Date of Hearing the 17th Day of November, 2015
Date of Judgment Monday, the 21st Day of December, 2015
JUDGMENT
This Consumer’s Complaint under Section 17 (wrongly mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of a Passenger of a Flight against the Opposite Party Nos.1 to 5 for deficiency in Services etc.
The case of the Complainant, in short is that he is a Chartered Accountant in profession and partner of a reputed firm of Kolkata and being lured about the online booking facilities in air travel tickets, on 03.05.2012 he got in touch with Opposite Party No.1 through their Website and booked two air tickets for himself and his wife for journey from Kolkata to Bagdogra and back upon making payment of Rs.19,728/- (Rs.8,264/- for onward trip and Rs.11,464/- on account of return trip) by using his Debit Card and could procure e-tickets from Spice Jet Ltd. On 16.05.2012 the Complainant flew from Kolkata Airport to Bagdogra Airport but he could not fly from Bagdogra Airport on 22.05.2012 with the help of the said e-tickets. On that date when he reached at Bagdogra Airport he came to know that the tickets were not booked by the Opposite Party No.1. Being perplexed the Complainant made several telephonic call frantically but he was advised to purchase air tickets from his own fund and to get in touch thereafter with the Opposite Party No.1 for the purpose of getting refund only. The Complainant and his wife was put in most inconvenient and difficult condition as there was no air ticket on that date. They had to stay in a hotel near Bagdogra Airport and with the help and assistance of employees of Bagdogra Airport could manage tickets on the next day. As a result, Srimati Atasi Pal, wife of the Complainant failed to avail appointment earlier fixed on 23.05.2012 in the Infertility Clinic of Dr. Goutam Khastagir at Kolkata for her pregnancy treatment. On 08.06.2012 he issued notice upon the Opposite Parties through his Advocate with a claim for refund of sum of Rs.11.464/- paid for the air e-tickets on 22.05.2012 for the journey from Bagdogra Airport to Kolkata Airport together with claims for adverse description totalling Rs.50,493/- within a period of 21 days but it remains unheeded. Hence, the Complaint with the following reliefs, viz. – (a) a sum of Rs.7,500/- on account of excess payment of two air tickets on 23.05.2012; (b) a sum of Rs.2,622.00 on account of hotel stay for one day; (c) a sum of Rs.1457/- on account of expenses of fooding; (d) a sum of Rs.450/- on account conveyance from Bagdogra Airport to Hotel and back; (e) a sum of Rs.50,000/- on account of harassment and mental agony; (f) a sum of Rs.20,000/- as litigation costs etc.
The Opposite Party No.1 by filing a Written Version has stated that this Commission does not have jurisdiction to entertain the Complaint under Section 11(2)(a) of the Act and this Commission also does not have jurisdiction in view of Section 10 of the Information Technology Act, 2000. It has further been submitted that the amount of claim by way of damage is exaggerated. It has been specifically stated that Opposite Party No.1 did offer to reimburse and indemnify of the Complainant all of his actual losses as well as compensation of Rs.5,000/- as a gesture of goodwill but the highly exaggerated claim could not fulfil their intention. According to the Opposite Party No.1, as there was no deficiency of service the Complaint should be dismissed.
On the basis of the contention of the Parties we think the following points are required to be adjudicated -
1. Is the Consumer Complaint is maintainable in its present form?
2. Is this Commission has got jurisdiction to entertain this Complaint?
3. If so, was there any deficiency on the part of Opposite Party No.1 in providing proper service to the Complainant?
4. Is the Complainant entitled to get reliefs, as prayed for?
During hearing of the case Complainant has filed evidence through affidavit to which the Opposite Parties filed questionnaire against which reply has been filed by the Complainant. Similarly, the Written Version filed on behalf of the Opposite Parties was treated as evidence on their part against which Complainant has filed questionnaire and reply has been filed by the Opposite Parties.
On the basis of materials on record indicated herein above, we shall proceed to discuss how far the Complainant has been able to substantiate his case.
D E C I S I O N
Point No.1
It remains undisputed that the Complainant is professionally a Chartered Accountant and the Opposite Party No.1 is engaged in the business as Airline Company providing online facility for booking of their flight tickets, flight information etc. through their Company Website. On 03.05.2012 the Complainant through the Website of Opposite Party No.1 booked two air tickets for himself and his wife for their journey from Kolkata Airport to Bagdogra Airport and back upon making payment of a sum of Rs.19,728/- by using Debit Card. Therefore, without any hesitation it can be said that the relation between the Complainant and the Opposite Party No.1 as ‘Consumer-Service Provider’ exists. When the Complainant could not avail the flight from Bagdogra to Kolkata on 22.05.2012 and has made a specific allegation against the Opposite Parties for deficiency in service, the instant Consumer Complaint must be said to be maintainable.
Accordingly, Point No.1 is decided in affirmative and in favour of the Complainant.
Point No.2
The Opposite Party Nos.1 to 5 in their Written Version has challenged the jurisdiction of this Commission on the ground that as per terms of agreement of online booking the jurisdiction shall be at Gurgaon (Haryana) and as such, this Commission lacks jurisdiction to entertain the same. On the other hand, Ld. Advocate for the Complainant has placed reliance to a decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in II (2011) CPJ 88 (Neha Singhal – vs. – Unitech Ltd.). In the said decision, it has been held that clause relating to jurisdiction of ‘Courts’ in the Agreement between the Parties cannot override the statutory right of the Complainant conferred by provisions of the Act.
In that perspective, the submissions put forward on behalf of the Opposite Parties with regard to the jurisdiction does not appear to be acceptable.
It is also asserted that the ‘user agreement’ was a valid contract for service between Complainant and Opposite Parties under the provisions of the Information Technology Act, 2000 and the rules framed thereunder. Therefore, all disputes arising with them shall be subject to exclusive jurisdiction on Court at Gurgaon, (Haryana).
The provisions under Section 10 of the Information Technology Act, 2000 relates to power to make rules by Central Government in respect of electronic signature and the said provision does not debarred the Consumer Forum to entertain the Complaint if it is otherwise maintainable in eye of law.
Lastly, on the point of jurisdiction it has been submitted that the Complainant has prayed for Rs.50,00,000/- as compensation on account of damages and harassment and mental agony just to create the jurisdiction of this Commission. According to Ld. Advocate for the Opposite Parties the claim by way of damages should have nexus with alleged deficiency and should have rational behind it. Ld. Advocate for the contesting Parties has referred a decision of National Consumer Disputes Redressal Commission, New Delhi in connection with C.C. No.60/2011 dated 08.07.2011 (Sujata Nath – v. – Popular Nursing Home and Others). As the relief claimed in the referred case was grossly overvalued, the Hon’ble National Commission returned the Petition of Complaint for presentation of the same before the District Forum or before the State Commission.
Ld. Advocate of the Complainant, on the other hand, submitted that the Complainant is a reputed Chartered Accountant and on account of deficiency on the part of the Opposite Parties he had to suffer professional loss and his wife was prevented from meeting the Doctor scheduled earlier and it causes the serious inconvenience to them and as such, the compensation has been assessed to that extent.
The record speaks that Opposite Parties did not raise this issue earlier. This issue should have been raised at the initial stage. When the evidence of the parties have already been concluded and it would be meaningless to raise this point at this stage. Moreover, in their Written Version the Opposite Parties did not challenge this point in their preliminary objection. However, in paragraph 6 of their Written Version they have mentioned the same but it has not been specifically stated that for that reason the Commission will have no jurisdiction to entertain the same.
Considering of the above, this point is also decided in favour of the Complainant and disposed of accordingly.
Point No.3
It is not in dispute that the Complainant has purchased two tickets for himself and his wife for their journey from Kolkata to Bagdogra and back on 03.05.2012 through Website of Opposite Party No.1 by using Debit Card and upon making payment of Rs.19,728/- (Rs.8,264/- for onward trip and Rs.11,464/- on account of return trip). It also remains undisputed that on 16.05.2012 the Complainant along with his wife flew from Kolkata Airport to Bagdogra Airport. However, he could not fly from Bagdogra Airport to Kolkata Airport on 22.05.2012 with the help of e-tickets booked by him from Website of Opposite Party No.1. It also remains undisputed that time and again the Complainant made contact with the Opposite Party No.1 for redressal of his pain but the Opposite Party No.1 shirk their responsibility by advising the Complainant to purchase air tickets from his own fund and to get in touch thereafter for the purpose of getting refund only. It is true that subsequently, the Opposite Party No.1 refunded the air fare from Bagdogra to Kolkata.
One Mr. Abhoy Nath being authorized representative of Opposite Party No.1 has filed reply against questionnaire filed by the Complainant. In question No.19 he has agreed that upon receiving payment from the Complainant the Opposite Parties were supposed to render service by issuing proper air tickets. He has also stated that the air tickets issued by the Opposite Party No.1 to the Complainant for journey from Bagdogra to Kolkata on 22.05.2015 were not proper and effective. He has further admitted that due to non entertainment of e-tickets issued by the Opposite Party No.1 at Bagdogra Airport created harassment and inconvenient situation for the Complainant. The wife of the Complainant had an appointment with Dr. Goutam Khastagir at Kolkata at 23.05.2012 but she failed to meet the Doctor on the scheduled date on account of deficiency on the part of the Opposite Party No.1. The Complainant was embrassed at Bagdogra Airport and he could not undertake the journey on the scheduled date for which being professional man he had also to suffer.
Needless to say, travel specially by flight is a sensitive matter and requires devoted attention to meticulously maintain record so that the passenger may not face any inconvenience.
Therefore, the alleged deficiency on the part of the Opposite Party No.1 has been prove beyond any shadow doubt and in this regard a sum of Rs.5,000/- as offered by Opposite Party No.1 was not in parity with the situation.
Therefore, this point is also decided affirmative and in favour of the Complainant.
Point No.4
On evaluation of the materials on record and in view of our foregoing discussion we have no hesitation to hold that the Complaint is entitled to get reliefs as prayed for. Taking into consideration the embrassment of the Complainant at Bagdogra Airport in presence of his wife and further taking into consideration the other attending circumstances it appears to us that a nominal compensation would certainly defeat the object behind the legislation of the Act rather it needed to be compensated adequately to serve as a deterrent.
Considering the facts and circumstances, we think that the Complainant is entitled to get relief of a sum of Rs.50,000/- as compensation for harassment and mental agony and a sum of Rs.10,000/- as litigation cost.
This issue is also decided in favour of the Complainant and disposed of accordingly.
In the result, the case succeeds in part. It is accordingly,
O R D E R E D
that the instant Complaint is allowed on contest against Opposite Party No.1 to 5 with a cost of Rs.10,000/- and ex-parte against Opposite Party No.6 but without any order as to costs.
The Complainant do get a sum of Rs.50,000/- as compensation on account of harassment and mental agony and Rs.10,000/- as litigation cost aggregating Rs.60,000/-.
The Opposite Party No.1 is directed to make payment of Rs.60,000/- in favour of the Complainant within one month from date, failing which, the amount shall carry interest at the rate of 9 per cent per annum till its full realisation.
Let the copies of this order to sent to the Parties in their given address by Registered Post at free of cost.
