FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application U/s.12 of the C.P. Act, 1986.
The complainant Sri Mukesh Agarwal booked air ticket from the OP1 for the journey to Mumbai on 12.02.2018 at 9-30 PM to reach Mumbai on 13.02.2018 at 12.30 AM. But suddenly on 10.02.2018 the complainant was formally notified through system generated text service that the schedule flight had been cancelled for some undisclosed reason. The complainant thereafter contacted the customer care of the OPs but failed to get any effective information. The complainant was neither arranged alternative flight nor was refunded the money. The complainant incurred loss of Rs.11,300/- for cancellation of his lodging in addition to the irreparable loss of his goodwill to his business associates. The complainant tried to communicate with the OPs several times but could not be successful. The OPs also did not bother to communicate with the complainant. This is a gross deficiency on the part of the OPs for which the complainant approached the Consumer Commission for justice with relief as detailed in the complaint petition.
The OPs have filed their W.V. contending inter alia that the complainant has not come before the Commission with clean hand as material facts pertaining to the booking have been concealed. The complainant has failed to disclose that despite such cancellation, Inter Globe Aviation Ltd. provided him an option in accordance with the applicable law and the binding conditions of carriage, to either opt for an alternate flight or opt for a full refund. The OPs further states that the complainant was contacted to his registered Mobile No. given by him several times to know his option but he remained un-contactable. Further, after failed attempts to contact the complainant InterGlobe Aviation Ltd. in order to ensure that the complainant has the option to choose a full refund or an alternative flight, moved the complainant’s flight on the next day of his original booking and the complainant was duly informed through SMS about the same. But the complainant did not turn up at the IndiGo Check in counter within the mandated check in timelines and failed to select any option provided by InterGlobe Aviation Ltd. It is further submitted that the complainant in order to mislead the Commission has annexed boarding passes issued by an entirely different Airlines, on different dates than that of the scheduled travel in issue and from a different airport for which the complaint ought to be dismissed on this count only. It is further submitted that since the flight was successfully moved and the same was duly communicated to the complainant, Inter Glob Aviation Ltd. complied with obligation under the applicable law and the binding terms of carriage. The negligence on the part of the complainant in failing to report at the Indigo checking counter for moved flight or choose an alternate option is solely attributable to the complainant and Inter Glob Aviation Ltd. for the same.
The complainant booked one air ticket for travel from Kolkata to Mumbai, on board Indigo Flight No. 6E-961(Indigo Flight) with schedule departure time at 21.30 Hrs and date of travel being 12.02.2018. But the operation of indigo flight was affected beyond the control of the inter glob aviation ltd. who constrained to cancel the indigo flight. The complainant was informed about such cancellation by way of an SMS sent to him on 09.02.2019 at around 14.24 Hrs. on the registered Mobile No. (9051569487) provided by the complainant at the time of booking. Despite several attempts by the staff of Inter Glob Aviation Ltd. the complainant neither opted for a full refund nor opted for an alternative flight and disconnected the call. Thereafter the staff of Inter Glob Aviation Ltd. made numerous attempts to call the complainant on his registered mobile no. which however, went unanswered. In view thereof, the staff of InterGlobe Aviation Ltd. made every attempt to assist the complainant on account of cancellation of the IndiGo Flight (which occurred on account of reasons beyond the control of InterGlobe Aviation Ltd.), however for reasons best known to the complainant, the complainant neither choose the alternative flight /refund options made available to him nor checked in for the Rebooked Flight. As such there is no deficiency in service on the part of the OPs and is not liable to make any payment to the complainant with respect to the air travel in question as claimed or otherwise.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. The complainant and the OPs have filed their respective Evidences and reply to the questionnaire set forth by their adversaries have been filed. The OP3 have filed their BNA.
While perusing the records it is observed that the complainant Mr. Mukesh Agarwal booked the air ticket from the OPs for the Flight No. 6E-961(Indigo Flight) with schedule departure time at 21.30 Hrs and date of travel being 12.02.2018.. The said Flight was cancelled due to IndiGo operational reason. The information for cancellation of Flight was communicated to the complainant on 09.02.2018 vide SMS dated 09.02.2018. The screen shot of the SMS is reproduced herein below.
“Manual Flight Cancellation SMS Success : 09 Feb-2018 14:24:07 919051569487 IndiGo: Mr. Mukesh Agarwal IndiGo flight 6E961 from CCU to BOM on 12Feb2018 is cancelled. Reason : Flight is cancelled due to IndiGo operational reason. To explore alternate flight or to process refund. Click on http:// 19f.in/Owf78nwg or check your mail. Inconvenience is regretted.” The complainant has however admitted the fact that he was informed of the alternative flight option or a full refund on 10.02.2018 while perusing the reply of the questionnaire set forth by the OPs.
In view of the said cancellation and the complainant not choosing the alternate flight option or full refund option provided to the complainant the OP as per their usual procedure rebooked the flight on the next day under Flight details : IndiGo Flight 6E- 496 schedule to depart at 07:00 hours on 13.02.2018 which was however not availed of by the complainant. It is also a fact that the said rebooked flight might not be suitable to the complainant for his personal reasons also. But it is established from the available documents that the rebooked flight information was sent to the complainant through SMS on 12.02.2018 at 22-27 hours. As such it is found proved that the OPs have tried from their end the alternate remedy so far available with them. But the bare truth is that the subject flight dated 12.02.2018 was cancelled for the operational fault of the OPs for which the complainant had suffered in some way or other. So the OPs cannot be escaped from their liability of providing the promised service which tantamount to deficiency in service. Now let us see what are the provisions for compensation for cancellation of flight as per applicable clause No.3.3.2(c) of Civil Aviation Requirements issued by the Govt. of India under File No. 23- 15/2016- AED, Effective Date: 01.08.2016
3.3.2 : Passengers who have not been informed as per provisions contained in Para 3.3.1 the airline shall provide compensation in addition to the refund of air ticket in accordance with the following provisions;
c) INR 10,000/- or booked one-way basic fare plus airline fuel charge, whichever is less for flights having a block time of more than 02 hours.
The cost of the ticket as per submission made by the OP is Rs.3582/- in the reply to the questionnaire of the complainant. But there is no whisper of airline fuel charge in terms of monetary value in any submission of either of the parties for which we cannot ascertain the exact monetary value of the same. Moreover, the amount of Rs.2396/- mentioned as compensation in the Evidence of the OPs has no break up details for which the same is also not acceptable. In view of the above, the maximum allowable amount as per the provisions of CAR being Rs.10,000/- is considered as compensation.
Ld. Advocate for the OPs has cited a decision of a five member Bench of the Hon’ble NCDRC in the case of The Manager, Air India v. M/S India Everbright Shipping & Trading Co. in First Appeal No. 451 of 1994 decided on 20.04.2001. The Hon’ble Commission observed the following:
If damages are to be awarded it has to be within the four corners of law on the subject. Section 14(1)(d) of the CPA has to be read with CA Act(Carriage by Air Act). When there is law defining the rights and its applications in any particular respect that has to be followed. Viewed from this angle when CA Act limits the liability of an air carrier to an extent that cannot be exceeded by the Forum under the CPA. This is how Section 14 is to be read and understood. So we have been restricted to be within the set rules provided in the CAR issued by the Govt. of India.
Under the above facts and circumstances we are of the opinion that the complainant has established the case against the OPs. As such the complainant is entitled to receive the refund of the cost of the ticket of Rs.3,582/- along with cost of compensation of Rs.10,000/- and litigation costs.
All the points under determination are answered accordingly.
In the result, the Consumer Complaint succeeds
Hence,
Ordered
That the Consumer Complaint be and the same is allowed on contest against the OPs with the following directions.
- The OP 1 & 2 are directed to refund jointly and severally the amount of Rs.3,582/- to the complainant being the cost of the ticket.
- The OP 1 & 2 are further directed to pay jointly and severally a sum of Rs.10,000/- to the complainant as compensation towards harassment caused to the complainant.
- The OP 1 & 2 are also directed to pay jointly and severally a sum of Rs.5,000/- to the complainant as litigation costs.
The above orders are to be complied within a period of 30 days from the date of the order failing which the complainant will be at liberty to put the order into execution as per rules.
Copy of the Judgment be delivered to the parties free of cost as per C.P. Act and the
Judgment be uploaded to the website of the Commission forthwith for perusal of the parties.
