State Consumer Disputes Redressal Commission
Makemytrip India Pvt. Ltd. vs Sachin Kumar Dhanjas on 10 October, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.482 of 2017
Date of institution : 21.06.2017.
Date of decision : 10.10.2017.
The Manager, Make My Trip Pvt. Ltd., SCO No.43/44, Level-1,
Sector 8-C, Madhya Marg, Near KFC, Chandigarh, through its
Authorized Signatory, Ekant Mehra, Assistant Manager (Legal),
Make My Trip (India) Pvt. Ltd., Tower-A, 19th Floor, Building No.5,
DLF Cyber City, Gurgaon-122002.
....Appellant/Opposite party No.1.
Versus
1. Sachin Kumar Dhanjas aged about 32 years son of Late
Baljit Kumar, resident of Magazine Street, House No.337,
Sangrur.
...Respondent No.1/Complainant.
2. The Manager, Air India, Indian Airlines, SCO No.162-164,
Ground Floor, Dakshin Marg, Sector 34-A, Chandigarh.
...Respondent No.2/Opposite party No.2.
First Appeal against the order dated
20.03.2017 of the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellant : Sh.Satpal Dhamija, Advocate For respondent No.1 : Sh.S.R.Chaudhary, Advocate For respondent No.2 : Ex-parte First Appeal No.482 of 2017 2 MRS. KIRAN SIBAL, MEMBER The instant appeal has been preferred by the appellant/complainant against the order dated 20.03.2017 passed by District Consumer Disputes Redressal Forum, Sangrur (in short, "the District Forum"), whereby the complaint filed by appellant/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed and OPs were directed to pay to the complainant an amount of Rs.20,000/- in lieu of compensation for mental tension agony and harassment and Rs.5,000/- as litigation expenses.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant, Sachin Kumar Dhanjas along with his friend Shri Bhupesh Goyal availed the services of the OP No.1 by purchasing a tour package from Chandigarh to Bangkok for the period from 14.10.2015 to 19.10.2015 and OP No.1 issued booking ID bearing number NH230398847343 dated 04.10.2015. As per the itinerary and reservation details of the complainant, the name and time of flight was mentioned. The details were as follows :- First Appeal No.482 of 2017 3
On 14.10.2015- Departure Time 11.25 hrs. from Chandigarh and arrival time Delhi (Del) 12.15 hrs through Air India flight number AL-863.
On 14.10.2015- Departure Time 13.50 hrs from Delhi and arrival time Bangkok 19.36 hrs through Air India Flight number AL-332.
Further it was mentioned that on 19.10.2015, departure Bangkok (BKK) 8.55 hrs and arrival Delhi (DEL) 12.00 hrs, through Air India flight No.AL-333. As per schedule, the complainant and his friend reached Bangkok on 14.10.2015 through Air India Flight. It has further been alleged that after purchasing the tour package the complainant and his friend booked Awadh Assam Express from New Delhi to Jakhal for 19.10.2015 and the reservation ticket number is 664.7195897 dated 13.10.2015. The departure time of train was 15.30 hrs from Delhi and arrival time at Jakhal was 19.35 on 19.10.2015. The complainants on 19.10.2015, reached Sarvbhoomi Airport, Bangkok at about 7.00 AM and the flight departure time was 8.55 hrs. Upon reaching, they came to know that Air India Flight number AL-333 had been delayed till 5.30 PM and new flight was to come at about 5.30 PM. Due to this delay, the complainant and some other passengers were harassed due to cancellation of the flight. Officials of Air India, when approached apprised the complainant and other passengers that they would be put on another flight. After taking the boarding pass, the complainants travelled to Delhi from Bangkok via Mumbai and at First Appeal No.482 of 2017 4 Mumbai airport they were also harassed by the authorities of the airport. Due to this delay, the complainant could not board the train in which they had already booked the seat. Ultimately he booked another train from Delhi to Sangrur and reached his destination at 3.00 a.m. in the morning. Thus, alleging deficiency in service on the part of OPs, the complainant has prayed that the OPs be directed to pay a compensation of Rs.5,00,000/- along with interest @ 18% p.a.; Rs.2,50,000/- as compensation for mental tension, agony and harassment and Rs.25,000/- as litigation expenses.
Defence of the Opposite Parties
4. In reply of the complaint filed by the OP No.1, it has been admitted that the complainant along with his friend Bhupesh Goyal booked a tour from Chandigarh to Bangkok for the period from 14.10.2015 to 19.10.2015 through online portal of OP No.1 and booking of flights of complainant were also admitted. However, it was stated that the OP No.1 was not at all responsible for any unexpected modifications in the flight schedule of the customers due to cancellation, delay etc. and the delay of the Air India flight bearing number AL-333 followed by cancellation on 19.10.2015 was solely attributable to the Airlines and the OP was in no manner liable to refund/compensate any amount to the complainant. Further it was stated that in case of cancellation of the flight, only the airlines were responsible and OP No.1 had no knowledge about the delay in the schedule of the flight or cancellation of the flight in question. Thus, denying any deficiency First Appeal No.482 of 2017 5 in service on its part, OP No.1 prayed for dismissal of the complaint with special costs.
5. Record shows that the OP No.2 did not file the reply within the stipulated period under the Act, as such, opportunity to file reply by OP No.2 was closed by order of the Forum. Finding of the District Forum
6. Both the parties produced their evidence in support of their averments before the District Forum, which after going through the same and hearing learned counsel for the parties, allowed the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties
7. We have heard learned counsel for appellant and respondent No.1, whereas respondent No.2 was proceeded ex- parte vide order dated 28.08.2017. We have also carefully gone through the records of the case.
8. Learned counsel for the appellant/OP No.1 vehemently contended that the appellant is a travel service provider and facilitates booking service for its customers and the role of the appellant in providing travel services is limited only to the extent of providing smooth convenient and efficient on-line travel booking interface to its customers. It has been pleaded that as far as delay of Air India Flight No.AL-333 followed by cancellation on 19.10.2015 is concerned, the same is solely attributable to the Airlines and the appellant is in no manner liable to compensate any amount. Further, it was specifically pleaded that the terms of the First Appeal No.482 of 2017 6 Civil Aviation Requirements (CAR) Section 3, Series M, Part II bearing No.23-15/2016-AED issued by the Directorate General, Civil Aviation (DGCA), clearly determines the liability of the Airlines to refund/compensate the customers in case of any cancellation or delay of the scheduled flight. It has further been specifically pleaded that the complainant/respondent No.1 booked the alleged trip through Online Portal and as per the User Agreement, the appellant, the User i.e. respondent No.1/complainant agrees that the appellant being an agent for facilitating the booking services shall not be responsible for any such circumstances and the customers have to contact that service provider directly for any further resolutions and refunds. District Forum has failed to appreciate the fact that the respondent No.1/complainant had not approached the District Forum with clean hands and have suppressed material facts and resultantly, the impugned order is liable to be set-aside. District Forum has also failed to appreciate the fact that no specific and justified allegation with regard to negligence or deficiency in providing services, has been made by the respondent No.1/complainant against the appellant and the complainant has totally failed to explain "as to how the appellant was negligent at which/what stage of providing service on its part. As per the agreement, under the column of "RESPONSIBILITIES OF USER VIS-À-VIS THE AGREEMENT", which specifically talked about the responsibilities on the part of both the parties to the Agreement, which runs as under :-
First Appeal No.482 of 2017 7
"The User expressly agrees that use of the services is at their sole risk. To the extent MMT acts only as a booking agent on behalf of third party service providers, it shall not have any liability whatsoever for any aspect of the standards of services provided by the service providers. In no circumstances shall MMT be liable for the services provided by the service provider. The services are provided on an "as is" and "as available" basis".
Keeping in view of the above, the respondent No.1/complainant has no locus standi to file the present complaint as he himself chosen to avail the services of the appellant at his own risk. That under Force Majeure circumstances where the service operators like the airlines, hotels, the respective transportation providers or concerns are unable to honour the confirmed booking due to various reasons like climatic conditions, labour, unrest, insolvency, and technical issues, route and flight cancellations etc., then under such circumstances, the appellant, if notified in advance, shall make best endeavours to provide similar alternative. It may not be left without mentioning that the respondent No.2 completed the journey of the complainant/respondent No.1 via Mumbai through other Airlines from Bangkok to Mumbai and from Mumbai to Delhi by Air India and reached Delhi at 7.00 PM instead of 12.00 hours as per the tour package. Moreover, the alternative arrangements were also made by the respondent No.2. The District Forum has also erred while not considering the terms of the Civil Aviation Requirements First Appeal No.482 of 2017 8 (CAR) Section 3, Series M, Part II bearing No.23-15/2016-AED issued by the Directorate General, Civil Aviation (DGC), which determines the liability of Airlines in case of any cancellation or delay of the scheduled flight. Despite the unambiguous guidelines issued by the DGCA, the District Forum has erred while fastening the liability upon the appellant along with respondent No.2. In view of the above, the present complaint is liable to be dismissed against the appellant in the absence of any deficiency on the part of the appellant. District Forum has not mentioned in the order as to how the appellant is deficient in providing services to the complainant and also not given any reason while fastening the liability upon the appellant. Learned counsel for the appellant has prayed that the present appeal be allowed and the order passed by District Forum, Sangrur be set-aside and the complaint against the appellant may be dismissed with costs throughout.
9. Per contra learned counsel for the respondent No.1/complainant submitted his arguments on similar averments made in the complaint. In addition, learned counsel for the respondent has contended that the relief sought has not been fully considered by the District Forum. He has also pleaded that as per the order of the District Forum, the appellant is required to pay Rs.25,000/- instead of Rs.20,000/- as averred by the learned counsel for the appellant and prayed for dismissal of the appeal. First Appeal No.482 of 2017 9 Consideration of Contentions
10. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties and have also gone through the record of the case.
11. Admittedly, in the present case, both the parties have not disputed that the complainant purchased a tour package for the period 14.10.2015 to 19.10.2015, tickets of which are also placed on record as Ex.C-3 to Ex.C-5. The complainant has missed his train from Delhi to Jakhal on 19.10.2015 which he had booked prior. This was because of the delay of about 9 hours in the return flight schedule of Air India Airlines flight No.AL-333 which resulted in a lot of harassment, disturbance and mental agony. Resultantly, the whole system/schedule of the complainant was disturbed as he had already pre-booked the train ticket from Delhi to Jakhal.
12. Learned counsel for OP No.1 has contented that the delay of Air India Flight followed by cancellation on 19.10.2015 is solely attributable to the airlines and OP No.1 is not liable or to pay any compensation. In contrast, it is the own admitted case of OP No.1 that the complainant had purchased the trip/tour programme from OP No.1 and it was OP No.1 who got booked the Air Tickets for the complainant and his friend against payment, which was made directly to OP No.1. Hence, we are unable to accept such a contention raised by the learned counsel for OP No.1.
13. Learned counsel for the complainant has vehemently contended that the complainant suffered loss due to cancellation of flight resulting in mental tension, agony and harassment and there First Appeal No.482 of 2017 10 is no dispute about the same. As such, we are of the considered opinion that in the interest of justice, the OPs are liable to pay to the complainant some compensation as the tour package was bought from them and as such, being service providers they are responsible for their customers.
14. Sequel to these observations, we do not find any merit in the present appeal and the same is hereby dismissed. However, in the peculiar facts and circumstances of this case the opposite party No.1 is given a liberty to claim its rights from the concerned Airlines in accordance with law, if it so desires.
15. The appellant had deposited a sum of ₹12,500/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, by way of a crossed cheque/demand draft, after the expiry of 45 days of the sending of certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
(JUSTICE PARAMJEET SINGH DHALIWAL)
PRESIDENT
October 10, 2017. (KIRAN SIBAL)
Lb/- MEMBER