Punjab

Ludhiana

CC/19/431

Satish Kumar - Complainant(s)

Versus

Vistara Airlines - Opp.Party(s)

R.K.Goyal Adv.

21 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:431 dated 10.09.2019.                                                        Date of decision: 21.03.2023.

 

Satish Kumar Jindal aged 57 years son of late Sh. Amarnath Jindal, resident of 10-F, Sarabha Nagar, Ludhiana.                    

……Complainant

                                                Versus

1. Vistara Airlines, Regd. Office: Tata SIA Airlines, Ltd., Jeevan Bharti Tower-1, 10^th Floor, Connaught Circus, New Delhi-110001.
2. M/s. Saggar World Holidays, Model Town Road, Opp. White House, Ludhiana.                                                       

…….Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Rajeev K. Goyal, Advocate. 

For OP1                         :         Sh. G.S. Sandher, Advocate.

For OP2                         :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant along with his seven family members planned a family visit to South Africa and he purchased air tickets 31.05.2019 for the flight to be scheduled to leave by 04.00 AM from Chhatrapati S. Maharaj Airport, Mumbai to South Africa and to take this flight from Mumbai Airport, the complainant had booked tickets in another connecting flight of Vistara Airlines from Shri Guru Ram Dass Ji International Airport, Amritsar on 30.05.2019 which were purchased from opposite party No.2 for a sum of Rs.41,600/-. The complainant further submitted that the air tickets from Amritsar to Mumbai were confirmed  for 30.05.2019 against flight No.UK636 with departure time 16.15 PM and he along with his family members started journey from Ludhiana to Amritsar airport on 30.05.2019 by car when he received a SMS that their flight No.UK636 from Amritsar to Mumbai has been cancelled by Vistara Airlines. On receiving SMS regarding cancellation of flight the complainant shocked and contacted opposite party No.2  and asked him to inquire and verify about the cancellation of flight from Amritsar to Mumbai. Opposite party No.2 confirmed regarding cancellation of the flight and also informed that no other flight would be available from Shri Guru Ram Dass Ji International Airport, Amritsar to Chhatrapati S Maharaj Airport, Mumbai on 30.05.2019. Due to emergent situation of cancellation of flight from Amritsar to Mumbai and in order to reach Mumbai Airport in time, the complainant approached opposite party No.2 and came to know that 6 tickets were available in one flight and two tickets were available in another flight from Delhi to Mumbai Airport in Vistara Airlines. The complainant further submitted that he requested the said agency to talk to officials of Vistara Airlines to issue new tickets by substituting the earlier tickets without charging any other amount from him who informed the complainant that the officials of Vistara Airlines have clearly refused to accede to the genuine request of the complainant for replacing the tickets and issuing new tickets. In order to reach Mumbai Airport in time and to catch the connecting flight to South Africa, the complainant spent an amount of Rs.1,80,000/- for the tickets of six family members in flight No.UK953 scheduled at 08.45 PM and Rs.60,000/- for the tickets of two family members in flight No.UK981 scheduled at 09.30 PM and in all the complainant spent amount of Rs.2,40,000/- for purchasing these tickets. However, the complainant has received only a sum of Rs.41,600/- as refund from Vistara Airlines but they straightway refused to refund amount of Rs.1,98,400/- paid in excess by the complainant and his family members for purchasing new tickets from Delhi Airport to Mumbai Airport. The complainant further submitted that Vistara Airlines has clearly committed deficiency in service by not cooperating with them and by not providing adjustment for purchase of eight new tickets for an amount of Rs.2,41,000/- and by refusing to refund excess amount of Rs.1,98,400/- paid by him from Delhi Airport to Mumbai Airport for which he is entitled to compensation on account of mental agony, anxiety and harassment. Further Vistara Airlines acted arbitrarily, illegally, unlawfully and without any proper cause and has adopted unfair trade method and practice. The complainant served a legal notice dated 26.06.2019 upon the opposite parties through registered post through counsel Sh. Vijay Jaggi, Advocate  but to no avail.  Hence this complaint whereby the complainant prayed for issuing directions to the opposite parties to refund the excess amount of Rs.1,98,000/- paid by the complainant with the opposite party along with compensation of Rs.1,00,000/-.

2.                Notice was sent to opposite party No.2 through registered post dated 16.10.2019 but none turned up for opposite party No.2 despite service of the notice and as such, opposite party No.2 was proceeded against exparte vide order dated 23.12.2019.      

3.                Upon notice, opposite party No.1 appeared and filed written statement and took preliminary objection the complaint is bad for non-joinder of necessary parties as ‘Vistara’ is a brand name of TATA SIA Airlines Limited under which it is operating its air transport services. The complainant has arrayed ‘Vistara Airlines’ as opposite party which is a non-est/non-existing entity in the eyes of law. Opposite party No.1 further alleged that  the complaint is false, frivolous and vexatious and this Commission has no territorial jurisdiction to try and entertain the complaint. Opposite party No.1 averred that every passenger at the time of booking a ticket either directly or through a travel agency is deemed to be aware of the terms and conditions of carriage of opposite party No.1 as specified on its website www.airvistara.com (“Terms and Conditions”) as per para 16.4 of the Terms and Conditions which sets out the “governing law and jurisdiction” for any dispute between opposite party and its customers:

          “16.4 Government Law and Jurisdiction

These Terms and Conditions shall be construed by, and governed in accordance with the laws of India and the Courts of Delhi shall have exclusive jurisdiction to settle any dispute or claim arising out of, or connection with these Terms and Conditions.”

According to opposite party No.1, Courts/Fora in Delhi have exclusive jurisdiction in this regard. Opposite party No.1 further alleged that its liability in relation to the cancellation of the flight is governed as per provisions 1.4 and 1.5 of Civil Aviation Requirements, Section -3, Air Transport, Series “M” Part IV, Issue I, dated 6^th August, 2010 issued by the Government of India, Office of Directorate General of Civil Aviation (hereinafter referred to as “DGCA Guidelines”). Further, in line with DGCA Guidelines, “Extraordinary Circumstances” has been specified in the Terms and Conditions of opposite party No.1, as published on its website www.airvistara.com. Opposite party No.1 further alleged that since the cancellation of the flight was attributable to Air Traffic Control being beyond its control and it is under no obligation under law or as per the terms and conditions to pay compensation whatsoever to the complainant. Opposite party No.1 further alleged that it requested the travel agent of the complainant to make the full refund and accordingly, complete refund of tickets for the flight was made to the complainant on 30.05.2019.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. However, opposite party No.1 admitted the factum of booking of eight tickets on Vistara flight UK636 from Amritsar to Mumbai on 30.05.2019 vide PNR-LSSSQM with the scheduled time of departure as 16.15 hours.  According to opposite party No.1, the flight was cancelled due to certain specific air space instructions near Delhi as advised by Air Traffic Control (ATC) and accordingly a text message was sent by it at 09.37 am to the contract No.9815300688 informing the complainant regarding cancellation of the flight. Opposite party No.1 further alleged that it requested the travel agent of the complainant i.e. opposite party No.2 to make the full refund and accordingly the complete refund of tickets for flight was made to the complainant on 30.05.2019. Any other bookings made by the complainant with opposite party No.1 through its travel agent is a separate transaction and has no nexus or connection with the subject bookings. There is no provision of substituting the new bookings with the earlier bookings, without charging any other amount, for a different flight ‘sector’. The complainant has concealed the material facts from this Commission as the notice sent by the complainant was duly responded to vide communication dated 15.10.2019. Opposite party No.1 denied any deficiency in service on their part and in the end, a prayer for dismissal of the complaint has been made.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of air ticket for 30.05.2019, Ex. C2 is the copy of email dated 31.05.2019, Ex. C3 to Ex. C9 are the copies of air tickets from Delhi to Mumbai for 30.09.2019, Ex. C10 is the copy of text message, Ex. C11 is legal notice dated 28.06.2019, Ex. C12 is the postal receipt, Ex. C13 is the courier receipt and closed the evidence.

5.                On the other hand, the counsel for opposite party No.1 tendered affidavit Ex. OPA of Sh. Niyant Maru, Authorized Representative of Tata Sia Airlines Limited along with documents Ex. OP1W1/1 is the copy of general power of attorney, Ex. OP1W1/2 is the copy of text message, Ex. OP1W1/3 is the guidelines issued by DGCA, Ex. OP1W1/4 and Ex. OP1W1/6 are the screen shots of webpage, Ex. OP1W1/5 is the copy of refund info, Ex. OP1W1/7 is the copy of reply dated 15.10.2019 submitted by opposite party No.1 to legal notice dated 28.06.2019 of the complainant and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply, affidavit and documents produced on record by both the parties.

7.                Undisputably, the complainant had booked eight air tickets for travelling on Vistara Airlines flight No.UK636 from Amritsar to Mumbai on 30.05.2019 having a scheduled time of departure 16.15 hours. The tickets were booked through opposite party No.2. The scheduled flight was cancelled due to air space instructions near Delhi as advised by Air Traffic Control (ATC) and accordingly, a text message was sent to the complainant at about 10.00 AM. Opposite party No.1 instructed opposite party No.2 to make full refund of the scheduled flight which was promptly done.

8.                The grievance of the complainant revolves around the fact that the complainant had booked the flight from Amritsar to Mumbai so to board another flight on the following day to South Africa and had booked ticket in this regard. Due to cancellation of scheduled flight from Amritsar to Mumbai, the complainant and his family members had to book another flight from opposite party No.2 in order to reach Mumbai so that to catch distant flight to South Africa on the following day and in this process, he travelled all the way to Delhi by road and also suffered mental agony and harassment. Also the complainant had to spent extra amount of Rs.1,98,000/- for the fresh flight tickets for himself and his family members from Delhi to Mumbai.

9.                The claim of the complainant pertains to the expenses incurred in additional flight which he had to incur because of cancellation of scheduled flight by opposite party No.1. The counsel for opposite party No.1 has referred to guidelines 1.4, 1.5 issued by DGCA and 16.2 adopted by opposite party No.1 which is reproduced as under:-

          “1.4 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 circumstance(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."

          1.5 Additionally, airlines would also not be liable to pay any compensation in respect of cancellations and delays clearly attributable to Air Traffic Control(ATC), meteorological conditions, security risks, or any other causes that are beyond the control of the airline but which affect their ability to operate flights on schedule. Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft or several aircraft on a particular day, gives rise to a long delay or delays, an overnight delay, or the cancellation of one or more flights by that aircraft, and which could not be avoided even though the airline concerned had taken all reasonable measures to avoid or overcome of the impact of the relevant factor and, therefore, the delays or cancellations."

          "16.2 Extraordinary Circumstances

TSAL is not obliged to pay compensation or provide facilities where cancellations and delays have been caused by an event of force majeure that is, extraordinary circumstances 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.

          Additionally, TSAL would also not be liable to pay any compensation in respect of cancellations and delays clearly attributable to Air Traffic Control (ATC), meteorological conditions, security risks, or any other causes that are beyond the control of the airline but which affect their ability to operate flights on schedule."       

 

A conjoint reading of these guidelines clearly shows that the scheduled flight from Amritsar to Mumbai was cancelled on the instructions of Air Traffic Control and in such contingency the circumstances were beyond the control of opposite party No.1 and as such, opposite party No.1 is not liable to pay any compensation to the complainant in respect of cancellation and the delay was clearly attributable to air Traffic Control. Further opposite party No.1 promptly refunded full price of the earlier booked tickets to the complainant.

10.              The counsel for the complainant has relied upon case titled as Yahoo Tour and Travels and others Vs Dr. Akash Lalwani and another in 2019(40 RCR (Civil) 790 of Hon’ble National Consumer Disputes Redressal Commission, New Delhi. The citation is not applicable to the facts and circumstances of the present case as in cited case, the flight left more than 10 hours before the schedule time of departure recorded in the ticket issued to the complainant and opposite parties failed to intimate the complainant with regard to rescheduling of the flights. In the present case, opposite party No.1 duly intimated the complainant about the factum and reasons for cancellation of flight, well in advance, by sending text message Ex. C10 = Ex. OPW1/2 to the complainant which reads as under:-

“Dear Vistara customer, we regret your flight UK 636 from Amritsar to Mumbai on 30.05.2019 has been cancelled due to Airspace restrictions near Delhi as advised by Air Traffic Control. For assistance with alternate options or a full refund, kindly get in touch with our Customer Service Center on +91 9289228888….”

Further, reference can be made to 2011(2) Apex Court Judgments 705 (S.C.) in InterGllobe Aviation Ltd., Vs N. Satchidanand whereby the Hon’ble Supreme Court has held that deficiency in service-passengers boarded air flight- due to dense fog, bad weather and poor visibility at the air port, departure of flight delayed putting passengers on board into inconvenience and discomfort- Held, delay in departure of flight does not amount to deficiency in service. Consumer Fora and Permanent Lok Adalats cannot award compensation merely because there was inconvenience and hardship to passengers on board as they could be permitted to get back to the airport lounge in the event of delay in departure beyond a reasonable period. In the event of delay of more than 3 hours in taking of the flights, appropriate provision for food and water are made apart from providing access to the toilets.

11.              In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The 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. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

                   As such, the opposite parties were not negligent or deficient while rendering their services and the complainant has failed to discharge his initial burden of proving deficiency in service on the part of the opposite parties. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

12.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:21.03.2023.

Gobind Ram.

 

 

Satish Kumar Jindal Vs Vistara Airlines                       CC/19/431

Present:       Sh. Rajeev K. Goyal, Advocate for the complainant.

                   Sh. G.S. Sandher, Advocate for OP1.

                   OP2 exparte.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:21.03.2023.

Gobind Ram.