IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.M.G.Hiremath<br /> B.Sc., L.L.B (Spl.)- President<br /> <br /> <br /> 2. G.V.Balasubramanya<br /> B.E., LL.M - Member<br /> <br /> CC 104/06 DATED 05-10-2006<br /> <br /> Complainants 1. Santhosh.K.S., S/o Sathyanarayana Setty.<br /> 2. Smt.Samyuktha Santhosh, W/o Santhosh.K.S.Both are residing at No.5/A, M/s Shiva Oil Centre, D.D.Urs Road, Mysore.<br /> (By Sridhara Chakke, Advocate)<br /> Vs. <br /> Opposite Parties 1. M/s Reliance Web World, No.115, D.D.Urs Road, Mysore.Rep. by it’s Authorised person.<br /> 2. M/s Air Deccan, No.35/2, Cunningham Road, Opp. to Canara Bank, Bangalore-52.<br /> (O.P.1 – EXPARTE and by M.R.S.K. Advocate for O.P.2)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 24-05-2006<br /> Date of appearance of O.P. : 06-07-2006 (O.P.2)<br /> Date of order : 05-10-2006<br /> Duration of Proceeding : 3 MONTHS<br /> <br /> <br /> <br /> <br /> <br /> PRESIDENT MEMBER<br /> <br /> <br /> <br /> <br /> Sri.G.V.Balasubramanya,<br /> Member,<br /> <br /> 1. The complainants approached the first opposite party in order to book air tickets from Bangalore to Delhi and return. The first opposite party is the agent of the second opposite party airliner. Journey was undertaken from Bangalore on 24.2.2006 and from Delhi on 10.3.2006. The cause for the complaint arose on 10.3.2006 when the complainants were to scheduled to fly from Delhi by the 6.40 p.m flight. When the complainants reached Delhi airport, the second opposite party staff informed them that the flight will be delayed. However, no reason was assigned for the delay. Complainants say that other airliners were announcing the departure of their flights. The airport staff second opposite party was informed that they would be greatly inconvenienced if the flight is delayed as they have to undertake further journey from Bangalore to Mysore. On hearing this, the complainants were advised to try other airliners and they were also, offered 50% refund of airfare. Accordingly, the complainants approached Jet Airways, who accommodated them by their 7.45 p.m flight. <br /> <br /> 2. It is the contention of the complainants that the first opposite party had assured them that should the departure of the flight get delayed by more than 2 hours, then they would get full refund of airfare. On reaching Mysore, the complainants approached the first opposite party for refund of the airfare. As both opposite parties failed to refund the airfare, the complainants have come before this Forum for redressal of their grievance. <br /> <br /> 3. The complainants have prayed that the opposite parties be directed to refund of Rs.3871/- along with damages of Rs.5000/- and cost of Rs.3000/-. <br /> <br /> 4. The first opposite party has been placed ex parte for failing to appear before the Forum after receiving the notice. Only the second opposite party has filed version. Apart from the defence that the complaint is not maintainable on the grounds that it is frivolous and misconceived, they have averred that the delay in the flight was due to force majeure beyond their control. They have, also, strongly denied that their staff advised the complainants to travel by some other airliner. <br /> <br /> 5. The second opposite party has stated that as per the terms and conditions, the airliner can reschedule, cancel or withdraw any flight without any intimation if such measure is necessary in the safety of the passengers. It is averred that the complainants sought refund of airfare prior to departure of the flight and as such the computerized ticketing system could process refund of 50% airfare only. Had the refund been sought after the departure of the aircraft, the computer would have processed their request for full refund. <br /> <br /> 6. From the above contentions, the following points arise for our consideration:<br /> <br /> a) Whether the complainants prove that they are entitled to full refund of the airfare from the opposite parties?<br /> <br /> b) Whether the complainants, further, prove that the opposite parties have failed to refund the airfare giving rise to deficiency in service?<br /> <br /> c) Whether the second opposite party proves that the refund has been made as per the terms and conditions?<br /> <br /> d) What relief or order?<br /> <br /> 7. Our finding on the above points are as under:<br /> <br /> Point 6(a): In the affirmative<br /> <br /> Point 6(b): In the affirmative<br /> <br /> Point 6(c): In the negative<br /> <br /> Point 6(d): As per final order<br /> <br /> REASONS<br /> <br /> 8. Point 6(a):- The points which are not in dispute are that the complainants had booked air tickets through the first opposite party to travel from Bangalore to Delhi and back and that they cancelled their return tickets at Delhi airport because the departure of the flight was delayed. It is, also, not in dispute that the complainants took 50% refund of the airfare upon cancellation of the tickets. The contention of the complainants is that they are entitled to full refund. Per contra the second opposite party (hereinafter Opposite party)says that had the complainants sought the refund after departure of the flight, they would have received full refund.<br /> <br /> 9. The opposite party has filed terms and conditions governing the contract between the airliner and the passenger and relied on the following condition relating to change in flight timings.<br /> <br /> “Air Deccan schedules are subject to change without notice. Air Deccan will notify all passengers of any scheduled change via email or sms send to the mobile numbers they provide at the time of booking. There will be no phone calls made to inform passengers. Every passenger is requested to kindly confirm, either with the call centre at (your city code) – 39008888 or the travel agent to confirm the status of the flight 3 hours prior to the scheduled departure of the flight”.<br /> <br /> 10. The above condition is not relevant to the case on hand. What is relevant is the relief that the opposite party assures the passengers in case of a delay or cancellation or rescheduling of a flight. That is found under the heading “delays, cancellations & changes in schedule”. It reads as under<br /> <br /> In case of circumstances beyond its control (including but without limitation, meteorological conditions, mechanical failures, acts of nature, force majeure, strikes, riots, civil commotions, embargoes, wars, hostilities, disturbances, government regulations, orders, demands or requirements, shortage of labour, fuel or facilities, or labour, difficulties of carrier or others all actual, threatened or reported) carrier may without notice cancel or delay a flight. If due to such circumstances carrier cancels or delays such flight beyond 2 hours, is unable to provide previously confirmed pace(sic), fails to stop passenger’s stopover or destination point, or causes the passenger to miss a connecting flight on which the passenger holds a reservation, carrier shall either<br /> <br /> (a) Air Deccan at its option may reschedule the passenger on the same sector, subject to availability, without any extra charge (same PNR would be rescheduled for the travel upon request by the passenger) on the next available Air Deccan flight OR<br /> <br /> (b) Make a full refund for the ticket as paid for by the passenger and shall be under no further liability to the passenger. The passenger will be required to collect the refund from the point of purchase.<br /> <br /> Note: In case of flight delay beyond 2 hours, the passenger will have to either reschedule or cancel the ticket before the departure of the flight. Inability to do so will result in the passenger becoming a no show after which rescheduling or cancellation of the ticket will not be possible. The ticket may be cancelled or rescheduled at the airport counter itself.<br /> <br /> 11. It is, therefore, clear from the above that a passenger becomes entitled to full refund of airfare if the flight is delayed by over 2 hours. It is, also, clear that an affected passenger has an option either to reschedule his travel plan or cancel the ticket and such option will have to be exercised before the departure of the flight. <br /> 12. In order to get relief here, the complainants will have to prove that at the time of cancellation of tickets they were made known by the opposite party that the flight would be delayed by over 2 hours. The complainants have contended that they cancelled their tickets when they learnt that their flight would be delayed by over 2 hours and flew to Bangalore by Jet Airways. According to the opposite party the complainants cancelled their tickets at 6.39 p.m i.e before the scheduled departure time. The contention of the opposite party that the complainants cancelled the tickets at around 6.39 p.m can be cross verified by the sale voucher of Jet Airways which has been issued at 6.31 p.m. In other words the complainants purchased tickets of Jet Airways much before the scheduled departure of their Air Deccan flight [6.40 p.m.]. <br /> <br /> 13. The opposite party has taken two different contentions. In the version and affidavit he says that the complainants were informed that their flight would be delayed by about 2 hours and 25 minutes. He has, also, stated on oath that at the time when the complainants cancelled their tickets, the computer could process only 50% refund and if the complainants had sought refund after the departure of the flight and if such departure was delayed by over 2 hours, the computer would have processed full refund. However, in the written arguments he has contended that despite being advised by the staff at the airport to wait for sometime till it becomes clear as to the duration of the delay, the complainants cancelled their tickets. When such inconsistent stands are taken we will have to go by the averments made in affidavit, being the sworn statement. Hence, once the opposite party announces that the flight would be delayed by over 2 hours, the passengers have three options – first is to wait for the departure, second is to reschedule their travel plan and third is to cancel their tickets. The opposite party has clearly mentioned that if any passenger wants to reschedule or cancel he has to do it before the departure of the flight. It is not difficult to visualize the events that happened on 10.3.2006. On reaching the airport, the complainants were informed at the check in counter that their flight would be delayed by 2 hours. They thought that by arriving at Bangalore late in the night traveling to Mysore would become difficult. Hence, they cancelled their tickets and traveled by Jet Airways.<br /> <br /> 14. One crucial question is at what point of time a passenger becomes entitled to full refund? Is it at the time when the announcement is made that the flight would be delayed by two hours or when the flight actually departs? The answer is naturally at the time when the delay is announced. When the delay is announced, the passenger will get many options. He can reschedule his travel plan or he can choose an earlier flight either of the same airliner or a different airliner or resign to his fate and wait for the departure announcement. If he is told to wait till the departure of the delayed flight to get full refund, he can as well travel by the same flight. The opposite party has specifically stated that passengers should give their mobile telephone numbers so that the delay, if any, can be informed to them through ‘sms’. In fact, the complainants have produced hard copies of two messages which prove that their flight was rescheduled twice and finally departed at 9.40 p.m. <br /> <br /> 15. The terms and conditions applicable to refund are unambiguous. As we have understood it, full refund is given if the flight is delayed beyond two hours for whatsoever reason. Under the head “Delays, cancellations & changes in schedule” on page 3 of the terms and conditions, virtually every reason for delay is covered. As such, once it is announced that the flight would be delayed by 2 hours, the passenger becomes entitled to get full refund. In view of this we answer the point in the affirmative. <br /> <br /> 16. Point 6(b):- Once we have come to the conclusion that the complainants were entitled to full refund of airfare, deficiency in service would arise for not refunding in full. The complainants have received only 50% refund. Hence, we answer the point in the affirmative. <br /> <br /> 17. Point 6(c):- We have already answered this point. The terms and conditions mentioned on the ticket clearly states the circumstances under which passengers are entitled for 100% refund of airfare. The opposite party can not go back on his own terms and conditions. Once the opposite party announces that the flight would be delayed by two hours, passengers wishing to cancel their tickets become entitled to full refund. Computer not processing full refund before the departure is an unacceptable reason. Hence, we answer the point in the negative. <br /> 18. The opposite party has pressed into service a number of decisions of the Hon’ble National Commission and various State Commissions. We have given our anxious consideration to these decisions. In every decision the complainant has failed primarily because there was no condition governing full refund or the complainant has failed to prove that he was entitled for a full refund. That is not the case here. The terms governing full refund are pretty clear. In fact, the opposite party himself has admitted that had the complainants claimed refund after the departure of the flight they would have got full refund. He has, also, stated in the version and affidavit that the complainants were told at the airport that their flight would be delayed by about 2 hours and 20 minutes. Having taken this contention in the version and affidavit he has tried to improve/modify it by saying that when the complainants cancelled their tickets the duration of the delay was not known. Added to this, the opposite party has neither denied nor disputed the copies of the messages produced by the complainants. The complainants have, therefore, successfully made out a case of deficiency in service.<br /> 19. We see no role of the first opposite party in the entire episode. The cause of action has arisen in relation to the service rendered by the second opposite party. The first opposite party is instrumental only in booking the tickets. No deficiency in service is attributable to him. Hence, the complaint is not maintainable against him. With these observations we proceed to pass the following order:<br /> ORDER<br /> A. Complaint is allowed only against the second opposite party and dismissed against the first opposite party.<br /> B. The second opposite party is directed to refund the complainants Rs.3821/- along with interest at 8% p.a from 21.3.06 within two months from the date of this order till the date of payment failing which the net amount [the principal amount and the interest together] shall carry interest at 12% p.a till the date of payment.<br /> C. The second opposite party shall pay the complainants damages of Rs.500/- for deficiency in service within two months from the date of this order failing which such amount will carry interest at 10% p.a thereafter until the date of payment.<br /> D. The second opposite party shall pay the complainants cost of Rs.200/-. <br /> E. Give a copy of this order to both parties according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by him, transcript revised by us and then pronounced in the open Forum on this the day 5th October 2006)<br /> <br /> <br /> <br /> <br /> <br /> <br /> (M.G.Hiremath) (G.V.Balasubramanya)<br /> President Member<br /> <br /> <br /> <br /> <br />