ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under section 12 of the Consumer Protection Act 1986 for the deficiency in service and for refund of Rs.1,00,345/- being the cost of purchasing fresh flight tickets by the complainants on 28.04.2017 for refund of the entire amount incurred i.e.Rs.2,100/- towards return ticket for staying in the hotel for the overnight, for Rs.5,000/- spent in Mexico city for local conveyance due to missing of flight No.1 along with interest at 18% per annum on the above amount, and Rs.10,000/- incurred as expenses in contacting the personnel and offices of the OP and agent, Rs.1,50,000/- as damages for causing mental agony, strain and inconvenience caused to the complainant and Rs.1,00,000/- towards legal charges in pursuing the proceeding and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant-1 is a Nephrologist and practicing in Vododara since last 30 years and is the husband of  complainant No.2 who is a self-employed professional and both are staying in Vododara, Gujarat State. OP is a travel agent company facilitating online services of booking airline tickets to its customers across the globe.  They wanted to travel to Cuzco during April 2017 and booked the air ticket from “budgetair.in” which is managed and operated by OP and OP issued flight ticket to the flight by name “Avianca” for them. The flight ticket Nos. are 1691296307673 and 1691296307674 and the journey to take place from Mexico to Lima and then to Cuzco via connecting flight.  The first flight to Mexico to Lima was to depart at 23:50 on 27.04.2017. It is a connecting flight to Cuzco from Lima. The said flight was to start at 8:00 AM on 28.04.2017.  The first flight was from “Avianca Airlines” and 2^nd flight was from “Peruvian Airlines.” OP issued online e-ticket to the complainants for flight No.1 and they had to arrive at the airport two hours prior to the departure timing. Accordingly they checked in and did not find ‘Avianca flight’ at Terminal-1 and found that there was no man in the check in desk. When they checked for flight No.1 there was no mentioned of flight No.1 on the flight monitor. They went to airport office of Avianca airlines at Terminal-1 to enquire about the flight.  The said office was locked. No body opened the door.  A sign board was their stating that the working hours were from 9 am to 6 pm. At 22:15 hours on that day they contacted Budget Air emergency helpline and explained the situation to the operator. He contacted the Avianca airlines office and informed the complainant to proceed to Avianca Airlines desk at Terminal 2.  When they informed the helpline operator, there was no airline Avianca Airlines desk at Terminal 2. In the process they have spent about 15 to 20 minutes in talking over the phone on international roaming rate.  Inspite of their frantic effort to locate the airline desk, no one gave the information about the flight.  They were unable to receive the information in respect of the said flight until an employee holding Avianca Airlines badge arrived at 22:50 hours and informed them that the flight was on a code share with “Aero Mexico”. Since the said flight was being operated by ‘Aero Mexico’ which would depart from Terminal-2.

3.     Complainant rushed to Terminal-2 at 23:00 hours only to be informed that they were late and that the boarding gate has been closed.  The staff at Aero Mexico refused to allow the complainant to board the flight and also refused to book fresh tickets to them.  Left with no alternate they had to purchase fresh ticket for the next day flight by paying Rs.1,00,345.49 approximately 1500 US dollars and they had to travel to Cuzco on new tickets and They were one day late to Cuzco.  Since they had the onward flight to Cuzco, they could not delay their travel as it has a cascading effect on their onwards journey. They have to spend the night in the hotel at Mexico and paid a sum of Rs.2100/- as room rent through their credit card.  All the inconvenience happened due to OP not mentioning in the E-ticket, the flight No.1 was on code share with Aero Mexico. Had the same was mentioned they would not have missed the flight.  In view of this, they missed the flight from Mexico to Lima and from there to Cuzco.  Even there is deficiency in service on the part of OP and in the airport regarding not providing proper information.

4.     Though the complainant contacted the customer helpline support by spending money on international calls, except an apology for the inconvenience caused to the complainant by the customer care, they offered only to refund of Rs.9,030/- to each of the complainants which they refused to receive.  The operator should have informed that the flight was operated by Aero Mexico and not Avianca Airlines and they should have information regarding the same.  The e-ticket issued by the OP has not at all mentioned the terminal at which the complainant was to the report at Mexico City International Airport whereas the flight had taken off at Terminal-II of the Mexico International Airport.  If the ticket has mentioned code share arrangement, complainant would have reached the Aero Mexico checking desk in time. 

5.     When the complainant No.1 contacted the budget air helpline there also incorrect and misleading information was given to them, by the budget air. Even the employees of Avianca Airlines at Terminal-I were not available at the airport desk and it is an incompetence of the said airlines which caused loss to the complainant.  OP is at fault and negligence in not furnishing and providing correct information on the e-ticket.  OP is duty bound to inform the complainant regarding the flight being carried out by different agencies.  After booking the ticket and making the payment an independent and binding contract is created between the complainant and OP and there is relationship of consumer and service provider and as there is deficiency in service on the part of OP and prayed the commission to allow the complaint.

6.     Upon issuance of notice, OP appeared through their counsel and filed version and contended that, complaint is not maintainable on merits and liable to be dismissed. Complainant has not disclosed the true and correct facts and hence complaint is bad for suppression of real facts and for misrepresentation. The complainant purchased 2 air tickets through web site on budgetair.in an online website owned by Travix Netherland B.V which is a company incorporated in Netherlands.  The averments by the complainant that the budgetair.in is owned by OP is incorrect and false.  OP is not into selling the air ticket whereas it renders service such as customer care call service back office accounting, industrial relations and information technology.  Complainant has stated that they have purchased the air ticket through budgetair.in in order to get the jurisdiction to file the present complaint before this commission. Since budgetair.com is the online portal owned by Travix Netherland B.V this commission has no jurisdiction to decide the complaint and hence liable to be dismissed. There is no privity of contract between the complainant and the OP. No money is paid to OP nor OP engaged in business of providing services of booking the flight ticket. It is contended further that complainant has not stated the exact time of their arrival at the Mexico city international airport. They have not produced even single document to show the time of arrival at the airport. As per the rules of Avianca Airlines passengers are requires to report 3 hours before the departure of international flight. Being themselves at fault being late in the airport, they cannot blame the airline company for missing the flight. There is no cause of action for the complaint to file.

7.     It is further contended that. The complainant purchased two economy ticket through the web site of Budgetair.in by paying a sum of Rs.67,835/-. They were to travel from Mexico to Lima on 27.04.2017 in flight AV2653 to leave the airport at 23.50 and the connecting flight from Lima to Cuzco on 28.04.2017 at 8 am in Peruvian  Airlines. The tickets were issued to flight owned by Avianca Airlines under IATA Multilateral Interline Traffic agreement, which is an agreement whereby the passengers and cargo use a traffic document to travel on various modes of transport involved in a routing to reach the final destination.  From the e-ticket produced, it can be noted that the complainant were to report in the international airport mex-2 that means, they were not on time for boarding at terminal 2 and by the time they reached, the boarding to the flight to Lima was already closed.  In the E-ticket issued to the complainant MEX-2 i.e. departure terminal has been mentioned.  If the complainants reported to terminal -1 and later reported to Terminal-II, it cannot be alleged that there is mistake on the part of airline/OP.  On 27.04.2021, complainant contacted the customer care and informed that flight No.1 has been cancelled without actually informing that they could not board the flight due to late reporting.  In view of the same, budgetairline.in offered to waive their administration and service fee and refund the balance amount after deducting a nominal airline penalty fee of Rs.9030 per passenger i.e. Rs.67,835 – (Rs.9080 X 2 = Rs.18,060) = Rs.49,775/-  which is around 73% of the total cost of the ticket. Since the complainant did not give his consent for the same, the refund was not made and in order to harass the OP, complainant has filed this complaint. Denying all the other allegations made in each and every para of the complaint against it and further contending that there is no consumer and service provider relationship between the complainant and the OP, and further contending that there is no deficiency in service on its part and on the e-ticket issued Mex-2 has been mentioned,  prayed the commission to dismiss the complaint as the same is filed by abusing the process of law. 

8.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Party?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1  :  IN THE AFFIRMATIVE.

POINT NO.2  :  PARTLY IN THE AFFIRMATIVE.

                        For the following.

REASONS

POINT No.1:-

10.   On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes clear that, complainant purchased airticket from budgetair.com in order to go to Peru /Lima from Mexico on 27.04.2017 and from Lima to Cuzco on the next day i.e. 28.04.2017 at 8.00 AM  departure time. 

11.   It is the specific case of the complainant they purchased the ticket from budgetair.com to fly to Lima from Mexico from Avianca flight (airlines). It is also the specific case that the Avianca airlines is not operating and it has been coded with Aero Mexico and the same was not mentioned in the ticket and so also the departure terminal in the e-ticket. In Ex.P2 the hard copy of the e-ticket is produced and marked, wherein the departure column it is mentioned that “Thursday 27.04.2017, 23.50 Mexico/Mexico City (Benito Juarez International) MEX-2, Arrival Friday 28.04.2017 05.47, Peru /Lima LIM, Duration 5 hours 57 minutes and Flight - Avianca /AV2653 and other details of onward journey on 28.04.2017 at 8.00 from Peru Lima to Peru Cuzco through Peruvian Airlines P9211.” When this is taken into consideration, no doubt it is true that the coded airline details has not been mentioned in the e-ticket whereas terminal MEX II has been mentioned. 

12.   It is quite but natural for a person who is new to the airport or travel in a foreign country to be confused when there is no specific indications or directions given by the airlines regarding the coded airlines and the terminals.  The passengers would be put to panic, mental tension as they would miss the flight.  In this case also since the OP or the budgetair.com has not mentioned in the e-ticket the coded airlines i.e. Aero Mexico such a confusion has taken place to the complainant.  To that extent we hold the budgetair.com negligent and there is deficiency in service to that extent. On the other hand, there is mention of MEX II with E-ticket clearly supposes that the departure is from Mexico International Airport Terminal II to that extent we cannot accept the arguments and contention of the complainant.

13.   However, the complainants missed the flight, rather, they were not allowed to board the flight as they were late at the boarding gate.  A standard timing for boarding the flight/closing the boarding gate has been fixed by all the airlines and they have to adhere to it, irrespective of  the reason as to the late arrival of the passenger. In this case also, as per the say of the complainant, they were put to lot of inconvenience as there was no person at helping desk at Terminal I to guide them properly as to from which terminal Avianca airlines operates. 

14.   They had to made a search for the same and ultimately was intimated to go to terminal II wherein there also they could not find the Avianca Help desk and by the time they got the information that the said flight is being operated under the name Aero Mexico, they were late and denied the boarding. All this happened due to the budgetair.com not mentioning the coded aircraft which has to carry the complainant’s from Mexico to Lima. In view of this the budgetailines.com is negligent in this aspect. Hence we hold POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:-

15.   It is the specific case of the complainants that at the time of issuing the ticket, terminal number at Mexico airport regarding the departure of the flight to Lima was not mentioned and further that Avianca Airlines desk was not available in terminal No.1 and there were no body to guide them to the coded airlines “Aero Mexico” which was to operate from Mexico to Lima as a “Avianca Airlines,”  for which, they had to contact so  many persons and afterwards they came to know that the flight of Aero Mexico was to operate from terminal 2 of  Mexico airport and when they reached Terminal-2 to catch the flights, the authorities did not allow them to board the flights on the ground that they were late in reporting and hence had to take out a room for rent in the hotel and also journey to the hotel from the airport and also purchase new ticket by paying Rs.1,00,345/- on the next day to go to Lima from Mexico and further have sought compensation from the OP regarding the expenses of telephone call charges and Rs.1,50,000/- for having suffered mental agony, strain and hardship and also when the OP did not solve the problem by compensating suitably, they had to file this complaint for which they have claimed Rs.1,00,000/- towards legal litigation charges.

16.   While answering Point No.1 we have held that OP-1 is responsible for not mentioning the coded airline i.e. “Aero Mexico” instead of Avianca Airlines which altogether put the complainants in a spot wherein they had to undergo mental agony in not finding the airlines in which they had to travel and consequently they had to approach several authorities to locate the departure terminal of the flight and when they found the same and when they reached the terminal 2,  they were already late and were denied boarding. As a consequence have a hotel room for overnight stay, had to travel all the way to hotel from the airport and return in the morning to catch the flight by booking fresh ticket.  In view of this, OP is bound to pay the said amount to the complainants along with interest at 12% per annum on the said amount from the date of purchase of the ticket till payment of the entire amount along with compensation of Rs.50,000/- for causing mental agony, physical hardship and further a sum of Rs.15,000/- towards litigation expenses besides room rent and taxi charges of Rs.10,000/-. 

17.   Though the budgetair.in have come forward  to pay Rs.49,000/- after deducting Rs.9,050/- per passenger, the complainants have not given consent for the same which shows that the budget air was at fault otherwise, they would not have offered the said amount.  Even they have written the letter that in case they (complainants) give consent, they would calculate and refund the amount which takes three months time, in their email correspondences with the complainants. 

18.   An important point has been raised by the OP that budjetair.in is not the one contracted by the OP for booking the ticket whereas it is an independent body/company which has no relationship of any kind with OP. Counsel has vehemently argued on that point and prayed the commission to dismiss the complaint holding that the complaint is bad for non-joinder of parties. Further it was canvassed by OP counsel that Travix Netherlands BV, budjetair.com and Travix Leisure and Travel Pvt. Ltd are three separate entities and there is no privity of contract with OP and budjetair.in they are altogether different company and only to have cause of action at Bangalore to file this complaint, complainants have made Travix Leisure Travel Pvt. Ltd as party which is operating in Bangalore as a  back office.

19.   Earlier this complaint was filed before the Consumer Forum at Vodadara Gujarat State. The same has been ordered to be returned to represented before the commission which has jurisdiction on 03.05.2019 as no cause of action has taken place within the jurisdiction of Vododara. Hence the same was taken as return and presented before the Principal Commission of Bangalore District Consumer Commission and the same has been assigned by the principle commission to this commission.

20.   Complainant has vehemently denied the same and canvassed that it is a sister concern of the OP. Ex.P6 is the Documents produced wherein it mentions that budjetair.in Travix is a global online company operating in 39 countries from offices in Netherlands, Dubai, India, Singapore, UK and USA. Further it is also mentioned that the Budjetair.india is one of the fastest growing online travel agencies and is a part of Travix which recently joins the global market leader. Globally, Travix is one of the leading  travel company in the field of online sales of flight tickets, with its brand, cheap ticket, vile winkle, viama flu laden, and budgetair.in  maintains its head office in Amsterdam Netherlands other offices in UK, India, US and Singapore. When this is taken into consideration, the contention of OP that the budgetair.com and the OP has no connection, relation at all, cannot be accepted.  In view of this we hold that OP is responsible through budgetair.com for the negligence in not informing the coded airlines at Avianka at Mexico airport and complainant was made to suffer.

21.   Further it is not made clear as to whether complainant has received the refund in respect of they not being allowed to board the flight. In case they have received such refund, they can be refunded lesser amount to that extent they have received the refund. To this effect complainants are directed to file an affidavit stating whether they have received any refund if so, what is the amount and answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is partly allowed with cost.
2. OP i.e. “M/s. TRAVIX LEISURE AND TRAVEL PVT. LTD.,” represented by its Director/Authorized Signatory is hereby directed to pay Rs.1,00,345/- to the complainants along with interest at 12% per annum from the date of purchase of the ticket (i.e. 29.04.2017) till payment of the amount. In case they have received any refund of the missing 1^st flight i.e. from Mexico to Lima, the same to be deducted out of Rs.1,00,345/- ordered to be paid,  Complainant to file affidavit to that effect.
3. Further OP is directed to pay Rs.50,000/- towards damages for causing mental agony, physical hardship and financial loss to the complainants and Rs.15,000/- towards the litigation expenses besides room rent and taxi charges of Rs.10,000/- to the complainants.
4. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 18^th day of May 2022)

MEMBER         MEMBER        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the order passed by the District Consumer Commission Vododara

Ex P2: Copy of the ticket

Ex. P3: Copy of the new air tickets

Ex P4: Copy of the credit card statement.

Ex P5: Copy of the email correspondences

Ex P6: Copy of the web pages of OP

Ex P7: Coy of the master date of MCA

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sriranga Prasad, Director of OP

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the rules of the airlines.

Ex R2: Copy of the booking details

MEMBER         MEMBER        PRESIDENT

RAK*