Haryana

Panchkula

CC/92/2019

RAVINDER LAL ARORA. - Complainant(s)

Versus

SPICE JET LTD. - Opp.Party(s)

AMARBIR DHALIWAL.

06 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	92 of 2019
Date of Institution	:	06.02.2019
Date of Decision	:	06.09.2022

 

Ravinder Lal Arora, s/o Lt. Sh.Shori Lal, R/o Flat No.23, GH-37, Sector-30, Panchkula (Haryana)

    ..….Complainant

Versus                                                                  

1.     Spice Jet Ltd. Regd. Office-319, Udyog Vihar, Phase-IV, Gurgaon, 122016 Hayana, India. Through its Managing Director.

2.     Goibibo.com, 5^th floor, Good Earth City Centre, Sector-50, Gurugram, Haryana-122018.

                                                                       ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person.

                        Sh. Saurabh Sharma, Advocate for OP No.1

                        Sh. Nitin Bhasin, Advocate for OP No.2.

                       

                       

ORDER

(Satpal, President)

 

1.             The brief facts of the present complaint as alleged are that the complainant had purchased the airline tickets, to visit the holy town of Tirupati to worship, from the web portal of OP No.2 at his residence at Panchkula. Accordingly, the complainant travelled to Tirupati via Bangalore on 03.03.2018 and stayed there for 4 nights. The dispute arose on 07.03.2018 on the date of return journey when the complainant reached the Tirupati airport to board his flight to Hyderabad. The flight was supposed to depart at 7:30 AM from Tirupati and accordingly, he reached Tirupati airport on 07.03.2018 at about 5:00AM to board the flight No.SG-1042. It is pertinent to mention here that the said flight was supposed to arrive at Hyderabad on 8:40AM and the connecting flight of the complainant from Hyderabad to Chandigarh was supposed to depart at 11:10AM on the very same day after a layover of 2 hours 30 minutes. Accordingly, the complainant checked in with his luggage and was issued a boarding pass by OP No.1 for the said flight.  The complainant and other passengers were seated in the plane for the journey. Finally, after 2 hours, all the passengers were told to depart from the aeroplane at about 9:00AM without assigning or giving any reason for same. He received a message from the OP no.1 on his mobile phone at about 9:25AM whereby it was stated that the said flight had been delayed due to operational reasons and will now depart at 12:45PM. No separate sitting was arranged and no refreshments was provided by the OP No.1 during the delayed period. It is worthwhile to submit here that said flight in dispute was delayed due to laxity and shortcomings on part of the OP no.1 and they have miserably failed to provide the services as required to.  In view of the cancellation of the flight the complainant having no other option, he purchased a new ticket from Hyderabad to Chandigarh. It is pertinent to mention here that the staff/employees of the OP no.1 gave repeated assurances that the new departure time i.e. 12:45PM of the flight NO.1042 was purely and squarely confirmed. Having trust and believing upon the said staff/ employees of the OP no.1 he purchased a new ticket issued by Indigo airlines departing at 4 PM from Hyderabad and arriving at 6:30 PM in Delhi amounting to Rs.7,665/- for his journey from Hyderabad to Delhi.  The OP No.1 issued a new boarding pass for the said flight in dispute to the complainant. The said boarding pass show that the OP no.1 had again miserably failed to honour its commitment and had again changed the boarding time of the flight in dispute to 1 PM instead of 12:45 PM as promised earlier by issuing the SMS. Once again the complainant and other passengers were seated in the aeroplane for the journey. However, even then the said flight could not take off and again no reasoning was given by the staff/employees of the OP No.1 and passengers of the aeroplane again told to get off the plane after waiting for several hours, seated in the plane. The OP No.1 told the complainant and the passengers to make their own arrangements for their travel journey, as the said flight in dispute was cancelled. Having no other option, he again purchased a new air ticket from Tirupati to Delhi via Bangalore amounting to Rs.1,349/. The complainant reached New Delhi at 11:20PM on 07.03.2018 and he purchased a bus ticket amounting to Rs.700/- for his journey from New Delhi to Chandigarh.  Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.             Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being frivolous; no territorial jurisdiction. The complaint is not maintainable in as much as that all the passengers/guests of the OP No.1 are 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. It is stated that the complainant got booked ticket for travel from Tirupati to Hyderabad on 07.02.2018 with date of travel as 07.03.2018 through OP No.2, from its website amounting to Rs.1349/-. It is submitted that the aircraft in question had to come to Tirupati from Chennai. It is submitted that due to operational reasons, the said aircraft got delayed at Chennai Airport itself. This intimation was being given to all the passengers from time to time. It is also submitted that sometime, the aircraft came to Tirupati Airport. However, it is submitted that after the said aircraft came to Tirupati Boarding Passes were issued to the passengers and they all started boarding the flight. However, some passengers were boarding/ had boarded, the Aircraft Maintenance Engineers(hereinafter referred as to AME) team inspected the aircraft at Tirupati and found there was technical snag in the aircraft and they started fixing the same. It is submitted that despite their best efforts, they could not remove the snag and declared the aircraft unfit to fly at that point of time. For removal of the said snag, it was proposed that the aircraft be moved to Hanger and it would take about a day to remove the said snag. It is stated that after cancellation of the flight, the passengers were given option either to seek full refund or to get accommodation in the next available flight, which was on the following day. As per the choice and option of the complainant, the entire ticket amount was credited to him, through agency i.e. OP No.2.  It is further submitted that while the passengers were waiting for the flight, they were provided proper snacks and refreshments. In view of the above aforesaid, the aforesaid delay and cancellation of the flight has taken place due to the factors and circumstances, which were beyond the control and power of the OP and under the aforesaid circumstances, no negligence or deficiency in services can be attributed to the OP. It is also stated that as per the “Terms of Carriage”, which is a contract binding upon the parties, the OP had an unequivocal and unconditional authority to delay/cancel /pre-pone the flight or divert its route due to bad weather or other technical defects or for other reasons beyond the power and control of the OP for which the OP could not be made liable.  In the present case, the flight was delayed and cancelled due technical snag in the aircraft, which was not in control of the Ops. It is submitted that the case of the OP is also covered by the Civil Aviation Requirements(hereinafter referred to as CAR) issued by the DGCA dated 15.08.2010. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.

                Upon notice, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being frivolous; no cause of action; misjoinder being a necessary party; no territorial jurisdiction and the complainant has miserably failed to file any proof or record,  to prove the deficiency  in service.  It is stated that the OP no.2 acts as merely a facilitator for booking the confirmed air tickets/hotel bookings on behalf of the customers with the concerned service providers. The OP No.2 upon the request received from its customer, forwards the same to the concerned Airlines/Service Providers and upon receiving the confirmation from concerned service providers the Booking ID is generated and confirmed bookings/tickets is shared with the Customer. It is stated that the complainant is being aggrieved by the delay in the flight schedule and subsequently cancelled by the Flight booked by the complainant. It is submitted that the office of the Director General of Civil Aviation (hereinafter to be referred as DGCA)issued guidelines dated 22.05.2008, whereby it had directed the Airlines to compensate the customers, in case of delay in flights by the Airlines. In the present case, concerned Airlines is liable to compensate the complainant for the alleged delay of the flight, hence the OP no.2 is not liable for the same. After the issuance of the confirmed flight tickets of OP no.1, the OP no.2 is discharging its duties and obligations qua the complainant. It is also stated that once the confirmed ticket is booked by the intended traveler and tickets of the same are shared with the intended traveler, the OP No.2 is discharged from its obligations qua the said bookings. In case of any request for cancellation or rescheduling of the tickets or any bookings by the intended traveler, the same shall be forwarded to the concerned Airlines and concerned Airlines refund or reschedule the tickets or bookings in lieu of charges duly agreed upon at the time of making the bookings. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.2 and as such, the complaint of the complainant is liable to be dismissed.

3.             The complainant has tendered affidavit as Annexure C-A along with document Annexure C-1 to C-9 and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 has tendered affidavit Annexure R-1/A along with documents Annexure R1/1 & R1/3 and closed the evidence. The learned counsel for OP No.2 has tendered affidavit as Annexure R-2/A alongwith documents Annexure R-2/1 to R-2/3 and closed the evidence.

4.             We have heard the complainant and the learned counsel for OPs No.1 & 2 and gone through the entire record available on file including written arguments filed by parties, minutely and carefully.

5.             Admittedly, the flight no.SG1042 belonging to OP No.1, as per confirmed flight ticket(Annexure C-3) was to take off from Tirupati to Hyderabad at 07:30 on 07.03.2018 but the same got delayed as per SMS/message (Annexure C-5) received by the complainant on his mobile, wherein the time for departure  of the flight was given as 12:45P.M. Further, it is also an admitted fact that the said flight was re-scheduled from 12:45P.M. to 01:00P.M. and ultimately, it was cancelled by the OP No.1 citing operational reasons.

                During arguments, the complainant reiterated the averments made in the complaint and contended that no specific reason for the delay/or the cancellation of the flight was provided by OP No.1 to the passengers. The complainant attributing the lapses and deficiencies on the part of OP no.1 contended that the OP No.1 had failed to provide the separate sitting arrangements as well as refreshment, in the eventuality of the delayed as well as cancellation of the flight, and that the OP No.1 has also not refunded the Air Fare as charged from him. The complainant has prayed for the refund of amount alongwith compensation as claimed in the complaint.

6.             The OP No.1 as well as OP No.2 has contested the complaint by raising preliminary objections as well as on merits vide their separate written statement. The OPs have raised the objections qua the maintainability of the complaint on the ground that the Consumer Commission at Panchkula lacks territorial jurisdiction to entertain and try the present complaint. In this regard, both the learned counsels i.e. for OPs No.1 & 2 have contended that the flight was to take off from Tirupati and to land at Hyderabad and thus, the complaint was maintainable either at Tirupati or at Hyderabad. Further, it is contended that the office of OPs is situated at Gurgaon and thus, the complaint could be lodged at Gurgaon only. Reliance has been placed the following case laws:-

1. Rajendra Kumar Vs. Polskeiline Lotnicze, Polish Airlines, reported in III(1998) CPJ 407(AP)
2. Dr. V.Noheria Vs. M/s Makemytrip India Pvt. Ltd.(Revision Petition No.2193-2194 of 2012)(NC).

   

7.  

          “Consumer Protection Act, 1986, Section 17(2)(c )-Jurisdiction-Air tickets purchased from Delhi company-Purchasers of Air tickets made payment at Chandigarh through credit card-Air tickets received at Chandigarh through electronic method-Part of cause of action had arisen at Chandigarh as ticketswere purchased at Chandigarh through internet and payment was made at Chandigarh- Commission at Chandigarh has got territorial jurisdiction to try the complaint”.

 

 

8.             The next plea taken by the OPs disputing the maintainability of the complaint is that all the passengers including the complainant are/were liable to be governed by the terms of the carriage contained in the e-ticket, which are framed in accordance with Carriage Air Act, 1972. Further, the OPs have taken the shelter of provisions contained vide Rule 19 of the Chapter XI of the notification regarding application of the Carriage Air Act, 1972. The learned counsel for the OP No.1 has placed reliance on the following case laws:-

1. Indigo Airlines Vs. Kalpana Rani Debbarma(SC)
2. Indigo Airlines and Anr. Vs. Astha Pansari(NC) decided on 17.01.2020.

 

 9.            The shelter taken by OP No.1 of the terms of the Carriage contained in the e-ticket is not permissible in view of the CAR issued by the O/o Directorate General of Civil Aviation on 06.08.2010, which is available on record as Annexure R-1/3. The terms of Carriage contained in the e-ticket as well as other instructions allegedly relied upon by the OP No.1, undoubtedly, do not have any overriding effect over the CAR circulated by the O/o Directorate General on Civil Aviation on 06.08.2010 (Annexure R-1/3). The said CAR were issued by the DGC Aviation to ensure appropriate protection for the Air travels in case of flight disruptions and in particular, denied boardings, flight cancellation etc. The Para No.1 of the said instructions elaborating the need of issuance of the same is reproduced as under:

        1.1     In view of rapid expansion of air services within India and on    international routes to/from India and with the increase in the volume of        passenger traffic, it has become necessary for the Government to take appropriate action to ensure appropriate protection for the air travelers in case        of flight disruptions and in particular, denied boardings, flight cancellation                   and delays without due notice to the passengers booked on the flight(s).

10.            On merits, the OP No.1 has taken the plea that the flight in question was initially got delayed and thereafter, cancelled due to operational reasons. The learned counsel for the OP No.1 reiterating the averments made in the written statement as well as in the written submissions contended that a technical snag was detected by the team of Aircrafts maintenance engineers, who failed to remove the said snag and thus, the flight was ultimately cancelled. It is contended that the entire ticket amount as per choice and option of the complainant was credited to him through OP No.2 and thus, the complaint is liable to be dismissed.

11.            The OP No.2 has denied its liability as per terms and conditions contained in the User Agreement according to which no liability can be fixed upon it, who is only a facilitator between the airlines i.e. OP no.1 and the complainant. In this regard, reliance has placed on “Bharathi Knitting Co. Vs. DHL Worldwide Express Courier” (1996) 4 SCC 7041(SC).

12.            The learned counsel stated that OP no.2 has no control over the airline. It is vehemently contended that the confirmed Air Tickets as booked by the complainant were provided by him and thus, no liability can be imposed on it. It is contended that  deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance,  which is required  to be performed by a person in pursuance of a contract or otherwise in relation to any service.

13.            Undisputedly, the controversy in question is liable to be governed by the provisions contained in the instructions, namely, Civil Aviation  Requirements Section 3-Air Transport Series ‘M’ Part IV  dated 06.08.2010 issued by the O/o Director General of Civil Aviation(Annexure R-1/3).  The Para No.1.4 of the said Civil Aviation Requirements for the sake of convenience and clarity is reproduced as under:

          “The operating airline would not have the obligation to pay compensation       in cases where the cancellations and delays have been caused by an event(s)        of force majeure i.e. extraordinary circumstances(s) beyond the control of the          airline, the impact of which lead to the cancellation/delay of flight(s), and which could not have been avoided even if all reasonable measures had been          taken by the airline. Such extraordinary circumstances may in particular,          occur, due to political instability, natural disaster, civil war, insurrection or riot, flood, explosion, government regulation or order affecting the aircraft,        strikes and labour disputes  causing  cessation, slowdown or interruption of    work or any other factors that are beyond  the control of the airline”.

14.            Though, the OP No.1 has taken the plea of force majeure situation which led to the cancellation of the flight in question but the same is not tenable being not corroborated and substantiated by any documentary evidence. A bare perusal of the provision contained in para no.1.4 would reveal that the defence of force majeure events is available only if all reasonable measure had been taken by the Airlines. The OP no.1 has not placed any documentary evidence to prove that it had taken or adopted all reasonable precautions so as to prevent the occurrence of any technical snag. Even otherwise it is not plea of OP No.1 that it had taken all necessary precautions qua the aircraft in question.

15.            In the present case, the OP No.1 has taken the plea that a technical snag had appeared, which the team of AME could not remove. No documentary evidence corroborating or substantiating the said plea in the shape of technical inspection report given by the AME is available on record. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

16.            Needless to mention here that the safety and security of the passengers, crew and aircraft is of paramount importance. However, the OP No.1 had failed to take adequate precautions as required vide said CAR with regard to the repair or maintenance of the Aircraft in question. The OP no.1 has placed no evidence on record substantiating the fact that the aircraft in question before its start of journey from Chennai to Tirupati was properly checked and the defects, if any, were duly rectified. Even otherwise, it is not the case of the OP no.1 that the Aircraft before its start of journey from Chennai was duly checked by the team of AMR and the errors or mechanical faults found therein were duly rectified. Moreover, we find no technical inspection report, wherein the aircraft was certified by AME to be in fit condition on 07.03.2018. Further, the technical reports pertaining to regular periodic check-up of aircraft by AME has not been made available on record so as to negates the contentions of the complainant about its laxity and deficiency in service. In such circumstances, it cannot be said that the OP no.1 had also taken all reasonable measures to avoid delay/or cancellation of the flight in question. Therefore, the OP no.1 had failed to perform its duty as required vide instructions, namely, CAR issued by DGC Aviation. Further, the OP No.1 has not placed on record any documentary evidence as to when the complainant was informed about the cancellation of the flight.

17.            Further, no documentary evidence, substantiating the fact that the proper refreshment was provided to the complainant, has been placed on record. Moreover, the Air fare has not been refunded to the complainant as required vide installments dated 22.08.2008 (Annexure R-2/2). The aforesaid discussion speaks volume about the lapses and deficiencies on the part of the OP No.1 for which it is liable to compensate the complainant.

18.            Since OP No.2 has provided the confirmed air tickets to the complainant so no deficiency can be attributed on its part; the present complaint is dismissed qua OP No.2.

19.            Now turning to the relief clause, it is found that the complainant has claimed the refund of Rs.1,448/- qua air ticket for the journey from Tirupati to Chandigarh. Further, the refund of Rs.7,665/- has been claimed qua the purchase of ticket for the flight no.6E-269 issued by Indigo Airline. Further, a sum of Rs.850/- has been claimed allegedly spent by the complainant in lieu of bus fare from New Delhi to Chandigarh. Since the complainant had to incur the above expenses on account of the deficiency on the part of OP no.1, so he is entitled to the reimbursement of the said expenses along with interest. The complainant is also entitled to be compensated on account of deficiency on the part of the OP No.1 while not providing the refreshment as required vide clause 3.7.1(a) of CAR (Annexure R-1/3). In addition to above, the complainant is also entitled to be compensated on account of mental agony, harassment and litigation charges.

20.            As a sequel to the above discussion, we partly allow the present complaint with the following directions:-

1.     The OP No.1 is directed to make the payment of Rs.9,963(Rs.1448+7665+850)to the complainant as incurred by him in the purchase of air tickets as well as bus journey respectively, along with interest @ 9% per annum w.e.f. the date of filing of the present complaint till its realization.
2.     The OP No.1 is also directed to pay a sum of Rs.2,500/- to the complainant on account of its failure to provide the refreshment.
3.     The OP No.1 is further directed to pay a sum of Rs.20,000/- to the complainant on account of mental agony and harassment.
4. The OP No.1 is further directed to pay a sum of Rs.5,500/- as cost of litigation.

 

21.            The OP No.1 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OP No.1. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 06.09.2022

 

 

 

        Dr.Sushma Garg         Dr. Pawan Kumar Saini            Satpal

                Member                   Member                       President

 

Note: Each and every page of this order has been duly signed by me.

 

                                              Satpal

                                             President