| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/109/16 Date of Institution:- 21.03.2016 Order Reserved on:- 20.12.2023 Date of Decision:- 23.02.2024 IN THE MATTER OF: M. Subramanian B-1/A, 43 B, Janakpuri, New Delhi - 110058 .….. Complainant VERSUS M/s Spicejet Ltd. Cargo Complex Terminal-1-D, Indira Gandhi International Airport, Domestic Terminal, New Delhi – 110037 Corporate office At: Spice Jet Ltd. Udyog Vihar, Phase-IV, Gurgaon-122016 .…..Opposite Party Per Dr. Harshali Kaur, Member - The complainant booked tickets on the OP flight SG-137 for 4 adults on 09.03.2015 from New Delhi to Bangalore. The departure date of the booked flight was 09.05.2015. The complainant was to appear in an exam to be held on 10.05.2015, and hence he booked the confirmed ticket with departure time viz 16:35 hrs and arrival time as 19:25 hrs, reaching on 09.05.2015 itself. Annexure-C-1 is a copy of the exam admit card. Annexure-C-2 is the copy of the confirmed ticket booked on 09.03.2015, reflecting the total cost paid, Rs.24824/- with confirmation number PNRDBQC7X.
- The complainant alleges that when he made a web check of the booked flight regarding the scheduled time and status, he was shocked to find that the flight had already departed early in the morning on 09.05.2015, leaving no option but to buy a fresh ticket to Bangalore. The complainant states that he requested the OP to provide an alternative flight departing at 21:00 hrs on 09.05.2015 and accommodate the passengers as the tickets were available online on the Make My Trip portal. However, the OP did not accommodate the complainant, and the OP representatives expressed their inability to do so.
- The complainant, therefore, purchased four fresh tickets through Make My Trip and paid Rs.22,120/- per head. He thus paid Rs.84,480/- for four tickets for departure on 09.05.2015 on the next flight available. Annexure–C-3 is a copy of the leaving status of the flight dated 09.05.2015. Annexure–C-4 is the copy of the passengers' fresh tickets purchased through Make My Trip on 09.05.2015.
- The complainant made several complaint requests and sent reminders and also made telephone calls to the OP to refund the amount and to compensate for their deficient service via email dated 09.05.2015, 11.05.2015, 13.05.2015, 21.05.2015, 02.06.2015, 18.06.2015, 23.06.2015, 27.06.2015, 30.06.2015, 21.09.2015, 05.10.2015, 17.10.2015 to no avail. The complainant has annexed the copy of the email conversations with the OP as Annexure-C-5.
- Feeling cheated, the complainant filed the present complaint on 21.03.2016 alleging deficiency in service and unfair trade practice under section 12 of the Consumer Protection Act, praying for the amount of Rs.63,656/- towards the loss incurred by him along with interest @24% p.a., Rs.1 lakh towards compensation for the mental harassment and agony suffered by the complainant and Rs.20,000/- towards litigation cost.
- Notice was issued to the OP, who filed their reply. The OP stated that the passengers, Ms Anjali Gupta, Ms Vani Gupta, Ms Prema Subramanium, and Mr S. Mahadevan, booked tickets via PNR No.DBQC7X for flight no.SG137 on 09.03.2015 from Delhi to Bengaluru. The scheduled travel date was 09.05.2015; however, due to the introduction of the summer schedule, as per the directions of DGCA, the OP had to reschedule and prepone the departure of the said flight.
- The OP claims that all the passengers and the complainant were intimated regarding this change; hence, no negligence or deficiency of service can be attributed to the OP. Since none of the passengers reached the boarding counter, they were declared a 'No Show'. As per policy, their ticket amount was liable to be forfeited; however, the same was refunded and remitted back to the complainant on humanitarian grounds.
- Further, the OP states that the present case is not maintainable as the passengers are governed by the Terms of Carriage contained in the e-ticket (Annexure R-1), whereby the OP airline is not liable for any delay or cancellation in case of bad weather or instances beyond the control of the OP Airline but would try to assist the passenger to get to the destination.
- The complaint is also not maintainable on account of stipulations contained in Civil Aviation Requirement (CAG) effective from 15.08.2010 as per Rule 3.3.2 issued by DGCA regarding the Airline's Liability for compensation, which arises only when the passengers have not been informed at least 3 hours in advance about the delay or cancellation of the flight in which they were scheduled to travel The OP had the option of arranging an alternate flight or refunding the amount to the passengers as per CAR stipulation (Annexure-R-3). In the present complaint, the passengers were intimated, and hence, the OP is not liable to compensate the complainant in any manner as the entire fare has been refunded to them, which they accepted.
- The OP has also raised the objection that the complainant was not the passenger on the aforementioned flight number SG-137 and does not have any GPA or authority to file the present complaint on behalf of the 4 passengers who are competent to file the complaint. The OP has also relied upon the judgment of the Hon'ble National Commission in the case titled "Spicejet vs Himadri Sharma", wherein it is held that the terms of carriage are a contract binding between the parties and as such, the passengers cannot dispute the same (Annexure-R-2). Though the OP mentioned Annexures R-1- R3 in his reply, the OP has chosen not to file the same on record.
- The Ld. Counsel of the complainant stated on record that the complainant did not wish to file any rejoinder to the reply filed by the OP and filed his own affidavit to be read in evidence wherein the complainant reiterated what he had stated in his complaint. The OP filed the affidavit of Sh. Vijay Roy, Senior Manager, Legal of the OP who, also repeated what had been stated in the reply.
- The complainant filed his written arguments. The OP argued the case orally and did not file any written arguments. We heard both contesting parties, and the case was reserved for orders. We have carefully perused the documents placed on record by the contesting parties and have also considered the facts and circumstances of the case.
- We find that the complainant booked four tickets from his account for four passengers who wished to travel from Delhi to Bangalore to take an exam. The complainant booked the OP flight number SG137, which was to depart on 09.05.2015 with a departure time of 16:35 hrs. The complainant has annexed the test admission ticket of one of the passengers, S. Mahadevan, as Annexure-C-1.
- The complainant has alleged that when he checked the flight schedule on the morning of 9.05.2015, he found that the flight had already departed for Bangalore. He requested the OP officials to accommodate the passengers on an alternate flight but was told that an alternative flight could not be provided, even though flights to Bangaluru were available for the evening on the same day. Since the passengers had to take an exam, the complainant had to book fresh tickets for an evening flight (Annexure–C-3) for the four passengers through Make My Trip at full price with Jet Airways Flight No. 9W-2508 which cost him Rs.88480/- in toto. Thereafter, he wrote an email dated 09.05.2015 to the OP regarding rescheduling the flight, leading to the passengers missing the flight and the substantial expense the complainant had to bear.
- The OP has claimed that the complainant has no authority to file the present complaint without a GPA or authority letter for the four passengers, who are all adults and competent to file the complaint independently. We find this objection by the OP untenable in law as the complainant paid the consideration for the tickets and thus is the consumer as defined in the Act. Section 2 (1) (d) clarifies the definition of a Consumer as below:
(d) "consumer" means any person who,— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]. [Explanation.—For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;] Clearly, the Consumer Protection Act provides for a complaint to be instituted by an individual who has paid for the product. - Citing Rule 3.3.2 contained in the CAR issued by DGCA regarding compensation only in the event of no refund or alternative flight, the OP has stated that since the OP remitted the paid amount of the tickets in the account from which the tickets were booked, no compensation can be granted as per the aforementioned CAR Rules.
- Further, the OP claims to have sent an intimation to the passengers and complainant regarding the change of schedule as per directions of DGCA towards the introduction of the summer schedule, due to which the OP had to prepone and reschedule the Complainants flight SG-137. However, the OP has not filed any documentary proof to this effect regarding the SMS/intimation sent to the complainants or the passengers of the flight that was preponed for reasons best known to them.
- It is safe to say that the complainant would have opted for the alternate flight if the option had been given to him for the 4 passengers as they were scheduled to take an exam the next day. Instead, the OP chose to unilaterally refund the amount the complainant had paid for the tickets booked 3 months prior to when the passengers had to depart to take their exam, forcing them to purchase the tickets at full price. The OP has not filed any evidence to show that it was the complainant who chose the option of refund as given in the Rule the OP themselves have relied upon.
- The OP has also not placed on record any details of the OP flights that were available where the passengers could have been adjusted so that they could reach Bangluru in time to take their exam. This casual attitude of the OP that could have had a far-reaching consequence on the passenger's future is, in our view, tantamount to deficiency in service and would indeed have caused the complainant severe mental agony and harassment.
- Hence, we find the OP guilty of deficient service and thus allow the complaint. The OP is directed to pay the complainant a sum of Rs. 63,656/- along with interest @9 % p.a. from the date of filing the present complaint, i.e., 21.03.2016. No other order as to costs since the interest granted in the present case shall sufficiently meet with the end of justice.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Announced in the open court on 23.02.2024.
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