State Consumer Disputes Redressal Commission
Makemytrip Pvt. Ltd vs Sh. Vishal Uppal And Other on 11 March, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No.463 of 2018
Date of institution : 21.08.2018
Reserved on : 20.02.2019
Date of decision : 11.03.2019
MakemyTrip (India) Pvt. Ltd., DLF Building No.5, Tower-C, DLF
Cyber City, DLF Phase II, Sector 25, Gurugram, Haryana-122 002.
.......Appellant-Opposite Party No.1
Versus
1. Vishal Uppal s/o Shri Basant Kr. Uppal, R/o House No.92, Gali
No.2, Hussainpura, West, District Amritsar.
.......Respondent No.1/complainant
2. Concerned Official, Indigo Lever-I, Tower C, Global Business
Park, Mehrauli-Gurgaon Road, Gurgaon 122 002. (Corporate
Office).
3. Concerned Official, Indigo, Central Wing, Ground Floor,
Thapar House, 124, Janpat, New Delhi, 110 001 (Registered
Office).
4. Concerned Official, Air India Limited, Airline House, 113,
Rakabganj, Gurudwara Road, New Delhi-110 001.
........Respondents Nos.2 to 4/Opposite Parties Nos.2 to 4
First Appeal against the order dated
2.7.2018 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellant : Shri Aditya Partap Singh, Advocate.
For respondent No.1 : Ex parte.
For respondent Nos.2&3: Shri Amandeep Singh, Advocate. For respondent No.4 : Shri Navpreet Singh, Advocate.First Appeal No.463 of 2018 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The instant appeal has been filed by MakeMyTrip India Pvt. Ltd., appellant/opposite party No.1 against the order dated 2.7.2018 passed by District Consumer Disputes Redressal Forum, Amritsar (in short, "District Forum") whereby the complaint filed by Vishal Uppal, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "C.P. Act") was allowed against the appellant/opposite party No.1 and dismissed against opposite parties Nos.2, 3 and 4. The appellant/opposite party No.1 was directed to pay ₹17,000/-, as the price of the ticket along with ₹5,000/- on account of compensation for causing mental tension and harassment and ₹3,000/-, as cost of litigation. The order was directed to be complied with within one month from the receipt of copy thereof failing which awarded amount was to carry interest @ 6% per annum from the date of passing of order till payment.
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, averred in the complaint, are that the complainant had booked online ticket through Makemytrip.com on 4.6.2016 for travelling from Amritsar to Mumbai by making payment of ₹13,033/-. It was a single ticket having booking ID No.NF292075634790. The complainant received the online travel ticket for June 5, 2016, which was in two parts i.e. Amrtisar to Delhi having ticket No.PNRHJN3X via Air India Airlines Flight No.A1-462 with departure time at 14:15 First Appeal No.463 of 2018 3 and arrival time at Delhi Airport at 15:30 and Delhi to Mumbai having ticket No.PNRJ74ZPS via Indigo Airlines 6 E-129 with departure time at 17:40. It was further averred that the complainant boarded the flight of Air India Airlines at Amritsar as per the schedule. After the door of the plane was closed and it was about to take off and had moved a bit, then there was an announcement that there was some technical defect in the plane and the passengers were asked not to de-board from the plane. However, even after an hour the flight did not take off. At that juncture the complainant realized that he will be missing the next connecting flight i.e. New Delhi to Mumbai, which was of Indigo Airlines. Then the complainant immediately made a call to helpline of opposite party No.1 at 15:20 and requested it to reschedule the flight from New Delhi to Mumbai. However, there was no response from it. However, it demanded another amount of ₹7,000/-, as travel expenses from the complainant. It was further averred that the Flight of Air India Airlines bearing No.AI-462 got delayed for more than 3 hours and it reached New Delhi at 19:00 hours. The complainant had also contacted the Air India counter and sought alternative flight but they refused to do the same on the ground that the connecting flight was of different carrier. So they could not help but provided a delay certificate. The complainant once again called up Makemytrip-opposite party No.1 to resolve the issue but no alternative arrangements were made by both Makemytrip (India) Pvt. Ltd.-opposite party No.1 or Air India Limited- opposite party No.4. Thereafter the complainant approached the First Appeal No.463 of 2018 4 counter of Indigo Airlines and narrated the whole story. They demanded a sum of ₹16,000/- for the ticket as it was not their fault and it was the fault of Air India Airlines. The complainant went from pillar to post and called many a times to Makemytrip-opposite party No.1 but no assistance was rendered by opposite party No.1 or by the Air India Airlines-opposite party No.4. Everything remained in vain. It was further averred that the complainant arranged another flight of Air India Airlines from New Delhi to Mumbai by paying ₹17,000/-. After reaching the destination the complainant wrote letters to the opposite parties but none of them responded nor redressed his grievances. Alleging deficiency in service on the part of the opposite parties the complainant filed consumer complaint before the District Forum claiming refund of the price of the ticket amounting to ₹13,033/- along with refund of ₹17,000/- as price of the additional ticket purchased by him. Compensation of ₹1,00,000/- from each of the opposite parties on account of mental harassment, agony and financial loss and litigation expenses was also claimed.
4. Upon notice opposite parties appeared and filed their written versions.
Defence of opposite party No.1:
5. Opposite party No.1 in its written version submitted that it is in no manner responsible for delay in the flights and its role is restricted only to the extent of issuance of tickets. It was admitted that the complainant through its online portal booked ticket from Amritsar to Delhi via Air India Flight No.AI-462 and Delhi to Mumbai via Indigo First Appeal No.463 of 2018 5 Airlines Flight No. 6E-129. The complainant had filed the complaint on the ground that the Air India flight from Amritsar to Delhi was delayed due to some technical fault and resultantly the complainant missed his connecting Indigo flight from Delhi to Mumbai. Opposite party No.1 is in no manner connected with the operation of the flights and it cannot be held responsible for the delay in the flights. As per the Force Majeure Clause, opposite party No.1 cannot be held liable for any damages, whatsoever. The relevant clause has been reproduced in its reply and is reproduced hereunder for facility of reference:-
"Force Majure Circumstances The user agrees that there can be exceptional circumstances where the service operators like the airlines, hotels, the respective transportation providers or concerns may be unable to honor the confirmed bookings due to various reasons like climatic conditions, labour unrest, insolvency, business exigencies, government decisions, operational and technical issues, route and flight cancellation etc. If MMT is informed in advance of such situations where dishonor of bookings may happen, it will make its best efforts to provide similar alternative to its customers or refund the booking amount after reasonable service charges, if supported and refunded by that respective service operators. The user agrees that MMT 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.
The user agrees that in situations due to any technical or other failure in MME services committed earlier may not be provided or may involve substantial modification. In such cases, MMT shall refund the entire amount received from the customer for availing such services minus the applicable cancellation, refund or other charges, which shall completely discharge any and all liabilities of MMT against such non provision of services First Appeal No.463 of 2018 6 or deficiencies. Additional liabilities, if any, shall be borne by the user.
MMT shall not be liable for delays or inabilities in performance or non performance in whole or in part of its obligations due to any causes that are not due to its acts or omissions and are beyond its reasonable control, such as acts of God, Fire, Strikes, acts of government, acts of terrorism or other similar problems at airlines, rails, buses, hotels or transporters end. In such event the user affected will be promptly given notice as the situation permits.
Without prejudice to whatever is stated above, the maximum liability on part of MMT arising under any circumstances in respect of any services offered on the site, shall be limited to the refund of total amount received from the customer for availing the services less any cancellation, refund or other charges, as may be applicable. In no case the liability shall include any loss, damage or additional expense whatsoever beyond the amount charged by MMT for its service.
In no event shall MMT and/or its suppliers be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the MMT website(s) or any other channel. Neither shall MMT be responsible for the delay or inability to use the MMT websites or related services, the provision of or failure to provide servies, or for any information, software, products, services and related graphics obtained through the MMT website(s), or otherwise arising out of the use of the MMT website(s), whether based on contract, tort, negligence, strict liability or otherwise.
MMT is not responsible for any errors, omissions or representations on any of its page or on any links or on any of the linked website pages."
It was further submitted that the parties are governed by the terms and conditions agreed between them at the time of booking. Opposite party No.1 duly provided its services to the complainant and it in no manner connected with the operation of the flight and as First Appeal No.463 of 2018 7 such there is no deficiency in service on its part. All other averments made in the complaint have been denied and a prayer for dismissal of the complaint qua it was made.
Defence of Opposite Parties Nos.2 and 3:
6. Opposite parties No.2 & 3 also filed their separate joint reply admitting that the complainant booked an air ticket from Delhi to Mumbai for travel on 5.6.2016 on Indigo Flight No. 6E-129 which was booked under PNR J74ZPS. The scheduled time of departure for Indigo Flight No.6E 129 was 5.40 p.m. The complainant was advised to report to the check in counter for Indigo Flight No. 6E 129 before 45 minutes prior to the scheduled time of departure of his flight i.e. before 4.55 P.M. As per Inter Globe Aviation Limited record, the complainant failed to report to the check in counter for Indigo Flight No.6E-129 before counter closure. Therefore, Inter Globe Aviation Limited was compelled to treat the complainant as "No show" in accordance with the Indigo CoC. Accordingly, complainant's ticket amount was forfeited. It was admitted that the complainant made the request for rescheduling of his flight beyond the time frame as prescribed under Article 5.2. However, in accordance with the Indigo CoC the complainant is entitled to receive a refund of the passenger service fee and user development fee. Therefore, a refund of INR 711/- was processed on 13.6.2017 to the same account through which the complainant's booking was undertaken. Completing check-in formalities within the stipulated timelines is the sole responsibility of the complainant. Further Inter First Appeal No.463 of 2018 8 Globe Aviation Limited is not liable to the complainant for any loss or expenses incurred; as a result of complainant's own failure to adhere to said timelines. This is borne out by Article 8.3 of the Indigo CoC. Article 8.3 has been given in their reply and the same is reproduced hereunder for the facility of reference:-
"8.3 Failure to comply:
IndiGo will not be liable to the customer for any loss or expense incurred due to their failure to comply with the provisions of this Article."
It was further averred that despite failure of the complainant to adhere to check in timeline, the staff of Inter Globe Aviation Limited without any admission of liability offered to re-accommodate the complainant on the next available flight, subject to payment of necessary charges. Opposite parties Nos.2 and 3 denied all other allegations made in the complaint and prayed for dismissal of the complaint qua them.
Defence of Opposite Party No.4:
7. Opposite party No.4-Air India Limited also filed its separate reply stating therein that it is a matter of record regarding booking of the online ticket by the complainant through makemytrip.com for travelling from Amritsar to Mumbai. However, it was denied that it was a single ticket. Rather two separate tickets were issued to the complainant and since the tickets were got booked by him online through Makemytrip (India) Pvt. Ltd.-opposite party No.1, as such, the main liability is that of the said company. It was submitted that there was no contract of the Air India Limited with Indigo Airlines and First Appeal No.463 of 2018 9 the connected flight was not through the Air India Ltd. It was admitted that before the flight was about to take off, some technical fault had occurred in the plane which came to the notice of the pilot and as such, the flight could not take off in time as the technical fault was to be removed. Accordingly, announcement was made to the passengers of said flight. It took some time in removing the technical fault in the plane. The delay was caused due to the technical fault i.e. brake got jammed, as such, they cannot be held liable for the said delay occurred. As per own version of the complainant, the complainant had duly informed to the Makemytrip (India) Pvt. Ltd. regarding delay in the flight from Amritsar to Delhi through Air India Limited due to technical fault. The connecting flight from Delhi to Mumbai was not of Air India Ltd. However, as per the rules and conditions of booking of the tickets, if the flight of Air India Limited would have been cancelled, then the complainant/passengers are entitled for the refund of fare but in this case, the flight was not cancelled. The complainant while booking his two tickets, through Makemytrip (India) Pvt. Ltd. was fully aware that the connecting flight was from the different carrier. The Air India Ltd. was not liable to make any alternative arrangement for the complainant because the connecting flight was not of Air India Ltd. While denying and controverting other allegations, dismissal of complaint was prayed. Finding of the District Forum:
8. The parties produced evidence in support of their respective averments before the District Forum, which after going through the First Appeal No.463 of 2018 10 same and hearing learned counsel on their behalf, allowed the complaint against opposite party No.1 and dismissed the same against opposite parties Nos.2 to 4, in the terms stated above, vide impugned order. Aggrieved by the said order the present appeal has been preferred by Makemytrip (India) Pvt. Ltd.-opposite party No.1.
9. We have heard learned counsel for the parties and have carefully gone through the records of the case. We have also gone through the written arguments submitted by opposite parties Nos.2 and 3.
Contentions of the Parties:
10. It was contended by the learned counsel for the appellant/opposite party No.1 that the complainant had approached them online for purchase of ticket from Amritsar to Mumbai. The complainant was provided two tickets; one ticket was from Amritsar to Delhi via Air India Limited Flight and another ticket was from Delhi to Mumbai via Indigo Airline Flight. The Air India flight did not take off in time from Amritsar due to technical fault. The appellant/opposite party No.1 has no connection so far as the operation of the flight is concerned. It was further contended that the District Forum, Amritsar had no territorial jurisdiction to try the complaint and the District Forum has failed to appreciate the role of opposite party No.1. The complainant has already travelled first leg of his flight from Amritsar to Delhi though a bit delayed and as such, there is no deficiency in service on the part of opposite party No.1. Force majeure clause is applicable in the present case and relied First Appeal No.463 of 2018 11 upon the judgment of "Bharathi Knitting Co. v. HL Worldwide Express Courier" (1996) 4 SCC 704. When the dispute is with regard to the facts, the matter should be referred to the Civil Court. It was further contended that the Indigo Airlines had already refunded the amount of the ticket permissible as per the terms and conditions thereof. It was prayed that this appeal may be allowed and the impugned order passed by the District Forum against it may be set aside.
11. Learned counsel for opposite parties Nos.2 and 3 argued on the similar lines as have been mentioned in the written arguments to the effect that the complainant failed to establish any cause of action against InterGlobe Aviation Limited. The passengers must report at the check-in counter within the stipulated timelines in order to undertake air travel on board IndiGo flights. However, it is the admitted case of the complainant himself that he failed to report 45 minutes prior to scheduled departure time of the IndiGo flight as is required and, therefore, InterGlobe Aviation Limited was compelled to treat the complainant as 'No Show'. The complainant is alleging delay in the flight, which commenced from Amritsar and reached Delhi with the delay of more than 3 hours much late before the scheduled departure time of the IndiGo Airline flight. As such, opposite parties Nos.2 and 3 are not responsible in any way. Moreover, they have already refunded the admissible amount as per the terms and conditions of the ticket, which are binding on the parties. It was further contended that the District Forum after duly First Appeal No.463 of 2018 12 appreciating the pleadings of the parties and the evidence on record has rightly dismissed the complaint against opposite parties Nos.2 and 3. It was prayed that there is no merit in the present appeal and the same is liable to be dismissed.
12. It was argued by the learned counsel for opposite party No.4 that the delay in flight was due to technical fault and after the fault was removed the complainant had travelled from Amritsar to Delhi. The delay is regretted. It was beyond their control. Such fault can occur any time in any machine. It was beyond the control of the Pilot and the concerned Airlines. He made reference to Clauses 1.4 and 1.5 of the CAR issued by the Ministry of Civil Aviation under Rule 133 A of the Aircraft Rules, 1937. It was further argued by the learned counsel for opposite party No.4 that comforts were provided during the delay period and once the complainant travelled in the said Flight from Amritsar to Delhi, therefore, there is no deficiency in service on the part of opposite party No.4. He relied upon the judgment of Hon'ble Supreme Court in "Interglobe Aviation Limited Vs. N. Sathidanand" reported in (2011)7 SCC 463. The District Forum has rightly dismissed the complaint against opposite party No.4. It was prayed that there is no merit in the present appeal and the same is liable to be dismissed.
Consideration of Contentions:
13. We have given our thoughtful consideration to the contentions raised before us by the learned counsel for the parties.First Appeal No.463 of 2018 13
14. So far as the issue of territorial jurisdiction is concerned, admittedly the complainant got booked the tickets from opposite parties through internet from his place of residence and acceptance of the contract through internet was received by him in Amritsar. A part of cause of action had arisen in the territorial jurisdiction of Amritsar. Therefore, the District Forum at Amritsar had the territorial jurisdiction to entertain and decide this complaint.
15. The admitted facts are that the complainant got booked online ticket, Ex.CW1/C, through Makemytrip India Private Limited-opposite party No.1 on 4.6.2016 for travelling from Amritsar to Mumbai for which the complainant was provided with itinerary and reservation details according to which the first leg of journey from Amritsar to Delhi was to be provided by Air India Limited Flight No. AI-462 and the second leg of journey from Delhi to Mumbai was to be provided by Indigo Flight No.6E-129. It is the case of the complainant that when he boarded the flight of Air India Limited Flight No. AI-462, it did not ready to take off due to some technical fault in the plane. It was delayed by more than three hours. The complainant requested helpline of opposite party No.1 at 15:20 on same day to reschedule the flight from Delhi to Mumbai. However, it demanded a sum of ₹7,000/- more for the same. The complainant also went to the counter of Air India Limited requesting them for alternative flight from Delhi to Mumbai but they refused to entertain him on the ground that the connecting flight was from different carrier. Due to the late reaching of Air India Limited flight from Amritsar to Delhi from the First Appeal No.463 of 2018 14 scheduled time, the connecting flight of the complainant i.e. IndiGo Airline Flight No.6E-129 from Delhi to Mumbai got missed. The complainant had to buy another ticket for travelling from Delhi to Mumbai and had to suffer tremendous harassment, mental tension and mental agony besides financial loss. In these circumstances, the questions to be decided in the present appeal are, which of the opposite parties is deficient in rendering service and to how much amount the complainant is entitled to receive and from which opposite party?
16. So far as Air India Limited-opposite party No.4 is concerned, it is this Airline, the aircraft of which bearing No.AI-462 from Amritsar to Delhi got delayed. The scheduled time for its departure from Amritsar was 14:15 and arrival time at Delhi Airport was 15:30.
Admittedly it reached Delhi Airport at 19:00 i.e. three and a half hours late. The departure time of connecting flight of IndiGo Airlines- opposite parties Nos.2 and 3 bearing No.6 E-129 from Delhi to Mumbai was 17:40. Due to late arrival of Air India Limited Flight at Delhi by three and a half years the complainant missed the connecting flight from Delhi to Mumbai, which obviously caused harassment, mental tension and financial loss to him. The cause for the delay explained by opposite party No.4 was that brake of the plane got jammed, which technical fault was later on removed and as a result of which, there was delay in taking off. Such a technical fault can very well be foreseen by opposite party No.4. A thorough check must have been done well in advance before boarding the First Appeal No.463 of 2018 15 passengers in the plane and it was not justified in its act of first allowing boarding of passengers and when it was about to take off to tell them that it could not take off as there was some technical fault. This technical fault could very well be foreseen and does not fall in the category of force majeure circumstances or the reasons beyond their control.
17. So far as CAR issued by the Ministry of Civil Aviation under the provisions of Rule 133 of the Aircraft Rules, 1937, No.23-15/2016- AED dated 6.8.2010 effective from 15.8.2010 under the subject facilities to be provided to passengers by airlines due to denied boarding, cancellation of flights and delays in flights is concerned, opposite party No.4 does not dispute that they are governed by clauses 1.4 and 1.5 thereof which reads 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 First Appeal No.463 of 2018 16 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 scheduled.
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."
18. In terms of clause 1.4 of CAR opposite party No.4 would not be liable for any delay caused due to extra ordinary circumstances beyond their control. In terms of clause 1.5 opposite party No.1 will not be liable to pay any compensation for delay attributable to Air Traffic Control, meteorological conditions, security risks and other causes that are beyond their control.
First Appeal No.463 of 2018 17
19. It is pertinent to note that in the CAR, an airline is exonerated from paying compensation for delay in case delay has been caused by extraordinary circumstances beyond the control of the airline, which could not have been avoided even if all measures had been taken. It, then, specifies what these extra ordinary circumstances shall include, namely, political instability, natural disaster, civil war, insurrection or riot, flood, explosion, governmental 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. Under clause 1.4, the airline is exonerated from liability on account of delay, if it is attributable to Air Traffic Control (ATC), meteorological conditions, security risks or any other causes that are beyond control of the airline.
20. It is pertinent to note that in clauses 1.4 and 1.5 in which an airline is exonerated there is no mention of technical fault. In the present case the technical fault explained by opposite party No.4 was that the brake of the plane had jammed. Such like faults can well be checked well in advance in routine by the Airlines. However, in the case in hand, the passengers were boarded in the plane and the plane was about to take off when it was told that there was some technical fault and the plane would take off after removing that fault. We are of the considered view that such a fault does not fall either in clause 1.4 or 1.5 of the CAR, reproduced above, the benefit of which can be given to opposite party No.4-Airlines.
First Appeal No.463 of 2018 18
21. Reference in this regard may be made to judgment of Delhi State Consumer Disputes Redressal Commission in First Appeal No.39 of 2009 "Air India Limited & Anr. v. Shri Inder Mohan Taneja & Ors." and the judgment of Kerala State Consumer Disputes Redressal Commission in "M/s Sahara Airlines Ltd. Vs. K. Ramkumar & Ors." reported as 2010(4)CPR 201. In the case of Inder Mohan Teneja (supra) the flight was delayed by two days. Only the initial delay was communicated to the complainant. Later on he was also shifted to a hotel where he was extremely uncomfortable. The State Commission found that the Airlines had acted in a very discourteous and negligent manner resulting in great hardship and inconvenience to the complainant. The State Commission upheld the order of the District Forum ordering payment of ₹10,000/- to the complainant, Mr. Inder Mohan Taneja and ₹40,000/- to Mrs. Champa Taneja, ₹50,000/- towards compensation and ₹10,000/- towards cost of litigation. It was a case where the airlines had violated the rule itself. The hotel provided to the complainant was not appropriate and extremely uncomfortable. The State Commission found that the Airlines had acted in a very discourteous and negligent manner resulting in great hardship and inconvenience to the complainant. In that view of the matter, the State Commission has held that the circumstances called for very substantial compensation.
22. In the case of K. Ramkumar's case (supra) the Kerala State Commission found that the reason for delay was stated to be a First Appeal No.463 of 2018 19 technical problem beyond control of opposite party, but the opposite party never explained the technical reason; there was also no document produced by opposite party or its official stating the actual reason for the delay. The State Commission held that it was for the Airlines to explain the reason for delay and absence of such explanation would amount to wilful suppression of real cause. The delay in said case was more than nine hours. The State Commission, therefore, held that the complainant will be entitled to compensation. The compensation of ₹50,000/- ordered by the Forum was however, reduced to ₹25,000/- and cost of ₹2000/- was confirmed.
23. In "Express Travels v. M.R. Shah & Ors." 2002(3) C.P.J. 39 (NC) there was change in time schedule. The Air flight from Delhi to Kullu was scheduled at 13.15 hours but the aeroplane left Delhi at 12.00 noon before schedule time regarding which no notice was issued to the complainant. Resultantly the complainant in that case had to travel by road from Delhi to Kullu and again from Kullu to Delhi. The plea of the respondent was that change in schedule was made to all agents including agent who had issued ticket to complainant and it could alter the time of flight without assigning any reason as permissible under Carriage by Air Act. Hon'ble National Commission found no force in that defence plea of the appellant and passed the following order:-
"6. It would, thus, be seen that both ways the complainants have suffered. It is not difficult to understand how much mental agony and tension that the complainants might have undergone. As a First Appeal No.463 of 2018 20 matter of fact, airlines should have made arrangement or at least given help in this regard for the travel by road from Delhi to Kullu and not providing even such a facility is certainly deficiency in service apart from not informing the complainants about the change in time schedule. In our view, the State Commission was right in allowing the complaint and awarding compensation and costs. We, therefore, find no error in the impugned order and the conclusion arrived at by the State Commission for us to take a different view. Both these appeals are dismissed with costs which we assess at Rs.5,000/- in each of the appeals."
24. In "Air India Ltd. v. M.K. Abdul Majeed" 2003(4) C.P.J. 144 (NC) also the flight was cancelled by Air India. The passengers were made to sit in the aircraft for three hours before the authorities announced the cancellation of the flight. The plea of the Air India was that the flight had to be cancelled because of unexpected circumstances i.e. the pilot operating the flight from Dubai to Thiruvanthapuram was the one who was required to operate the flight from there to Mumbai. Since the flight from Dubai itself came late, the working hours of the Pilot would have exceeded if he had to operate the flight from Thiruvanthapuram to Mumbai. His services could not be secured and therefore, the flight had to be cancelled. In those circumstances the Hon'ble National Commission has held as under:-
"5. The exact reasons as to why the flight was not operated would only be known to Air India, but it is reasonable to assume that when the incoming flight from Dubai is delayed, they should have made some alternative arrangements to get another Pilot to operate the flight to Mumbai. Just leaving the passengers to their own resources and destiny is nothing but callous approach and gross negligence signifying a total unconcern to passengers' woes. As correctly observed by the First Appeal No.463 of 2018 21 State Commission, the respondent was not on a holiday, but he was scheduled to attend a conference of the Space Engineers at Agra. We find the order of the State Commission is perfectly correct and there is no reason for us to exercise our Revisional Jurisdiction vested under Section 21(b) of Consumer Protection Act to interfere. The Revision Petition is dismissed."
25. In "Indian Airlines v. Femina Zai" 2007(3) C.P.J. 284 (NC) also the flight of Indian Airlines from Jodhpur to Delhi was cancelled and the information for the same was not given. In that case the complainant had to go by a taxi to New Delhi to catch a flight to USA on the early morning of 4th July, 2005 at 2.35 a.m. Hon'ble National Commission after relying upon the aforementioned two judgments held the Indian Airlines deficient in providing service and upheld the orders passed by the State Commission and the District Forum.
26. In "SPICEJET LTD. V. RANJU AERY" (IV)(2017) CPJ 1 (NC) the complainant booked air tickets online from Chandigarh to Bagdogra (West Bengal) for her and her family members through the website Yatra.com for travel from New Delhi to Bagdogra on 23.6.2015 and return journey from Bagdogra to Kolkata and the connecting flight of the opposite party Airlines M/s Spicejet Ltd. from Kolkata to New Delhi for 30.6.2015. The complainant started her return journey on 30.6.2015 from Bagdogra to Kolkata by Indigo Airlines and reached the airport at Kolkata at 1.30 P.M. to board the connecting flight of the OP Airlines SG256 from Kolkata to New Delhi, scheduled for 20:40 hours. The complainant's family members were having boarding passes for the said flight. However, First Appeal No.463 of 2018 22 they were shocked to know that the said flight of the OP Airlines had been cancelled. Alleging deficiency in service the complainant filed consumer complaint in the District Forum, Chandigarh, which was allowed and ordered refund of the amount of ₹80,885/- paid by them for the alternative flight along with compensation and costs. The OP-Airlines filed appeal before the State Commission and the same was dismissed at preliminary stage. The OP Airlines filed Revision Petition before the Hon'ble National Commission. Hon'ble National Commission while dismissing the Revision Petition filed by the OP- Airlines held in paras nos.10 to 13 as under:-
"10. The main issue involved in the case relates to the cancellation of the flight SG 256 of the petitioner Airlines from Kolkata to New Delhi on 30.6.2015. A perusal of the grounds of the Revision Petition indicates that the petitioner/OP has taken the plea that the passengers travelling in the airlines are governed by the terms of carriage, contained in the e-ticket, framed in accordance with Carriage by Air Act, 1972. One of the clauses of the aforesaid terms of Carriage says that if the flight was cancelled or delayed, the airlines will assist the passengers to get to the destination, but shall not be liable in any way for the delay or cancellation. Further, the airlines reserve the right to cancel or delay any flight without incurring any liability in damages or otherwise to the passengers or any other person on any ground whatsoever. The learned Counsel for the petitioner stated that the e-ticket issued to the passenger was a concluded contract between the parties and hence, they were bound to follow the terms and conditions of the said contract. The flight in question was cancelled due to operational and technical reasons, which were beyond the control of the petitioner and hence, the complaint against them was not maintainable.
11. The contention raised by the petitioner, as stated in the paragraph above, is not tenable, because the basic issue that merits consideration in the present case is, whether there has been deficiency in service on the part of the OP Airlines or not, in terms of the provisions of the Consumer Protection Act, 1986. It shall be worthwhile to quote the definition of 'service' and 'deficiency' as stated in First Appeal No.463 of 2018 23 Section 2(o) and 2(g) respectively in the Act in this regard, which reads as follows:
"Section 2(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."
Section 2(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."
12. From the facts and circumstances of the case, it is abundantly clear that the flight, which the complainants were supposed to board, got cancelled, although all other flights from Kolkata airport were operational. The OP Airlines have not explained anywhere whether there were any genuine reasons for the cancellation of the flight. Merely taking the plea that there were technical and operational defects, does not cut much ice in view of the fact that the other flights were operating normally and hence, the general conditions at the airport or the weather conditions etc. were conducive to the operation of the flights. The OP Airlines have also not explained anywhere whether they took any concrete steps to take care of the passengers of their cancelled flight and to make arrangements for their travel by some alternative method. The deficiency in service on the part of the OP Airlines is, therefore, writ large on the face of it, and they are liable to compensate the complainant on this score. Referring to the contention of the OP Airlines about the concluded contract etc. between the parties, reference may be made to an order passed by the Hon'ble Supreme Court in LIC of India v. The Consumer Education and Research Centre, 1995 (SLT SOFT) 847=(1995) 5 SCC 482, where it has been laid down as follows:
"47. It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave First Appeal No.463 of 2018 24 the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service for ever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract."
13. It is made clear from the view taken in the case cited above that if a contract is found unreasonable or unfair or irrational, the same cannot be given affect to, in view of the fact that there is clear deficiency in service on the part of the OP Airlines, as they did not take any steps to provide an alternative to the passengers."
27. The above referred decisions support our finding that the complainant is entitled to compensation as the reason for delay was technical fault i.e. brake jammed and could well be foreseen by the Airlines-opposite party No.4 and as such, it cannot be said to be beyond its control. Therefore, the facts of the case in Bharathi Knitting Company (supra) are not applicable to the facts of the present case.
28. So far as the judgment relied upon by opposite party No.4 in N. Sathidanand's case (supra) is concerned, in that case the Honble Supreme Court found that the delay was for reasons beyond control of the carrier. The Honble Supreme Court also found that the crew of Airlines had acted reasonably and in a bonafide manner. In that view of the matter, the Hon'ble Supreme Court has held that there was no deficiency in service on the part of the Airlines. It was a case where delay was attributable to meteorological conditions, or air traffic control directions. These are beyond control of the airlines. First Appeal No.463 of 2018 25
29. In the case at our hand, it was mentioned that the delay was due to technical fault as the brakes of the plane had jammed. This fault can well be foreseen by opposite party No.4 and cannot be said to be beyond its control. Therefore, the ratio laid down by the Hon'ble Supreme Court in N. Sathidanand's case (supra) cannot be made applicable to this case. Hence, it is held that opposite party No.4-Air India Limited is certainly deficient in rendering service to the complainant and adopted unfair trade practice.
30. So far as the liability of appellant/opposite party No.1 is concerned, admittedly when the flight of the complainant was got delayed at Amritsar Airport and he realized that he may miss the next connecting flight from Delhi to Mumbai, he immediately called helpline of Makemytrip India Pvt. Ltd. -opposite party No.1 at 15:20 but it failed to entertain his request and the complainant left with no other alternative but to spend ₹17,000/- for purchasing Air India ticket in emergency from Delhi to Mumbai. On the other hand opposite party No.1 has not denied that the complainant ever informed it regarding the technical fault in the Air India Limited flight and requested to reschedule his flight from Delhi to Mumbai. In these circumstances the District Forum has rightly held that as the whole itinerary and reservation details was made by opposite party No.1, as such, as per their own force majeure clause if MMT is informed in advance of such situations where dishonor of bookings may happen, it will make its best efforts to provide similar alternative to its customers or refund the booking amount after reasonable First Appeal No.463 of 2018 26 service charges and that opposite party No.1 was informed by the complainant at its helpline at 15:20 on the same day and as such, it was liable to make alternative arrangement for him but it failed to do so. Hence it is held that appellant/opposite party No.1 is also deficient in providing service to the complainant and adopted unfair trade practice.
31. So far as the liability of opposite parties Nos.2 and 3 is concerned, the District Forum has held in para no.12 of the impugned order as under:-
"12. However, with regard to the liability of Indigo Airlines i.e. opposite parties Nos.2 & 3 the plea of opposite parties Nos.2 & 3 is that no doubt the complainant booked an air ticket from Delhi to Amritsar for travel on 5.6.2016 on Indigo Flight No.6E-129 and the scheduled time of departure was 5:40 P.M. As per terms and conditions of the Indigo CoC article 8.1 the Indigo recommends that customers report for check in at least 2 hours prior to the departure of the schedule flight and the check in closed 45 minutes prior to the scheduled departure of the flight. The scheduled time of departure for Indigo Flight No.6E-129 was 5.40 PM and the complainant was advised to report before 45 minutes prior to the scheduled time i.e. before 4.55 p.m. But, however, the complainant failed to report to check in counter for Indigo Flight No.6E-29. Therefore, Inter First Appeal No.463 of 2018 27 Globe Aviation was compelled to treat the complainant as "No Show" in accordance with the Indigo CoC. As the Indigo flight was not connected with Air India Flight, so it was not the responsibility of the Indigo flight to wait for the passengers of any other flight, if any, technical fault occurs in the Air India Flight as both the flights are not connected with each other. Therefore opposite parties Nos.2 & 3 made a refund of INR 711/- on 13.6.2017 to the account through which the complainant's booking was undertaken. So no liability can be fastened upon opposite parties Nos.2 and 3 as they act as per terms and conditions of Indigo CoC."
We do not find any flaw in the aforesaid finding of the District Forum. Therefore, the District Forum has rightly exonerated opposite parties Nos.2 and 3 from any liability.
32. Now coming to the quantum of compensation. The complainant has prayed for a direction to refund him ₹13,033/- as the price of the ticket from Amritsar to Delhi and Delhi to Mumbai. Besides this he also sought refund of ₹17,000/-, which he had to pay for his journey from Delhi to Mumbai. He also sought compensation of ₹1,00,000/- from each of the opposite parties on account of mental harassment and agony. It is not disputed that the complainant had travelled on said ticket to New Delhi and had the flight of IndiGo Airlines from Delhi to Mumbai not missed, he would have travelled to Mumbai on that ticket. However, the complainant First Appeal No.463 of 2018 28 had to spend ₹17,000/- for next flight from Delhi to Mumbai in-spite of the fact he had already paid for the same to opposite party No.1. Therefore the net loss caused to the complainant comes to ₹17,000.00. Besides this the complainant must have undergone tremendous mental harassment and inconvenience. In the circumstances of the case we are of the firm view that opposite party No.4 is liable to pay this amount of ₹17,000/- to the complainant along with ₹10,000/-, as compensation, for harassment and mental tension and litigation costs. So far as appellant/opposite party No.1 is concerned, it is also held liable to pay ₹5,000/-, as compensation, on account of mental tension and harassment and ₹3,000/- as cost of litigation, as ordered by the District Forum. The complaint against opposite parties Nos.2 and 3 is dismissed.
33. In view of our above discussion, this appeal is partly accepted and the impugned order passed by the District Forum is modified to the extent stated above.
34. The appellant/opposite party No.1 had deposited a sum of ₹12,500/- at the time of filing of the appeal on 21.8.2018. It also deposited another amount of ₹20,000/- on 13.12.2018 in compliance of the order dated 28.11.2018. Out of this amount, an amount of ₹8,000/-, as ordered above, be remitted by the registry to the District Forum forthwith for onward transmission to the complainant. 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 after the expiry of limitation period in accordance First Appeal No.463 of 2018 29 with law. The rest of the amount of ₹24,500/-, along with interest which has accrued thereon, if any, be refunded by the registry to appellant-opposite party No.1 by way of demand draft/crossed cheque.
35. The compliance of this order shall be made by opposite party No.4-Air India Limited Airline within a period of one month from the date of receipt of certified copy thereof failing which, the awarded amount shall carry interest at the rate of 9% per annum from the date of this order till the date of actual payment.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER March 11, 2019 Bansal