DATE OF FILING : 15.12.2016

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  30th  day of  October, 2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.356/2016

Between

Complainant       :   Robin Thekkekkara,

Ribin Villa,    

Muthalakkodam P.O.,

Thodupuzha, Idukki.

(By Adv:  K.M. Sanu)

And

Opposite Parties                                          :   1. The Manager,

      Spice Jet Airways,

      319, Udyog Vihar,

      Gurgaon, Hariyana. 

  2. The Manager,

      Spice Jet Airways,

      Kochi, Ernakulam.  

     (Both by Advs: Baby Abraham,

Baby Antony & V.C. Sebastian)

 

O R D E R

 

SRI. GOPAKUMAR, PRESIDENT

 Case of the complainant is that,

          The complainant is working as a Civil Engineer in Australia and residing there along with his family.  In the month of May 2014, he came to his native place at Thodupuzha and planned a trip to Delhi for seven days along with his mother, wife and three children.  For that purpose, he booked 6 Air ticket of opposite party Airways by paying an amount of Rs.48,509/- for air ticket charges.  The ticket which the complainant booked was for a journey from Kochi – Delhi on 10.12.2014 and return journey was on 16.12.2014.

          For that purpose, complainant and family went to Delhi in opposite party’s flight on 10.12.2014.  As per the schedule, the flight ought to be landed in Delhi at 11 am, but it was landed at 7 pm.  Likewise the return journey was scheduled on 16.12.2014  and  the time of  flight was 5.55 am.    For that all the 

(cont.....2)

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members including the complainant reported the airport at 4 am as directed.  At that time, the officials of the opposite party company intimated that the return flight will take off only at 10 am.  At 10 am, it was finally intimated that there is a chance of further delay in the take off of the flight. At the same time, the officials of the opposite party airways, issued boarding passes, checked in the bags of the complainant and his family.  At that time, the complainant approached the officials of the opposite party for arranging a seat of his elder daughter to Kochi, in order to attend her examination at Australia and she already books seat for Australia from Kochi.  But the officer simply neglected his request.  Thereafter the opposite party company intimated that there is a chance for cancellation of the flight where the complainant booked for journey.  Immediately the complainant arranged a seat for his daughter by paying Rs.16,647/-, in Go Air flight from Delhi to Kochi and the complainant forced to send his daughter from Delhi to Kochi alone.  Due to the timely intervention of the relatives of the complainant in Kerala, the daughter can attend her examination.  At 2 pm, the opposite party company declared that their flight is cancelled, but they denied to provide any alternative arrangement or accommodation to the complainant and his family.  They even delayed to return the checked in baggage of the complainant and his family.

          The complainant further stated that the opposite party discarded the complainant and his family half the way and opposite party has not refunded the amount of Rs.24,981/- to the complainant till the filing of this complaint.  Due to the irresponsible and fraudulent act of the opposite party company, complainant had to suffer much mental tension and agony and difficulties and he forced to find an accommodation for his family by paying an amount of Rs.5488/- as room rent in a nearby hotel.  Thereafter the complainant and his family paid Rs.96000/- for return journey by Go Air on 17.12.2014.  Due to the irresponsible and unfair attitude of the opposite party company, complainant had to suffer a total loss of Rs.1,22,641/- including the non-refund ticket charges and mental agony.

          The complainant had to incur extra expenses for stay and food and for return journey.  He and his family was subjected to harassment by the staff.  Complainant further alleged that he and his family was put to a lot of hardships, stress, tension and inconvenience because of the failure of spice jet flight  to (cont.....3)

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ensure that, they could travel as per the booking made with them.  Hence the complainant filed this consumer complaint alleging deficiency in service and unfair trade practice against the opposite party and claimed an amount of Rs.1,22,647/- being the amount he paid for return ticket through Go Air and accommodation and food and also claimed an amount of Rs.24,781/- as refund amount and further claiming Rs.3 lakhs for compensation for mental agony and stress which he and his family suffered due to the irresponsible attitude of the opposite party company.

          The complaint was resisted by the opposite party by filing a written reply in which they stated that the flight had been re-scheduled and the same was intimated to the complainant.  further stated that the flight was scheduled to be on time and as such, boarding passes were issued to the passengers.  Before take off, there is mandatory checking of the air craft by the  Aircraft Maintenance Engineering Team.  On their checking, a snag was found in the air craft and the team immediately started rectifying the same, despite of  best efforts and spending a lot of time, the team could not rectify the same and the aircraft was declared unfit for flying.  Flying the said aircraft was dangerous for property and life of passengers and crew, as such, the opposite party had no option, but to cancel the said flight in question.  Opposite party tried to arrange for alternate flight but none was available and no alternate flight could be arranged.  The passengers including the complainant were intimated about the said changes and the officials of opposite party also gave the complainant’s option to take full refund or alternate flight, which was available on the next day.  The complainant demanded the refund of ticket, which has been remitted to the account from which the ticket was booked.  Further contended that, had the opposite party any intention to discard the complainant and his family half way, then the opposite party not have issued boarding pass to the passengers after checking in their baggage.  

          Opposite party further contended that the cancellation and re-schedulement of the flight is matter of record and the passengers of the opposite party governed by the terms of carriage contained in the e-ticket, framed in accordance with carriage by Air Act, 1972 and notification regarding application of the carriage which is non-international.

(cont.....4)

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          Evidence adduced by the mother, power of attorney holder of the complainant, by way of proof affidavit and document.  She was examined as PW1 and Exts.P1 to P5 were marked.  Ext.P1 is the power of attorney.  Ext.P2 is the copy of Air ticket for 5 numbers.  Ext.P3 is the copy of boarding pass of Go Air company.  Ext.P4 is the hotel bills 2 in number, dated 16.12.2014.  Ext.P5 is the confirmation details.  

From the defence side, one Arshad A.A., allegingly senior executive of the opposite party company examined as DW1and Exts.R1 to R3 were marked.  Ext.R1 is the e-mail confirmation letter of HDFC Bank.  Ext.R2 is the copy of Terms of carriage.  Ext.R3 is the copy of civil aviation requirements.        

          Heard both sides.

          The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what reliefs the complainant is entitled to ?

          The POINT :-  We have examined the entire materials on record and given a thoughtful consideration to the arguments advanced before us.

          It is an admitted fact that the complainant booked to and fro airticket from the authorised agent of spice jet, Thodupuzha, by paying an amount of Rs.48509/-, for 6 member family including the complainant.  The  date of journey was on 10.12.2014 from Kochi to Delhi and return journey was confirmed on 16.12.2014 from Delhi to Kochi.  Eventhough their journey to Delhi was success, there caused delay of 8 hours in landing the flight in Delhi airport.  The complainant and his family planned tour for 6 days.  The delay in upward journey caused loss of one day.  The scheduled time of arrival in Delhi was 11 am, but landed there at 7 pm.  The actual mishap was happened on their return journey from Delhi to Kochi.  For that, the scheduled time of opposite party flight was 5.55 am on 16.12.2014 and all the member of the complainant’s family reported the air port at 4 am itself.  After issuing the boarding pass and after checking in the baggage, the official intimated that the take off may delay to nearly 4 hours, and they expected it as 10 am.  At 10 am, the officials further intimated that it will take much more time.  But at last at 2 pm, it is declared that flight is cancelled.  This fact is specifically admitted by the opposite party in their reply version.   The reasons pointed out by the opposite party for (cont.....5)

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cancellation of the flight is that, before the take off, the aircraft maintenance engineering team conducted mandatory check up and found a snag and tried to rectify the engine snag by taking much more time, but failed to cure the defect for  further convincing this fact.  The learned counsel appeared for the opposite party pointed out that the opposite party is governed by the terms of carriage contained in the e-ticket.  One clause of aforesaid terms of carriage clearly discloses that, “where bad weather or  instances beyond the spice jet control has resulted in your flight being cancelled or delayed, spice jet will try to assist you to get your destination, but will not be liable in any way for the delay or cancellation.” 

          The learned counsel for the opposite party further pointed out another clause of terms of carriage is that, “the company reserves to itself the right without assigning any reason to cancel or delay the commencement or continuance of the flight or to alter the stopping place or to deviate from the route of the journey or to change the type of aircraft in use, without thereby incurring any liability in damages or otherwise to the passengers or any other person or any ground, what so ever.”

          The learned counsel for the opposite party further argued that in view of provisions contained in Rule 19 of the chapter XI of the notification regarding the application of the carriage by Air Act 1972, which is not international, Rule 19 reads as, “In the absence of a contract to the contrary, the carrier is not to be liable for damages occasioned by delay in carriage by air of passengers, baggage or cargo”.  For substantiating the pleadings in the reply version learned counsel relied upon the judgement of Hon’ble National Consumer Disputes Redressal Commission, pronounced in Rev. Petition No.1294 of 2009.  Spice jet Ltd Vs. Mr. Himadar Sharma 2015 (CPJ) part IV, Vol.II, page 752.  Relying upon the above said  decision, opposite party argued that the decision is squarely applicable in the present scenario.

          The facts pointed out by the opposite party that, it is only due to the mechanical fault they forced to cancel the scheduled trip of the flight.  For convincing their part, opposite party produced Exts.R2 and R3 documents.  At this juncture, it is very pertinent to note that, eventhough opposite party elaborately discussed the defect caused by the aircraft, no piece of evidence is 

(cont.....6)

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produced by them to show that actually what was the problem for cancellation of schedule.  If the aircraft maintenance engineer found out a snag in the engine of the Aircraft, they should submit a report before the concerned authority in black and white.  It is very easy for the opposite party to obtain a copy of such a report and adduce it as evidence on their part.

          Here one person allegedly ground staff of the opposite party was examined as DW1.  He deposed that he is having only heresay knowledge about the matter.  Actually the incident was happened in the Delhi airport.  The witness has not produced any evidence to show that whether he is a staff of opposite party company or whether he is duly authorised person to adduce evidence in this matter.  On the basis of this alone, the version of this witness cannot be admissible.

          On further evaluation of the evidence, Forum found that opposite party has not provided any help to the complainant and his family, eventhough they requested several time.  On cross examination, the power of attorney holder of complainant, none other than his mother, who was also accompanied in that journey, faced all the hardships, categorically stated that 1st opposite party evaded from the scene by shutting down their counter. We can imagine the mental agony and hardships suffered by the complainant and his aged mother, wife and three daughters, in such a pathetic situation.  Moreover, looking at the fact of the case, in which a reputed person and his family has to wait one day to get the next flight by meeting unexpected expenses, that also at a distant place, it is quite appeared that all these are happened only due to the irresponsible attitude of the opposite party company.  Considering the overall circumstances of the case, it is a fit care for warranting deficiency in service from the part of opposite party.  Eventhough the complainant prayed for refund of the ticket charges, it is seen that, the opposite party refunded the air ticket charges to the complainant as per Ext.R1 e-mail communication and it is admitted by PW1 also.  Further no evidence is adduced by the complainant to convince the Forum, relating to the journey of his elder daughter to Kochi by spending a huge amount as ticket charges.  Hence without clear and cogent evidence from the part of complainant, the Forum cannot consider the prayer relating to that.  

(cont.....7)

 

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          On the basis of above discussion, complaint allowed.  Opposite party is directed to pay Rs.2 lakhs as compensation for the mental agony which was suffered by the complainant and his family as discussed above and also directed to pay Rs.5000/- as litigation cost, to the complainant, within 30 days from the date of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realization.

          Pronounced in the Open Forum on this the 30th day of October, 2018

        Sd/- 

SRI. S. GOPAKUMAR, PRESIDENT

     Sd/-

SRI. BENNY. K., MEMBER 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1              -   Mary Paulose.

On the side of the Opposite Party :

DW1              -  Arsha A.A.

Exhibits :

On the side of the Complainant :

Ext.P1            -  power of attorney.  

Ext.P2          - copy of Air ticket for 5 numbers.  

Ext.P3          - copy of boarding pass of Go Air company.  

Ext.P4          - hotel bills 2 in number, dated 16.12.2014.  

Ext.P5          - confirmation details.  

On the side of the Opposite Party :

Ext.R1            -  e-mail confirmation letter of HDFC Bank.  

Ext.R2          -  copy of Terms of carriage.  

Ext.R3          -  copy of civil aviation requirements.   

 

 

    Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT