Date of filing:      27.08.2021

                                                                                                                                 Date of disposal : 28.02.2023

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT

                 THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L.,                                        ....MEMBER-II

 

CC. No.51/2021

THIS TUESDAY, THE 28th DAY OF FEBRUARY 2023

 

Mr.S.Sathish Kumar, 

No.14-A, Varadharajaswamy Nagar,

Maduravoyal,

 Chennai 600 095.                                                                                ……Complainant.  

                                                                      //Vs//

1.Spice Jet Limited,

   Rep. by its Managing Director,

   Corporate Head Office,

   No.319, Udyog Vihar, Phase IV,

   Gurgaon – 122016, Haryana.

 

2.Spice Jet Limited Office,

   Domestic Terminal,

   New Domestic Terminal Building,

   Chennai Airport, 

   Chennai 600 027.                                                                   .......Opposite parties. 

 

Counsel for the complainant                                  :   M/s. E.V.Chandru, Advocate.

Counsel for the opposite parties                           :   M/s.K.M.Anand, Advocate.

                         

This complaint coming before us on various dates and finally on 10.02.2023 in the presence of M/s. E.V.Chandru, counsel for complainant and M/s.K.M.Anand, counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in changing the flight schedule and cancelling the same and in not refunding the flight charges appropriately along with a prayer to direct the opposite parties to pay Rs.5,00,000/- along with cost with interest at the rate of 18% per annum from the date of complaint till realization towards compensation for the mental agony and hardship caused to the complainant  by the defective and negligent service provide by opposite parties.

Summary of facts culminating into complaint:-

 

It was the case of the complainant that he booked online round trip ticket with the opposite parties to travel from Chennai to Varanasi in flight SG-728 for the travel date 18.11.2019 and return from Varanasi to Chennai for the travel date 23.11.2019 in flight SG-729 for himself and his sister in PNR ACJC3A and he booked a separate ticket for his mother to avail senior citizen discount with PNR J6NE4.  On 07.10.2019 the opposite parties intimated that the flight SG-728 fixed for travel on 18.11.2019 from Chennai to Varanasi was changed to SG-183 with the departure time as 01:10pm and revised arrival time of 03:50 pm due to the introduction of their new winter schedule.  Similarly, the return flight SG-729 for the travel date 23.11.2019 from Varanasi to Chennai was changed to SG-184 with the revised departure time of 04:20pm and revised arrival time of 07:10pm due to introduction of their winter schedule. Thereafter, the complainant wrote an email to the opposite parties stating that the status of flight SG 728 on 18.11.2019 and flight SG 729 on 23.11.2019 was not informed and the reason for the change of flight SG728 to SG 183 and SG 729 to SG 184. Further the change of flights with altered travel dates and time have been made without any his consent and prior knowledge. It was submitted that the opposite party never informed the complainant at the earliest point of time about the reason for cancellation of flight which were pre booked by opposite party, though option available for the complainant for full refund of ticket money and option for alternative flight +/-7 days.  Instead opposite parties informed the complainant that they had altered the travel dates of the complainant and his family without his consent. The complainant was inforced by the opposite party through email as early as on 30.10.2019 that the opposite parties shall refund the amount to the bank account specified by the complainant but the opposite parties made repayment to Canara Bank Credit Card which is a Credit Card Account. The complainant had already paid the outstanding amount to the Credit Card Account as early as 10.10.2019 and there was no purpose in sending money to the Credit Card Account. Thus the opposite parties should have refunded the amount to the complainant’s bank account as requested by him.  The sale period 27th to 31st August 2019 for the travel period till 31st March 2020 under ‘Spicejet’s Desh VideshGhoomo sale’ is well within the winter schedule of SpiceJet which is given as 27th October 2019 to 28th March 2020.  The opposite parties has cheated customers by promoting a sale without getting prior travel dated from DGCA and has actually cheated the complainant and many other customers by taking their money for flight ticket and advance booking charges in the name of offer and then opposite party has approached DGCA asking permission to operate the flight. It is not the case of opposite party that flights SG 728 and SG 729 were cancelled due to bad weather or instances beyond the control of opposite parties but it was purely because of the mismanagement and mis-planning of opposite parties which is a clear but deficiency in service by opposite parties and also fraud played upon the customers by way of misrepresentation.  Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay compensation of Rs.5,00,000/- along with cost with interest at the rate of 18% per annum from the date of complaint till realization towards compensation for the mental agony and hardship caused to the complainant  by defective and negligent services provide by them.

Crux of the defence put forth by the opposite parties:-

The present complaint filed by the complainant is not maintainable and liable to be dismissed as all the passengers/guests of the opposite parties were governed by the terms of carriage contained in the e-ticket, framed in accordance with Carriage by Air Act, 1972 and notification regarding application of the carriage which is Non-International.  The relevant clauses of the said Terms of Carriage was “Where bad weather 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”. Once the e-ticket, which was a concluded contract between the parties, contains the stipulations, the complainant having agreed and accepted the same while booking the ticket, estopped from raising the alleged dispute.  As per the 'Terms of Carriage', which is a contract binding upon the parties, the opposite parties had an unequivocal and unconditional authority to delay/cancel/pre- pone/post-pone the flight or divert its route due to bad weather or other technical defects or Operational Reasons or for other reasons beyond the power and control of the opposite party, for which the opposite party could not be made liable for the reasons that the flight was re-scheduled for the reasons as informed by the officials to the passengers and thus there is no deficiency in services on their part.  It was denied by the opposite party that they never informed the complainant at the earliest point of time, about the various options available to the complainant. The complainant could have called the customer care executive or could have visited the website of the opposite party for availing the various options, which were available to the complainant. In the present complaint the complainant has not alleged that he was not aware about the said options or that he was never told about the same.Thus they sought for complaint to be dismissed.

On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A7. On the side of the opposite parties proof affidavit was filed but no documents were file on their side. 

Points for consideration:

Whether the act of opposite parties in changing the flight schedule and cancelling the same and in not refunding the flight charges as per their statement to the concerned Bank amounted to deficiency in service as alleged by the complainant?

If so to what reliefs the complainant is entitled?

Point No.1:-

The following documents were filed on the side of complainant in support of his contentions;

Spice Jet’s promotional email for Desh Videsh Sale dated 28.08.2019 and 30.08.2019 was marked as Ex.A1;

Ticket confirmation for flight 728 & 729 was marked as Ex.A2;

Email sent by the complainant to Sankara Mutt, Kasi dated 30.08.2019 was marked as Ex.A3;

 Alternation of travel dates, flights and time informed to complainant to the opposite party dated 07.10.2019 was marked as Ex.A4;

Trail of email conversion was marked as Ex.A5;

RTI reply from Directional General Civil Aviation was marked as Ex.A6;

IRCTC online booking and cancellation details was marked as Ex.A7; 

It is represented by the complainant that the written arguments filed by them may be treated as oral arguments. Heard oral arguments of opposite parties and we perused the pleadings and evidences submitted by them 

The crux of the written arguments made by the complainant is that he booked ticket with the opposite parties on receipt of sale alert emails “Desh Videsh Sale“ in Spicejet Limited to travel from Chennai to Varanasi in flight SG 728 on 18.11.2019 and return from Varanasi to Chennai on 23.11.2019 in flight SG 729 for himself and for his family members.  On 07.10.2019 opposite parties informed that flight SG728 and SG 729 where rescheduled due to new Winter Schedule.  However, the reason for change of flight schedule was not informed.  When questioned by the complainant there was no responsible reply from the opposite parties.  On 18.11.2019 the opposite party sent an email stating that the refund amount was processed and that the amount would be credited to the same account from which the ticket was booked but the amount was processed for repayment to Canara Bank Credit Card Account which is a credit card account. The complainant had already made all the outstanding bills for the said credit card Account as early as 10.10.2019 and there was no purpose for sending the money to the said credit card account.  Further no prior intimation was given before the refund was processed. When the complainant approached the office of Appellate Authority Spice Jet Limited it was replied by them that Spice Jet has no control where bad weather or other instances and will not be liable in any way for the delay or cancellation.  The change of flight information was received by the complainant on 07.10.2019 and the opposite party in its reply email dated 09.10.2019 stated the reason for reschedule as winter schedule.  However, it came to know that the opposite party had put up the winter schedule for approval only on 17.10.2019 as per the RTI provided by Director General of Civil Aviation dated 03.12.2019 and the winter schedule was approved on 18.10.2019 and that the opposite parties received the copy of winter schedule 2019 on 29.10.2019.  However, the opposite parties had initiated the Desh Videsh Sale, for the sale period of 27th to 31st August 2019 and travel period till 31.03.2020 without taking into account the winter schedule period.   The Director General of Civil Aviation did not accord permission for the opposite party Desh Videsh Sale.   The 2nd opposite party as an agent of 1st opposite party and the 1st opposite party is vicariously liable for the act of 2nd opposite party.  Thus it was submitted that the opposite parties did not inform at the earliest point of time about the cancellation of flight, option available for full refund or alternative flight +/-7days.  Instead directly informed the complainant that they have altered the travel dates without his consent.  Thus he sought for the complaint to be allowed.

On the other land, the learned counsel appearing for the opposite parties argued that they informed to the complainant through email about the cancellation of the flight booked and the rescheduled dates, citing the clause framed in accordance with Carriage by Air Act 1972 found under the terms and conditions that 

"Where bad weather 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 to itself 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 persons on board.“

Further, citing decision rendered by the Hon’ble National Commission in Indigo Airlines and Anr.  Vs Astha Pansari dated 17.01.2020 it is submitted that they could not be made liable as they have every right to cancel or reschedule the flight.  Thus stating that there is no deficiency in service they sought for the dismissal of the complaint.

This commission perused the entire materials and pleadings submitted by the parties. Though it is stated by the opposite parties that they have informed at the earliest point of time through email no proof was submitted by them.  Further the opposite parties also failed to substantiate that they had informed the complainant about the options available for full refund of the ticket money and about the alternate flights availability +/-7days.   Instead they had directly informed the altered travel dates. This commission also found force in the arguments made by the complainant that the refund amount was not made to the same card from which the booking was confirmed as informed and promised by the opposite parties through email dated 18.11.2019, but they had sent it to the credit card account of the complainant.  The opposite parties also did not dispute the allegations raised by the complainant with regard to the permission given to them in respect of the Winter Schedule that they had initiated the DeshVidesh Sale even before the permission is accorded to them.  As rightly pointed out by the complainant the same amounted to mismanagement on the part of opposite parties. In such circumstances we are of the of the view that the opposite parties being service providers cannot easily evade from it is responsibility by stating that they had provided under the terms and conditions that they are not liable for any change or cancellation of flight schedule. Thus we are of the view the opposite parties had committed deficiency in service.  This point is answered accordingly holding that the opposite parties had committed deficiency in service as alleged by the complainant.

Point No.2:-

As we have held above that the opposite parties had committed deficiency in service we direct them to pay a sum of Rs.50,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.5,000/- towards litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite parties 1 & 2 directing them jointly and severely

a) To pay a sum of Rs.50,000/- (Rupees fifty only) towards compensation for the mental agony and hardship caused to the complainant;

b)  To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28th day of February 2023.

  Sd/-                                                                                                                   Sd/-

MEMBER-II                                                                                                    PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 28.08.2019

        &

30.08.2019 Spice Jet’s Promotional Email for Desh Videsh Sale. Xerox

Ex.A2 30.08.2019 Ticket confirmation for flight 728 & 729. Xerox

Ex.A3 30.08.2019 Email sent by complainant to Sanakara Mutt, Kasi. Xerox

Ex.A4 07.10.2019 Alternation of travel dates, flights and time informed to the complainant by the opposite party. Xerox

Ex.A5 .............. Trail of email conversation. Xerox

Ex.A6 ............. RTI reply from DGCA. Xerox

Ex.A7 .............. RICTC online booking and cancellation details. Xerox

 

List of documents filed by the opposite parties:-  

 

 

-Nil- 

 

   Sd/-                                                                                                                  Sd/-

MEMBER-II                                                                                                  PRESIDENT