Punjab

Rupnagar

CC/15/65

Sanyam Aggarwal - Complainant(s)

Versus

Spice jet Limited - Opp.Party(s)

Sh. Harish Kumar Adv.

27 Apr 2016

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

 

Consumer Complaint No. : 65 of 01.07.2015

Date of decision                   : 27.04.2016

         

Sanyam Aggarwal, IAS Presiently SDM Chamkaur Sahib, Tehsil Chamkaur Sahib, District Rupnagar.

 

                                                                             .....Complainant

 

                                                Vs.

 

1. Spicejet Limited having its Regd. Office at Murasoli Maran Towers,    73, MRC Nagar Main Road, MRC Nagar Chennai 600 028, Tamilnadu.

2. Spicejet Limited having its Corporate Office at Spicejet Limited, 319, Udyog Vihar, Phase IV, Gurgaon, 122, 016, Haryana, India.

3. Sri Abhishek Singh, Front Desk Staff of Spicejet Limited, Udaipur Airpor, Rajashthan.

 

                                                                             ….Opposite Parties

 

 

Complaint under Section 12 of the Consumer

                             Protection Act, 1986

 

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             MRS. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. D.S. Deol, Advocate, counsel for the complainant  

Sh. Daljeet Singh, Advocate, counsel for O.P. No.1

O.Ps. No.2 & 3 ex-parte

 

 

ORDER

          MRS. NEENA SANDHU, PRESIDENT

                             Sh. Sanyam Aggarwal has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying therein that the O.Ps. be directed:-

i)       To refund an amount of Rs.26,327/-           

ii)      To Pay Rs.15,000/- as compensation, on account of mental agony, physical harassment suffered by him

iii)     To pay Rs.20,000/- as litigation expenses alongwith any other relief, which this Forum may deem fit, according to the facts & circumstances of the case.

 

2.                    In brief, the case of the complainant is that at the time when he was posted as SDM Chamkaur Sahib, he had booked online two tickets one for himself and one for his wife, namely Shena Aggarwal, IAS, at that time she was posted as SDM Raikot. The tickets were booked with the O.Ps. from Delhi to Udaipur for 24.4.2015 and return ticket for 26.4.2015. On 29.1.2015, the tickets were confirmed on online by the spice jet with PNR 03 JKNI.  Online information was received by him at Chamkaur Sahib. On 13.4.2015, he received a mail from Spice Jet on his registered mail ID (sanyam aggarwal @ gmail.com) that the return flight SG 2436 dated 26.4.2015 has been rescheduled (the departure time was preponed by almost six hours from 7 PM to 12.55 PM)   due to implementation of their new summer schedule. It is further stated that this schedule did not suit his wife and she had to drop her plan to visit Udaipur at the last moment. Although they planed the visit almost four months in advance, but he did not complain about the inconvenience caused to them by the O.Ps. He finally after much hassles had rescheduled his programme according to the new schedule and went alone to Udaipur vide Spice Jet Flight SG2633 from Delhi on 24th April. On 26^th April when he was about to leave for airport to return to Delhi, he received an email from Spice Jet at 8.48 am on the very same day that his flight SG2634 dated 26.4.2015 from Udaipur has been delayed due to operational reasons and would depart at 1.35 PM. He had again call the taxi and had to pay extra amount. On reaching airport, the officials of the spice jet told him that the flight has again been delayed due to technical and maintenance reasons and asked him to wait. He got tense because he had to join his duty on Monday, being responsible officer could not afford to miss his office. He anxiously kept on waiting, at about 3.30 PM, he enquired about the status of the flight from O.P. No.3, but was not given any satisfactory reply about the status of the flight, rather he was told that the spice jet was offering full refund to the passengers and he could also take refund. It is further stated that, he keeping in view his duties and responsibility asked the O.P. No.3 to make alternative arrangement to reach Delhi but the officials of the spice jet told him that the spice jet could not do anything except for offering full refund and he was not sure whether the flight would take off or not. He asked O.P. No.3 to give in writing that spice jet could not arrange alternative travel and stay arrangement but the said officials refused to do so.  It is further stated that had the officials of the spice jet gave him the clear picture earlier, then instead of waiting for 5-6 hours at airport he might had made alternative arrangement to reach his destination. He had no authorized leave for 27^th April and as such he left the airport completely dejected and stayed for a night at Udaipur at his own expenses and literally had to beg to get the leave sanctioned from his Deputy Commissioner for the next day.  A leave was sanction on the ground that he would be solely responsible for any untoward incident in his sub division in his absence. It is further stated that the situation in the sub division Chamkaur Sahib was already tense there were two big mandis i.e. Chamkaur Sahib and Morinda in this sub division and the procurement season was in full swing. Had any untoward incident occurred in his absence, then it could have been disastrous for his entire carrier because he could not reach there due to the pathetic attitude of the O.Ps. He had to cancel his Spicejet ticket and had booked ticket for the next day with Air India to reach Delhi. It is further stated that from the aforesaid facts, it is evident that the O.Ps. were deficient in providing services. Hence, this complaint. 

3.                On being put to notice, the O.P. No.1 filed written version taking preliminary objections; that the complaint is not maintainable in the present form;  that the complaint is false, frivolous and misconceived and has been filed just to extract unjustified money from the O.P. No.1; that all the passengers/guests of the O.P. No.1 are governed by the terms of carriage contained in the e tickets, framed in accordance with carriage by Air Act, 1972 and notification regarding application of the carriage which is Non international. It is further stated that as per one of the clause of carriage by Air Act, 1972, which is reproduced as under:-  

“ where bad whether or instances beyond Spicejet control has resulted in your flight being cancelled or delayed, Spicejet will try to assist you to get to your destination, but will not be liable in any way for the delay or cancellation.

Another clause of the said terms of carriage further stipulates that:

“The company reserves to itself the right, without assigning any reason, to cancel or delay the commencement or continuance of the flight or to alter the stopping place or to deviate from the route of the journey or to change the type of aircraft in use, without  thereby incurring any liability in damages or otherwise to the passengers or any other person on any ground, whatsoever. The company also reserves the right to refuse to carry any person whom it considers unfit to travel or who in the opinion of the company may constitute risks to the aircraft or to the person on board”.

Another stipulation in the Terms of Carriage reads as under:

Schedule is subject to change and regulatory authority approvals.

It is further stated that in view of the aforesaid, once the e ticket, which is a concluded contract between the parties, contains the aforesaid stipulations, the complainant herein, having agreed and accepted the same while booking the ticket, is now stopped from raising the alleged dispute and in view thereof, the present complaint is not maintainable. In view of the provisions contained in Rule 19 of the Chapter XI of the Notification regarding application of the Carriage by Air Act, 1972, to Carriage by air, which is not international. The said Rule 19 reads as under:-

“ In the absence of a contract to the contrary, the carrier is not to be liable for damage occasioned by delay in carriage by air of passengers, baggage or cargo”.

That the entire complaint filed by the complainant is on the premise that the flight of the complainant had been delayed and as such, the same amounts to deficiency in services. The complainant got booked return tickets for travel to Delhi to Udaipur and back to Delhi. The tickets were booked on 29.01.2015 for travel on 24.04.2015 and 26.04.2015. The complainant called the call centre of the O.P. and got cancelled one ticket of Ms. Sneha Aggarwal. It is further submitted that the said request of the complainant was processed and the amount was refunded after dividing the original PNR into two. A refund of Rs.3998 was processed as against the cancelled ticket vide PNR No.K6WEGM. Against the original booking of two persons, only one person i.e. complainant Sanyam Aggarwal travelled. In so far as the return flight is concerned, on account of introduction of new Summer Schedule effective post 29^th March, 2015, there was change in flight schedule and the same had been postponed. All the passengers were auto shifted to flight dated 27.04.2015 scheduled to depart at 6.00 AM. The said information was given to all the passengers including complainant well in advance. The complainant, who reached the airport at about 1.00 noon on 26.04.2015, requested the staff of the O.Ps. to refund him the ticket amount.  On the request of the complainant, the staff of the O.P. refunded the ticket amount, after deducting the cancellation charges. From the aforesaid, it is clear and apparent that the O.P. had been acting as per the request of the complainant only. In so far as the delay is concerned, the same was due to technical and operational reasons of change in schedule i.e. introduction of summer schedule. A bare perusal of the compensation claimed by the complainant would reveal that the same has no nexus, whatsoever, with the delay of the flight. The alleged reasons or damages were never contemplated between the parties prior to, at the time of and after booking of the flight in question and as such, cannot be the basis of alleged damages or compensation; that this Forum does not have territorial jurisdiction to try and entertain the present complaint. the answering O.P. is situated in Gurgaon. No cause of action for filing the present complaint has arisen or accrued within territorial jurisdiction of this Forum. The cause of action, if any, has arisen either in Delhi or in Udaipur. It is further stated that mere residence of the complainant within the territorial jurisdiction of this Forum would not confer any jurisdiction upon this Forum to try and entertain the present complaint.  On merits, it is stated that one of the passengers had got the tickets cancelled and the refund was accordingly processed. It is stated that the flight dated 26.4.2015, from Udaipur to Delhi was delayed due to the technical and operational reasons of change in schedule and the intimation was given to the complainant to this effect. All the passengers including complainant were informed that the flight had been moved to next day at 6. Am. The complainant wanted alternate flight on the same day, which was not possible. The complainant wanted stay at hotel for night, which was not possible in view of the fact that the O.Ps. being Low Cost airlines, these kind of contingencies were not included in the ticket. The complainant himself requested for cancellation of ticket and the said request was hounoured and the entire amount was refunded. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal of the same with heavy costs.

4.                 Replication to the written version filed by the O.P.  No.1 has been filed by the complainant stating therein that the complaint filed by the complainant is based upon the actual and real facts and the same is well maintainable in the eyes of law; that now a days, business is conducted through electronic means, distinct from the conventional means. In the electronic process in a single transactions two or more parties are involved. The opposite parties cannot be allowed to take the technical grounds to frustrate the genuine claim of the complainant. It is further stated that terms and condition as alleged by the O.P. No.1 was not brought to the knowledge of the complainant by the O.Ps. at the time of selling of the tickets. The complainant booked two tickets on 29.1.2015 for travelling on 24.4.2015 and 26.4.2015 but the O.Ps. just to harass the general public had changed the schedule time of departure for 26.4.2015 from its schedule time 7.00 PM to 12.55 PM. Due to the change of the schedule time, the entire plan of the complainant and his wife, which was planned four months in advance, was disturbed due to non suitability of time, the complainant had to cancel the tickets which he purchased for his wife and had to proceed alone. It is further stated that if there is change in the schedule due to introduction of summer schedule then it is for the O.Ps. to check whether they should accept the money in advance or not. It is further stated that the O.Ps, kept the complainant in dark. The O.Ps. cancelled the flight without making any alternate arrangement for the passengers. It is further stated that since the tickets got booked from Chamkaur Sahib through internet and the amount was also paid from there only, in this way cause of action has accrued within the territorial jurisdiction of this Forum and the complaint is maintainable before this Forum. The complainant never requested the O.Ps. for cancellation of the tickets but it was the O.Ps. who after putting the complainant under undue harassment refunded the amount of booking paid four months in advance and that too after deducting the cancellation charges. Rest of the contents of the paras of the written version have been denied and prayed that complaint be allowed and direct the O.Ps. to pay the claim as claimed in the main complaint.  

5.                None having appeared on behalf of O.Ps. No.2 & 3, inspite of issuance of notices through registered A.D. cover, they were proceeded against ex-parte vide order dated 17.08.2015

 

6.                On being called upon to do so, the learned counsel for the complainant tendered affidavit of Sh. Sanyam Aggarwal, Ex.C1 and closed the evidence. On the other hand, the learned counsel for the O.P. No.1 tendered affidavit of Sh. Vijay Roy, Senior Manager (Legal) Spicejet Ex.OP1/A & photocopies of documents Ex. OP1/B to Ex.OP1/E and closed the evidence.

 

7.                We have heard the learned counsel for the parties and also gone through the record of the file carefully.

8.                The learned counsel for the O.P. No.1 by relying upon the order dated 22.5.2015,passed by the Hon’ble National Commission, in the case of Dr. Ravi Ghai and Ors Vs M/s Make My Trip (India) Pvt. Ltd & Anrs has averred that District Forum, Ropar, does not have territorial jurisdiction to entertain and adjudicate the present complaint. On the other hand, the learned counsel for the complainant submitted that this Forum has territorial jurisdiction to adjudicate upon the matter by relying upon the order dated 29.12.2015, passed by the Hon’ble State Commission, UT, Chandigarh, in the case of Spicejet Limited Vs Ranju Aery, wherein the Hon’ble State Commission, has distinguished the above said order passed by the Hon’ble National Commission, which has been relied upon by the O.Ps. The Hon’ble State Commission, UT, has held that provisions of the Act make it clear that it is a consumer friendly enactment. When the Act was enacted in the year 1986, E-commerce virtually was not in practice. AT present, it is a digital era, in which large number of transactions are being conducted online through internet. How to protect the consumers, under above circumstances, needs consideration?. In Lackhnow Development Authority Vs M.K. Gupta (AIR 1994 SC 787), it was specifically opined by the Supreme Court of India that the provision of the act are to be construed in favour of the consumers to achieve purpose of enactment, as it is a social benefit oriental legislation. In State Vs. S.J. Choudhary (AIR 1996 SC 1491), the Supreme Court of India also observed as under:-

(2)    It is presumed that parliament indents the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. It is further held that as per establish law, contracts can be concluded through telephone, where the parties are placed at distances, without having direct access to each other. In such a situation, contract would be completed at a place, where its acceptance is communicated. Because of advancement and technology and rapid growth of new models of conducting business, over the internet, it is possible for any entity to have a virtual presence at a place, which is located at a distance from the place, where it has a physical presence. In the present time, the availability of the goods and services, through the website at a particular place, has virtually become the same thing, as a seller having shops, in that place, in the physical sense. Besides as above, ordinarily, existence of offer and its intimation, results in a contract and a suit can be filed at a place, where acceptance was communicated. Further more  performance of a contract forms a part of cause of action and grievance can be redressed by filing a suit, qua its breach at a place, wherein contract should have been performed. It was so said by the Hon’ble Supreme Court of India in A.B.C. Laminart Pvt. Ltd and Anrs Vs A.P. Agencies Salem, 1989 AIR 1239==1989 SCR (2) 1 while interpreting the provisions of the Section 20 (c) of the Code of Civil Procedure. The provisions of Section 11(2) of the CPA, 1986 are akin to the provisions of the Section 20 (c) of the Code of Civil Procedue. The pronouncement of law, as made by the Hon’ble Supreme Court of India, in the case of A.B.C. Laminar Pvt. Ltd and Anrs (Supra) would apply in full force to the Consumer Forums, when trying complaints under CPA 1986. Not only this, the Hon’ble Supreme Court of India, in case of Marine Container Services South Vs Go Go Garments (AIR 19999 SC 80) (Para 4), also held that the Contract Act applies to all litigants, including the litigants under the CPA 1986. In view of the above, it can safely be said that for the purpose of consumer complaints, relating to normal contracts for services and/or goods, cause of action arises interalia at any of the places, where (a) the contract made; and/or (b) where acceptance of the contract is communicated and/or (c)where the contract is performed or is to be performed and/or (d) where money under the contract is either payable or paid and/or where repudiation of the contract is received, if any. Consequently, territorial jurisdiction over a consumer complaint also lies with the Consumer Forums situated at any place, where any of the aforementioned cause of action arises.

The above said observation made qua conventional type of contracts, as to how the said principle can be made applicable to the transactions effected through internet, for the said purpose, we are required to look into the provisions of Information Technology Act, 2000 (I.T. Act 2000). The preamble to the I.T. Act, 2000, reads thus:-

“ An Act to provide legal recognition for the transactions carried out by means of electronic data intercharge and other means of electronic communication, commonly referred to as Electronic Commerce, which involve the use of alternatives to paper based methods of communication and storage of information, to facilitate electronic filings of documents with the Government agencies and further to amend the Indian Penal Code, Indian Evidence Act, 1872, The Bankers Books Evidence Act, 1891, and the Reserve Bank of India, Act, 1934 and for the matters connected therewith or incidental thereto”.

The I.T. Act, 2000, reflects the growing importance of internet in our life. The main issues in this I.T. Act, 2000, that are looked into include hacking, privacy  regulating authority and punishments, for wrongdoers. Although this law does not focus on the internet of online shoppers, however, some of its provisions are important to be noted qua interest of the consumers, when making shopping online. For the purpose of this Discussion, Section 13(3) of the I.T. Act, 2000, reads thus:

“Save  as otherwise, agreed between the originators and the addressees, an electronic record is deemed to be dispatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business”.

In the present case, the complainant had purchased the air ticket through internet and confirmation of the same was also given on the internet at Chamkaur Sahib, District Ropar, only. Thus, the acceptance of the contract would also deemed to have been communicated to the complainant at his address. Relying on the ratio of the judgment in A.B.C. Laminart Pvt. Ltd. (Supra), we can hold that where contracts for services/goods are entered into over the internet, then for the purpose of consumers complaints, part of cause of action arises at the complainant’s place of business, if acceptance of the contract is communicated through internet etc. Fully agreeing with the observations made by the Hon’ble State Commission, U.T. Chandigarh, we also hold that the District Forum, Ropar, has competence to adjudicate upon the matter.  We also find support from the order dated 13.4.2014, passed by our own Hon’ble State Commission, in the case of Rajinder Pasricha Vs Garwal Mandal and Ors, wherein, the Hon’ble State Commission, Punjab, by making reference of order passed by Hon’ble National Commission, in the case of Melanie Das Vs Royal Sundram Alliance Insurance Company and Anrs.” 1(2014) CPJ -302 (NC) has held that since the complainant has got booked two A.C. rooms at Haridwar online through Credit Card at Ludhiana, certainly part of cause of action has arisen at Ludhiana. We do not agree with the  findings so recorded by the District Forum that District Forum, Ludhiana, does not have the jurisdiction.

9.                As per the version of the O.P. No.1 that flight dated 26.4.2015 from Udaipur to Delhi was delayed due to technical reason and amount of the ticket was refunded to the complainant on his request and he has no occasion to file this complaint and same be dismissed with heavy costs. Whereas the stand of the complainant is that, he never requested to the O.Ps. for refund of the amount of the ticket as alleged by the O.P. No.1 and it was the O.Ps. who, after putting him under undue harassment refunded the amount of the booking which he had paid four months in advance that to after deducting the cancellation charges. Even otherwise, the O.P. No.1 has not placed on record report of technical expert to show that the aircraft which was to depart on 26.04.2015 from Udaipur to Delhi was having some technical snag.

                   To prove this fact that the amount of ticket was refunded to the complainant on his request, the O.P. No.1 has not placed on record any evidence, thus in the absence of documentary proof, we do not find any substance in this submission of the O.P. No.1. Even to corroborate this fact that the flight was cancelled due to technical snag, the O.P. No.1 has not placed on record any technical report, thus, in the absence thereof, it cannot be said that the flight was cancelled due to technical snag. In this view of the matter, we do not hesitate to conclude that the O.Ps are deficient in providing services and are liable to compensate the complainant. It may be stated that the O.P. No.3 Shri. Abhishek Singh, being employee was working as per the instructions of his employer. Therefore, O.Ps. No.1 & 2 being his employer are liable to compensate the complainant and not the O.P. No.3. Thus, the complaint filed against O.P. No.3 is liable to be dismissed. 

10.              Now the questions for consideration before us is what should be the quantum of compensation.  

11.              As per complainant, due to cancellation of the flight, he was struck at Udaipur and had to make alternate arrangement to travel back to Chamkaur Sahib, District Ropar, for which he had spent a sum of Rs.26,327/- from his own pocket i.e. sum of Rs.6327/- the costs of the ticket from Udaipur to Delhi + Rs.20,000/- as expenses for local travelling and stay at Udaipur and has appended a list of expenses along with the complaint. Same is marked as ‘A’.  Taking these facts into consideration, we are of the view that complainant is entitled to get the amount of Rs.26,327/- besides that he is also entitled for compensation on account of mental agony and physical harassment and also for the litigation expenses.

12.              In view of the aforesaid discussion, we dismiss the complaint against the O.P. No.3 and allow the same against the O.Ps. No.1 & 2, who are directed as under:-

 (1)  To pay a sum of Rs. 26,327/- which was incurred by the complainant due to cancellation of the flight.

(2)   To pay a sum of Rs.10,000/- as compensation for mental agony and physical harassment. 

(3)     To pay sum of Rs.5000/- as litigation expenses.

The O.Ps. No.1 & 2 are further directed to comply with the order jointly and severally within 30 days from the date of receipt of certified copy of this order, failing which the O.Ps. No.1 & 2 shall pay   interest @ 9% P.A. on the awarded amount besides the litigation costs.

13.              The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed & consigned to the Record Room.

 

ANNOUNCED                                                                       (NEENA SANDHU)

Dated: 27.04.2016                                                PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                    MEMBER.