CC No.101/2017                                           Date of filing:19.01.2017

                                            Date of Disposal:18.07.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE18^thDAY OF JUNE 2019

CONSUMER COMPLAINT NO.101/2017

PRESENT:

Sri.Venkatasudarshan  D.R.  B.Com,LL.M.,              ….PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.   ….      MEMBER

COMPLAINANTS:

1. Mr.Gunashekar K.S,

S/o Late Siddagangaiah,

Aged about 37 Years.

2. Mrs. Manjula K.S,

D/o Late Siddagangaiah,

W/o Devakumar L,

Aged about 41 Years.

Both are residing at No.3839,

1^st Main, 4^th Cross, Gayathrinagar,

Rajajinagar II Stage,

Bangalore-560021.

Also at No.415,

Madanayakanahalli,

Madavara Post, 18^th KM,

Tumkur Road,

Bengaluru-562123.

(Complainant No.1 & 2 by Sri.Shobharani V, Advocate)          

V/s

OPPONENTS:

1. Indigo Airline,

Central Wing, Ground Floor,

ThaparHoue, 124, Janpath,

New Delhi-110001,India.

Rep., by Authorized Signatory.

Also at

Indigo Airlines (Airport Office),

No.10, Bangalore International Airport,

Sulibele Road, Devanahalli,

Bengaluru-560300,

Rep., by its Authorized Signatory.

2. Make My Trip,

Registered office address UG-07,

Front Side,TDI Shopping Mall,

Rajouri Garden,

New Delhi-110027,

Rep.,by its Authorized Signatory

Also at

Make my Trip,

Tower asinfocity,

243, UdyogVihar,

Phase-I,Gurgaon,

Haryana-122016,

Rep., by Authorized Signatory

(Opponent No.1BySri.C.K.Nandakumar, Advocate)

Opponent No.2BySmt.Priya A.K, Advocate)

= = = = = = = = = = = = =

Written by Sri Venkatasudarshan D.R., President

          ******

//ORDER//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Mr.Gunashekar K.Sand another againstM/ Indigo Airlines and another praying for a direction to the opponents to pay a sum of Rs.10,000,000/- as compensation to the Complainants with interest at 24% p.a. fro the date of filing of this complaint till the date of realization.

2. The brief facts of the case of the complainants as per the complaint are that the Opponent No.1 M/s Indigo Airlines is in the business of providing facilities for passenger through airlines in India and also abroad as per the rules made under the civil aviation requirements.Opponent No.2 Make My Trip is in trade practice and has made vide a publicity in the media as well as in the internet world and joined hands with Opponent No.1.

3. It is the case of the Complainants that they wanted to attend a case before the Supreme Court in Delhi on 01.07.2016 which was a listed  at serial No.2 in SLP (C)NO.7468/2015 in Court Hall No.3 and for that purpose he had booked air ticket online through Opponent No.2 on 29.06.2016 from Bengaluru to Delhi and also a return ticket from Delhi to Bengaluru. The tickets were confirmed.  From Bengaluru to Delhi flight No.G8/116, Class-R bearing ticket No.PNR No.OJHRY6with seat No.5 of GO-AIRLINES which had to departure at 5.40. a. m and the INDIGO AIRLINES of Opponent No.1 was booked from Delhi to Bengaluru vide booking I.D No.NF2292677913900, having a boarding pass of flight No.6E147, Class-5 bearing PNR No.LC6F3Q to depart at 12.30 hours in Gate No.9B,Seat No.29B and 29C on the same day on the price of Rs.14,016/-.

4. It is the case of the Complainant that there was no obstacle while travelling from Bengaluru to Delhi.  Immediately after finishing the work at Delhi by 10.35 a.m the Complainants rushed to Indira Gandhi International Airport, Delhi where the Complainants were supposed to board the flight at 12.30 p.m.  The Complainants reached Airport were issued boarding pass.  They underwent all the security checks and went near Gate No.9B as prescribed in the boarding pass well within time that is 15 minutes prior to departure of the flight.  The Complainants state that there was “no show”or there was “no call” to them before the departure of the flight.  Assuming that theywould be given would be called or the intimation regarding the departure of the flight.  The Complainants waited at Gate No.9B.  Neitherthere was a call for passengers nor there was no show regarding the departure /cancellation of the flight.  After few minutes, when the Complainant enquired the person concerned near Gate No.9B, he was informed that the flighthas already been taken off. It is the case of the Complainant that there was no prior intimation regarding departure time.  The Complainants were made to run from pillar to post.  There were other three passengers also waiting with the Complainants for the same flight.  They were also not allowed to travel.  It is the case of the Complainant that the flight had departed 15 minutes prior to the departure time mentioned in the boarding pass.    The Complainants left with no other alternative paying extra amount of Rs.7,964/- on PNR No.LC6F3Q on protest for no fault of them.  It is contended that on  account of this the Complainantsunderwent mental agony.  As the next flight was at 2.40 p.m. they were made to stay for more than 2 hours without any food or accommodation.  The 1^st Complainant is an Engineer by profession and the 2^nd Complainant is an Advocate by profession.  The 1^st Complainant had to attend a meeting at 5 hours but due to the denied boarding/cancellation of the flight, the Complainants had to incur huge loss.  The 2^nd Complainant being an upcoming Advocate has also lost in the profession.  A legal notice was also issued through the Advocate claiming compensation from the Opponents.  The Opponent No.1 gave an untenable reply.  It is contended that the Opponents have adopted unfair trade practice and hence  liable to compensate the Complainants.  Hence the complaint. 

5. There are two Opponents in this case, after admitting the complaint, the notices were ordered to be issued to the Opponents No.1 & 2. They have entered appearance through an Advocate and filed separate version.

6. In the version of 1^st Opponent it is contended that the complaint is not validly instituted and therefore it has to be dismissed.  It is not maintainable in law or on facts.  There is no cause of action.  Filed only with an oblique motive of making money.  There is no deficiency in service or unfair trade practice committed by the Opponent No.1. 

7. It is admitted that on 01.07.216 two air tickets were booked by the Complainants for travel on 01.07.2016 from Delhi to Bengaluru on Indigo Flight No.6E 149 through Opponent No.3 under PNR No.LC6F3Q which was scheduled to departure at 12.30 p.m.   The said booking is governed by certain terms and conditions for carriage known as “Indigo Conditions of Carriage-Domestic” which were available at the website of Inter Globe Aviation Limited.  The said conditions are also printed on the ticket and the boarding pass for the Complainant’s benefit, they are binding contractual agreement.  The bookings were only processed after acceptance of the indigo conditions of carriage.   The copy of the same is at Annexure-B.  As per the Clause-8.1 check-in  closes 45 minutes prior to the scheduled departure of the flight.  Failure to complete the check-in formalities withinthe time limit would result in forfeiture of the booking amount and it would be declared “No show” in which event the customer would not be entitled to refund.  In this case, the Complainant on their own has admitted that they arrived at the airport at 11.30 a.m.  Thereafter  underwent check-in at the counter and  boarding passes were issued. But they have not mentioned the exact time at which they reported near the boarding gate.  It is denied that the flight departed 15 minutes before the scheduled time. 

8. It is contended that as per clause 8.2 of the agreement the boarding gates will be closed 25 minutes prior to the departure.  The customers were to be present at the boarding gate not later than the time specified.  The customer failing to report at the boarding gate within aforesaid time shall be treated as “Gate no show” and the ticket amount of such booking shall be forfeited by the company.  It is contended that the Complainants having admitted that they reported at the boarding gate 15 minutes before the scheduled departure time, which is violation of boarding conditions.  Hence the Company had every right to cancel the Complainants booking and record as “Gate no show”.  Accordingly, the Complainants were denied entry into the gate and the ticket amount has been forfeited.  It was the sole responsibility of the Complainant to be present at the boarding gate within the stipulated time.  By arriving late it is the Complainants who were negligent and failed to adhere with the terms of the contract. Therefore, it is contended that the Complainants is not liable for refund. 

9. It is further submitted that, without any admission of liability and purely as a good will gesture the staff of the Opponent offered to re-accommodate the Complainants on the next available flight from Delhi to Bengaluru that is flight No.6E839 which was scheduled to depart at 14.40 hours on the very same day.  The Complainants have accepted the offer, paid additional amount and traveled to Bengaluru.   As per clause-8.3 the company will not be liable to the customer for any loss or expenses incurred due to their failure to comply with the provisions of Article-8.  Under these circumstances, the 1^st Opponent prays for dismissing the complaint.

10. Opponent No.2 “Make My Trip India Private Limited” has also filed a separate version contending that it is a leading online travel aggregator providing a Holistic range of travel solution which includes bookings of flights, buses, Railway Hotels and Holiday Packages.  The Opponent contends that the present complaint is an abuse process of law and hence not maintainable.  All the avermentsin  complaint are vague, misconceived.  There is no consumer dispute at all.  The complaint is bad for misjoinder of the Opponent.  It is admitted that the Complainants have booked two return air tickets Bengaluruto Delhi To and Fro through website of this Opponent.  The complainants have travel from Bengaluru to Delhi from Go-Air on 01.07.2016 and return ticket for the same day through Indigo Airlines.  The Complainants were required to reach airport two hours before the scheduled departuretime.  However they reached the airport late and could not board the flight due to their own negligence.  This Opponent is only an online aggregator for booking of tickets and nowhere liable for operation of flights, boarding announcement at the airport.   The Complainants have not made out the claim for any relief against this Opponent. Hence, prayed for dismissing the complaint. 

11. When the case was set down for recording evidence, the Complainant No.2 Smt.Manjulahas got herself examined as PW-1 by filing heraffidavit evidence and relying upon 15 documents referred in the affidavit. 

15. The points that arise for our determination are:-

(1) Whether the complainants proves that there was deficiency in service on the part of the opponents?

(2) If so what is the relief to which the Complainantsare entitle?

16. Our findings on the above points are:-

Point No.1:-Negative.

Point No.2:- Does not survive for consideration.

Point No.3:- As per the final order for the following.

17. POINT NO.1:-The undisputed facts of this case are that the Complainants have booked air tickets from Bengaluru to Delhi for 29.06.2016 in the flight No.G8/116 Class-R bearing ticket PNR No.OJHRY6 through Go Airlines which has to depart at 5.40 a.m. and also booked return ticket from Delhi to Bengaluru in flight No.CE 147 Class-5 bearing PNR No.LC6 F3Q from Delhi to Bengaluru in Indigo Airlines with seat Nos.29B and 29C, which was scheduled depart Delhi at 12.30 p.m.  It is also not in dispute that the onward journey from Bengaluru to Delhi was without any hassle.  For taking the return journey from Delhi Airport the departure time of the flight was at 12.30 hours in gate No.9B seat No.29B and 29C on the same day.  According to the Complainant, though they came to the gate well before the time they were denied boarding and declared no show.  This according to the Complainants amounts to deficiency of service.  Whereas the Opponents contend that the Complainants did not arrive at the boarding gate well before the time.  Therefore they were denied boarding and the flight has taken off.   Now the point for consideration is who is right whether the Complainants or the Opponents.  To answer this question we may have to rely on the documents that are produced, in addition to the oral evidence.

18. As already stated above, we are only concerned with the return journey of the Complainants from Delhi to Bengaluru.  So we have to perusethe documents concerning the return journey by Indigo airlines from Delhi to Bengaluru.  It is the definite case of the Opponents that there are specific instructions in the air ticket to the effect that the passengers should report for check in at least 2 hours before the actual departure. The actual departure time of the flight from Delhi for which the tickets were booked by the Complainants was at a 12.30 hours at gate No.9B.  It was stated by the Complainants themselves in complaint at Para No.5 and also deposed in evidence affidavit that they arrived at the airport at Delhi to catch the said flight in Bengaluru at 11.30 hours. Of course they not could be present 2 hours before the actual departure at 12.30 p.m.  To comply with this condition, they should have been in Airport for check-in by 10.30. a.m.  This was not possible also and the same was to the knowledge of the complainants also.  This is because, the very purpose of their visit to Delhi on that day was to attend the case before Supreme Court on the same day at 10.30. a.m. to appear in a case listed at serial number  No.2 in the cause list.  The copy of the cause list is also produced.Thus  Knowing fully well that they could not be present in the airport even at least 2 hours before the departure of the flight to Bangalore only they booked tickets.  For this the complainants have to blame themselves.   Be that as it may, the fact is that they were not in the airport even at least two hours before the actual departure.   Natural consequence is delay in check-in process and undergoing security formalities before reaching the gate to board the flight.

19. The another condition is that after the completion of check-in and security formalities the passengers have to report near the gate 25 minutes before the actual departure time.As already stated above, the actual departure time of the flight from Delhi to Bengaluru for which the tickets were booked was at 12.30 p.m.As per the averments made in the complaint itself at paragraph No.5 and also the evidence affidavit, the Complainants went to gate No.9B as prescribed in the boarding pass within 15 minutes prior to departure of the flight.This is again the violation of the terms of the contract.The copy of the boarding pass which is produced by the Complainants themselves clearly shows the condition as under.

Boarding gate closes 25 minutes prior to the departure time.Boarding gate Numbersare subject to change.Please check the flight information screen for latest updates …….

20. This instruction is found in the boarding pass itself that is document No.7, EX.P4 & 5.   Admittedly the Complainants have gone near the gate just 15 minutes prior to the actual time of departure, instead of being there 25 minutes before at least.   If not reported 25 minutes before departure of the flight the gates would be closed as per the instructions contained therein.  Thus it is the Complainants who were negligent by not being present at least 25 minutes prior to the actual time of departure. The Opponents in their version have also stated that the booking of flight tickets is governed by certain terms and conditions called “Indigo-conditions of carriage-domestic”, which has been hosted on the website of Inter Globe Aviation Limited.  It is also stated that the binding nature of these terms and conditions has been affirmed by the Hon’ble Supreme Court in a decision reported in (2011) 7 SCC Page 463 in M/s Inter Globe Aviation Limited V/s Satchidananda. 

“Placing the conditions of carriage of the web-site and referring to the same in the e-ticket and making copies of conditions of carriage available at the Airport counters for inspection is sufficient notice in regard to the terms of conditions of the carriage and will bind the parties.The mere fact that a passenger may not read or may not demand a copy does not mean that he will not be bound by the terms of contract of carriage.We cannot therefore, accept the finding of the High Court that the term relating to exclusive jurisdiction should be ignored on the ground that the passengers would not have read it”.

21. As per the article 8.1 of these terms and conditions it is recommended for the customer to report for the check in at least 2 hours prior to the departure of the scheduled flight and the check in closes 45 minutes prior to the scheduled departure of flight.  It is also stated that failure to complete check in formalities within the stipulated time would result in forfeiture of the booking amount and the booking would be declared “no show”.  Similarly as per article 8.2 of the terms and conditions, in order to maintain schedules, the boarding gate will be closed 25 minutes prior to the departure time.  Failure on the part of the passenger to be present near the gate within the above stipulated time would be declared “gate no Show” and ticket amount shall be forfeited to the Company.  Thus from reading of the above, there appears to be no deficiency of serviceon the part of the Opponents.  This is patently clear from the admission made by the Complainants in the complaint itself that they reached the gate 15 minutes prior to the actual time of departure.  This itself shows that the negligenceis on the part of the Complainants in not appearing before the gate in time when there was a condition that the gate would be closed 25 minutes before the departure.

22. The learned advocate appearing for the Complainant has relied on several decisions in support of the case of the Complainants about which the discussion made below:

23. The decision in Airfrance V/s O.P.Srivatsava delivered by the Hon’ble National Commission on 22.03.2018 (not reported a decision) has no application to the facts of the case because that was a case of over boarding. 

24. Another decision reported in II (2016) CPJ 97 Delhi in Samir Kapahi V/s Kuvaith Airways also has no application to the fact of the case because that was a case where the Opponent Airways had over sold tickets and the boarding was not allowed to the Complainant.  

25. Another decision dt.19.05.2017 in the Manager Jet Airways (India) V/s Ambika Prasad Gupta delivered by the State Commission Lays down the General Principal that by issuing a confirmed air tickets the airline concerned undertakes to carry the passengers to the destination at the scheduled time and over booking of tickets cannot be equated with force majeure.  The decision in RadhaKinkariKejriwal V/s Jet Airways India Limited delivered on 13.02.2017 by the National Commission also has no application to the facts of the case as the facts of that case are entirely different.  So also the case in respect of the decision reported in IV (2016) CPJ 56 (NC) in Station Manage, Air India V/s Dr.K.Vanlalzami has no application to the facts of this case.

26. In the light of the discussions made above, we are of the considered view that the Complainants failed to provethat there was deficiency in service on the part of the Opponents.  Accordingly, we answer point No.1 in negative and against the Complainants and proceed to pass the following order:

27.POINT No.2 and 3:- In view of the finding recorded on point No.1 in the negative and against the Complainants holding that the deficiency of service by the Opponents is not proved by the Complainants, the question of considering the entitlement of ;the Complainants for any reliefs does not arise.  Accordingly, we answer point No.2 “as the same does not arise for our consideration”.  In the result, we proceed to pass the following order:

-:ORDER:-

The complaint filed by the complainant Sri.Gunshekhar K.S and another u/s 12 of the Consumer Protection Act is dismissed.  No order as to cost.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the popen Forum on18^th day of July2019)                                            

(L.Mamatha)                                 (D.R. Venkatasudarshan)

Member                         President.

Witness examined for the complainant side:

Complainant No.2. Smt. Manjulahas examined in chief as PW1.

Witness examined on behalf of the Opposite Parties:

1. Ms. Aayushi Agarwal a legal counsel of Opposite Party No.1 by way of affidavit.
2. Sri. M. Ankita Mishra, Assistant Manager Legal of opposite party No.2 by way of affidavit.

List of documents filed by the complainant:

1. Copy of the cause list dated 01.07.2016.

2. Copy of Go-Air Airline tickets (2 nos.)

3. Copy of invoices (2nos)

4. Copy of the cancelled Indigo Airline tickets (2 nos.)

5. Copy of the Indigo Airline tickets (2 nos.)

6. Copy of the receipt bearing No.0313769119.

7. Copies of the legal notices dated 18.07.2016 and 22.10.2016.

8. Copy of the reply notice dated 27.07.2016.

9. Copy of the postal receipts.

10. Copy of the acknowledgment.

List of documents filed by the opponent:

1. A true copy of the authorization provided by Inter Globe Aviation Limited -Annexure-A.
2. A true copy of the IndiGo Conditions of Carriage -Annexure-B.
3. A copy of the scree shot of flight 6E-839- Annexure-C.