BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.343 of 2015
Date of Instt. 14.08.2015
Date of Decision : 23.02.2016
1. Nitish Arora son of Anant Kumar Arora, R/o 263, Guru Teg Bahadur Nagar, Jalandhar-144003
2. Aditi Kapur wife of Nitish Arora D/o Mohit Kapur,R/o 263, Guru Teg Bahadur Nagar, Jalandhar-144003
..........Complainants Versus
1. M/s East West Agencies, through its Proprietor/Partner, E.S.31, Civil Lines, Friends Cinema Road, Jalandhar-144001.
2. M/s Spicejet Limited, through its Director, 319, Udyog Vihar, Phase-IV, Gurgaon-122016, Haryana, India.
.........Opposite parties.
Complaint Under Section 12 of the Consumer Protection Act.
Before: Sh.Ashwani Kumar Mehta (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.AK Arora Adv., counsel for complainants.
Sh.Dinesh Kumar, Representative on behalf of OP No.2.
Opposite party No.1 exparte.
Order
Ashwani Kumar Mehta (President)
1. Complainants Nitish Arora and Aditi Kapur filed the present complaint against M/s East West Agencies etc opposite parties (OPs) under section 12 of the Consumer Protection Act on the allegations of deficiency in service and unfair trade practice with a further prayer to direct the OPs to pay Rs.15638 on account of expenses incurred by the complainant and Rs.1 Lac on account of compensation for professional damages, mental agony, harassment deficiency in service and unfair trade practice etc alongwith Rs.20,000/- as litigation expenses.
2. The case of the complainant in brief is that they were to visit Mumbai due to their professional assignment and booked return air ticket from New Delhi to Mumbai through OP No.1 on the flight operated by Op No.2 airline on 14.4.2015; that the flight was scheduled to depart from Delhi Airport at 7.35 AM on 6.6.2015 and was to reach Mumbai Airport at 9.45 AM (wrongly written as PM in the complaint) but on the evening of 5th June, complainant received SMS from OP No.2 that their flight has been delayed due to operational reasons and would depart at 8.10 AM; that due to delay in the flight, the complainants reached their destination late and their professional arrangements were hampered; that return journey of the complainants from Mumbai to New Delhi for 8.6.2015 was to start at 18.20 hours but the same was cancelled by the OP No.2 and complainants were informed through SMS shortly before the flight departure i.e. on 7th June about 8.00 PM and no cause of cancellation of flight was informed to the complainants by OP No.2; that complainants tried to contact OPs but despite numerous calls, there was no response from OPs nor any arrangement for the stay of the complainants was made by the OPs for the extended stay in Mumbai due to cancellation of flight and as such complainants had to spent the same from their own pocket; that complainants stayed in Hotel-The Grand Hayatt, which is Five Star Hotel for 6th and 7th June but could not stay for the extended night in the same hotel due to financial constraint and as such had to compromise with their comfort by staying in some low cost hotel as the complainants had no adequate financial arrangement for the extended period as they were having a confirmed return ticket for 8.6.2015; that complainants spent about Rs.10,000/- on account of transportation and food etc as the hotel which he selected for the extended stay was situated at a remote area; that complainants also had confirmed rail ticket from New Delhi to Jalandhar for 9th June which was also not availed by the complainants due to cancellation of the flight and complainants had to arrange next available train in the Tatkal Quota and spent about Rs.3889.94/- on train booking though the cost of previous ticket for 9th June was Rs.1444.94/-; that complainant No.1 is a renowned advocate and had work fixed for hearing for 9th June 2014 but complainant No.1 could not appear in the cases fixed for 9th June 2014 due to cancellation of flight and suffered loss to his reputation; that complainant No.2 is a company secretary and had professional meeting with her clients for 9th June which had to be cancelled due to cancellation of flight and caused financial loss to her and as such OPs were deficient in service and also indulged in unfair trade practice and the conduct of the OPs also caused harassment, mental stress and financial loss to the complainant and as such complainants are entitled to damages of Rs.50,000/- on account of unfair trade practice and financial loss and Rs.50,000/- on account of mental agony and strain but inspite of repeated request, OP did not pay the same and then complainant served legal notice on the OPs on 13.7.2015 but that also had no effect on the OPs. Hence, complaint was filed.
3. After formal admission of the complaint, notice was issued to the OPs and OP No.1 was duly served for 24.9.2015 but none appeared on behalf of OP No.1 in the Forum and consequently OP No.1 was proceeded against exparte. Representative of OP No.2 appeared in the Forum on 24.9.2015 and then OP No.2 filed written statement contesting the complaint on the preliminary objections that same is not maintainable as the OPs are governed by the terms of carriage contained in the e-ticket which were framed in accordance with Carriage by Air Act, 1972 and as per clauses of the said terms of carriage, OPs are not liable for any compensation on account of delay or cancellation of flight which occurred due to bad weather or instances beyond Spicejet control; that the delay in the flight from Delhi to Mumbai and cancellation of flight from Mumbai to Delhi was due to technical and operational reasons and intimation of the same was given to the complainant prior to departure of flight i.e. a day prior schedule time and complainant were offered alternative flight which they accepted without any protest and as such complainants are not entitled to any compensation; that complainants have claimed exorbitant and frivolous compensation without any basis; that the flight was cancelled due to technical and operational reasons which was not in the control of OPs; that complainants have not attached any document in order to support their claim or alleged loss suffered by them; that this Forum have no territorial jurisdiction to entertain the complaint as the answering OP No.2 is situated at Gurgaon and no cause of action have arisen within territorial jurisdiction of this Forum; that the answering OP No.2 is low cost airline and does not include provision of boarding and lodging in its fares and as such complainants are not entitled to any compensation on account of boarding and lodging and complaint is also not maintainable under the Consumer Protection Act as the complainants have availed the services for commercial purposes. On merit, it was admitted being matter of record that complainants booked return air tickets from Delhi to Mumbai and back and also contested the complaint on the same lines as were taken in the preliminary objections. All other allegations mentioned in the complaint were denied with a prayer to dismiss the complaint with cost as complainants are not entitled to Rs.1,35,638/- detailed in the complaint.
4. Both the parties were given sufficient opportunities to lead evidence in order to prove their respective cases.
5. In support of his complaint, learned counsel for the complainants has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C22 and closed evidence.
6. On the other hand, Sh.Dinesh Kumar, representative of the OP No.2 has tendered affidavits Ex.OP2/A and Ex.OP2/B and closed evidence.
7. We have carefully gone through the record and also heard the learned counsel for the complainant and Sh.Dinesh Kumar, representative of OP No.2.
8. The learned counsel for the complainant contended that complainant was to go to Mumbai from Jalandhar and booked air ticket from Delhi to Mumbai and back. He contended that complainant was to depart from Delhi on 6.6.2015 at 7.35 AM but the flight was delayed and was to depart at 8.10 AM and it caused inconvenience to the complainant. He further contended that complainant were to return from Mumbai to Delhi on 8.6.2015 and had confirmed ticket of OP No.2 airline but immediately before the flight, the ticket was cancelled and a message, copy of which is Ex.C4, was sent on 7.6.2015. He further contended that complainants were offered alternative flight for 9.6.2015 and due to this reason, complainant had to stay in Mumbai for the night of 8.6.2015 but the OP No.2 did not arrange or pay for boarding and lodging of the complainant and complainant had to spent the expenses from own pocket. He further contended that reason for cancellation of flight is very vague and is frivolous and as such OP No.2 airline is liable for the consequences of cancellation of flight without any reasonable cause and is liable to compensate for the amount which the complainant spent from their own pocket. He further contended that complainants spent amount of Rs.15638/- on the hotel, transportation and food etc and complainant also suffered loss on account of professional dealings and as such complainant is also entitled to Rs.1 Lac as compensation on account of damages, harassment, mental agony and deficient services alongwith litigation expenses and as such complaint is required to be allowed and OPs are required to be directed to pay compensation as mentioned in the complaint. He supported his arguments with case titled as Mohinderjit Singh Sethi Vs. The Indian Airlines, Airlines House, New Delhi2003(1) CPR 89(NC), case titled as The Managing Director and Chairman, Air India & Anr(Appellants) Vs. George Varghese(Respondent) 2008(3) CPR 235, case titled as M/s Sahara Airlines Ltd (Appellant) Vs.K.Ramkumar and Ors (Respondents) 2010 (4) CPR 201 and case titled as Air Deccan (now known as Kingfisher Airlines Ltd) (Petitioner) Vs. T.P.S.Phoolka & Ors (Respondents) 2015(1) CPR 364 (NC).
9. Representative of OP No.2 contended that the flight was delayed only for 35 minutes on 6.6.2015 and complainants have not proved by any cogent evidence as to what loss has been caused to them by delayed flight. He further contended that even information about delay in flight was given 24 hours prior to flight. He further contended that flight on 8.6.2015 from Mumbai to Delhi was cancelled due to some operational reasons and even information was given on 7.6.2015 to the complainant regarding cancellation of flight through SMS and option was also given to the complainant for next available flight which the complainant accepted without any protest and availed the alternative flight and as such complainant is not entitled to any damages or compensation in view of terms of carriage at clause No.57 of Spicejet. He also contended that rules have been framed by Director General of Civil Aviation, which was effective from 15.8.2010 copy of which is placed on the file and as per rule 3.3, complainant is not entitled to any compensation due to cancellation of flight as the cancellation was due to operational reason. He also contended that the ticket was not booked by OP No.2 at Jalandhar nor OP No.2 have any office or business place at Jalandhar and even if agent is operating at Jalandhar then complaint can not be filed at Jalandhar against OP No.2 because agent is an independent entity and as such complaint is required to be dismissed with cost. Representative of OP No.2 supported his arguments with case titled as Spicejet Ltd Vs. Himadri Sharma, Revision Petition No.1294 of 2009 decided by Hon'ble National Commission on 23.3.2015.
10. It is admitted case of the parties that complainant booked air ticket of OP No.2 Spicejet airline and air tickets were booked by OP No.1 East West Agencies, Jalandhar. It is also admitted case of the parties that complainant was to depart from Delhi for Mumbai on 6.6.2015 at 7.35 hours. It is also admitted case of the parties that flight at Delhi was delayed by 35 minutes but this delay is very minor and complainant have also not produced any evidence as to what loss was caused to him due to delay in departure of flight. Moreover, even information was given regarding delay in departure of flight prior to flight and as such complainant is not entitled for any damages on account of delay in flight on 6.6.2015. It is admitted case of the parties that complainants were to return from Mumbai to Delhion 8.6.2015 and the flight was to depart from Mumbai at 18.20 hours but the flight was cancelled on 7.6.2015 and information through SMS, copy of which is proved on the file as Ex.C4, was given to complainant. It is mentioned in the information that due to some operational reasons the flight has been cancelled but admittedly detail of operational reasons is not mentioned in the SMS nor it has been proved on the file. The facts of the case referred by representative of OP No.2 are quite distinguishable from the facts of the case in hand. In the referred case titled Spicejet Vs. Himadri Sharma, the flight was scheduled to fly from Calcutta to Delhi and the flight took off from Calcutta but it was not allowed to land at Delhi due to bad weather and it was flown back to Calcutta and it was observed by Hon'ble National Commission that the reason for cancellation of flight was beyond control of the airline and complainant is not entitled to any damages. However, in the case in hand, no such evidence has been brought on the file that the reason for cancellation of flight on 8.6.2015 was beyond the control of OP No.2 airline. It is simply mentioned in the message Ex.C4 that flight has been cancelled due to operational reason but operational reason has not been explained or detailed nor evidence in this regard has been brought on the file. If operational reason are due to negligence on the part of airline or due to some deficiency on the part of airline then the airline is not exempted nor escape from the liability of cancellation of flight. In the case in hand, OP No.2 airline have not brought any Iota of evidence that the flight was cancelled due to some reason which was beyond the control of airline OP No.2. It is correct that if the flight was cancelled due to some reason beyond the control of the airline then airline is exempted from payment of damages but if the flight was cancelled due to some reason attributable to the airline for example non availability of pilot, some technical defect in the aircraft due to poor maintenance of aircraft by airline then definitely the airline is liable for the consequence of cancellation of flight to the passengers. In the case is hand, complainants have confirmed ticket for return journey from Mumbai to Delhi but flight was cancelled without any plausible and reasonable cause and complainants had to spent from their own pocket for the extended and compelled stay at Mumbai. It is contention of the complainant that he stayed in a Five Star Hotel for the fixed stay of 6th and 7th June but due to some financial constraint, he shifted to some other low cost hotel for the compelled stay of 8th June and had to compromise comfort due to financial constraint. Complainants have spent room charges @ Rs.2249/- for 8th June 2015 vide receipt Ex.C9. Complainants have also proved transportation charges for 8th and 9th June Ex.C10 to Ex.C14 amounting to Rs.294/-, Rs.141/-, Rs.155/-, Rs.105/- and Rs.388/- respectively. Complainants had confirmed Shatabdi rail ticket Ex.C16 for Rs.1444.94/- of 9th June 2015 from New Delhi to Jalandhar but they could not avail that train due to cancellation of flight and complainant had to book new ticket on 8th June 2015 for 9.6.2015 for Rs.1945.60/- as is apparent from ticket Ex.C17. Complainants also alleged that they suffered damages on account of unfair trade practice, deficiency in service and also suffered financial loss, mental stress and agony and claimed Rs.50,000/- each i.e. Rs.1 Lac but no evidence has been produced as to how complainants suffered damages for Rs.1 Lac on account of deficiency in service, unfair trade practice, harassment mental agony etc. Otherwise, definitely cancellation of flight caused undue harassment, mental agony to the complainants and they also had to spend from their own pocket for the extended period and compelled stay of 8.6.2015 at Mumbai and as such in the opinion of the Forum, it would be just if the complainants are awarded Rs.10,000/- on account of damages due to deficiency in service, harassment and mental agony etc.
11. Complainants have attached bill for boarding, lodging, food, transportation, rail tickets and in the opinion of the Forum, the balance of justice would struck if the complainants are collectively awarded Rs.15,000/- as compensation on account of room charges, transportation, food, rail ticket etc i.e. total Rs.25,000/-.
12. In the light of above discussion, the complaint succeed and same is hereby allowed with cost in favour of the complainant and against OP No.2 as OP No.1 is not instrumental in cancellation of flight and complainants are awarded Rs.25000/- collectively as compensation on account of boarding, lodging, harassment, mental agony, transportation, rail journey etc. Complainants are also awarded Rs.2000/- as litigation expenses to be recovered from OP No.2. OP No.2 is directed to comply with the order within one month from the date of receipt of copy of this order. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Ashwani Kumar Mehta
23.02.2016 Member Member President
