PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1)This is the complaint regarding the deficiency in service on the part of Opposite Parties as the Opposite Party No.1 abruptly cancelled the flight without intimating the Complainant and thereby the Opposite Parties caused mental agony and financial loss to the Complainant.
2) The facts of the complaint as stated by the Complainant are that Opposite Party No.1 is the Airline Company Opposite Party No.2 is the Chairman and C.E.O. of Opposite Party No.1 Company. Opposite Party No.3 is also the Company and it is one of the ticket booking agents of the Opposite Party No.1 Company. The Complainant is the Director of Lxcorp Advisory Services Pvt. Ltd. Company. The Complainant is a frequent Air traveler in India as well as at abroad.
3) The Complainant has further stated that he had planned to travel to Nagpur alongwith his family on the occasion of Diwali of 2007. Therefore, he had booked air tickets from Mumbai to Nagpur and from Nagpur to Mumbai in the month of Sept., 2007. On 11/11/07 at 11.00 a.m. he had to return to Mumbai from Nagpur for his important meeting at Mumbai. His son has also to report to his school on 12th Nov., 2007. Therefore, he had booked the air tickets for returning to Mumbai on 11/11/07 at 11.00 a.m. through Opposite Party No.3. His employee obtained E tickets of Opposite Party No.1 airline bearing No.0905623450967, 0905623450968 and 0905623450969 from Opposite Party No.3. These E tickets were for flight IT342 scheduled for departure at 8.30 a.m. on 11/11/07 from Nagpur to Mumbai. These E tickets were also having contact numbers of Opposite Party No.3.
4) As per scheduled time, the Complainant alongwith his family arrived at Airport Sonegaon Airport, Nagpur to board the flight. However, on arrival to airport he learnt that the Opposite Party No.1 had cancelled the above said flight IT342 on 11/11/07 scheduled for departure at 8.30 a.m. some 15 days back for some alleged operational reasons. Neither Opposite Party No.1 nor Opposite Party No.3 informed the Complainant regarding the cancellation of the above flight. Even the officials at airport were not ready to attend the Complainant. After much deliberation the officials of Opposite Party No.1 gave a letter accepting a fact that they could not contact the Complainant as they were not having the contact number of the Complainant. They tried to call Opposite Party No.3 to inform about the cancellation of the flight but no one from Opposite Party No.3 answered the call.
5) The Complainant has submitted that the cancellation of the flight caused tremendous inconvenience to the Complainant. The officials were requested to make alternate arrangement on some other flights of other airlines so that the Complainant could reach Mumbai before 11.00 a.m. However, the request was rejected. Dejected by the above situation, the Complainant himself managed to find place in the flight IC130 operated by other Airlines ‘INDIAN’ having its departure at 8.35 a.m. from Sonegaon to Mumbai. For these tickets the Complainant had to pay additional cost of Rs.24,165/-.
6) The Complainant has further added that he had recently undergone surgery of Gall bladder. He was unable to move properly due to said operation. He had difficult time for arranging for tickets from other airline and transporting the luggage at airport. The Complainant has alleged that the staff of the Opposite Party No.1 was not sensible, professional and responsible. They were having arrogant attitude. Because of the deficiency in service he could not attend his business meeting at Mumbai (para 16 of the complaint). He further stated that he could not reach Mumbai within time,. The Complainant has stated that Opposite Party No.3 is the agent of Opposite Party No.1 & 2 they are jointly and severally liable to compensate for actual loss and for mental harassment and bodily pain.
7) The Complainant has further stated that as he could not attend business meeting he suffered losses Opposite Party No.1 has not refunded the sum of Rs.7,800/- towards E tickets. Thus, the Complainant has stated that he claims total amount of Rs.5 Lacs for actual loss; charges of the Opposite Party airline E tickets and for mental and physical harassment etc. The Complainant has also prayed for the cost of the complaint. The Complainant has attached the xerox copies of the following documents - Regulations of the school, E ticket, Letter by Opposite Party No.1, Air tickets – Discharge Card.
8) The complaint was admitted and notices were served on the Opposite Parties. Opposite Party No.1 & 2 appeared through their Ld.Advocate. Opposite Party No.3 remained absent through out the proceeding inspite of the service of notice on it. Therefore, an ex-parte order was passed against Opposite Party No.3 vide Roznama dtd.22 ……………… Opposite Party No.1 & 2 filed their joint written statement wherein they denied the allegations of any deficiency and specifically stated that the Opposite Party No.1 & 2 do not acquiesce in institution of the complaint against them. It is further submitted by the Opposite Parties that this Forum does not have the jurisdiction to entertain the complaint. Opposite Party No.1 & 2 have their offices of Banglore as stated in cause title of the complaint & the Complainant has not taken any permission of this Forum at the time of institution of the complaint. On this ground it should be dismissed.
9) The Opposite Party No.1 & 2 have further stated that the e-tickets are in fact receipts and not e-tickets as referred in the complaint. The Opposite Parties have called upon the Complainant to produce the original e-tickets before the Forum. E-tickets are issued subject to the general terms and conditions of the contract of carriage. As per these terms, Opposite Parties reserves their right without assigning any reason to cancel or terminate or continuance of the flight and they cannot be held liable for damages or compensation or otherwise to the passengers.
10) The Opposite Party No.1 & 2 have further submitted that, the following are the conditions which have been specially stated on the website of the Opposite Party No.1 and these conditions have been accepted by all the passengers including the Complainant.
i) Rescheduling : Kingfisher Airlines does not warrant or undertake to adhere to schedule timing and reserves the right to change or cancel the scheduled flight without any prior notice due to any situation beyond Kingfisher Airlines control. However, Kingfisher Airlines will make every attempt to maintain scheduled departure and connections. In the event of cancellation delays, and/or missed connections, Kingfishers Airlines will not be held liable.
ii) Kingfisher Airlines reserves to itself the right without assigning any reason, to cancel or terminate or delay the commencement or continuance of the flight or to alter the stopping place or to deviate the route of journey or to change the type of air craft in use without incurring any liability in damages or otherwise to passengers or any other person for any reason whatsoever. Kingfisher Airlines also reserves to itself the right to refuse to carry any passenger whom it considers unfit to travel or who in the opinion of Kingfisher Airlines may constitute risks to the aircraft or to the persons on board.
iii) Once an online booking is made, passengers are requested to confirm the time, and date of departure. Kingfisher Airlines assumes no responsibility whatsoever on account of delay or cancellation of flight for any reason whatsoever including change in flight schedule.” The Opposite Party No.1 & 2 averred that in view of the said terms the Opposite Parties (1 & 2) are not liable to pay any compensation or damages or any amount to the Complainant or any other person.
11) Opposite Party No.1 & 2 have further contended that, they had informed their approved Travel Agent and/or the passengers, whose telephone numbers and/or addresses were available with them regarding cancellation of flight No.IT342 in Oct., 2007. Copy of callback Summary Report of IT342 of 11/11/07 is attached. The PNR details with remark of Opposite Party No.1’s call centre mentioning that these Opposite Parties tried to establish contact with Opposite Party No.3 whose details were available with the Opposite Parties but the call was unanswered.
12) The Opposite Party No.1 & 2 have further stated that the receipts of e-tickets produced by the Complainant contains the specific instruction in the last paragraph that the passengers should contact their travel provider for changes or reservation information, e-tickets receipts are subject to conditions of carriage.
13) The Opposite Parties have further submitted that Opposite Party No.1 has already refunded three air tickets charges from Nagpur to Mumbai to Opposite Party No.3 on 17/11/07 as the booking was done through Opposite Party No.3 by the Complainant.
14) The Opposite Parties have further admitted that the Complainant had booked 3 tickets on 25/09/07 through Opposite Party No.3 for flight IT342 Scheduled to depart at 8.30 a.m. on 11/11/07 from Nagpur to Mumbai. E-ticket contained contact No. of Opposite Party No.3 only & not of the Complainant. In Oct., 2007, it was decided by them to discontinue the said flight IT342 with effect from 28/10/07. After taking this decision, Opposite Party No.1 informed all the travel agents including Opposite Party No.3, the decision. Opposite Parties also informed the passengers whose contact numbers were on record and available with them. Opposite Parties were unable to contact the Complainant and convey the cancellation as his contact number was not provided. Opposite Party No.1 & 2 also tried to contact the Opposite Party No.3 to inform the cancellation of flight IT342 but the Opposite Party did not respond to the calls of the Opposite Party No.1. It is further stated by the Opposite Party No.1 & 2 that Opposite Party No.1 did inform Opposite Party No.3 on 17/10/07 and also attempted once again to inform it on 08/11/2007.
15) The Opposite Party No.1 & 3 have also stated that the Complainant had failed to inquire about the flight departure timing before leaving the home. It is further alleged that, when the Complainant knew about the cancellation of the flight, he abused the staff of Opposite Party No.1 and threatened them to take legal action.
16) Further, it was pointed out by the Opposite Party No.1 & 2 that the discharge card stated that he was operated on 26/07/07 and discharged on 30/07/07. The age was mentioned as 41 years while the title of the complaint shows that he is 43 years old. He was advised to avoid strenuous activity, lifting heavy weight for 6 week after the date of operation. The date of travel is 11th November, 2007 i.e. after 4 months or 15 weeks after his operation. The Opposite Parties stated that, thus, the Complainant is making false, baseless reckless allegation to claim huge compensation.
17) It was also pointed out by the Opposite Party No.1 & 2 that there was a difference of only 5 minutes in the departure time of flight IT342 and IC130 on which the Complainant had admittedly travelled on 11/11/07 form Sonegaon Airport to Mumbai. Therefore, it was false statement made by the Complainant that he had missed his important business meeting at Mumbai at 11.00 a.m.
18) In para 28 the Opposite Party No.1 & 2 had denied that Opposite Party No.3 is the Agent of Opposite Party No.1.
19) Finally the Opposite Parties have prayed that the complaint be dismissed with cost.
20) The Opposite Party No.1 & 2 have attached the xerox copies of the following documents alongwith their written statement. Conditions of carriage, call back summary report, PNE details from call centre and VCR history of 3 tickets. Thereafter, the Complainant has filed his affidavit of evidence and written statement wherein he reiterated the facts mentioned in the complaint and denied the points raised by Opposite Party No.1 & 2 in their written statement. Opposite Party No.1 & 2 also filed their affidavit of evidence wherein they have reiterated the facts and points mentioned in their written statement.
21) During the course of pleading the Opposite Party No.1 & 2 also filed one document dtd.22/01/2010 on 13/04/2010 and raised some new points. The Opposite Party No.1 & 2 have contended that the Opposite Party No.2 being the Chairman of Opposite Party No.1, cannot be sued in his individual capacity. There is no evidence to show that any consideration is paid to Opposite Party No.2 in his personal capacity. This is only to harass the Opposite Party No.2 and to knock out money.
22) It is also contended by the Opposite Party No.1 & 2 that the Complainant should have provided his telephone number to Opposite Party No.3 so that he could have been intimated the changes in the scheduled of the flight. The Complainant had not tried to cheque the status of the flight. It is also pointed out by the Opposite Parties that the opening of his son’s school on 12/11/07 at the time of purchasing air tickets was known to the Complainant. It was not a preconditioned purchase of these tickets. Therefore, the Complainant is not entitled for any compensation on this ground.
23) Thereafter, the Opposite Party No.1 & 2 have also filed their written argument wherein they have reiterated the facts mentioned in their written statement, affidavit of evidence and above said document dtd.22/01/2010 filed on 13/04/2010.
24) Both the parties (Complainant and Opposite Party No.1& 2) gave in writing that their written arguments be treated as oral argument. Hence, we perused the papers submitted by both the parties and our findings are as follows -
It has been admitted by the Opposite Party No.1 & 2 in their written statement para 12 that the Complainant had purchased 3 air tickets form Opposite Party No.3 to travel from Nagpur to Mumbai on the flight IT 342 Scheduled to depart form Sonegaon Airport, Nagpur at 8.30 a.m. on 11/11/07. These e-tickets were issued on 25/09/07 by Opposite Party No.3. We carefully examined these electronic ticket receipts obtained by the Complainant from Opposite Party No.3. It is conspicuously mentioned on this document as the information of Agency as Ria Travels N Tours PL. i.e. Opposite Party No.3. This certainly indicates as the Opposite Party No.3 is the Agent of Opposite Party No.1, still in the written statement the Opposite Party No.1 & 2 have denied that Opposite Party No.3 is their agent. Thus, the Opposite Party No.1 & 2 have mislead this Forum by making a contradictory statement to its own document i.e. the e-ticket.
25) It is also established fact that the scheduled flight on 11/11/07 at 8.30 a.m. was cancelled by the Opposite Party No.1 without communicating this fact to the Complainant. The stand taken by the Opposite Party No.1 & 2 in this connection that though they had cancelled the said flight they tried to communicate to the Opposite Party No.3, the agent from whom the Complainant had purchased the ticket but the calls were answered by Opposite Party No.3 so they could not communicate the cancellation of the flight to the Complainant. This defense of the Opposite Party No.1 & 2 is not acceptable as the Opposite Parties had themselves had admitted that they had cancelled the flight for some operational reasons in the month of Oct.,2007. Therefore, they had ample time to intimate this fact to the Complainant. It is not sufficient to call Opposite Party No.3 at one time and produce the call summary report dated nil and conclude that there was no answer form DOC HL. From this call summary report document there is nothing on record to show that Opposite Party No.1 & 2 had intimated Opposite Party No.3 i.e. M/s. Riya Travels & Tour I Pvt. Ltd. No date or timing was mentioned on this report. Therefore, there is nothing to show that Opposite Party No.1 & 2 had duly informed the Complainant about the cancellation of the above said flight IT342 before 11/11/07.
26) The for most important point raised by Opposite Parties is of jurisdiction. It is the contention of the Opposite Parties that this Forum does not have the jurisdiction to entertain this complaint. In this respect the Complainant had booked and obtained the e-tickets from Opposite Party No.3 whose office is situated in South Mumbai in the jurisdiction of this Forum. Therefore, if the complete episode of this complaint is taken into consideration the cause of action in part has arisen in the jurisdiction of this Forum and hence, this Forum does shave the jurisdiction to entertain this complaint U/s.11(2)(c) of the Consumer Protection Act, 1986.
27) The other important point raised by the Opposite Party No.1 & 2 is that as per the terms and conditions they are not liable to any compensation for the cancellation of the flight. In this respect we carefully examined the air ticket of the Opposite Party No.1. Only the following are the relevant instructions given on this e-tickets.
“View Trip.com is a means of displaying your reservation via internet. Please contact your travel provider for changes or reservation information. Thanking you.”
“Carriage and other services provided by the carrier are subject to conditions of carriage, which are hereby incorporated by reference. These conditions may be obtained from the issuing carrier.” In this respect as per above 1st instructions the Opposite Parties have instructed the traveler to contact the travel provider for changes or reservation information. In this case Opposite Party No.3 is the travel provider but the Opposite Party No.1 & 2 had themselves admitted that they were unable to pass on the information of cancellation to Opposite Party No.3 because Opposite Party No.3 was not answering the call Opposite Party No.1 & 2. Therefore, it was futile to contact Opposite Party No.3 for getting the information regarding the cancellation of flight IT342 as, even the Opposite Party No.3, who is the travel provider was not contacted by Opposite Party No.1 & 2 and was informed about the cancellation. Therefore, the Opposite Party No.1 & 2 cannot hide behind this instruction mentioned on the e-tickets and absolve from their liability.
28) Secondly the other important instruction on the e-ticket is that the carriage and other services provided by the carrier are subject to conditions of carriage, which are hereby incorporated by reference. These conditions may be obtained from issuing carrier. The document containing these conditions was produced by Opposite Party No.1 & 2 alongwith their written statement. These conditions were never provided to the complaint alongwith ticket. Nature’s rule require that whatever may be the terms, conditions and rules governing the contract between the carrier i.e. service provider and the persons who avails of the services, should be made known to the party who is supposed to be affected by these rules and regulations. The Opposite Party No.1 & 2 are relying on these conditions of carriage which allows them to change or even cancel some flight but important thing is that the ground for such change in the flight or cancellation should be beyond Kingfisher Airline’s control.
In this case the Opposite Party No.1 & 2 have not given any reason whatsoever which was beyond their control to cancel the flight on 11/11/07. The reason which was given by the staff of Opposite Party No.1 & 2 in writing on 11/11/07 that the flight was cancelled on 11/11/07 due to operational reasons. This is a vague ground for the cancellation. It is not mentioned what were the operational reason. Even it was not explained in the written statement of the Opposite Party No.1 & 2. On the contrary the Opposite Party No.1 & 2 did not give any reason for the cancelation in the entire written statement. Certainly the operational reason cannot be the reason which is beyond the control of Kingfisher Airline. Therefore, the Opposite Party No.1 & 2 had given a lame excuse of the conditions of carriage. By giving such a lame excuse the Opposite Parties cannot absolve of the liability towards the Complainant as a consumer.
29) The facts are established that the Complainant had booked the ticket for his travelling from Nagpur to Mumbai on flight IT342 on 11/11/07 at 8.30 a.m. The Opposite Party No.1 had cancelled that flight. The Complainant & his family were never informed about the cancellation before 11/11/07. When the Complainant reached at airport at Nagpur in the morning, at that time only he knew that the flight IT342 was cancelled and the staff did not help him to make some alternate arrangement in the other flights of Opposite Party No.1 or on the other lines. Therefore, he himself had made alternate arrangement by booking his air ticket with ‘Indian’ Airlines. This is certainly a deficiency in service on the part of Opposite Party No.3 as they had received the appropriate consideration from the Complainant and it was their contractual obligation to carry the Complainant and his family who had obtained a valid confirmed ticket of Opposite Party No.1, from Nagpur to Mumbai. Thus, the Opposite Parties have miserably failed to provide the services which were availed of by the Complainant from Opposite Parties for consideration. Opposite Parties cannot take advantage of the conditions of carriage as explained earlier and as such they all are jointly and severally liable for the deficiency in service to the Complainant and his family.
30) Even the Opposite Parties have not refunded the cost of e-tickets to the Complainant though they failed to provide the flight service to the Complainant. Therefore, the Complainant had to incur an additional expenses of Rs.24,165/- for the air tickets of another airlines ‘Indian on the same day. The flight IC130 scheduled to depart from Nagpur at 8.35 a.m. i.e. 5 minutes later than the Opposite Parties flight. Therefore, had the Opposite Parties not cancelled their flight, there would be no extra expenses of Rs.24,165/-. The Complainant had to bear this extra cost of the air tickets of another airline on urgent basis. Therefore, the Complainant is entitled for the refund of this amount from the Opposite Parties. However, the Complainant has not mentioned or disclose in his complaint as to when he arrived at Mumbai and did not produce any evidence of business meeting. Certainly, he must have arrived at Mumbai on 11/11/07 at about 11.00 a.m. or before that. Therefore, his allegation that he could not attend the meeting and his son’s school attendance on 12/11/07 does not hold water. The compensation on this count demanded by the Complainant from the Opposite Parties is not justified. The claim of Rs.5 Lacs of the Complainant in this behalf is exorbitant and not just. However, as stated earlier, the cancellation of the scheduled flight IT342 by the Opposite Parties must have caused mental agony to the Complainant and he is entitled for reasonable compensation for the same.
Opposite Party No.1 is the Airlines Company which is mainly responsible for the deficiency in service by cancelling the said flight and causing mental agony to the Complainant and his family. Opposite Party No.3 is the travel provider agent who had booked the tickets for the Complainant and it could not take proper information from the Complainant for further communications. It also failed to refund the amount towards the cost of the e-tickets. The Opposite Party No.3 is the travel agent of the Opposite Party No.1. Opposite Party No.2 is the Chairman of Opposite Party No.1. Therefore, all the three Opposite Parties are jointly and severally liable for the deficiency in service and therefore, liable for refund of the amount of tickets of IC130 flight ‘Indian’ Airline. They are also jointly & severally liable for the compensation for the mental agony caused to the Complainant because of deficiency on their part as explained above. In view of the above observations we pass the order as follows -
O R D E R
a.Complaint No.09/2008 is partly allowed.
b.All the Opposite Parties are directed to refund to the Complainant jointly and/or severally the sum of Rs.24,165/-
alongwith interest @ 9% p.a. from 11/11/2007 till its payment.
c.All the Opposite Parties are directed to pay to the Complainant jointly and/or severally a compensation of
Rs.10,000/- (Rs. Ten Thousand Only) for mental agony caused to the Complainant and his family.
d.All the Opposite Parties are also directed to pay to the Complainant jointly and/or severally Rs.3,000/- (Rs. Three
Thousand Only) towards the cost of this complaint.
e. All the Opposite Parties are directed to comply with the above order jointly and/or severally within 30 days from
the receipt of this order.
f. Certified copies of this order be furnished to the parties free of cost.
