Haryana

Panchkula

CC/235/2019

ANSHUL SHARMA. - Complainant(s)

Versus

M/S IBIBO GROUP. - Opp.Party(s)

ANSHUL SHARMA

24 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	235 of 2019
Date of Institution	:	22.04.2019
Date of Decision	:	24.01.2024

 

 

Anshul Sharma s/o Sh.Yash Pal Sharma resident of H.No.1132, Sector-21, Panchkula, Haryana.

 

                                                                ….Complainant

Versus

1.     M/s Ibibo Group, 5^th Floor, Good Earth City Centre, Sector-50, Gurgaon-122018(India).

2.     Aeroflot Bonus, 10 Arbat St., Moscow 119002 and India Address-610, 6^th Floor, Ashoka Estate, Street Number-24, Barakhamba Road, Delhi-110001.

                                                                                       ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh.Satpal, President.

Dr.Sushma Garg, Member

Dr.Barhm Parkash Yadav, Member

 

 

For the Parties:   Ms.Anuradha Sohal, Advocate for the complainant.

                        Sh.Nitin Bhasin, Advocate for the OP No.1(OP No.1                          already ex-parte vide order dated 24.09.2019).  

                        Sh. Bhartendu Sood, Advocate for the OP No.2.

                       

 

                                        ORDER

 

Satpal, President

1.              The brief facts, as alleged, in the present complaint are that the complainant had booked air tickets on 18.01.2019 for his air journey on 02.04.2019 at 5:00a.m. vide Aeroflot Airlines belonging to OP No.2. The said ticket was booked by the complainant using the website i.e. www.goibibo.com belonging to OP No.1. It is stated that the complainant started his journey from Panchkula(Haryana)on 01.04.2019 in the evening so as to board the air flight on 02.04.2019 from IGI Airport at Delhi (India). After reaching the airport enquiry, it was revealed from the Aeroflot Airlines staff(OP No.2) that the flight had already been cancelled few weeks ago by the airline. It is stated that the complainant had reached the airport only after checking the status of the air flight on the website and app, wherein it was showing the information as booked. The airline staff asked the complainant to apply for the refund qua the cancelled flight but the complainant had very urgent and important work at the destination, so he requested the OP No.2 to provide some alternative flight so as to reach the destination. The airlines later provided the some other flight tickets, which was having long route and layovers at airports. It is averred that the change of flight resulted in financial loss as Hotel and Car Rental was pre booked by the complainant and was not cancelled and non- refundable. It is submitted that the extra time spent in travel and at airport costed the complainant for food and phone call bills. It is stated that the complainant earlier flight route was from Delhi to Moscow to Los Angles to Las Vegas, which was changed by the Airlines as Delhi to Moscow to New York to Las Vegas. As the flight from Los Angles to Las Vegas could not have been boarded due to changed route, the complainant sent the request to cancel the flight from Los Angles to Las Vegas using Goibibo app but they wrongly cancelled the return flight of the complainant. After coming to know about this, the complainant requested Goibibo to correct the mistake immediately to avoid any problems in the return flight. The return journey from Las Vegas to Los Angles was resumed by rectifying the mistake by OPs after the making of multiple requests by the complainant. It is averred that request was made by the complainant during his air journey for providing him the vegetarian food but he was not served the same as non vegetarian meal was served to him, which he had declined. It is stated that the complainant had to take the food/meal during the change of plans at the Airport which had caused huge loss to him. The request for providing of vegetarian food during the air journey was made by him to OP No.1, while making the booking of the air flights, which was not passed on to the airline operators(OP No.2). It is averred that the information about the cancellation of the flight was neither conveyed the by OP No.1 nor OP No.2. Due to the cancellation of the flight the complainant has suffered the loss in the shape of deduction of two days salary. Due to act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2.Notice was issued to the OP No.1 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.1; hence, it was deemed to be served and thus, due to non appearance of OP No.1, it was proceeded ex-parte by this Commission vide its order dated 24.09.2019.      

                Upon notice, the OP No.2 has appeared through Sh.Navin Mahajan, Advocate to contest the complaint; but he did not file the written statement despite availing several opportunities including the last opportunity. Therefore, the defence of OP No.2 was struck off by this Commission, vide its order dated 29.07.2019. However, the Defence struck off order dated 29.07.2019 was set aside vide order dated 05.09.2019 and written statement as filed by the OP No.2 through its counsel was taken on record, wherein preliminary objections has been raised that the OP No.2 is not the service provider as the tickets for the air journey from Delhi-Moscow-Los Angles-Las Vegas were booked through OP No.1 i.e. M/s Goibibo group; the District Consumer Commission at Panchkula lacks territorial jurisdiction to entertain and decide the present complaint. It is submitted that the complainant had booked the air tickets from OP No.1 on 18.01.2019 to travel from Delhi(India) to Las Vegas(USA) via Moscow-Los Angles on 02.04.2019 but due to the closure of Pakistan Air Space(which was beyond the control of OP No.2), the OP No.2 was constrained to re-schedule the flight on 28.03.2019. It is submitted that the OP No.2, in the normal course of its business, informs all its passengers about the rescheduling of the flight but in the present case, the rescheduling was conveyed to OP No.1(service provider of the complainant) as no contact number or any email ID was provided by the complainant during his booking. It is submitted that no liability of any kind on any count can be fastened upon the OP No.2 in view of the Clause 10 of the Airlines rules, displayed on its website. It is submitted that the complainant was offered the refund qua the price of the Air tickets as also the next available flight to reach his destination. Since, the complainant had very urgent work at his destination, he voluntarily opted the next possible flight to Los Vegas, which was scheduled as Delhi-Moscow-New York-Los Vegas, which caused some delay in reaching the destination. It is submitted that the complainant has alleged deficiency in service on the part of OPs on account of not providing vegetarian meal on the fight, due to which the complainant has to remain hungry during the journey from Delhi and he had to take the vegetarian meals at the change of planes at the airports. However, neither any request from the complainant nor any request was ever made by the OP No.2 qua providing of the Hindu Vegetarian Meal to him. It is unbelievable that a passenger would be deliberately denied food on an international flight. It is also unbelievable that vegetarian food would not be available on an international flight, especially when the flight was originating from India. Even in the remote circumstances, if vegetarian food is not available, the flight attendants always make arrangements for bread, butter, fruits and other snacks for the passenger. Apart from lunch/dinner, the passengers are also provided with breakfast, snacks and tea/coffee at regular intervals during the flights. As such, the allegation that the passenger/complainant was without meal during his travel in flight, is totally incorrect and false.

                On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.2 and as such, the complaint of the complainant is liable to be dismissed.

3.To prove the case, the authorized representative for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.2 has tendered affidavit as Annexure R-A and, affidavit of Sh.Sergey E.Losev, General Manager, Aeroflot Russian Airlines, IGI Airport, New Delhi filed on 12.12.2023, along with documents Annexure R-1 to R-3 and closed the evidence.

4.We have heard the learned counsels for the complainant, OP No.1 as well as OP No.2 and gone through the entire record including the written arguments filed by the learned counsels for the complainant, OP No.1 as well as OP No.2, carefully and minutely.

5.The learned counsel for the complainant, during arguments, reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) and alleged  the lapses and deficiencies  on the part of the OP  No.1 as well as OP No.2 on the following counts:-

i.      That the complainant was not informed qua the cancellation of the     scheduled flight on 02.04.2019 either by OP No.1, who had      booked the air tickets or by the airlines i.e. OP No.2.

ii.      That the vegetarian food was not served as requested by the    complainant while booking the air tickets with OP No.1, during the       air journey from Delhi-Moscow-New York-Los Vegas.

iii.     That the OP No.1 working  in a negligent and careless manner had     cancelled the return flight of the complainant from Los Vegas to    Los Angles in place of Los Agnles to Los Vegas, which was   ultimately resumed by OP No.1 after making multiple request to         it, thereby causing lot of annoyance and mental stress to the     complainant.

6.The OP No.1 has not contested the present complaint by filing the written statement. However, it has filed written submissions, wherein it has denied its liability in the matter qua the deficiencies as alleged by the complainant. It has denied its liability on the ground that it had acted merely as an facilitator between the complainant and the airline(OP No.2). It is submitted that once the confirmed ticket is issued to the customer, the OP No.1 is discharged from its obligations and duties qua the said bookings. Further, according to the User Agreement, which was duly consented to an agreed by the Complainant before making the said confirmed bookings, the OP No.1 merely acts as a facilitator for booking of services from the concerned service providers and are not responsible for any liability qua any lapses on the part of the concerned service providers. It is submitted that the role of OP No.1 was just of an intermediary as defined under Section 2(1)(w) of the Information Technology Act, 2002. As per Section 79 of the IT Act, an intermediary is exempted from any liability qua any deficiency on the part of third party i.e. airlines. It is submitted that the cancellation or re- scheduling of the flight was solely under the control of airlines i.e. OP No.2, where the OP No.1 had no role to play. It is submitted that the concerned flight was cancelled by the airlines i.e. OP No.2 on 02.04.2019 i.e. the day of travel itself. It is submitted that it was the sole liability of OP No.2 to inform its consumer including the complainant in case of cancellation or rescheduling of the flight. However, the complainant had duly utilized the air flight services on the next day on the same tickets issued by OP No.1; hence, the entire claim of the complainant is based on surmises and conjectures.

7.Regarding the request for serving of vegetarian food to the complainant, it is submitted that no such request was ever made by the complainant at the time of booking. It is submitted that the complainant had option to avail the additional meals or meals plan by contacting the concerned airlines i.e. OP No.2. Further meals are provided by the concerned airlines only during journey and the OP No.1 has no role in the same. The Consumer Commission at Panchkula has no territorial jurisdiction to entertain and decide the present complaint. It is submitted that the compensation and damages as claimed by the complainant in the present complaint are unjustified & unsubstantiated and excoriated. The learned counsel, during arguments, reiterated averments as made in the written submissions prayed for dismissal of the present complaint qua OP No.1. Reliance has been placed the following case laws:-

i.      Bharathi Knitting Co. Vs. DHL Worldwide  Express Courier (1996) 4 SCC 7041.

ii.       Pravasi Legal Cell Vs. Union of India & Anr. in writ petition(civil) no. 1040 of     2019 with writ petition(civil) no.1325 of 2020 decided on 20.03.2023(SC).

8.The learned counsel on behalf of the OP No.2, during arguments, raised the preliminary issue that the District Commission at Panchkula lacks territorial jurisdiction to entertain and decide the present complaint as the office of OP No.1 as well as office of OP No.2 are not situated within the territorial jurisdiction of this Commission and the cause of action, if any, had arisen at Indira Gandhi International Airport, Delhi from where the flight was to take off on 02.04.2019.

9.On merits, the learned counsel reiterated the averments as made in the complaint as also in the affidavit(Annexure R-A) and affidavit dated 12.12.2023 of Sh.Sergey E.Losev, General Manager, Aeroflot Russian Airlines, IGI Airport, New Delhi and contended that the cancellation of the scheduled flight for 02.04.2019 was necessitated on account of closure of air space by the Government of Pakistan and thus, no lapses and deficiencies are liable to be attributed qua cancellation or rescheduling of the flight. The learned counsel argued that no contact number or email ID was available with OP No.2, so the information qua cancellation of the flight was conveyed by it to OP No.1 on 29.03.2019. In this regard, the learned counsel invited our attention towards the PNR history as also the affidavit of Sh.Sergey E.Losev, General Manager, Aeroflot Russian Airlines, IGI Airport, New Delhi, which is placed on record on 12.12.2023. The learned counsel further argued that the complainant was provided the next available flight so as to enable him to reach at his destination i.e. Los Vegas and thus, no deficiency or lapses on any account or any manner are liable attributed on the part of OP No.2.

10.Regarding the grievances of the complainant qua non serving of vegetarian food to him during the air flight, the learned counsel contended that no request was received either from the complainant or from the booking travel agency i.e. OP No.1 qua serving of vegetarian food. The learned counsel argued that in all flight originating from India, invariably starts their flight only after making provision of vegetarian food and thus, it was improbable that vegetarian food was not offered to the complainant as alleged. Concluding the arguments, the learned counsel has prayed for dismissal of the present complaint being frivolous, baseless and meritless.

11.Having heard the complainant as well as the learned counsel for the parties, it  is found that both the learned counsel i.e. for OP No.1 as well as OP No.2 have disputed the territorial jurisdiction of the Commission at Panchkula to decide the present complaint.

                The objection raised qua territorial jurisdiction found having no force and substance in it the fact that the ticket was booked by the complainant from Panchkula and thus, this Commission at Panchkula has territorial Jurisdiction to decide the present complaint. The law laid down by the Hon’ble NCDRC vide order dated 07.02.2017 passed in revision petition no.1396 of 2016 titled as Spicejet Ltd. Udyog Vihar Phase IV, Gurgaon Haryana Vs. Ranju Aery w/o Sh. Abnesh Dadwal r/o 2361, Sector-19-C, Chandigarh is fully applicable in this regard.

12.As stated earlier, the first grievance of the complainant is that he was neither informed by the OP No.1 nor by the OP No.2 qua cancellation of the scheduled air flight. The OP No.1 has taken the plea in its defence that flight was cancelled on 02.04.2019 itself by OP No.2, which has no leg to stand. Admittedly, the operation of the air flights over the air space in Pakistan was banned during the relevant time. Moreover, the OP No.2 has filed neither written statement nor any documentary evidence in the shape of affidavit etc. in supports of its contentions. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

13.On the other hand, the OP No.2 i.e. Airlines  vide its affidavit (Annexure R-A) as also the Affidavit of Sh.Sergey E.Losev, General Manager, Aeroflot Russian Airlines, IGI Airport, New Delhi, placed on record on 12.12.2023 and PNR history has proved that OP No.1 was conveyed on 29.03.2019 at its Phone No.91-923025552 and 18602585858 qua cancellation of the scheduled flight. Thus, the OP No.1, who had booked the air ticket was duty bound to inform the complainant immediately after the receipt of the information from the OP No.2 qua the cancellation of the scheduled flight. As such, the OP No.1 was negligent and deficient while not informing the complainant qua the cancellation of the scheduled flight despite the receipt of intimation about the same from OP No.2 i.e. airline.

14.The plea taken by the OP No.2 that it had no contact number or no email ID of the complainant with it is not tenable because the said information i.e. contact number etc. of the traveler is invariably forwarded to the airlines either by the travel agent i.e. OP No.1 or the traveler/consumer directly; so the OP No.2 also cannot claim the exemption from its basic duty of informing its passenger including the complainant qua the cancellation of the flight as well as re-scheduling of the same; therefore, the OP No.2 had also acted negligently and in a causal manner, while not informing the complainant qua the cancellation of the scheduled flight.

15.Coming to the next grievance of the complainant qua the non serving of vegetarian food during his air journey, both the OPs i.e. OP No.1 as well as OP No.2 have taken the plea in their defence that no such request was received by them from the complainant qua serving of vegetarian food to him. The said plea is found having no force and substance in it in the light of emails dated 07.04.2019 and 08.04.2019 as sent by the complainant, which are available on record as Annexure C-4 wherein the complainant had categorically stated that he had requested for the serving of vegetarian food to him during his flight. In the light of said email(Annexure C-4), it was incumbent upon the OPs to produce on record the booking form which was received from the complainant so as to controvert and falsify of his contention qua the supply of the vegetarian food to him but the Ops i.e. OP No.1 as well as OP No.2 have preferred to withhold the booking form as submitted by the complainant to OP No.1 at the time of the booking of air tickets  in question; so, the plea taken by OP No.1 as well as OP No.2 that no request was received from the complainant qua providing of the vegetarian  food  to him is not tenable ; hence,  the same is rejected.

16.In view of the discussion made above, we have reached at the irresistible conclusion that the OP No.1 as well as the OP No.2 had been negligent and deficient while rendering services to the complainant for which they are liable, jointly and severally, to compensate him.

17.In relief, the complainant has claimed the refund of 150 dollar or equivalent in INR on account of expenses incurred by him qua booking of hotel and car rental charges and further, he has also claimed Rs.1,75,000/- and Rs.15,000/- on account of mental agony and harassment as well as litigation charges respectively. The prayer of the complainant qua refund of 150 dollar or equivalent in INR on account of expenses incurred by him pertaining to booking of hotel and car rental charges is declined for want of adequate proof.

18.As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To pay a sum of Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him.
2. To pay a sum of Rs.5,500/- as litigation charges.

 

19.The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 Announced on: 24.01.2024

 

 

        Dr. Barhm Parkash Yadav      Dr.Sushma Garg              Satpal

                  Member                           Member                President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal

                                         President

 

 

                                      

 

 

C.C. No. 235 of 2019

Present:             Ms. Anuradha Sohal, Advocate for the complainant.

                        Sh. Nitin Bhasin, Advocate for the OP No.1(OP No.1                         already ex-parte vide order dated 24.09.2019).  

                        Sh. Bhartendu Sood, Advocate for the OP No.2.

                                       

                       Arguments heard. Now, to come upon 24.01.2024 for orders.

Dated: 11.01.2024

 

 

 

  Dr.Barhm Parkash Yadav    Dr.Sushma Garg              Satpal

              Member                          Member                   President

 

 

 

Present:             Ms. Anuradha Sohal, Advocate for the complainant.

                        Sh.Nitin Bhasin, Advocate for the OP No.1(OP No.1                          already ex-parte vide order dated 24.09.2019).  

                        Sh. Bhartendu Sood, Advocate for the OP No.2.

                                       

 

                                Vide a separate order of even date, the present complaint is hereby partly allowed against the OPs No.1 & 2 with costs.

         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.24.01.2024

 

 

        Dr. Barhm Parkash Yadav     Dr.Sushma Garg           Satpal

              Member                          Member                   President