FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the Complainants, in a nutshell, is that, Complainants have hired the service of the OPs 1 to 3  on returning back from Vellore on 14/03/2019 by purchasing 3 Air tickets for Rs.14,340/- through OP4 vide Booking ID No. FB09031V6JYS dated 09/03/2019 at 17:35 hrs. But just 24 hrs before the journey OPs 1 to 3 send an SMS to the Complainants at 5:34pm dated13/03/2019 informing that due to regulatory directive the Flight SG 751 dated 14/03/2019 from Hyderabad to Kolkata has been cancelled and suggested to rebook an alternative flight or refund of the price incurred. Therefore Complainants were compelled to secure the return journey through INDIGO AIR 6E – 323 for the scheduled departure from Hyderabad to Kolkata on 14/03/2019 at 11:55 hrs vide Booking ID No. FBI1303PSTLOE by paying an amount of Rs.22,684/-. Thereafter the Complainants sent a Legal Notice to the OPs 1 to 3 asking them to compensate the Complainants to the tune of Rs.4,98,344/- for deficiency in service. But the OPs remained unanswered. Having no other alternative complainants have filed this case before this Commission seeking relief/reliefs.

The instant consumer complaint is contested by the OPs 1 to 3 by filing WV contending inter alia that the present Complaint is not maintainable in as much as the same is false, frivolous and misconceived. Case of the OPs 1 to 3 is that all the passengers of the OPs are governed by the terms of carriage contained in e-ticket, framed in accordance with Carriage by Air act,1972. Cancellation of the said flight being made under the direction of the Director General of Civil Aviation and situation was beyond control of the OPs 1 to 3. They have also remitted the entire ticket amount of Rs.14,016/- in lieu of the cancelled flight to the account of the agency i.e. OP4 from which the booking was made. Therefore the Complaint Petition is liable to dismiss.

Upon service of notice OP4 did not appear before the Commission to defend themselves and no WV is filed on behalf of them within stipulated period. Thus the case runs ex parte against them.

Ld. Advocate for the contesting parties have advanced the case by adducing relevant evidences and documents. We have gone through all the evidences and documents on record and gave a thoughtful consideration to the entire fact.

Admittedly, Complainants had purchased 3 Air Tickets from the OPs 1 to 3 vide Booking Id No. FB09031V6JYS for the scheduled departure from Hyderabad (HYD) to Kolkata (CCU) on 14/03/2019 at 17:35 through Spice Air Jet SG – 751 (Class WCF). There is also no doubt that said flight was cancelled and Complainants came back to Kolkata by Indigo Air 6E – 323 (Class M) under Booking ID No. FB1303PSTLOE for an amount of Rs.22,684/-.Ld. Advocate for the Complainant alleged that Complainants were burdened with an extra amount of Rs.8,344/- for no fault on their part. On perusal of the documents on record it is found that on 13/03/2019 OPs 1 to 3 had intimated the Complainants through SMS that:

Dear SpiceJet customer (PNR – GHHFNR) : Due to regulatory directive, your flight SG 751 dated 14 – Mar – 19 from Hyderabad to Kolkata has been cancelled. We regret the inconvenience caused. You can rebook yourself on an alternate flight or opt for full refund.

In this regard Ld. Advocate for the OPs 1 to 3 argued that the aircraft in question, which was to be operated on the designated day and time was Boeing 737 Max and the said aircraft manufacturing company detected some technical defect in its aircraft 737 Max. Further Ld. Advocate for the OPs submitted that the Regulatory Authority i.e. DGCA also conducted technical check - up of the said Aircraft and found the same to be unfit for flying. Copy of the Order dated 13/03/2019 issued by DGCA furnished by the parties goes to show that:

In exercise of the powers conferred by Section 5A of the Aircraft act,1934 (XXII of 1934), the Director General of Civil Aviation hereby directs, for the purpose of securing safety to aircraft operations, the operation of B-737 Max aircraft will not take place from/to Indian airports and transit or enter into Indian airspace effective from 1030 UTC 13 March 2019 till  further notice.

It is also submitted by the Ld. Advocate for the OPs 1 to 3 that, all the passengers of the OPs 1 to 3 are governed by the Terms of Carriage contained in the e-ticket, framed in accordance with Carriage by Air Act,1972.

In this connection we may refer Terms of Carriage of the OPs 1 to 3 annexed by the contesting parties wherein Clause 20 categorically mentioned that:

20. In the event Spicejet:

1. prepones the flight by sixty (60) minutes or more: or
2. postpones the flight by one hundred and twenty (120) minutes or more,

the effected passengers shall be entitled for:

1. full refund of the amount paid by them: or
2. to be accommodate on alternate flight(s) for the same sector for next or preceding seven (07) days from the original date of journey, subject to availability and Spicejet’s discretion.

It is submitted by the Ld. Advocate for the Complainants that Order dated 13/03/2019 issued by the DGCA mentioned about the issuance of Special Flight Permit in accordance with Rule 55A of Aircraft Rules,1937. Copy of the abovementioned order furnished by the Complainants reveals that:

Special Flights Permits may be issued in accordance with Rule 55A of the Aircraft Rules 1937 for purpose of flight to a base for storage, repairs, alterations or maintenance.

During the hearing Ld. Advocate for the Complainants draws attention of the Commission towards the Clause 58 of the Terms of Carriage of the OPs 1 to 3 in which provisions of FLIGHT Cancellation is well explained:

Spice Jet will make all reasonable efforts to ensure timely operations of its scheduled flights. However, unforeseen circumstances may cause a delay or cancellation of its scheduled operations:

1. Passenger(s) who have provided correct and working mobile number or e-mail at the time of reservation and have been informed at least two weeks before the scheduled time of departure shall be entitled for an alternate flight / refund as acceptable to them. However, in case the  passengers are informed of the cancellation less than two weeks before and up to 24 hours of the scheduled time of departure, Spice Jet shall offer alternate flight allowing them to depart within two (02) hours of their initially booked scheduled time of departure.
2. Passengers who have not been informed as per the above provision(s), or missed a connecting flight booked on the same PNR number of SpiceJet flight, Spice Jet shall either provide an alternate flight as acceptable to the passenger or provide compensation in addition to the full refund of the air ticket in accordance with the compensation provided by SpiceJet, in addition to the refund of air ticket as mentioned below:

In this context Ld. Advocate for the Complainants has placed the Civil Aviation Requirements Section 3, Series ‘M”  Part IV,   dated 6th August 2010 of  DGCA, wherein Para 3.7 Passenger Redressal stated that:

3.7.1. When affected by denied boarding, a cancellation directly to the airline in the event the airline has not provided the compensation, reasonable facilities listed in Paras 3.5 and 3.6. if the airlines fail to fulfill their obligations, the Passenger may complain to the statutory bodies set up under relevant applicable Laws.

Para 3.5of the same is about Compensation wherein 3.5.3 stated that:

1. Refund of air ticket at the price it was purchased.
2. A flight to the first point of departure.
3. Alternate transportation under comparable/alternate mode of transport (whenever applicable), to the final destination.
4. Alternate transportation under comparable/alternate mode of transport (whenever applicable), to their final destination at a later date at passengers’ convenience, subject to availability of seats.

Para 3.6of the same is dealt with Facilities to be offered to the Passengers wherein 3.6.1. stated that:

Passengers shall be offered free of charge the following:

1. Meals and refreshments in relation to waiting time.
2. Hotel Accommodation when necessary (including transfers).

Ld. Advocate for the OPs 1 to 3 argued that they have remitted entire ticket amount of Rs.14,016/- in lieu of the cancelled flight directly to the OP4 from which the booking was made. Photocopy of the ticket annexed by the OPs 1 to 3 goes to show that the price of the ticket is Rs.14,016/-. Complainants raised no objection regarding the refund. Therefore, undoubtedly the refund is made. Objection of the Complainants’ is that they were in Hyderabad for medical treatment. Therefore abrupt cancellation of said flight have sentenced them to utter dismay with additional financial burden of Rs.8,344/- for arranging the return ticket of INDIGO AIR. Photocopy of the E-Ticket of the Indigo Airlines has been annexed by the Complainants. To establish the case  Ld. Advocate for the Complainant relied upon the matters reported in  2014(2) CLJ (Cal) 122, 2013 (3) CHN (SC) 41, AIR 1983 Cal 337, AIR 2007 SC 1370, 2018 (2) CHN (cal) 670, 2021 (IV) CPJ 385 (HP).

In light of the above discussion we are opined that, it is true that the price of the air ticket has been refunded by the OPs 1 to 3 to the Complainants. But it is also true that due to abrupt cancellation of the Flight SG 751 the Complainants had been harassed and they had to bear financial loss of Rs.8,344/- as the OPs 1 to 3 failed to arrange alternative flight from Hyderabad (HYD) to Kolkata (CCU) and not only that, throwing over the entire responsibility to rebook an alternate flight on the shoulder of the Complainants OPs 1 to 3 have violated their own Terms of Carriage. As such, in our considered view the act of the OPs 1 to 3 appears as gross negligence and deficiency in service on the part of the OPs 1 to 3. No relief has been sought by the Complainants against the OP4.

In the result, the Complaint Petition is allowed in part on contest against the OPs 1 to 3 and dismissed on ex parte against the OP4 with a following direction:

1.         OPs 1 to 3 are jointly and severally directed to refund Rs.8,344/-to the complainant along with litigation cost of Rs.10,000/- within 45 days from the date of this order.

2.         OPs are also jointly and severally directed to pay Rs.20,000/- to the complainants as compensation for causing harassment, mental pain and agony within stipulated period failing which the refundable amount shall attract simple interest @12% p.a. from the date passing of this order till its realization.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.

Copy of the Judgment be given to the parties as per rules