For the Complainants - Mr.Krishna Pada Pal, Advocate
For the OPs - Mr. Matri Prasad Das, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
Brief facts of the case are that the complainants booked air ticket for travel from Kolkata to Guwahati vide booking reference No. A9RLXM dated 13.12.2016 and date of journey was 17.12.2016 on flight No. 6E 3955 at 15.00 hrs. The said flight was supposed to arrive at Guwahati on the same day at 16.10 hrs. The OP-1authority issued Boarding Pass against the above booking bearing seat Nos. 24E and 24A of flight No. 6E 3955. Complainants also booked railway ticket (12424/DBRT Rajdhani Express) for a journey from Guwahati Railway Station to Tinsukia Railway Station vide PNR No. 2425855916 and the schedule time for departure of said train was on 17.12.2016 at 20.15 hrs. Said flight was cancelled for which the complainants were compelled to book two conform air tickets of Spice Jet Flight No. SG657 from Kolkata to Guwahati on 17.12.2016 having its departure time at 01.35 P.M. The complainants had incurred Rs. 32,259.44/- for urgent air ticket. On account of cancellation of flight, the complainants have suffered financial loss as well as mental agony. Finding no other alternative, the complainants issued legal notice dated 23.12.2016 to the OPs demanding Rs. 4,00,000/- as compensation and Rs. 24,725.44/- as fare of Spice Jet Air Ticket but such legal notice was unattended. Thus, the OPs deliberately adopted unfair trade practice and trying to deprive the complainants from their legal right and claim. Hence, the complainants have filed the instant consumer case praying for refund the excess fare of air ticket as well as compensation for mental agony and litigation cost.
The complaint has been resisted by the OPs by filing Written Version stating the fact that the complainants are not the consumers as providing u/s 2 (1) (d) of the CP Act, 1986. The reason for travel of the complainants to Guwahati was for commercial purpose. The positive case of the OPs is that the complainants were fully aware regarding cancellation of the Indigo Flight No. 6E 3955 well before the date of journey on account of circumstances beyond their control and option was provided to the complainants either a full refund of fare, alternative flight to their destination subject to availability of seat or credit for future travel. There was no whimsical cancellation of flight on the part of the OPs. The OPs have already refunded the entire booking amount to the complainants on 23.12.2016. Thus, OPs have strictly acted and there was no deficiency in service and/or unfair trade practice on their part. Accordingly, the OPs have prayed for dismissal of the complaint.
Decision with Reasons
Both parties have tendered evidence through affidavit. They have also given reply against questionnaire set forth. Both parties have also filed BNAs.
Fact remains that complainants booked air ticket from Kolkata to Guwahati by Inter Global Aviation Ltd. (Indigo) on flight No. 6E 3955 on 13.12.2016 vide booking reference No. A9RLXM through on line against payment of Rs. 7,534/-. It is true that the schedule time for departure of Indigo Flight No. 6E 3955 at Netaji Subhash Chandra Bose International Airport was on 17.12.2016 at 15.00 hrs. There is no dispute that on 15.12.2017 at about 17.23 hrs. the customer relation of OP-1 sent an information/message to the complainants to effect that “your currently booked Indigo Flight No. 6E 3955, Kolkata-Guwahati, PNR No. A9RLXM has been cancelled”. This intimation/message clearly indicate that information regarding cancellation of flight was given to the complainants well before the date of schedule departure of flight No. 6E 3995. Thus, the complainants were compelled to purchase two air ticket vide PNR No. WBDV2Q of Spice Jet against payment of Rs. 32,259.44/- and schedule date of journey was 17.12.2016. Admittedly, the OP-1 refund Rs. 7,534/- to the complainants as air fare charges and the complainants claimed balance amount of Rs. 24,725.44/- as excess air fare charges from the OPs asthe complainants were compelled to book air ticket by paying excess amount from Spice Jet.
It is evident from para-1 of the consumer complaint that the complainants being the officials and/or employees of M/s J.K. Enterprises, a reputed company is required to visit its different offices situated at different places in India for official purpose from time to time.
Definition of the consumer
“Consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii)12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];
Explanation-For the purpose of this clause, “commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.”
The definition of the “consumer” it clear that any person who avails services from service provider for undertaken any business activity or commercial capacity for commercial purpose cannot be considered as “consumer” for the purpose of CP Act, 1986 unless he/she is undertaking such activity for his/her own livelihood. It is not in dispute that the complainants availed the services of OP-1 Inter Global Aviation Ltd. for their business organisation named M/s J.K. Enterprises and not travelling to Guwahati in their individual capacity. The tour was purely for commercial purpose. Thus, the complainants cannot fall within the definition of “consumer” and they have no local- standi to file the consumer complaint. We are surprised to mention here that the OP-1 refunded the entire booking amount to the complainants on 23.12.2016 and the complainants filed the instant consumer case on 14.11.2018 on expiry of 23 months and 24 days.
Section 2 (g) of the CP Act, 1986 defines ‘Deficiency’ as under:-
(g) deficiency means any fault, imperfection, short coming 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 inforce or has been under taken to be perform by a person in pursuance of a contract or otherwise in relation to any service.
A combined reading of section 2 (c) (iii) and 2 (g) of CP Act, 1986 would make it amply evident that a complaint can only be filed in a case where there is any ‘deficiency’ in service provided by the serviced provider and such ‘deficiency’ with regard to any short coming inadequacy, etc. in the quality, nature and manner of performance which is required to be maintained by or under any ‘law’ or has been under taken in pursuance of ‘contract’.
In case of Ranveet Singh Bagga vs. KLM Royal Dutch Airlines & Another reported in (2000) 1 SCC 66 where it was held that-
“6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent.
In case of a bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of the performance in the service can be informed (sic). If one fats it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”
In case of Consumer Unity & Trust Society vs. the Chairman & Managing Director of Bank of Baroda (1995) 2 SCC 150 (at page 152) it was held as under-
Even though the depositors were deprived of the service of the Bank but the deficiency did not arise due to one of the reasons mentioned in clause (g). The shortcoming in the service by the Bank did not arise due to failure on the part of the Bank in performing its duty or discharging its obligations as required by law. Since the depositors were prevented to avail of the services of the Bank not because of any deficiency on the pan of the Bank but due to strike resorted to by the employees who almost physically prevented the Bank from functioning, the failure of the Bank to render service could not be held to give rise to claim for recovery of any amount under the Act.
The operation of the Indigo Flight was affected due to adverse weather conditions prevailing at Guwahati Airport and Inter Global Aviation Ltd. was constrained to cancel the Indigo Flight No. 6E 3955 due to extra ordinary circumstances and the reasons beyond its control. Cancellation intimation of Flight was duly informed to the complainants well in advance i.e. on 15.12.2016 and fare of air ticket was refunded to the complainants on 23.12.2016. The complainants have made alternative arrangement to go to their destination.
We have already observed that the complainants booked air ticket from Kolkata to Guwahati on flight No. 6E 3955 and the scheduled journey was 17.12.2016 at 15.00 hrs. Cancellation of flight was intimated to the complainants well ahead of the date of journey and the OPs refunded the entire booking amount to the complainants on 23.12.2016. The complainants avail services from the OP-1 for undertaking their business activity or business/commercial activities for their employer M/s J.K. Enterprises, a company registered under Companies Act, 1956. Thus, the complainants are not consumer u/s 2 (1) (d) of the CP Act, 1986 and there is no deficiency of service u/s 2 (1) (g) of the CP Act, 1986 on the part of the OPs.
Having regard to the discussion hereinabove and legal position explained, we are of the considered view that the complainants are not the consumer within the definition under section 2 (1) (d) of the CP Act, 1986 and there is no deficiency in service on the part of the OPs. Thus, the complainants are not entitled to get any relief as prayed for.
In the result, the case merit fails.
Hence,
Ordered
That the complaint case be and the same is dismissed on contest against the OPs with no order as to costs.
