This complaint is coming up before us for final hearing on 17-09-14 in the presence of Sri N. Lakshmi Narayana, advocate for complainants,                       Sri Ch. Venu Gopala Murthy, advocate for 1^st opposite party and 2^nd opposite party remained absent and set exparte, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Prabhakar Gupta, Member:-

            This is the complaint filed by complainants 1 to 4 u/s 12 of the Consumer Protection Act against the opposite parties 1 and 2 seeking an amount of Rs.39,206/- which is the flight charge together with interest @18% p.a., from 01-05-2013 and an amount of Rs.1,00,000/- towards mental agony and proper relief for the facts of the case depending upon the circumstances of the case.

2.   In brief the averments of the complaint are these:

          The complainant No.2 is the husband of the complainant No.1 and complainants 3 and 4 are the children of complainant No.1 and 2.   Since the complainants 3 and 4 are minors, represented by their natural guardian father i.e., by 2^nd complainant. 

          The 1^st opposite party is the Private Limited Company dealing with sale of the airline tickets in the name and style of Make My Trip India Private Limited, having its head office at Gurgaon of Haryana State.   The                           2^nd opposite party is also a limited company making carriage of persons by way of airways in the name and style of Spice Jet Limited.   Both the companies are being represented by their Managing Directors. 

          The brief facts of the case are complainants are the residents of Narasarao Pet, Guntur District of AP. To have a vacation trip at Bangalore the complainants chose to reach their destination of Bangalore by way of airlines.   For this purpose the complainants booked flight E-tickets from Vijayawada-Gannavaram to Bangalore through OP1.  Op1 is the Agent to OP2 who is maintaining carriage of persons by way of airways.   The confirmation of the tickets also received by the complainants through online at Narasaraopet of Guntur district. As per the booked tickets they ought to have travel by a flight bearing No.SG-3304 which is operated by OP2.   The schedule of the journey is 01-05-13 and the exact departure of the flight is 15.50 hours.   The E-ticket is bearing No. ID No.NF2202531551372 which was booked on             28-03-13.   For this the complainants paid an amount of Rs.20576/- towards fare, service fees and taxes.   The itinerary and the reservation details have been received by the complainants from OP1 through online from a website belong to OP1.   As per the schedule all the complainants prepared and reached Gannavaram Airport of Vijayawada by 13.30 hours on 01-05-13.   On reaching the complainants came to know that the flight has been rescheduled from 15.52 hours to 12.30 pm.   The fact of the reschedule of the airways/flight has not been informed to the complainants and it seems to be irresponsible action of the opposite parties.   Even in spite of contacts with the opposite parties they have not responded responsibly and not at all provided any alternative facility.   As a result the complainants booked tickets from Vijayawada to Hyderabad by another airway by name Air India flight for the flight No.A1840 by spending an amount of Rs.39,206/-.   This act of the opposite parties causes much mental agony and un-comfortable situation to the complainants.   However, at Hyderabad the complainants contacted the Spicejet authorities, i.e., OP2 authorities and made a complaint in connection with the irresponsible behavior of their staff at Vijayawada.   On their representation the Spicejet (OP2) authorities provided flight to the complainants from Hyderabad to Bangalore and the complainants reached their destiny in late hours.   As the opposite parties made much negligence and deficiency in rendering services towards the customer who are having much confidence over the airlines and even in spite of issuance of legal notice dated 08-05-13 they were not responded properly. As there is no other go, the complainants constrained to file the present complaint for the reliefs as prayed for.

3.      The averments of the version of 1^st opposite party in brief as follows:

          In reply to the complaint the 1^st opposite party filed his version along with a document denying the contents of the complaint.  The 1^st opposite party mainly objected the Territorial jurisdiction of the Consumer Forum at Guntur.   Further, the 1^st opposite party put the responsibility/liability on 2^nd opposite party for the incident occurred to the complainants.   Since the 2^nd  opposite party not given any intimation in connection with reschedule of the flight, the same was not intimated to the present complainants who purchased the tickets from him.   Further, the 1^st opposite party contended that being as an agent he booked the tickets and relied on the provisions of section 230 of Indian Contract Act. However, the opposite party No.1 admitted the facts of booking tickets, receiving of amounts and issuance of confirmation tickets. For all these he prayed this Forum to dismiss the complaint against him. 

4.   The averments of the version of 2^nd opposite party in brief are as follows:

          In reply to the complaint the 2^nd Opposite Party filed his version along with a document which is having nature of Terms of Carriage.   As per the contents of version he denied the Territorial Jurisdiction of this Forum since the complainants obtained the confirmation tickets by way of online and the terms of carriage is containing specific place of jurisdiction.   In addition to that he relied on filed document in connection with entertaining of the case has been confined with only NCDRC, Delhi in terms of the document filed herein.   Further, he denied about the non intimation of reschedule of the concerned flight since he already given intimation to the 1^st opposite party as well as to all the complainants.   Further, he denied about the damages. Further, he mentioned that there is no Privity of Contract with the complainants since OP1 is having direct contract with complainants.    As there is no deficiency or negligent act on his part he prayed this Forum to dismiss the present complaint.  However, the opposite party No.2 not filed his affidavit and no representation has been made on behalf of him on          25-08-14. For which this Forum made him as exparte.

5.      To prove the case of the complainant, the complainant filed Exs.A-1 to              A-15.   OP1 filed a document which was marked as Ex.B-1.   Since OP2 became exparte, this Forum not considered either the contents or annexed document in deciding the case but discussed.

6.  Now the points that arose for consideration in this complaint are:

1. Whether this Forum is having Territorial Jurisdiction?

2. Whether there is any deficiency of service on the part of the          opposite parties with regard to information about the reschedule of the flight?

          3. If so, to what relief? 

7.   The learned counsel for the complainants argued that the complainants booked their tickets at Narasaraopet through online on 28-03-13 and obtained the reserved tickets by way of online at Narasaraopet.  Since the Part of cause of action occurred at Narasaraopet this Forum is having Territorial jurisdiction to entertain the present complaint irrespective of clause in Agreement with regard to specific place of jurisdiction.  Further, he argued that as per the schedule given in the tickets all the complainants reached the Vijayawada-Gannavaram airport on 01-05-13 at about 13.30 hours.   After reaching the airport they came to know that the flight was rescheduled and departed at 12.30 pm without any information to the complainants.   Even inspite of consultation with the concerned officials at Airport they were not responded properly.  For which the complainants approached another airways by name Air India and traveled from Vijayawada to Hyderabad by spending an amount of Rs.39,206/-.  However, from Hyderabad to Bangalore they were traveled with the airways of OP2.   But they reached their destination in late hours and by causing much mental agony for the act of the reschedule of the flight.   In addition to that they were forced to spend an amount of Rs.39,206/-.   Further, he argued that even inspite of issuance of legal notice dated 08-05-13 OP2 did not respond and not even issued reply notice.  OP1 issued a reply notice dated 12-07-13 alleging deficiency on the part of the OP2.   Hence, the claim of the complainants is genuine and occurred for the deficiency in service of both the opposite parties and entitled for prayed relief.  For all his contentions he relied on reported authorities in a case The Managing Director, Air Deccan v.  Shri Ram Gopal Agarwal under FA 7/2007, decided on 01-12-2013 by our Honourable National Commission; and in another case Inter Globe Aviation Ltd., v. N. Sachidananda under Civil Appeal No.4925/2011, decided on  07-04-2011 by Supreme Court of India.

8.   The learned counsel for the OP1 argued that he is the agent of OP2 in issuance of tickets pertaining to OP2 Airways. For which, he relied on user’s agreement.  Further, he argued that in terms of the section 230 of Indian Contract Act agent is not responsible/liable for the acts of principal.   Since there is no deficiency on his part in connection with  issuance of tickets, he is no way responsible for alleged claim.  Further, he argued that OP2 not informed him about the reschedule of the flight and so he could not intimated the same to the complainants.   For this act, if at all anything has to be penalized the OP2 is the responsible/liable person for the same.   Further, he argued that this Forum is not having territorial jurisdiction since the tickets were obtained by way of online and the user Agreement is containing a clause in connection with specific place for jurisdiction.  By all these, he prayed this Forum to dismiss the complaint against him.

9.  The counsel for OP2 filed his written statement but failed to file affidavit in continuation of proceedings of this Forum.   For which, the OP2 set exparte by this Forum.   However, this Forum discussed about the facts mentioned in the written statement filed by OP2.   As per the mentions in written statement of OP2 he also admitted the fact of issuance of tickets and also admitted the fact of reschedule of the concerned flight.   But he relied on Rule 19 of the Chapter XI of the Notification regarding application of the Carriage by Air Act, 1972, which reads as under:

“In the absence of a contract to the contrary, the carrier is not to be liable for damage occasioned by delay in carriage by air of passengers, baggage or cargo.”  It means there is no Privity of contract with the complainants.

Since the complainants purchased the tickets from the 1^st opposite party, 2^nd opposite party is not having any direct contact with the complainants and so he prayed this Forum to dismiss the complaint against him.  However, he mentioned in his written statement that the fact of reschedule of the flight already intimated to the 1^st opposite party as well as to the complainants in prior time.

10. POINT No.1:-  With the above discussions and arguments, and on the strength of the documents available on record it is an admitted fact that the OP1 issued tickets by way of online against the payment of amount which was received by him on behalf of OP2.   Further, it is also an admitted fact that the original schedule of the flight is 15.50 on 01-05-13.   Further, it is also an admitted fact that the complainants has to travel by a flight belongs to OP2.   There is no dispute with regard to these facts.   Now the discussing point is whether the opposite parties intimated the fact of reschedule to the complainants.        

 First we have to discuss about the territorial jurisdiction of this Forum.   As per the arguments of the complainants counsel the part of cause of action arose at Narasaraopet where the present complainants purchased their tickets and obtained confirmation tickets through online.   For which, he relied on a case the Managing Director, Air Deccan and others vs. Shri Ram Gopal Agarwal in Consumer Appeal No.7 of 2007.  In that case their lordships observed that as per the provisions of Consumer Protection Act U/S 11(c) the part of cause of action where arises the court in the place is having jurisdiction to entertain the case.   Cause of action means bundle of facts and the facts should be leads for the rising of territorial jurisdiction.   In that case their lordships held that purchase of airlines tickets by way of online the place where the tickets were received by the complainants is having territorial jurisdiction to entertain the case.   The same view also expressed by our apex court in a reported authority AIR 2011 SC 212 between Dr. V.N.Shrikhande vs. Anita Sena Fernandes. In that case also their lordships held that the complainant is having right to go to court where part of cause of action arises.   Admittedly in the present case the complainants obtained their airlines tickets through online against the payment of amount through their credit cards.   Further, it is also admitted fact that the confirmation tickets have been received by the complainants at Narasaraopet through online.  So, the Consumer Forum at Guntur is having territorial jurisdiction to entertain the present case since the mention of specific place of jurisdiction in user agreement is invalid. 

11.  POINT No.2: Coming to the fact of prior intimation in connection with reschedule of the flight from 15.50 hours to 12.30 pm on 01-05-13  this Forum observed Ex-A1 which contains the schedule of the flight from Gannavaram-Vijayawada to Bangalore is mentioned as 15.50 hours on         01-05-13.   So, it has to be construed that the complainants has to reach the concerned flight within a prior time to 15.50 hours.   As per the contents of the complaint, the complainants reached the concerned Airport at about 13.30 hours on 01-05-2013.  So, there is no negligence or delay on the part of the complainants.   All the complainants reached the airport prior to the departure time of 15.50 hours.   As per the arguments and contents of the complainants the reschedule of the concerned flight was not informed to them either by 1^st or 2^nd opposite parties and so they reached the concerned airport at 13.30 hours expecting the flight at 15.50 hours.   In the absence of any prior intimation they are unable to get the flight within the time of reschedule.   The 2^nd opposite party filed version stating that they intimated the reschedule of the flight to the complainants through the 1^st opposite party.  The 1^st opposite party in his written statement mentioned that the 2^nd opposite party is the main person and he acted as his agent in issuance of tickets.   Since his part comes under the purview of agent and as per the provisions of section 230 of Indian Contract Act, he is not at all liable for the acts done by the OP2 who is his principal.  However, he also mentioned that the 2^nd opposite party never intimated about the reschedule of concerned flight to him. As there is no information from the OP2 he could not inform the same to the complainants.  

          The deficiency in service alleged by the complainants is that the opposite parties did not inform reschedule of flight.   The opposite parties are blaming on each other.   It is the specific contention of the 1^st opposite party that they have no information regarding reschedule of the subject flight.   Burden is on the 2^nd opposite party to prove that they have intimated reschedule of the flight in advance to the complainant.   The 2^nd opposite party for the reasons best known to it remained exparte after filing version.   The evidence of the complainant and the 1^st opposite party remained uncontraverted as the 2^nd opposite party failed to file evidence affidavit subsequent to filing version.   The contention of the complainant about not informing reschedule of flight is corroborated by the 1^st opposite party.   With the above discussions, we hold that the 2^nd opposite party committed deficiency in service.

          The 2^nd opposite party as the disclosed principal of the 1^st opposite party through whom the complainants booked tickets having Privity of contract with the complainants

          Coming to the liability of the OP1 he relied on a reported authority in IV (2008) CPJ 37 (SC) in a case Prem Nath Motors Limited vs. Anurag Mittal.  In that case their lordships elaborately discussed about the liability of agent and opined that agent not at all liable for the acts of disclosed principal, subject to contract of contrary.   In the present case the OP2 is a disclosed principal to the 1^st opposite party.  In addition to that, the 1^st opposite party relied on the user agreement which was marked as Ex.B-1.  In Ex.B-1 under the head of Force Majure Circumstances it is mentioned that “the user agrees that MMT being an agent for facilitating the booking services shall not be responsible for any such circumstances and the customers have to contact that service provider directly for any further resolutions and refunds”.   With the above mentions and as per the provisions of Section 230 of Indian Contract Act this Forum feel that OP1 is an agent to the OP2 and he is not responsible for the acts in terms of Ex.B-1.   So, the case against OP1 is dismissed.  

          By all the above discussions, this Forum feels that OP2 is wholly and solely responsible for the act of deficiency of service to the complainants.

12. POINT No.3: In the result the complaint is allowed in part as indicated below:

1. The OP2 is directed to pay an amount of Rs.22,972/- (Rupees twenty two thousand, nine hundred and seventy two only) which is the cost of the tickets from Vijayawada to Hyderabad.
2. In addition to this an amount of Rs.10,000/- for mental agony and Rs.2,000/- for the cost of litigation.
3. The above amounts has to be paid by the 2^nd opposite party within 30 days from the date of this order. Otherwise, the amount ordered in 1^st clause i.e., Rs.22,972/- will carry interest                   @9% p.a., from the date of this order till realization.

           Dictated to Junior Stenographer, transcribed by her, corrected by me and pronounced in the open Forum dated this the 10^th day of October, 2014.

MEMBER                                                                                 PRESIDENT

APPENDIX OF EVIDENCE

          DOCUMENTS MARKED

For Complainant:

For 1^st opposite party:   

For 2^nd opposite party:   NIL

PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.