BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.
Complaint Case No.84 of 2019.
Date of institution: 19.03.2019.
Date of decision:07.04.2021.
- Ashok Gautam Advocate son of Sh. Hari Krishan Sharma Advocate.
- Smt. Ritu Gautam wife of Sh. Ashok Gautam Advocate, both residents of 1548(8)/4, R.K.Puram Colony, Ambala Road, Kaithal.
…Complainants.
Versus
- M/s. Make My Trip India Pvt. Ltd. through its Director/Manager/concerned official, DLF Building No.5, Tower-B, DLF Cyber City, DLF Phase-2, Sector-25, Gurugram-122002.
- M/s. Apolo Munich Health Insurance Company Limited through its Director/Manager/concerned official, First Floor, SCF-19, Sector-14, Gurugram-122001.
- M/s. Indigo Airlines through its Director/Manager/concerned official, CIN: L62100DL, 2004PLC129768, Central Wings, Ground Floor, Thapar House, 124, Janpath, New Delhi-110001.
- M/s. Go Airlines (India) Limited, through its Director/Manager/concerned official, First Floor C-1, Wadia International Centre (WIC), Pandurang Budhkar Marg, Worli, Mumbai-400025, nearest Landmark Deepak Talkies.
….Respondents.
Before: Sh. D.N.Arora, President.
Sh. Rajbir Singh, Member.
Smt. Suman Rana, Member.
Present: Sh. Som Dutt Sharma, Advocate for the complainants.
Sh. Vikram Tiwari, Advocate for the OP.No.1.
Sh. Jagmohan Nerwal, Adv. for the Op No.2.
Sh. Ranvir Prashar, Adv. for the Ops No.3 & 4.
ORDER
D.N.ARORA, PRESIDENT
The complainants have filed the present complaint under Section 12 of Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 with the averments that the complainants booked there e-tickets with the Ops No.3 & 4 through the Op No.1 and the Op No.1 got the tickets insured with the Op No.2 vide booking I.D.-NF72695152778945 from Chandigarh to Sri Nagar for 09.02.2019 and from Sri Nagar to Chandigarh for 11.02.2019 and paid an amount of Rs.12,255/- to the Ops online. It is alleged that the complainants planned their journey and trip for Sri Nagar on account of their marriage anniversary and also booked the room for two days i.e. for 09.02.2019 and 10.02.2019 at OYO-4633, Hotel Spring Hills to the tune of Rs.5573/- and also arranged for the taxi through driver Rayaz of Sri Nagar. On 09.02.2019 the complainants hired a taxi from Kaithal and reached at Chandigarh Airport in time but the officials of Op No.3 told that the flight has been delayed and now the flight will come at 11.00 a.m. and after that they put off all the passengers including the complainants and told that the flight is coming shortly and at last at 14.30 hrs. declared that the flight has been cancelled due to operational reasons, wherein it came in the knowledge of complainants from the Manager of Op No.3 namely Munish that the flight was cancelled due to non-availability of the pilot. Thereafter, on the request of said Munish, the complainants asked him to cancel their tickets of both sides i.e. with the Ops No.3 & 4, then he did some work on computer and said that the request for cancellation of tickets with the Ops No.3 & 4 had been sent and the total amount will be transferred in the account of complainant No.1 within ten working days. The complainants made several requests to Ops No.1 & 2 to compensate and refund back the amount of complainants but they put off the complainants with one pretext or the other. So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint. Hence, this complaint.
2. Upon notice, the OPs appeared before this Forum and contested the complaint by filing their replies separately. Op No.1 filed the reply raising preliminary objections with regard to locus-standi; maintainability; cause of action; that the answering Op is merely a facilitator whereby various third party vendors such as Airlines, Hotels enlist their services, the complainants were informed by the Op No.3 that the concerned flight has been cancelled owing to operational reasons and therefore, the Op No.3 is willing to do a full refund to the complainants. The complainants were offered a full refund of the ticket by the Op No.3. However, reasons best know to the complainants, such offer of full refund was declined by the complainants. As per internal policy, various conversations are recorded for internal training purposes. Accordingly, the conversation between the answering Op through a customer care executive, the Op No.3 and the complainants was recorded. There is no deficiency in service on the part of Op. On merits, it is admitted that the complainants had approached the answering Op to book their tickets with the Ops No.3 & 4 from Chandigarh to Srinagar and from Srinagar to Chandigarh for 9th February, 2019 and 11th February, 2019 respectively and they had paid an amount of Rs.12,255/- in lieu of the same and the answering Op confirmed the bookings vide booking ID-NF726995152778945. The other objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
3. Op No.2 filed the reply raising preliminary objections that prima-facie no cause of action has arisen in favour of the complainants to file the present complaint as no claim has ever been intimated by the complainants to the answering Op and without any claim intimation how the maintainability or non-maintainability of any claim be assessed; that prima-facie there is no deficiency in service on the part of answering Op. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
4. Ops No.3 & 4 filed the joint reply raising preliminary objections with regard to locus-standi; maintainability; cause of action; jurisdiction; that the complainants have falsely alleged that the IndiGo Flight No.6E-372 on 09.02.2019 was cancelled on account of non-availability of pilot or that any staff of InterGlobe Aviation Limited allegedly informed the complainant that due to non-availability of pilot, the flight was cancelled. It is submitted that by way of their own admission, the complainants requested for cancellation of their booking which was duly cancelled and the full refund was initiated into the account from which the payment for the booking of the complainants was made. There is no deficiency in service on the part of answering Ops. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint
5. The complainants tendered into evidence affidavit Ex.CW1/A, Ex.CW1/B and documents Annexure-C1 to Annexure-C3 and thereafter, closed the evidence. The complainants tendered in additional evidence documents Annexure-C4 to Annexure-C9 and closed the rebuttal evidence.
6. On the other hand, the Op No.1 tendered into evidence affidavit Ex.RW1/A and document Annexure-R1, Op No.2 tendered into evidence affidavit Ex.RW2/A, Ops No.3 & 4 tendered into evidence affidavit Ex.RW3/A and documents Annexure-R2 to Annexure-R8 and thereafter, closed the evidence.
7. We have heard the learned Counsel for both the parties and perused the record carefully.
8. Undisputedly, the complainants booked there e-tickets with the Ops No.3 & 4 through the Op No.1 and the Op No.1 got the tickets insured with the Op No.2 vide booking I.D.-NF72695152778945 from Chandigarh to Sri Nagar for 09.02.2019 and from Sri Nagar to Chandigarh for 11.02.2019 as per Annexure-C1 ticket confirmation letter and paid an amount of Rs.12,255/- to the Ops online as admitted by the Op No.1 in reply to the para No.1 of the complaint. According to the complainants, they planned the trip for Sri Nagar on account of their marriage anniversary and also booked the room for two days i.e. for 09.02.2019 and 10.02.2019 at OYO-4633, Hotel Spring Hills to the tune of Rs.5598/- and also arranged for the taxi through driver Rayaz of Sri Nagar. On 09.02.2019 the complainants hired a taxi from Kaithal and reached at Chandigarh Airport in time but the officials of Op No.3 told that the flight has been delayed and now the flight will come at 11.00 a.m. and after that they put off all the passengers including the complainants and told that the flight is coming shortly and at last at 14.30 hrs. declared that the flight has been cancelled due to operational reasons, wherein it came in the knowledge of complainants from the Manager of Op No.3 namely Munish that the flight was cancelled due to non-availability of the pilot.
9. We have considered the rival contentions of both the parties. The Ops No.3 & 4 have taken the objection that the complainants have falsely alleged that the IndiGo Flight No.6E-372 on 09.02.2019 was cancelled on account of non-availability of pilot or that any staff of InterGlobe Aviation Limited allegedly informed the complainant that due to non-availability of pilot, the flight was cancelled. Ld. Counsel for the Ops No.3 & 4 contended that by way of their own admission, the complainants requested for cancellation of their booking which was duly cancelled and the full refund was initiated into the account from which the payment for the booking of the complainants was made.
After considering the arguments and perusal of the file, it is an admitted fact that the complainants had paid the amount of Rs.12,255/- on account of booking amount from Chandigarh to Sri Nagar on 09.02.2019 and from Sri Nagar to Chandigarh for 11.02.2019 and also placed on file copy of tax invoice from which, it is clear that the complainants had paid the amount of Rs.12,255/- through Op No.1, who is a facilitator of Ops No.3 & 4. It is also an admitted fact that the complainant had to fly through Indigo Airlines i.e. Op No.3 from Chandigarh to Sri Nagar and they had to come back from Sri Nagar to Chandigarh through Go Airlines i.e. Op No.4. It is also clear that the flight from Chandigarh to Sri Nagar could not fly on settled date and settled time and luggage was checked as per checking slip Annexure-C2. The complainants had categorically claimed that the flight was cancelled due to “Non availability of pilot” in para No.4 of their complaint and in reply to the said para, the Ops No.3 & 4 gave an evasive reply by stating that the flight was cancelled due to “on account of last minute unavoidable operational reasons” but the Ops No.3 & 4 had failed to disclose and describe the exact reason for cancellation of the flight. The said reason is an excusive reason of the Ops No.3 & 4 which they failed to disclose the same. The complainants have also placed on the file the CD Annexure-C3 and also placed on record video recording conversation between the passenger and company representative of Op No.3. After reading of the conversation, we found that there is dispute between the passenger and representative of the company regarding non-availability of the pilot after cancellation of the flight. So, the version of the Op No.3 that due to operational reason, the passenger could not travel on the flight, we found no force in the said contention. Hence, this commission has no other option except to draw an adverse inference against the Op No.3 regarding their non-explanatory reason.
10. It is established on file that the complainants became the victims due to lapse on the part of Op No.3 and their trip got cancelled. It is proved that the complainants are residents of Kaithal and their flight was scheduled from Chandigarh and as such, the complainants reached in Chandigarh Airport as per the schedule. Hence, we are of the considered view that the complainants are entitled for refund of the cost of booking amount of basic fare charges as per Annexure-C7. Although the counsel for Op No.3 has placed on record document Annexure-H at the time of arguments that the amount of Rs.5704/- was refunded to Make My Trip-Op No.1 on 11.02.2019 but there is no document on the file which could show that the Op No.3 has sent the ticket amount to the complainants. Although the complainants have also denied the above-said fact and that amount has not been refunded to the complainants. It is made clear that if the Op No.3 has sent the above-said amount to the Op No.1, then they can recover the same from Op No.1.
Now we are coming on the point of compensation. The complainants have placed on record document Annexure-C7 i.e. compensation norms detail/circular which shows that “What are the compensation norms & facilities available for passengers affected by Flight delays & cancellations?.” It is mentioned in the said document that in case a passenger is denied boarding against his/her will after having reported on time, the following norms for compensation will apply as under:-
“a) An amount equal to 200% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 10,000, in case airline arranges alternate flight that is scheduled to depart within the 24 hours of the booked scheduled departure.
b) An amount equal to 400% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 20,000, in case airline arranges alternate flight that is scheduled to depart more than 24 hours of the booked scheduled departure.
c) In case passenger does not opt for alternate flight, refund of full value of ticket and compensation equal to 400% of booked one-way basic fare plus airline fuel charge, subject to maximum of INR 20,000.”
11. In the present case, there is no dispute that the complainants did not reach in time and their luggage was also checked as per Annexure-C2, as per our above discussion and the complainants had also not opted for alternate flight rather the complainants have claimed the full value of the ticket. Hence, the complainants are entitled for compensation as mentioned in clause c mentioned above i.e. 400% of booked one way basic fare airline plus fuel charges. In the present case, the complainants placed on file copy of the detail of tax invoice from which it is clear that the basic/base fare of one ticket is Rs.1640/- each and Rs.200/- as fuel charges for each passenger, so, the complainants are entitled for 400% of the basic/base on the amounting to Rs.3280/- for both the complainants which comes Rs.13,120/- + Rs.400/- as fuel charges (total Rs.13,520/-) qua the booking amount from Chandigarh to Sri Nagar. The complainants could not able to travel from Chandigarh to Sri Nagar and as such, the question of travelling from Sri Nagar to Chandigarh does not arise at all. Therefore, the complainants are also entitled for compensation to the tune of 400% of basic/base fare on return tickets also. The complainants have paid the amount of Rs.1649/- each passenger as basic/base fare from Sri Nagar to Chandigarh which comes Rs.3298/-, so, the complainants are entitled for 400% of the basic/base fare on the amounting to Rs.3298/- for both the complainants which comes Rs.13,192/- + Rs.400/- as fuel charges (total Rs.13,592/-). Ld. Counsel for the complainants argued that due to negligent act of Op No.3, when the complainants planned their journey and tip on account of their marriage anniversary for two days i.e. for 9 and 10.02.2019 at OYO-4633, Hotel Spring Hills to the tune of Rs.5598/- and also arranged for the taxi through driver Rayaz of Sri Nagar. The complainants have placed on file copy of booking details of above-said hotel as per Annexure-C4 to Annexure-C6 and shown the amount of Rs.5758/- as rent of two rooms but the complainants paid the amount of Rs.5573/- which was debited from the account of complainant No.1 on 30.12.2018 as per statement of account. Therefore, the complainants are entitled for the refund of hotel charges to the tune of Rs.5573/-. The complainants are also entitled for travelling charges for both the sides i.e. from Kaithal to Chandigarh and return from Chandigarh to Kaithal. The distance between Kaithal to Chandigarh by road is about 125 K.M. one way as shown in the google map and as such, this commission assess the travelling charges to the tune of Rs.2500/- i.e. both the sides by calculating Rs.10/- per kilometer. Therefore, the complainants are entitled for amounting to Rs.13,520/- qua the compensation of booking amount from Chandigarh to Sri Nagar+ Rs.13,592/- qua the compensation amount of booking amount from Sri Nagar to Chandigarh + Rs.5573/- as refund of hotel charges+ Rs.2500/- as travelling charges + refund of ticket charges amounting to Rs.12,255/- and total amounting to Rs.47,440/- (Rs.13,520/-+Rs.13,592/-+Rs.5573/-+Rs.2500/-+Rs.12,255/- as discussed above). We find no negligence on the part of Ops No.2 & 4 and the present complaint is dismissed against the Ops No.2 & 4.
12. Thus, as a sequel of above discussion, we allow the complaint against the OPs No.1 & 3 and direct the Ops No.1 & 3 to pay the amount of Rs.47,440/- to the complainants alongwith interest @ 9% p.a. from the date of filing of present complaint till its realization. We further assess Rs.10,000/- as compensation on account of harassment and mental agony as-well as Rs.5,000/- as litigation charges which will be paid by the Ops No.1 & 3 to the complainants. The Ops No.1 & 3 are jointly and severally liable. Let the order be complied with within 45 days. A copy of said order be supplied to both the parties free of cost. File be consigned to record-room after due compliance.
Announced in open court:
Dt.:07.04.2021. (D.N.Arora)
President.
(Suman Rana), (Rajbir Singh)
Member Member.
