West Bengal

Birbhum

CC/61/2023

Sumit Roy - Complainant(s)

Versus

The Authorised Signatories, AirAsia (India) Limited - Opp.Party(s)

13 Oct 2023

ORDER

J U D G E M E N T

Shri Sudip Majumder- President-in-Charge.

            The complainant/petitioner files this case U/S 35 of Consumer Protection Act, 2019. The fact of the case in brief is that one Sumit Roy aged about 32 years, S/o.  Sujit Roy  , permanent resident of Kalikapur, Bolpur, Dist.- Birbhum had booked flight for himself and his wife from Air Asia vide booking ID. NN7810052280966 and paid Rs. 49,318/-. The flight was on 20^th April, 2020 from Kolkata to Denpasar Bali Via Kuala Lumpur.

            It is the further case of the complainant that the flight was cancelled due to covid 19 and had modified the booking to another date on 1^st August 2020 and paid Rs. 7,000/- to the respondent’s concern. Thereafter, the complainant’s flight also was cancelled from the respondent’s concern. The complainant contacted the respondent’s concern for refund but there has been no respond from the respondents’ end.

            It is the next case of the complainant that the respondent’s concern had given the complainant membership of Rs. 46,374/-. And the last date was 24^th July 2022. Later, the complainant when he went for booking ticket before 24^th July 2022 it was showing ‘expired’.

            Thereafter, the complainant several times intimated the matter to the OP side through telephone,   e-mail and legal notice through his Ld. Advocate Vishakha Chourasia as on dated 30/11/2022. But the OP side neither sent any reply against the legal notice nor took any step for refund of the amount in question.

            Hence, after finding no other alternative the complainant is compelled to file this complaint before this Forum/Commission for proper relief and prays for order to:-

(i)  Direct the Respondents to duly look into this matter with foremost importance; to take necessary steps to render the proper service to the complainant and to provide the complainant with necessary resolution and to refund Rs. 46,374/-.                                      

 

2. Direct the Respondents to provide Rs. 80,000/- as compensation to the complainant for the deficiency in service and mental harassment and agony.
3. Direct the Respondents to pay the cost of litigation.
4. Such other/further order/orders as the commission may deem fit and proper in the interest of justice, equity and good conscience.

It appears from case record that after receiving the summon/notice none appeared and no step was taken by the OP/AirAsia (India) Limited. No written version has yet been filed by the OP/AirAsia (India) Limited. As a result, vide order No. 04 dated 14/07/2023 this Commission stated for running of the instant case exparte against the OP/AirAsia (India) Limited.

Complainant’s side submitted evidence-in-chief and written notes on argument. On the date of argument complainant and his wife were also present before this Commission. Some documents have also been filed by the complainant. Those have been compared with original documents. Thereafter, Ld. Advocate for the complainant made oral argument in support of his case.

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            In this case, the complainant booked flight from OP/AirAsia (India) Limited, vide booking                                 ID. NN7810052280966 and paid Rs. 49,318/-.

Thus, the complainant is a consumer and the OP/AirAsia (India) Limited is the service providers. Hence, the complainant is a consumer as per Sec. 2 (7) d (ii) of the Consumer Protection Act, 2019.

Point No. 2:

            In this case, the cause of action arose on and from 30/11/2022 and the case has been filed on 28/04/2023 and, as such, it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 2019 and, as such, the instant complaint is not barred U/S 69(1) of the C.P. Act, 2019.

            Pecuniary Jurisdiction of this District Commission as per Notification No. G.S.R. 892(E). dated 20^th December, 2022 by Consumer Affairs Department, Govt. of India, New Delhi is Rs. 50 lakh.

            That the complainant is resident of Suri, Birbhum, which is under the Territorial Jurisdiction of this District Commission as per Sec. 34(2) of C.P. Act, 2019.

            Hence, this Commission has Pecuniary Jurisdiction as well as Territorial Jurisdiction.

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant

 

 

booked flight for himself and his wife from the OP/AirAsia (India) Limited vide booking ID. NN7810052280966 and paid Rs. 49,318/- for the same. It was a round trip from Kolkata to Denpasar Bali via Kuala Lumpur and return from Denpasar Bali to Kolkata. Date of journey was 20/04/2020 and date of return journey was 26/04/2020.

The said flight was cancelled due to Covid-19 situation. Thereafter, complainant had modified the booking to another date on 1^st August, 2020 and further paid Rs. 7,000/- to the OP/Air Asia for the same. Further, the flight was also cancelled by the OP/AirAsia (India) Limited. Then, the complainant contracted the OP/AirAsia (India) Limited concern for refund the booking money but there has been no response from the OP side.

Ld. Advocate for complainant cited a Notification of Ministry of Civil Aviation, Govt. of India, DT. Section, being Notification No. F No AV- 29011/27/2020-DT dated 16/04/2020 wherein it is mentioned that…. “If a passenger has booked a ticket during the first lockdown period and the airline has received the payment for booking of air ticket during first lockdown period (from 25^th of March to 14^th of April 2020) for travel during the second lockdown period (from 15^th of April to 3^rd of May, 2020) for both domestic and international air travel and the passenger seeks refund on cancellation of the ticket the Airline shall refund the full amount connected without levy of cancellation charge . The refund shall be made within a period of three weeks from the date of request of cancellation.”

In the instant case, the said flight was cancelled due to Covid-19 situation. Thus, the complainant was entitled to refund of the full amount of booking amount without any cancellation charge.

Moreover, the OP/AirAsia (India) Limited granted membership to the complainant with a consideration amount of Rs. 46,374/- and the last date of booking ticket through the said membership was 24^th July, 2022. But it was showing “expired” on 10^th July, 2022 i.e. before the last date (24^th July, 2022).

On the date of argument the complainant and his wife also were present before this Commission. It is the submission of the complainant that they newly-wed couple. That’s why they booked flight ticket for honeymoon trip. But they could not avail the flight due to deficiency in service on the part of the OP/AirAsia (India) Limited.

From the above discussion, this Commission is of the view that non-refunding of booking amount is very significant. In the instant case, the OP/AirAsia (India) Limited avoid the refund of booking amount in a tactful way.

Moreover, the OP/AirAsia (India) Limited do not file their written version and even did not contest this case.

Thus the OP/AirAsia (India) Limited appear to have admitted the fact. It is proved beyond all reasonable doubt that there is/was deficiency in service as per Sec. 2(11) of the C.P. Act, 2019.

 

 

Moreover it is a pointer of unfair trade practice as per   Sec. 2(47) of C.P. Act, 2019 on the part of the OP/AirAsia (India) Limited.

Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubt.

Point No. 4:

As in this case, it is proved that there is deficiency in service on the part of the OP/AirAsia (India) Limited.

Hence, the complainant is entitled to get relief or compensation as prayed for.

            We find in Arun Jain vs. Thai International Ltd. OV NO. 80 of 1997 decided on 21 March, 2002 (NC)…… “Since there is no similar law in India, compensation payable will depend on the contract between the passenger and the airlines and in case there is no such contract, passenger will be awarded compensation under the law of torts”

• In ICICI Bank Ltd. Rep. By Its. vs. Mr. Kateka Sudhakar,S/O K.J… on 5 March, 2018 the Hon’ble State Commission, Hyderabad stated in para 16 as follows:-

“16. The Supreme Court held that the compensation to be awarded is to be fair and reasonable.          In Charan Singh vs Healing Touch Hospital and others 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer  and the change it brings in the attitude of the service provider. The Court held While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.”

 In our opinion, honeymoon is a very significant phenomenon for a newly-wed couple. The day comes only once in married life. This couple was deprived of such memorable event only due to deficiency in service as well as deliberate unfair trade practice on the part of the OP/AirAsia (India) Limited. They have tactfully misappropriated the booking money of the complainant by adopting unfair means. Such an artifice never comes within the preview of –“fair business practice”- as enunciated in the act concerned. The scale of mental agony which the couple underwent due to loss of the chance of celebrating honeymoon is so large that can not be measured physically by any measuring instrument. Equally there is no yardstick to assess the quantum of compensation which may be adequate to reparate the couple. However, the complainant has claimed Rs. 80,000/- in the prayer position of the complaint as the compensation for mental agony and harassment. It is by no means unjustified to our consideration. Accordingly we direct the OP/AirAsia (India) Limited to pay such amount to the complainant.

 

 

             In addition to that we consider that the OP/AirAsia (India) Limited should be saddled with exemplary cost of Rs. 10,000/-(Ten thousand only) for their deliberate unfair trade practice as well as for the change it brings in the attitude of the service provider as not to repeat the same in future. Hence, the OP/AirAsia (India) Limited is directed to deposit the said amount with Consumer Legal Aid Accounts, DCDRC, Birbhum.

• In Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• In Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% per annum calculating on and from the date of filing of this case.

Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 61/2023 be and same is allowed in part exparte against the OP/AirAsia (India) Limited  with cost.

The OP/AirAsia (India) Limited is directed to pay Rs. 46,374/- (Forty six thousand three hundred seventy four only) to the complainant along with interest thereon @ 9% per annum calculation on and from 28/04/2023 (i.e. from the date of filing of this case ) till realization. The OP/AirAsia (India) Limited is also directed to pay Rs. 80,000/- (Eighty Thousand) to the complainant/petitioner as against mental agony and harassment to the complainant and pay

            Rs. 2,000/- (Two thousand only) to the complainant as cost of litigation.

The OP/AirAsia (India) Limited is directed to pay the exemplary cost of   Rs. 10,000/-(Ten thousand only) to the Consumer Legal Aid Accounts, DCDRC, Birbhum, Account No. 34041754378, IFSC Code. SBIN0000191, State Bank of India, Suri Branch.

The entire decree will be complied by the OP/AirAsia (India) Limited within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

 The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.