State Consumer Disputes Redressal Commission
Make My Trip (India) Private Limited, ... vs 1. Dr. Ravi Ghai R/O H.No.529, Sector-2, ... on 25 January, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,
PANCHKULA
First
Appeal No.458; 459; 494 & 881 of 2009
(1)
Appeal No.458 of 2009
Date of Institution: 27.03.2009 Date of Decision: 25.01.2012
Make My Trip ( India)
Private Limited, 103, Udyog Vihar, Phase I, Gurgaon-122016 (Haryana) through
its Authorised Signatory Shri Manish Saxena.
Appellant (OP-1)
Versus
1.
Dr. Ravi Ghai R/o H.No.529,
Sector-2, Panchkula.
2.
Dr. Sarita Ghai w/o Dr. Ravi
Ghai, R/o H.No.529, Sector-2, Panchkula.
3.
Sudhanshu Ghai s/o Dr. Ravi
Ghai, R/o H.No.529, Sector-2, Panchkula.
4.
Roshan Ghai, Minor son of Dr.
Ravi Ghai, R/o H.No.529, Sector-2, Panchkula.
Respondents
(Complainants)
5.
Go Airlines ( India) Private Limited, Paper Box
House, Mahakali Caves Road,
Andheri (East), Mumbai-400093 through its managing Director.
Respondent (OP-2)
For the
Parties: Shri Naveen Sharma, Advocate for appellant.
Shri Kasturi
Lal, Advocate for respondents No.1 to 4.
Shri
Maninder Singh, Advocate for respondent No.5.
(2)
Appeal No.459 of 2009
Date of Institution: 27.03.2009 Date of Decision: 25.01.2012
Make My Trip ( India)
Private Limited, 103, Udyog Vihar, Phase I, Gurgaon-122016 (Haryana) through
its Authorised Signatory Shri Manish Saxena.
Appellant (OP-1)
Versus
Dr. V. Noheria R/o House No.807,
Sector-8, Panchkula.
Respondent
(Complainant)
Go Airlines ( India)
Private Limited, Paper Box House, Mahakali Caves Road, Andheri (East),
Mumbai-400093 through its managing Director.
Respondent (OP-2)
For the
Parties: Shri Naveen Sharma, Advocate for appellant.
Shri Kasturi
Lal, Advocate for respondent No.1.
Shri
Maninder Singh, Advocate for respondent No.2.
(3)
Appeal No.494 of 2009
Date of Institution: 08.04.2009 Date of Decision: 25.01.2012
Go Airlines ( India) Private Limited, Paper Box
House, Mahakali Caves Road,
Andheri (East), Mumbai-400093 through its managing Director
Appellant (OP-2)
Versus
1.
Dr. Ravi Ghai R/o H.No.529,
Sector-2, Panchkula.
2.
Dr. Sarita Ghai w/o Dr. Ravi
Ghai, R/o H.No.529, Sector-2, Panchkula.
3.
Sudhanshu Ghai s/o Dr. Ravi
Ghai, R/o H.No.529, Sector-2, Panchkula.
4.
Roshan Ghai, Minor son of Dr.
Ravi Ghai, R/o H.No.529, Sector-2, Panchkula.
5.
Dr. V. Noheria R/o House
No.807, Sector-8, Panchkula.
Respondents
(Complainants)
6.
Make My Trip ( India) Private Limited, 103, Udyog
Vihar, Phase I, Gurgaon-122016 (Haryana).
Respondent (OP-1)
For the
Parties: Shri Maninder Singh, Advocate for appellant.
Shri Kasturi
Lal, Advocate for respondents No.1 to 5.
Shri Naveen
Sharma, Advocate for respondent No.6.
(4)
Appeal No.881 of 2009
Date of Institution: 01.07.2009 Date of Decision: 25.01.2012
Go Airlines ( India) Private Limited, Paper Box
House, Mahakali Caves Road,
Andheri (East), Mumbai-400093 through its managing Director
Appellant (OP-2)
Versus
Dr. V. Noheria R/o House No.807,
Sector-8, Panchkula.
Respondent
(Complainant)
Make My Trip ( India)
Private Limited, 103, Udyog Vihar, Phase I, Gurgaon-122016 (Haryana).
Respondent (OP-1)
For the
Parties: Shri Maninder Singh, Advocate for appellant.
Shri Kasturi
Lal, Advocate for respondent No.1.
Shri Naveen
Sharma, Advocate for respondent No2.
BEFORE:
Honble Mr.
Justice R.S. Madan, President.
Mr. B.M.
Bedi, Judicial Member.
O R D E R
Justice R.S. Madan, President:
These four appeals bearing Nos.458/2009; 459/2009; 494/2009 and 881/2009 have arisen out the order dated 30.01.2009 passed by District Consumer Forum, Panchkula while deciding complaints No.61 & 62 of 2008 filed by complainants (respondents herein) against the appellants-opposite parties. Since common question of law and facts were involved, therefore, both the complaints have been decided by common order, thus, we proceed to decide these appeals by this common order/judgment.
To decide the controversy we have taken the facts of complaint No.61/2008 titled as Dr. Ravi Ghai and others versus M/s Make My Trip ( India) Pvt. Ltd and another.
The grievance of the complainants before the District Consumer Forum was that due to deficiency in service on the part of the appellant-opposite party No.1 as well as the respondent No.5 (opposite party No.2), they missed the flight from Mumbai to Cochin and suffered huge financial loss.
The facts of the complaint filed before the District Forum are noticed as under:-
The complainant No.1 is a life member of the Association of Physicians of India (hereinafter referred to as the Association. The association had organized its 63rd annual conference namely Apicon 2008 from 9th to 13th January, 2008 which was to start at 8.30 A.M. on 10th January, through its Organizing Committee at Le Meridien Hotel and International Convention Center, Maradu, NH Bypass, Kochi.
Dr. Sarita Ghai complainant No.2 wife of the complainant No.1 and both of their sons namely Sudhanshu Ghai and Roshan Ghai also decided to participate the above said conference.
Complainant approached the opposite party No.1 at Panchkula through internet and submitted to them the proposal about the trip of the complainants to Cochin, stated above. Opposite Party No.1 offered to the complainants to arrange for the said trip to Cochin to enable them to participate in the conference through the opposite party No.2 M/s Go Air and to get them four adult confirmed tickets of their flight G8-162 from Delhi to Cochin as detailed in para 6(a) of the complaint. Opposite Party No.1 supplied to the complainant all details about charges for the four adults confirmed tickets as Rs.20,600/-. The complainants remitted the above said amount of Rs.20,600/- from his credit card account No.5176-5335-1152-7001 with ICICI Bank, Branch Office, Panchkula which was debited to the said account on 13.11.2007. The opposite party No.1 sent to the complainants four adult E-tickets for each of them for 9th Jan. 2008 from New Delhi to Cochin alongwith schedule of M/s Go Air, flight No.G8-162. The details of Travel Itinerary in respect of each of the four passengers has been given in para 8 of the complaint.
According to the complainants, they reached New Delhi Airport on 09.01.2008 well in time to board the aeroplane of flight No.G8-162 scheduled for departure at 13.55 P.M. It was displayed at the aerodrome and also confirmed by the flight crew that flight No.G8-162 was bounded from New Delhi to Cochin. The complainants boarded the aeroplane of the above said flight No.G8-162 of Go Air at New Delhi. The flight was scheduled to arrive at Bombay (Mumbai) on the same day i.e. 09.01.2008 at its scheduled time at 15.50 P.M. but due to delay en-route it arrived at Mumbai at 17.20 P.M. i.e. about ninety minutes late from its scheduled arrival time. Complainants alleged that because the scheduled departure time of the said flight from Bombay to Cochin was 16.50 PM, for that reason the said flight had already left for Cochin from Mumbai at its scheduled time at 16.50 PM. At Mumbai, firstly it was announced that the passengers bound for Mumbai should disembark the aeroplane whereas the other passengers for onward journey should remain seated. The complainants who were to go to Cochin, thus, remained seated in the aeroplane but after some time they were also asked to disembark the aeroplane at Mumbai and that to talk for their onwards journey to Cochin to the ground crew of the opposite parties. The ground crew when contacted, told to the complainants that they were unable to do anything or help them in any way and asked the complainants to take flight of some other Air Line at their own expenditure. They even also refused to refund the cost of the tickets from Mumbai to Cochin already received from them at the time of issuing the tickets to them.
Thus, the complainants were put into great embarrassment, inconvenience and awkward positions resulting into great harassment and constant mental pains and sufferings to each of them. Complainants further alleged that inspite of all efforts, they neither could get any other alternative flight of any other Air Lines at Mumbai nor any arrangements for stay. Stay in some nearby hotel was very costly affairs and stay in cheaper hotel was unsafe and ultimately, in such situations, the complainants remained whole night and day at Airport. On next day i.e. on 10th January, 2008, the complainants could get tickets for Cochin of Deccan Air Lines of their flight No.DN-721 for 10th of January, 2008, scheduled to depart at 19.25 P.M. and arrival Cochin at 21.10 PM by spending another sum of Rs.18,281/-. Thus, the complainants reached at Cochin on 11.01.2008 at 3.00 AM badly tired and could not participate the conference held on 10th and 11th of January, 2008 which resulted into great loss and injury to them. Thus, the complainants alleged deficiency in service on the part of the opposite parties and sought compensation of Rs.10,34,981/- alongwith interest @ 15% per annum pendent-lite till realization.
Upon notice, the opposite parties appeared and contested the complaint by filing written statements separately. Opposite Party No.1 in its written statement admitted that the complainants were issued valid e-tickets for traveling between New Delhi and Cochin on January, 9, 2008. It was further admitted that the complainants had traveled from New Delhi to Mumbai on the tickets issued by it, however, could not take the connecting flight from Mumbai to Cochin due to the delay caused by the Go Air Lines. According to the opposite party No.1, the delay stated above was not caused due to any default on the part of the opposite party No.1. Thus, there was no deficiency in service on the part of the opposite party No.1.
Opposite Party No.2 in its written statement stated that at no point of time, the complainants were assured that the above two flights would be connecting flights. It was stated that the opposite party No.2 was a point to point carrier and had no provision for any connecting flight. The aircraft used for operating flights from New Delhi to Mumbai was scheduled to first fly from New Delhi to Jammu, from Jammu to Srinagar and from Srinagar to New Delhi on the same day. Flight from Delhi to Jammu and the flight from Srinagar to Delhi was delayed by 35 minutes and 20 minutes respectively due to delay in permission to land by Air Traffic Controller and accordingly the flight from New Delhi to Mumbai was delayed by one hour and five minutes and the pilot made an entry in this regard. The flight from New Delhi to Mumbai was further got delayed by 35 minutes due to non availability of landing space and the aforesaid delay was in no manner occasioned by any lapse or deficiency in service on the part of the opposite party No.2. Thus, the delay was due to unavoidable circumstances and are part and parcel of Aviation Industry. It was admitted that flight from Mumbai to Cochin was scheduled to depart at 16.50 PM and left Mumbai at its scheduled departure time. Since the complainants could not reach on time and thus were treated as no show passengers. Booking charges were forfeited and passengers service fee was refunded to the complainant. The other flights options were available from Mumbai to Cochin on that day and it was the complainants decision to stay at the airport and travel the next day by evening flight of other airlines. Thus, the opposite party No.2 denied any kind of deficiency in service and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and issued directions to the opposite parties given below by observing that:-
17. After going through the entire records, we find that the complainants had booked e-tickets through OP No.1 who is the agent of Op No.2. There was a delay of the flight from Delhi to Bombay because of which the complainants missed the connecting flight to Cochin and had to spend the entire night at the airport and could get another flight on the next day only because of which the complainant could not attend the conference on the first two days. Now the question arises as to who is liable to pay compensation to the complainants for the inconvenience caused to them. Though the tickets had been booked through Op No.1, yet we find that the OP No.1 is an agent of OP No.2. Thus, both the Ops are liable to pay the compensation to the complainants. It was the duty of OP No.2 to extend due courtesy to the complainants as the entire tour had been arranged by their agents Op No.1. It was the duty of OP No.2 to arrange for over night stay or another flight to ensure that the complainants are not put to any hardship.
This shifting of blame from one to the other of the Ops is typical of the attitude of the service provides.
18. Resultantly, this Forum orders as under:-
a) In Dr. Ravi Ghai & others Vs. M/s Make my Trip (India) Pvt. Ltd.
etc (CC No.61/08) the Op No.1 directed to pay a lump sum compensation of Rs.1,60,000/- to complainants No.1 to 4 for costs of 4 extra tickets, wastage of time, mental agony and harassment; and OP No.2 shall pay a sum of Rs.40,000/- for mental agony and harassment, as the nature of deficiency in service on the part of OP No.1 is greater than that of OP No.2.
b) In Dr. V. Noheria Vs. M/s Make my Trip (India) Pvt. Ltd. etc (CC No.62/08) the Op No.1 directed to pay a lump sum compensation of Rs.60,000/- to complainant for costs of one extra tickets, wastage of time, mental agony and harassment; and OP No.2 shall pay a sum of Rs.20,000/- for mental agony and harassment, as the nature of deficiency in service on the part of OP No.1 is greater than that of OP No.2.
c) Also the Ops are further jointly and severally directed to pay a sum of Rs.5,000/- as costs of litigation, in each case.
Let the order be complied within one month from the date of communication of this order failing which the complainants shall be further entitled to interest at the rate of 9% per annum on the amount of compensation awarded above after expiry of one months period till actual realization.
Aggrieved against the order of the District Forum, the opposite party No.1 has filed appeals Nos. 458/2009 and 459/2009 and opposite party No.2 has filed appeals nos.494/2009 and 881/2009.
There is a delay of 111 days in filing of appeal No.881/2009 the condonation of which has been sought by the appellant by moving an application under Section 5 of the Limitation Act.
Taking into account the grounds taken in the application as well as the fact that all these appeals are being decided together, the delay of 111 days is condoned to avoid contradictory finding.
We have heard learned counsel for the parties and perused the case files as well as the written arguments produced on behalf of the respondents-complainants.
The question for consideration before us is whether there is deficiency in service on the part of the opposite parties for missing the flight by the complainants, which was scheduled from Mumbai to Cochin at its scheduled time at 16.50 PM on 09.01.2008.
While assailing the order of the District Forum learned counsel appearing on behalf of the appellants have argued that the District Forum, Panchkula has got no territorial jurisdiction to entertain and decide the complaints because the complainants have admittedly purchased the air tickets from the opposite party No.1 through internet and the opposite party No.1 is located at Gurgaon and the journey of the complainants was from New Delhi and they missed the connected flight from Mumbai. Thus, only District Forum at Gurgaon and New Delhi have got jurisdiction to entertain and try the complaints.
In our view the contention raised on behalf of the appellants is attracted in view of the settled principle of law by Honble Supreme Court in case cited as Sonic Surgical versus National Insurance Company Ltd. 2010 CTJ 2 (Supreme Court) (CP), wherein it has been held that:-
Incidence of fire in the appellants godown at Ambala Complaint claiming compensation from the respondent allowed by the State Commission, Union Territory, Chandigarh National Commission set aside the said order accepting the appeal of the respondent on the ground that the State Commission, Union Territory had no jurisdiction to entertain and adjudicate the complaint Hence, the present appeal Admittedly no cause of action arose at Chandigarh Insurance policy taken at Ambala, fire broke out in the godown at Ambala, and the claim for compensation also made at Ambala Cause of action arose in 1999 and the complaint regarding the same filed in 2000- Amendment to Section 17(2) not to apply as the amended Section came into force with effect from 15.3.2003 Contention that the respondent-insurance company having a branch office at Chandigarh, the complaint could have been filed in Chandigarh under the amended Section 17(2) rejected as unacceptable It would have led to absurd consequences of bench hunting, meaning thereby that even if a cause of action has arisen in Ambala, then too the complainant can file a complaint in Tamil Nadu or Guwahati or anywhere in India Cause of action having arisen at Ambala, the State Commission, Haryana alone to have jurisdiction to entertain the complaint-Impugned order of the National Commission agreed with Appeal dismissed.
In para No.9 and 10 of the above said judgment in Sonic Surgicals case (Supra), the Honble Supreme Court has observed that:-
9. .It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.
10. In the present case, since the cause of action arose at Ambala, the State Consumer Disputes Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.
The facts of the instant case are fully attracted to Sonic Surgical case (Supra). As the complainants had purchased the air tickets from the opposite party No.1, the office of which is located at Gurgaon, therefore, the complaints ought to have been filed at Gurgaon and not at Panchkula. Merely that the complainants contacted the opposite party No.1 through internet at Panchkula, would not confer jurisdiction upon the District Consumer Forum at Panchkula. Such like communication cannot be a ground for the claimant to choose the jurisdiction of the Consumer Fora from where the internet communication or telephonic conversation was made by the claimant. If such a practice is allowed to be sustain, in that eventuality, the same would be against the settled law in Sonic Surgicals case (Supra). District Consumer Forum, Panchkula erred in entertaining the complaints beyond its territorial jurisdiction.
It has further been argued on behalf of Make My Trip ( India) Pvt. Ltd that being an agent of the opposite party No.2, the appellant-opposite party No.1 is not liable to pay any compensation to the complainants. Reference in this regard was made to case law cited as Premnath Motors versus Anurag Mittal, IV(2008) CPJ 37 (Supreme Court), wherein it has been held that:-
4. Section 230 of the Contract Act categorically makes it clear that an agent is not liable for the acts of a disclosed principal subject to a contract of the contrary. No such contract to the contrary has been pleased. An identical issue was considered by this Court in the case of Marine Contained Services South Pvt. Ltd. Vs. Go Go Garments Air 1999 (SC) 80 where a similar order passed under the Consumer Protection Act was set aside by this court. It was held by virtue of Section 230 the agent could not be sued when the principal had been disclosed.
The facts of the instant case are fully attracted to Premnath Motors case (Supra).
It has further been argued on behalf of appellant-opposite party No.2 Go Airlines ( India) Pvt. Ltd. that the flight from Delhi to Mumbai got delayed due to the fact that the flight was not given air clearance by the ATC in Delhi and while landing in Mumbai, the flight was not given clearance for landing. The delay in the flight timings were beyond the control of the appellant-opposite party No.2.
The contention raised on behalf of the appellant-opposite party No.2 is attractive. It cannot be denied that while taking off and landing, every flight has to take ATC clearance from both original and destination point and unless the same is given, no flight can take off/land. The complainants were well aware of the terms and conditions provided in the tickets. Section 19 of the notification regarding application of Carriage by Air, 1972 reads as under:-
In the absence of a contact to the contrary, the carrier is not liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.
Annexure A-3 is the true copy of the notification regarding Application of Carriage by Air, 1972 (Annexed with appeal No.494/2009).
It is well settled law that to prove the allegation of deficiency in service, the willful action of the opposite party must be established by leading cogent and convincing evidence. Admittedly, in the instant case the flight of the complainants from Mumbai to Cochin was left due to the fact that the aeroplane wherein the complainants had travelled from New Delhi to Mumbai was not given air clearance by the ATC in Delhi while landing in Mumbai. Thus the delay in landing at Mumbai was beyond the control of the opposite parties for which no deficiency in service can be attributed to the opposite parties. An inference in this regard can be drawn from the judgment rendered by Honble National Commission in First Appeal No.311 of 2009 M/s Lufthansa German Airlines versus M/s Indian National Science Academy, decided on 19th March, 2010 cited as 2010 C.T.J. 493, wherein it has been observed that:-
Moreover, the safety of the flights getting airborne from or landing at any particular airport is of primary concern and the Air Traffic Control, an independent technical authority determines the necessary measures for this purpose, particularly in adverse weather conditions. It is not the complainants case that despite clearance of the Air Traffic Control, the appellant airlines did not operate its Frankfurt Paris flight in question or delayed the flight/s for some arbitrary reasons. Moreover, as held by the Apex Court in the case of Ravneet Singh Bagga v KLM Royal Dutch Airlines [(2001) 1 SCC 66], to bring home an allegation of deficiency in service, the element of wilful action (or, as the case may be, inaction) needs to be established and the onus of proof of such action/inaction lies on the complainant. Given the unusual circumstances, we are unable to find such wilful neglect on the part of the appellant airlines officials at Frankfurt on the day in question.
Secondly, we are not persuaded that the two officers of INSA could not have, under any circumstances, achieved the main stated purpose of their attending the said conference by attending the conference on any of the three days after the first day.
The facts and circumstances of the instant case are fully attracted to M/s Lufthansa German Airlines versus M/s Indian National Science Academys case (Supra). It is not the case of the complainants that despite clearance of the Air Traffic Control, the appellant airlines did not operate its MumbaiCochin flight in question or delayed the flight for some arbitrary reasons. Thus, in view of the Apex Court judgment in Ravneet Singh Baggas case which has been relied upon in M/s Lufthansa German Airlines case (Supra), it is not a fit case to grant any compensation to the complainants as the element of wilful action/inaction) has not been established on the record.
As a sequel to our aforesaid discussion, no deficiency in service can be attributed to the opposite parties. Hence, the complainants are not entitled for any compensation.
District Consumer Forum has failed to appreciate the real controversy involved in the case and erred in allowing the complaints.
Hence, all these four appeals are accepted, impugned order is set aside and both the complaints are dismissed.
The statutory amount deposited at the time of filing of these appeals and the amount deposited after filing of these appeals as per the orders of this Commission, be refunded to the respective appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
The original judgment/order be attached with appeal No.458/2009 and certified copies be attached with the remaining appeals.
Announced: Justice R.S. Madan 25.01.2012 President B.M. Bedi Judicial Member