BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  :  MEMBER

C.C. No. 161/2016 Filed on 30.03.2016

ORDER DATED: 31.07.2017

Complainant:

C. Divakaran. MLA, Kerala Legislative Assembly, Deepam, ERA-118, T.C 43/258, Thottam, Manacaud, Thiruvananthapuram-695 009.

Opposite parties:

1. The Airport Officer, Spice Jet Airlines (Airport office) Terminal-1, Vallakkadavu, Thiruvananthapuram-695 008.

2. Authorized Signatory, Spice Jet Ltd., 319, Udyog Vihar, Phase IV, Gurgaon, Haryana-122 016.

(By Adv. Baby Antony & Baby Abraham)

This case having been heard on 15.06.2017, the Forum on 31.07.2017 delivered the following:

ORDER

SRI. P. SUDHIR:  PRESIDENT

Complainant’s case is that complainant is a sitting MLA and an Ex-Minister of Kerala State.  Complainant wants to go to Vijayawada to attend the National Council meeting of his party.  Complainant reached Vijayawada at about 2 pm on 08.01.2016 in Spice Jet.  For his return journey after the meeting complainant booked ticket in Spice Jet on 10^th January 2016 from Vijayawada (departure at 2.05 pm) to Bangalore (arrival at 3.15 pm).  Complainant had also booked a connection ticket from Bangalore (departure 5.50 pm) to Thiruvananthapuram (arrival at 7 pm) in Jet Airways on the same day.  Boarding cards for both flights were issued from Vijayawada Airport itself.  Unfortunately the Spice Jet was delayed to take off from Vijayawada airport for more than 3 hours and complainant reached Bangalore at 6 pm.  When the complainant reached Bangalore airport the flight of Jet airways had already left the airport as per scheduled time 5.50 pm and complainant was stranded there.  Complainant was not having enough money.  Complainant approached the ground staff of Spice Jet at Bangalore for a ticket from Bangalore to Thiruvananthapuram.   They turned down for his request.  Complainant booked a ticket by online by his wife at Thiruvananthapuram in Indigo Flight from Bangalore to Thiruvananthapuram and complainant reached Thiruvananthapuram at about 9.45 pm.  Being a senior citizen the unexpected and unfortunate incident has caused mental agony and complainant lost the amount spent for his journey by Jet Airways and complainant could not attend the meeting at Thiruvananthapuram due to delay in reaching.  Complainant approached this Forum for damages of Rs. 1,00,000/- with interest from the date of journey and Rs. 8,000/- the cost of the ticket charges with interest for complainant’s journey which complainant could not perform from Bangalore to Thiruvananthapuram in Jet Airways. 

Notice sent to opposite parties and opposite parties appeared and filed version.  As per the version of opposite parties the contention taken is that the present complaint filed on behalf of the complainant is not maintainable in as much as that all the passengers/guest of the opposite parties 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 submitted that Clause 22 of the aforesaid terms of carriage clearly discloses the aforesaid, which is as follows: “where bad weather or instances beyond Spice jet control has resulted in your flight being cancelled or delayed, Spice Jet will try to assist you to get to your destination, but will not be liable in any way for the delayed or cancellation”.  Clause 57(C) of the said terms of carriage further stipulates that: “In case the expected time of departure due to delay is more that 24 hours hotel accommodation shall be provided wherever necessary.  Spice Jet shall have absolute discretion in selection of hotels under the given circumstance and no reimbursement shall be made in this regard”.  It is submitted that one of the clauses 24 of the terms of carriage further stipulate that “Spice jet does not connect to other airlines, therefore, Spice Jet is not responsible for any losses incurred by our Passengers while trying to connect to or from other airlines”.  In the view of the aforesaid, it is absolutely clear that the terms of carriage contained in the e-ticket, which is binding contract between the parties, no compensation can be granted to the passengers contrary to the terms and conditions contained in the e-ticket.  The Hon’ble National Commission has held so in the case titled as Spice Jet Ltd. Vs. Himadri Sharma in Revision Petition No. 1294 of 2009 of National Commission.   In view of the aforesaid, once the e-ticket, which is a concluded contract between the parties, contains the aforesaid stipulations, the complainants herein, having agreed and accepted the same while booking the ticket, are now estopped from raising the alleged dispute and in view thereof, the present complaint is not maintainable.  There is no contract contrary to the aforesaid Rule.  In fact, there is a concluded contract/agreement between the parties, regarding the exclusion/waiver of any liability of the carrier, in case of delay occasioned in carriage of the passengers.  In view of the same, 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.  It is submitted that 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”.  There is no contract contrary to the aforesaid Rule.  In fact, there is a concluded contract/agreement between the parties, regarding exclusion/waiver of any liability of the carrier, in case of delay occasioned in carriage of the passengers.  It is submitted that the opposite party was only responsible for assuring safe and secured travel of the complainant and other passengers, except in case of any problem, not within the power and control of the opposite party.  The opposite party was not responsible for further plans/travel etc. of the complainants, which admittedly were not within the knowledge of the opposite party.  Even otherwise, in the e-ticket, which is a concluded contract between the parties, it has been clearly stipulated that Spice Jet does not connect with other airlines or other aircrafts for further journey and as such any alleged loss caused to the complainants on account of missing of any further flight is an excepted matter, as per the concluded contract between the parties.  The flight got delayed due to bad weather at Bengaluru Airport and this was reported/intimated to the complainant from time to time by sending sms and calling the passenger.  The complainant waited at the airport and finally boarded the flight without any demur and protest, thereby acknowledging the reason of delay in flight.  It is submitted that having availed the flight and having reached at his destination safely, the complainant is now stopped from filing the present complaint against the opposite party.  It is further submitted that the opposite party had no knowledge about any alleged onward journey by the complainant.  Even otherwise, it was never within the contemplation between the parties and the opposite party cannot be made liable for any loss, which was not within the purview or contemplation of the parties at the time of booking of the ticket.  As per the ‘Terms of Carriage’, which is a contract binding upon the parties, the opposite party could delay or cancel the flight due to bad weather and other technical defects for which the opposite party cannot be made liable.  In the instant case, the flight was delayed due to bad weather.  In such circumstances the opposite party cannot be made liable for the delay caused by the act of god.  The safety and security of all the passengers travelling in the aircraft is of paramount importance and some time, bad weather does not allow the aircraft to take off as per the safety guidelines of the civil aviation and under these compelling circumstances, the airlines do not have any other option but to wait for the weather to improve for safe and smooth travel of the passenger and while doing so, some time is required, which normally results in delay in flights.  Even DGCA recognizes such compelling circumstances and has rightly exonerated the airlines from any liability, whatsoever.  It is submitted that in a recent CAR (Civil Aviation Requirements) issued by DGCA and made applicable w.e.f 15^th August, 2010, the airlines, which face delays and cancellations on account of bad weather, government regulations, other unforeseen circumstances, have been exonerated from any liability.  Clause 1.4 and 1.5 of the said CAR may be referred to.  The complaint is not maintainable in as much as, as stated in detail herein above, there is no deficiency in services, whatsoever, in the services provided to the complainant and contrary to what has been alleged the staff of the opposite party, extended its full support and co-operation and helped the complainant, providing the best of their services.  The present complaint filed by and on behalf of the complainant is liable to be dismissed in as much as this Forum does not have territorial jurisdiction to entertain and try the present complaint.  The tickets were from Vijayawada to Bangalore.  The complainant travelled from Vijayawada to Bangalore.  Neither any cause of action nor even any part of cause of action arose within the territorial jurisdiction of this Forum.  The complainant has malafidely arrayed 1^st opposite party by mentioning address of Thiruvananthapuram, as party to the present complaint.  1^st opposite party is neither necessary nor a proper party.  Even otherwise, opposite party had no operations in Kerala at the time of purchase of ticket by the complainant or even at the time of travel by the complainant.  The operations have been started about 2 months back.  Even otherwise, the fact that opposite party has branch office at Kerala (Thiruvananthapuram) would not confer any territorial jurisdiction upon this Forum when no cause of action has arisen.  It is wrong and denied that the alleged incidents in the complaint have caused strain and mental agony to the complainant or that the same has caused any unbearable impact to him.  It is wrong and denied that the complainant has lost any amount on Jet Airways ticket due to the mistake of the opposite parties.  The flight of the opposite parties was got delayed due to bad weather and the said reason is beyond the control of the opposite parties.  The opposite parties cannot risk the life of passengers by flying in the dangerous weather conditions and as such there was no fault by the opposite parties.  It is wrong and denied that the complainant could attend some alleged important meeting appointments etc.   It is wrong and denied that the same has caused any irreparable loss to him, damage to his reputation as a political leader, rules of civil aviation are same for everyone and the same does not change for an ex-minister on an incumbent MLA.  The weather was bad and the conditions did not allow the opposite party to take off/land the flight and in such circumstances the life of the other passengers cannot be risked if the complainant is a MLA or an Ex-Minister. 

Issues:

1. Whether there any deficiency of service on the part of opposite parties?
2. Whether there is any cause of action within the jurisdiction of this Forum?
3. Whether the complainant is entitled for the reliefs sought for?

Complainant filed chief examination affidavit and examined as PW1.  Exts. P1 to P4 marked.  PW1 cross examined by opposite parties.  Opposite parties filed chief examination affidavit and examined as DW1 and Exts. D1 to D4 marked.  DW1 cross examined by complainant. 

Issues (i) to (iii):- Complainant’s authorized agent who was examined as PW1 deposed that “Bangalore കഠിനമായ മൂ ടല്‍ മഞ്ഞ് കാരണം land ചെയ്യാന്‍ പറ്റാത്ത അസാധാരണ സാഹചര്യം കൊണ്ടാണ് വിമാനം സമയത്തിന് പുറപ്പെടാത്തത് എന്നു പറയുന്നു (Q) പൂര്‍ണ്ണമായും തെറ്റാണ് (A) 5.50- ന്‍റെ connection flight കൃത്യമായി Bangalore-ല്‍ നിന്ന് പുറപ്പെട്ടു.  അതിനാല്‍ മുകളില്‍ പറഞ്ഞ പ്രസ്താവന തെറ്റാണ് (A).  കാലാവസ്ഥ പ്രശ്നം കൊണ്ട്‌ flight take off delayed ആണ് എന്ന്‍ SMS വഴി പരാതിക്കാരനെ അറിയിച്ചിരുന്നു എന്നു പറയുന്നു (Q) എനിക്ക് വ്യക്തമായി അറിയില്ല (A).  Airport-ല്‍ ഇത് സംബന്ധിച്ച് അറിയിപ്പും കൊടുത്തിരുന്നു announcement എന്നു പറയുന്നു (Q) കൊടുത്തിട്ടുണ്ട് (A) ആ സമയത്ത് അദ്ദേഹത്തിന്‌ എന്തെങ്കിലും അത്യാവശ്യം ഉണ്ടായിരുന്നതായി അറിയാമോ (Q) അറിയാം (A) Residents’ Association-ന്‍റെ meeting-ല്‍ (Manacaud) പങ്കെടുക്കേണ്ടിയിരുന്നു.  പിന്നെ പലര്‍ക്കും കാണാന്‍ സമയം കൊടുത്തിരുന്നു.  അതൊന്നും നടന്നില്ല (A)  Spice Jet-ന്‍റെ air ticket എടുത്തിരുന്നത് Vijayawada to Bangalore മാത്രമല്ലേ (Q) അതെ (A)  Spice Jet-ന്‍റെ destination Bangalore അല്ലേ (Q) അതെ (A) Ext. P1 ആയി ഇവിടെ ഹാജരാക്കിയ ticket-ന്‍റെ terms and conditions അല്ലേ താങ്കളെ കാണിക്കുന്നത് (Q) കൃത്യമായി പറയാന്‍ കഴിയില്ല (A) Later witness admits it.  So it is marked as Ext. D1 (5 pages).  Ext. D1 shown to witness: ഇതിലെ clause 10 read out (Q) ഇത് ശരിയാണ്.  Air Act-ല്‍ പറയുന്നുണ്ട് passengers-നെ destination-ല്‍ എത്തിക്കുക എന്നത് Carrier-ഉടെ duty ആണ് (A) Spice Jet-ന്‍റെ നിയന്ത്രണത്തിന്‌ അതീതമായ കാരണങ്ങളാല്‍ flight delay വന്നാല്‍ Spice Jet ഉത്തരവാദി അല്ല എന്ന്‍ clause 10 പറഞ്ഞിട്ടില്ലേ (Q) ഉവ്വ് (A) Bangalore to Trivandrum Jet Airways വഴി അല്ലേ travel book ചെയ്തിരുന്നത് (Q) അതെ (A) Carriage by Air Act 1972 പ്രകാരം Flight 24 hours delay വന്നാല്‍ hotel accommodation തരണമെന്നു മാത്രമേ Act-ല്‍ ഉള്ളൂ എന്നും മറ്റ് recommendations ഒന്നും ഇല്ല എന്നും നഷ്ടപരിഹാരത്തിനും ബാധ്യതയില്ല എന്നു പറയുന്നു (Q) നിയമത്തില്‍ പറയുന്നുണ്ട്. ഞങ്ങള്‍ അങ്ങിനെ ആവശ്യപ്പെട്ടിട്ടില്ല (A) ഇതൊന്നും ഞങ്ങള്‍ ആവശ്യപ്പെട്ടില്ല (A).  DW1 cross examined and DW1 deposed that “എന്തടിസ്ഥാനത്തിലാണ് കാലാവസ്ഥ മോശമാണ് എന്ന്‍ നിങ്ങള്‍ പറയുന്നത് (Q) Bangalore airport-ല്‍ poor visibility ആയിരുന്നു, fog കാരണം.  അതു കൊണ്ടാണ്  bad weather എന്ന്‍ കൊടുത്തത് (A) 2 boarding pass-ഉം വാദിക്ക്‌ Vijayawada-യില്‍ വെച്ചു തന്നെ കൈമാറിയിരുന്നു എന്നു പറയുന്നു (Q) ശരിയല്ല. Spice Jet ഒന്നേ കൊടുത്തുള്ളൂ Vijayawada-Bangalore (A) Complainant’s case is that both boarding pass ie from Vijayawada to Bangalore and Bangalore to Trivandrum was issued from Vijayawada itself.  Complainant failed to produce the boarding pass of Jet Airways from Bangalore to Trivandrum.  The flight of opposite party from Vijayawada to Bangalore is delayed due to bad weather and it was informed to the complainant as per Ext. D3 (screen shot).  The passenger of the flight is bound by the terms and conditions contained in the air ticket which is marked as Ext. D1.  Condition No. 10 in Ext. D1 e-ticket reads as follows: “Spice Jet does not connect to other carriers; therefore, Spice jet is not responsible for any losses incurred by the passengers while trying to connect to or from other carriers.  Spice Jet will not liable in any way for delays/cancellations/diversions whether due to bad weather, government regulations, or for instances beyond Spice Jet’s control.  Spice Jet reserves 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 passenger or any other person on any ground whatsoever etc.”.  Complainant nowhere emphasizes that there is deficiency of service on the part of opposite parties and also to prove the cause of action within the jurisdiction of this Forum.  In Spice Jet Ltd. Vs. Ms. Himadri Sharma in Revision Petition No. 1294/2009 of Hon’ble National Commission, the Commission has categorically held that specific terms and conditions of the low fare airlines by which both parties are bound and accordingly the revision petition was allowed rejecting the claim for compensation for the delay of the flight.  We are of the opinion that complainant failed to prove deficiency of service on the part of opposite parties as well as cause of action within the jurisdiction of this Forum.  Hence this Forum cannot allow compensation for the complainant.  Hence we are constrained to dismiss the complaint without cost. 

In the result, complaint is dismissed without cost.    

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of July 2017.    

         Sd/-

P.SUDHIR                             : PRESIDENT

         Sd/-

R. SATHI                               : MEMBER

          Sd/-

LIJU B. NAIR                        : MEMBER

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C.C. No. 161/2016

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Chandrasenan. P

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of air ticket from Chennai to Vijayawada 

P2     - Boarding pass from Vijayawada to Bangalore

P3     - Copy of eTicket receipt from Bangalore to Trivandrum

P4     - Boarding pass

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Aneesh. S.S

 IV     OPPOSITE PARTY’S DOCUMENTS:

          D1     - Copy of air ticket and terms conditions (5 pages)

                                                                                                      Sd/-

PRESIDENT

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