Karnataka

Bangalore 4th Additional

CC/13/810

M/s. Skanda Land Promoters Pvt Ltd A Registered Company Incorportated company under the Provisions of Companies Act - Complainant(s)

Versus

The manager Authorized Signatroy Easy trip Planners Pvt Ltd - Opp.Party(s)

Udayakumar.P.

06 May 2019

ORDER

Complaint filed on: 18.04.2013

Disposed on: 06.05.2019

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027

 

 

CC.No.810/2013

DATED THIS THE 06^th MAY OF 2019

 

 

PRESENT

 

 

 

 

SMT.PRATHIBHA. R.K., BAL, LLM, PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

 

 

Complainant/s: -                           

M/s.Skanda Land

Promoters Pvt. ltd.,

A Registered Company, Incorporated Company

under the provisions of Companies Act,

Having its Registered Office at: Panathur-Village, Varthur

Road, Off ORR Road,

Bengaluru-13.

Rep. by its Managing Director Mr.Ravish

 

By Adv.Sri.M.R.Hiremathad

 

V/s

Opposite party/s:-    

 

1. The Manager/Authorized Signatory

Easy Trip Planners Pvt. ltd., Building No.460, F.I.E

Patparganj Industrial Area,

New Delhi-92.

 

Absent

 

2. The Manager

Easemytrip,

Koramangala, No.13,

2^nd Floor, Adlabs Building Koramangala, 5^th Block, Bengaluru-95.

 

Ex-parte

 

3. The Managing Director/CEO Spice Jet Pvt. ltd.,

Murasoli Maran Towers,

MRC Nagar Main Road,

MRC Nagar, Chennai (Madras) Tamil Nadu-600028.

 

By Adv.Sri.Josita Juris

 

ORDER

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

            This complaint is filed by the Complainant against the Opposite party no.1, 2 & 3 (herein after called as OPs), under section 12 of the Consumer Protection Act, 1986. The Complainant prays to direct the OPs to refund ticket booking amount of Rs.2,93,400/-, hotel booking, sightseeing charges of Rs.52,600/-, to pay compensation of Rs.4 lakhs, to pay Rs.1,50,000/- towards deficiency in service all along with interest at 24% p.a. from the date of booking flight tickets, to pay cost and to grant such other reliefs deem fit for which the Complainant is entitled to in the interest of justice and equity.

 

2. The brief facts of the complaint is as under:

The Complainant submits that, it is a registered company, incorporated under the provisions of Companies Act. The company is involved in the land developmental ventures. As a part of encouraging dedicated workmanship, the company had booked flight tickets in two invoices for its 12 employees on 26.09.12 for a recreational trip from Bengaluru to Srinagar all along with return journey. The scheduled journey was to start on 09.11.12 at about 8.45 hrs., and their return was scheduled on 13.11.12 at about 14.35 hrs., The said tickets were booked through OP.2 on behalf of OP.1 to travel in the flights owned by OP.3.

 

2a. The Complainant further submits that, as per the scheduled journey on 09.11.12 all the passengers i.e. Complainant’s employees were appeared before the officers of OP.3 to collect their boarding passes and to get checked in their baggages for their intended journey and all its employees were waiting for the same. It was announced that the scheduled flight was cancelled due to technical reasons without any prior notice. Hence, the Complainant’s employees suffered unexplained mental agony and upon enquiry it was told that there is no other alternative for their journey and the ticket amount will be refunded. The Complainant had spent Rs.2,93,000/- towards booking of round-up journey tickets and had also booked hotels  at Srinagar by spending Rs.52,600/- as an advance for the accommodation/staying and local tourist operators charges for sightseeing. All these advance booking money was non-refundable deposits.  

 

2c. The Complainant further submits that, the sole intention of the Complainant is that, in arranging this recreational rip was to encourage the workmanship among its employees but the deficiency in service on the part OP.3 has resulted in discourage/desperation among the employees of the Complainant and the Complainant has not earned its growth. The authorized person of the Complainant has approached OP.1 many times for the refund of ticket amount and compensation, but OP.1 replied reluctantly and neglected in settling the claim and dragged the matter which caused hardship and financial loss to the Complainant. Hence, the Complainant issued legal notice dtd.22.01.13 to all OPs. Though notice served on OP.1, till date not responded. Hence, this complaint.   

 

3. Notice served to OP.1 to 3. Notice though served, OP.2 not appeared before this forum, hence, placed exparte. Official of OP.1 appeared before this forum, but not filed objection. Later did not appear, hence called out absent. The OP.3 appeared before this forum and filed objection. In the objection, the OP.3 submits that, the complaint is not maintainable and filed on false grounds. It admits in respect of booking of 12 tickets, journey from Bengaluru to Srinagar and return journey. Rest of the allegations denied as false.  The OP further submits that, all the passengers of OP.3 are governed by the terms of carriage contained in the e-ticket, framed in accordance with the Carriage by Air Act, 1972 and notification regarding the application of the carriage which is non-international. Hence, the Complainant while booking the ticket, have agreed and accepted the said terms & conditions, is now estopped from raising the alleged dispute. Further there is no contract contrary to the Rule 19 of the Chapter XI of the notification regarding application of the said Act. 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.

 

3a. The OP.3 further submits that, as per the Terms of carriage, which is a contract binding upon the parties, the OP had an unequivocal and unconditional authority to cancel the flight due to bad weather or other technical or operational defects or for other reasons beyond the power and control of the OP for which the OP could not be made liable. In the instant case, the flight was delayed and thereafter cancelled due to technical and operational reasons. Hence, there is no deficiency in service. The Complainant has not approached this court with clean hands and has concealed material and relevant facts. The scheduled time of departure of the said flight on 09.11.12 from Bengaluru to Srinagar was 0845 hours and the aircraft had to come from Pune. In the morning itself at about 0800 hours, the concerned staff at Pune came to know that there is some technical fault in the said aircraft and the said aircraft was not fit for further flying. As soon as the staff at Bengaluru airport came to know about this fact, keeping in view the said peculiar circumstances and overall safety and security of the passengers, the said flight was canceled and this fact was intimated to all the passengers, flying in the said flight, by sending SMS to them. The said SMS was duly delivered at the mobile number which was given to the OP at the time of booking of the ticket. The relevant documents to the said effect, which are mandatorily to be complied with maintained and given to DGCA are also duly complied with. After about four hours the said aircraft was declared fit for flying after removal of technical fault. The said flight departed from Bengaluru at 1439 hours and reached Delhi at 1720 hours. After receipt of information about flying fitness of the said aircraft, the passengers were contacted and given the option to fly in the said flight from Bengaluru to Delhi, as further flying to Srinagar was not possible due to ATC/Govt., regulations which stipulated that after sunset 1700 hours no flight is permitted to land or take off from Srinagar airport, due to aforesaid govt., regulations as well as security reasons. The passengers sought refund of their fare, as they stated that they will make alternate arrangement and as such, the amount of Rs.1,62,600/- was refunded to the passengers by the airline through OP.1, at their request. In so far as return journey is concerned, there was no intimation with OP.3 regarding any cancellation of the said 12 tickets either by the passengers or by OP.1 & 2 and as such, the tickets were treated as valid for journey. Despite confirmed tickets, none of the passengers reported at the Srinagar airport for boarding the flight and as such, all these 12 passengers were declared as ‘No Show’ and hence, their ticket amount was forfeited. OP.3 cancelled the return tickets, without any intimation from passengers or OP.1 & 2 this would have amounted to deficiency in service. Moreover, at the time of requesting for refund of the amount on account of cancellation of flight, it had been represented to the concerned staff of OP.3 that the Complainant will make alternate arrangements since they need to go to Srinagar as they have already made the required hotel arrangements etc., Since none of the passengers reported at the Srinagar airport on 13.11.12, for availing the return flight, amount equivalent to all the 12 tickets for the journey on the return sector had been forfeited, in terms of the Terms of Carriage. In view of the same, there is no deficiency. The reasons explained above causing delay and thereafter cancellation of flight fall within the purview of Rules 1.4 and 1.5 of the Civil Aviation Requirements (CAR) issued by the office of Director General of Civil Aviation, made effective from 15.08.10. By refunding the entire ticket amount for the cancelled flight and accepted by the Complainant, without any demur and protests, the OP.3 has already discharged its obligations.

 

3b. The OP.3 further submits that, all the flights take-off and land as per the directions and instructions of ATC, which is the administrative authority in India managing the movement of aircrafts all over the country. Even when the fight schedules have been confirmed, sometimes, due to administrative and operational reasons, the ATC directs the operators to either pre-pone, post-pone or even cancel the flights and in the aforesaid eventuality the operators have no option but to comply with the said mandatory directions of ATC. In the instant case, the flight had to be cancelled by the OP.3 on account of technical fault in the aircraft. However, whenever, the airline operators are constrained to cancel the flight, they try their best to minimize inconvenience to the guests by intimating them about the same, well in advance, An intimation to this effect was duly given by the OP.3 to the Complainant on the mobile number, given by him at the time of booking the tickets, well before the scheduled time of flight, as such OP.3 had communicated about the cancellation of the flight in question to the Complainant and he had received the same. Hence, prays this forum to dismiss the complaint.

 

4. In the course of enquiry into the complaint, the Complainant and the OP.3 has filed their affidavit reproducing what they have stated in their respective complaint and objection. Both have filed written arguments. The Complainant has produced documents which were marked. We have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.  

 

5. Based on the above materials, the following points arise for our consideration;  

 

1. Whether the Complainant has proved that there is deficiency in service on the part of the OPs, if so, whether he entitled for the relief sought for ?

 

2.  What order ?

 

6. Our findings on the above points are as under:

Point No.1:  In the affirmative

Point No.2:  As per the order below

 

REASONS

 

7. Point No.1: It is an admitted fact that, the Complainant had booked flight tickets for its 12 employees by paying Rs.2,93,000/- with OP.3 through OP.1 & 2 for to and fro journey i.e. between Bengaluru to Srinagar. The scheduled journey was to start on 09.11.12 and return schedule was on 13.11.12. The contention of the Complainant is that, as per the schedule journey on 09.11.12, the Complainant’s employees collected their boarding passes and got their baggages checked. It was announced that the scheduled flight was cancelled due to technical reasons without any prior notice. OP.3 told that, there is no other alternative for their journey and the ticket amount will be refunded. But till today, OP.3 has not refunded the amount of Rs.2,93,400/-. The Complainant further alleged that, the Complainant had booked hotels at Srinagar by spending Rs.52,600/- as an advance for the accommodation/staying. Due to non-availability of the flight, the Complainant’s employees cancelled the tour. Hence, the Complainant lost Rs.52,600/- paid as advance for the hotel accommodation.

 

8. Per contra, OP.3 submits that, on 09.11.12 flight was cancelled due to technical reasons and on the same was intimated to the Complainant’s employees. The Complainant’s employees were contacted and given the option to fly in the said flight from Bengaluru to Delhi, as further flying to Srinagar was not possible due to ATC/Govt., regulations which stipulated that after sunset 1700 hours no flight is permitted to land or take off from Srinagar airport, due to aforesaid Govt., regulations as well as security reasons. The Complainant’s employees sought refund of their fare, as they stated that they will make alternate arrangement and as such, the amount of Rs.1,62,600/- was refunded to them by the airline through OP.1, at their request. To substantiate this contention, OP.3 has not produced any documentary evidence to prove that Rs.1,62,600/- was refunded to the Complainant through OP.1. Further, this forum has directed the OP.3 to produce the said documents on 17.04.18. Till today OP.3 has not appeared before this forum and not produced any document to substantiate their contention. Hence, the contention of OP.3 cannot be accepted. However, OP.3 has raised the contention stating that, so far as return journey is concerned, either the Complainant or OP.1 & 2 have not intimated regarding any cancellation of the said 12 tickets for return journey. Hence, the tickets were treated as valid for journey and as such the tickets amount was forfeited. In this regard, the Complainant has failed to prove that, neither the Complainant nor OP.1 has requested for the cancellation of the return journey on 13.11.12 before departure time.

 

9. Further, the Complainant is requesting to refund advance amount which he has spent for hotel accommodation of Rs.52,600/-. To substantiate his contention, the Complainant has produced RTGS receipt/Ex-A6 made to the Hotel Residency at Srinagar on 04.10.12. The Complainant has not produced any documents to show that, he has made attempt to cancel the hotel accommodation. The Hotel Residency has refused to pay the advance amount paid by the Complainant towards accommodation. Hence, the contention of the Complainant that he has lost of Rs.52,600/- paid as advance towards hotel accommodation cannot be acceptable. However, the Complainant is entitled to get the booking amount of Rs.1,62,600/- along with interest at 9% p.a. from the date of payment till the date of realization. Further, the Complainant is also entitled for compensation of Rs.10,000/- and cost of Rs.10,000/-. Accordingly, we answered the point no.1 in the affirmative.

 

10. Point no.2: In the result, for the foregoing reasons, we proceed to pass the following order.

 

ORDER

 

The complaint filed by the Complainant is allowed in part.  

 

 

2. The OP.1, 2 & 3 jointly and severally are directed to refund the amount of Rs.1,62,600/- to the Complainant along with interest at 9% p.a. from the date of payment till the date of realization.

 

3. Further, the OP.1, 2 & 3 are also directed to pay compensation of Rs.10,000/- and cost of litigation of Rs.10,000/- to the Complainant.

 

4. This order is to be complied by the OP.1, 2 & 3 within 45 days from the date of receipt of this order.

 

          Supply free copy of this order to both parties. 

 

(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by us in the Open Forum on this, the 06^th May 2019)

 

 

 

(ROOPA.N.R)     MEMBER

(PRATHIBHA.R.K)  PRESIDENT

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Ravish, who being the Authorized Representative of the Complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1 & A2	2 Invoice dtd.26.09.12 Rs.2,12,850/-, Rs.80,550/-
Ex-A3 & A4	2 Confirmation ID dtd.26.09.12
Ex-A5	Statement of accounts for the period 01.09.12 to 30.09.12
Ex-A6	ING Vysya Bank receipt dtd.04.10.12 Rs.52,600/-
Ex-A7	Hotel The Residency Booking Receipt from 09th Nov to 13th Nov
Ex-A8	Legal notice dtd.22.01.13
Ex-A9	3 original postal receipts
Ex-A10	Original Courier receipt
Ex-A11	Original postal acknowledgement
Ex-A12	Returned RPAD cover
Ex-A13	Track result of Indian post
Ex-A14	Track report

 

1. Witness examined on behalf of the OP/s by way of affidavit:

 

Sri.S.H.Vijay Roy, who being the Manager - Legal of OP.3 was examined. 

 

 

Copies of Documents produced on behalf of OP/s:

 

NIL -

 

 

 

(ROOPA.N.R)     MEMBER

(PRATHIBHA.R.K)  PRESIDENT