passengers in case of delay in departure of the flight has to be offered meals and refreshment free of cost.  In the present case the admitted factum was that the passengers including the complainant and others booked with him were made to wait inside the Airplane without providing food or other provisions. No evidence was provided by opposite party that passengers were provided food and refreshment free of cost inside the Airoplane.
When we analyzed the main defence of the opposite party that the delay and cancellation of flight occurred only due to operational reasons.  It was not explained by the opposite party as to what factors actually constituted under “Operational Reasons”.  Merely mentioning operational reasons by the opposite party for the delay and cancellation of the flight which caused huge hardship, agony and monetory loss to the complainant like passengers could not be appreciated when the opposite party failed to substantiate the exact reason by production of any documents to show that what kind of “Operational Reasons” resulted in delay and cancellation of the flight on the particular day. Though it is found that circumstances beyond control will not create any liability on the opposite party in the Indigo Conditions of Carriage (Ex.A7), in the present case the opposite party had miserably failed to explain satisfactorily what circumstances beyond their control constituted the operational reasons resulted in delay and cancellation of the scheduled flight. 
The Judgment rendered by the Supreme Court in Civil Appeal No.4925/2011 dated 04.07.2011 rendered in Interglobe Aviation Limited Vs N.Satchidanand , reported in (2011)7 Supreme Court Case 463 was cited by the opposite party in support of their contentions.  The said case did not apply to the present case as it is clearly distinguishable that in the said case the Airline and its crew had acted reasonably and in bonafide manner and hence no liability could be imposed upon the Airlines.  It is found that service was provided to the onboard passengers like providing food free of cost.  But in the present case for the complaint allegations that the complainant and other passengers were made to wait after boarding the flight was not provided with any food or other facilities by the opposite party, no rebuttal evidence was produced by the opposite party that they had acted in accordance with the terms of Civil Aviation Requirements. This also constitutes a clear violation of clause 3.7 wherein in the event of delay the operating Airline shall provide food and refreshment free of cost during the waiting time.  
The decision rendered by National Consumer Disputes Redressal Commission, in Delhi in Go Airlines (India) Private Limited Vs Yogesh Kumar dated 12.11.2007 clearly discuss the liability of Airlines for cancellation and delay and fix the onus on the Airlines in its words as follows;
“In case after case we have observed that unexplained delay and unproved reason for cancellation of a flight or delay amount to deficiency in service unless the reason is beyond human control and due to act of nature like fog, poor visibility, bird hit, tyre-puncture or any other unforeseen even and entitles the passengers to an amount of compensation for the mental agony, harassment, the physical discomfort and the emotional suffering for going to the airport again and again or waiting for hours.  Deficiency in terms o Section 2(1)(g) of Consumer Protection 1986, means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract of otherwise in relation to any service.
Oftly- taken excuse of technical snag for inordinately long delay or cancellation of flight is not only lame excuse but projects either the poor maintenance of fleet or out-dated fleet or poorly skilled-maintained staff or poor management of maintaining schedule of flight or airlines affairs.
We have dealt with hundreds of cases and invariably in every case reason for delay or cancellation has been technical snag.  Onus lies heavily upon the airlines to prove such a reason.  Every day we encounter unruly and rowdy scenes, fisticuffs, at the airports due to even-growing phenomenon of delayed flights or cancellation of flights”.
Also the decision rendered by the Kerala State Consumer Disputes Redressal Commission, Thiruvanandhapuram in Appeal No.350/2006 in Sahara Airlines Limited Vs K.Ramkumar & Ors it was held that it is for the opposite party Airlines to explain the reason for the delay or cancellation and in the absence of any explanation it would amount to “willful suppression” in its word as follows;
“The reason for the said delay is stated as technical problem and it was beyond the control of the first opposite party/Sahara Airlines Limited.  it is pertinent to note at his juncture that the opposite party never explained the technical reason.  it is true, that there was an announcement that the flight is delayed due to technical reasons.  Before the Forum below the opposite party reiterated the very same statement that they delay was due to technical reasons.  But the first opposite party was not prepared to disclose to so called technical reasons.  No document is forthcoming from the side of the first opposite party or its official stating the actual reasons for the delay.  The merely statement of first opposite party that the delay was caused to technical reasons and which were beyond its control cannot be taken as such.  It is for the first opposite party explain the reasons.  It is for the first opposite party to explain as to how the said delay was beyond their control.  The absence of explanation would amount to willful suppression of the real cause.  It would give an inference that the said delay could have been avoided by the first opposite party/Sahara Airlines limited.  The aforesaid delay would amount to deficiency in service on the part of the first opposite party/Sahara Airlines Limited and its officials”.
Thus being a service provider taking advantage of any rule or Law cannot escape liability to the Consumer who books the tickets with fond expectation and purpose by defeating the same.  Keeping a consumer to wait for hours without any valid reasons and without any valid proof by the Airlines that the service could not be provided in time clearly amounted to deficiency in service on their side fixing liability on them.  Thus we answer the point accordingly holding that the opposite party had committed deficiency in service with respect to the delay and cancellation of the booking of Air tickets made by the complainant and liable to pay compensation.
Point No.3:-
As the deficiency in service has been proved on the part of opposite party taking into consideration the emotional suffering i.e. they could not meet their Guruji for which purpose the travel was planned and the physical discomfort and monetory loss i.e. money spent for their return journey we feel a comprehensive compensation of Rs.5,00,000/- would be appropriate in the facts and circumstances along with the refund of the return flight charges and to make payment of the amount Rs.94,600/- spent for  the return journey. We also award Rs.10,000/- towards cost.
In the result, the complaint is partly allowed against the opposite party directing them
a) To refund the return flight charges within six weeks from the date of receipt of copy of this order;
b) To pay a sum of Rs.94,600/- within six weeks from the date of receipt of copy of this order;
c) To pay a sum of Rs.5,00,000/- (Rupees five lakhs only) towards compensation for the mental agony caused to the complainant;
d)  To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 27th day of March 2023.

   Sd/-                                                      Sd/-                                                        Sd/-
MEMBER-II                                       MEMBER –I                                        PRESIDENT

List of document filed by the complainant:-

Ex.A1 29.01.2019 Copy of online tickets. Xerox
Ex.A2 29.03.2019 Copy of the letter issued by the bank to the complainant. Xerox
Ex.A3 31.03.2019 Copy of the travel agency bill for the bus transport. Xerox
Ex.A4 25.04.2019 Copy of the notice issued by the complaianant to the opposite party. Xerox
Ex.A5 01.07.2019 Copy of the reply notice issued by the opposite party to the complainant’s counsel. Xerox

List of documents filed by the opposite partY:-
 
Ex.B1 30.08.2018 Letter of Authorization. Xerox
Ex.B2 30.08.2018 Copy of Board Resolution. Xerox
Ex.B3 11.08.2006 Fresh certificate of incorporation consequent upon change of name on conversion to public limited company. Xerox
Ex.B4 ............... Indigo conditions of carriage. Xerox
Ex.B5 ............ Screenshot from the official records of InterGlobe Aviation Limited reflecting the complete booking details. Xerox
Ex.B6 ............. Screenshot from the official records of InterGlobe Aviation Limited reflecting the actual time of departure of the Indigo flight. Xerox
Ex.B7 ............. Screenshot from the official records of InterGlobe Aviation Limited reflecting the SMS sent to the registered contact number. Xerox
Ex.B8 25.04.2019 Legal notice received by the opposite party. Xerox
Ex.B9 01.07.2019 Reply notice sent by the opposite party. Xerox

 

   Sd/-                                                               Sd/-                                          Sd/-
MEMBER-II                                              MEMBER – I                              PRESIDENT