State Consumer Disputes Redressal Commission
1. Navdeep Arora vs 1. Air Asia 608, on 5 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 118 of 2013 Date of Institution : 20.03.2013 Date of Decision : 05.04.2013 1. Navdeep Arora son of Shri Janak Raj Arora resident of House No.1034, Sector 46-B, Chandigarh. 2. Seema Arora wife of Navdeep resident of House No.1034,Sector 46-B, Chandigarh. 3. Bianca Arora daughter of Navdeep Arora resident of House No.1034, Sector 46-B, Chandigarh, through her father Shri Navdeep Arora (complainant being minor). 4. Siona Arora daughter of Navdeep Arora resident of House No.1034, Sector 46-B, Chandigarh, through her father Shri Navdeep Arora (complainant being minor). Appellants/complainants V e r s u s 1. Air Asia 608, Ansal Bhawan 16, Kasturba Gandhi Marg, Connaught Place, New Delhi, through the Managing Director 2. Hind Air Star Pvt. Ltd. GR 6 & 7, Ground Floor, Narain Manzil, 21 Barakhamba Road, New Delhi 110001 through the Managing Director ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Rishi Karan Kakkar, Advocate for the applicants/appellants. ------------------------------------------------------------------------------------------------ First Appeal No. : 117 of 2013 Date of Institution : 20.03.2013 Date of Decision : 05.04.2013 1. Ashwani Arora son of Shri Janak Raj Arora resident of House No.1034, Sector 46-B, Chandigarh. 2. Upasna Arora wife of Ashwani Arora resident of House No.1034, Sector 46-B, Chandigarh. 3. Vedansh Arora son of Ashwani Arora resident of House No.1034, Sector 46-B, Chandigarh, through his father Shri Ashwani Arora (complainant being minor). Appellants/complainants V e r s u s 1. Air Asia 608, Ansal Bhawan 16, Kasturba Gandhi Marg, Connaught Place, New Delhi, through the Managing Director 2. Hind Air Star Pvt. Ltd. GR 6 & 7, Ground Floor, Narain Manzil, 21 Barakhamba Road, New Delhi 110001 through the Managing Director ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Rishi Karan Kakkar, Advocate for the applicants/appellants. ------------------------------------------------------------------------------------------------ First Appeal No. : 116 of 2013 Date of Institution : 20.03.2013 Date of Decision : 05.04.2013 1. Ms. Simrat Vats wife of Sameer Vats resident of House No.371, Phase 4 SAS Nagar Mohali. 2. Rudraansh Vats son of Sameer Vats resident of House No.371 Phase 4 SAS Nagar Mohali (minor through guardian) Appellants/complainants V e r s u s 1. Air Asia 608, Ansal Bhawan 16, Kasturba Gandhi Marg, Connaught Place, New Delhi, through the Managing Director 2. Hind Air Star Pvt. Ltd., GR 6 & 7, Ground Floor, Narain Manzil, 21 Barakhamba Road, New Delhi 110001 through the Managing Director ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Rishi Karan Kakkar, Advocate for the applicants/appellants. ------------------------------------------------------------------------------------------------ First Appeal No. : 115 of 2013 Date of Institution : 20.03.2013 Date of Decision : 05.04.2013 1. Amarjit Singh resident of House No.646, Phase 3B-1, SAS Nagar, Mohali, Punjab. 2. Mrs. Deepinder Kaur wife of Shri Amarjit Singh resident of House No.646, Phase 3B-1, SAS Nagar Mohali, Punjab. 3. Ms. Inayat Patwalia daughter of Shri Amarjit Singh resident of House No.646 Phase 3B-1, SAS Nagar Mohali, Punjab. Appellants/complainants V e r s u s 1. Air Asia 608, Ansal Bhawan 16, Kasturba Gandhi Marg, Connaught Place, New Delhi, through the Managing Director 2. Hind Air Star Pvt. Ltd. GR 6 & 7, Ground Floor, Narain Manzil, 21 Barakhamba Road, New Delhi 110001 through the Managing Director ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Rishi Karan Kakkar, Advocate for the applicants/appellants. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This order shall dispose of the aforesaid four appeals, arising out of the common order dated 14.01.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed Consumer Complaint Nos. 329 of 2012-Navdeep Arora and Ors. Vs. Air Asia and Anr., 330 of 2012- Ms. Simrat Vats and Anr. Vs. Air Asia and Anr., 331 of 2012- Amarjit Singh and Ors. Vs. Air Asia and Anr. and 332 of 2012- Ashwani Arora and Ors. Vs. Air Asia and Anr., filed by the complainants (now appellants).
2. The facts, being identical are culled out, from Consumer Complaint No.329 of 2012, are to the effect, that the complainants approached the Opposite Parties, for reservation of their tickets, for their journey to Thailand. The reservation was made, in the month of May 2011, for their travel, in June 2012. It was stated that the complainants, also made reservation of hotels, for their stay, in Thailand, and made the complete payment, to them. In February 2012, the complainants were shocked to receive an email, from the Opposite Parties, whereby, they informed that the flight to Thailand, in June 2012, in which they were to travel, had been cancelled, due to technical reasons. It was further stated that the complainants, had to make all their arrangements, on their own. Even the Officials/Officers of hotels, booked by them, refused to refund the amount, paid by them (complainants), for their stay at Thailand. Under these circumstances, the complainants considered it proper, to carry on with their travel plans, and made alternate travel arrangements, for the same dates, for which they had to spend a sum of Rs.7,539/-, more, each (in all Rs.30,156/- in respect of tickets in all complaints). It was further stated that the aforesaid acts of the Opposite Parties, in cancelling the flight, in which the complainants were scheduled to travel, in June, 2012, and non-payment of the amount claimed in each complaint, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, the complaints, referred to above, under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), were filed, seeking reliefs of payment of various amounts, alongwith interest, as also compensation, for mental agony and physical harassment.
3. Opposite Party No.1, in its written version, admitted that the tickets were booked, in May 2011, online, by the complainants, in each complaint. It was stated that, as per the terms and conditions of the booking, the flights could be cancelled. It was further stated that the booking of tickets, was in no way linked, with the hotel bookings, aforesaid. It was further stated that even otherwise, no document was produced by the complainants, regarding the booking of hotels, at Thailand. It was further stated that flight No.FD3797-New Delhi to Bangkok (BKK), had to be terminated, due to technical reasons, and intimation to this effect, was duly given to the complainants, vide email dated 12.02.2012 i.e. almost four months, before the scheduled departure of the same (flight). It was further stated that the complainants had sufficient time to make alternate arrangements. It was further stated that, in the aforesaid email, the complainants were provided certain options and they duly exercised the option of receiving the full refund of entire amount, of their own free will. It was further stated that the refund of air fare, was made to the complainants. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. On 13.9.2012, the Counsel for the complainants, made a statement, that he did not press the complaint, against Opposite Party No.2, and its name be deleted from the array of the Opposite Parties. Accordingly, vide order of the even date, the name of Opposite Party No.2, was deleted, from the array of the Opposite Parties.
5. The complainants and Opposite Party No.1, led evidence, in support of their cases.
6. After hearing the Counsel for the Parties, and, on going through the evidence, and record of the cases, the District Forum, came to the conclusion, that there was no deficiency, in rendering service, on the part of Opposite Party No.1, especially, when the full refund had been made, on the request of the complainants.
7. Accordingly, the District Forum, dismissed the complaints, as stated above.
8. Feeling aggrieved, the instant appeals, have been filed by the appellants/complainants.
9. Alongwith the appeals, applications for condonation of delay of 31 days, as per the applicants/appellants (28 days, as per the office report), in filing the same (appeal), have been moved, stating therein, that the Counsel for the applicants/appellants, was suffering from cervical ailment and was regularly on bed rest. It was further stated that, thus, he was admitted to a hospital, for almost two months, as a result whereof, the delay of 31 days, as per the applicants/appellants (28 days, as per the office report), in filing the appeals, occurred. It was further stated that due to the aforesaid reasons, the appeals could not be filed, in time. It was further stated that the delay, in filing the appeals, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
10. We have heard the Counsel for the applicants/appellants, on the applications, for condonation of delay, as also, in the main appeals, at the preliminary stage, and have gone through the record of the cases, carefully.
11. First coming to the applications, for condonation of delay, it may be stated here, that the same are liable to be dismissed, for the reasons, to be recorded hereinafter. In the applications, it was, no doubt, stated that the Counsel for the applicants/appellants, suffered from cervical ailment and was regularly on bed rest, and, thus, was admitted to a hospital, for almost two months, as a result whereof, the appeals could not be filed within the prescribed period. No doubt, these applications are supported by the affidavit of Rishi Karan Kakkar, Advocate, for the complainants, yet, no medical record was produced, alongwith the applications, showing that actually the Counsel was suffering from cervical ailment, was regularly on bed rest, and was admitted to a hospital for almost two months. In case, the Counsel for the applicants/ appellants, remained admitted, in the hospital, then, certainly some medical record from the same (hospital) could be produced. In the absence of any medical record, having been produced, the averments, contained in the applications, cannot be taken to be true. The delay, in filing the appeals was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the applications, the delay of 31 days, as per the applicants/appellants (28 days, as per the office report), cannot be condoned. The applications are, thus, liable to be dismissed.
12. Now coming to the main appeals, the Counsel for the appellants/complainants, submitted that the appellants were informed by Opposite Party No.1, with regard to the cancellation of flight, in the month of February 2012, which was scheduled for June 2012. He further submitted that no time was afforded to the complainants, to exercise their option, as per Article 9.2 (Cancellation, Changes of Schedules) of the terms and conditions for booking. He further submitted that the refund of air fare was made by Opposite Party No.1. He further submitted that, on account of the cancellation of flight, the appellants had to make alternative arrangements, as a result whereof, they had to shell out more money, for purchasing air tickets, for the tour, in question. He further submitted that even the Officials/Officers of hotels, which had been booked by the appellants/complainants, refused to refund the amount, already paid by them. He further submitted that, as such, a lot of mental agony and physical harassment, was caused to the appellants/complainants. He further submitted that, as such, the appellants/ complainants were certainly entitled to compensation, but the District Forum, fell into a grave error, in holding to the contrary, and dismissing the complaints. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
13. There is, no dispute, about the factum, that the appellants made reservation of tickets, for their journey, to Thailand, in May 2011, with Opposite Party No.1, for their travel, in June 2012. Undisputedly, the flight was cancelled, due to technical reasons, and intimation, in that regard, was duly sent to the appellants vide email dated 12.02.2012, copy whereof, is Annexure E. It means that about four months, before the date of travel, the complainants were duly intimated, with regard to the cancellation of flight, on account of technical reasons. Under these circumstances, the complainants could not raise any grouse, with regard to the termination of flight. Article 9.2 of the AirAsia`s terms and conditions of carriage, reads as under:-
9.2 Cancellation, changes of Schedules : At any time after a booking has been made we may change our schedules and/or cancel, terminate, divert, postpone reschedule or delay any flight where we reasonably consider this to be justified by circumstances beyond our control or for reasons of safety or commercial reasons.
In the event of such flight cancellation, we shall at our option, either:
a.
carry you at the earliest opportunity on another of our scheduled services on which space is available without additional charge and, where necessary, extend the validity of your booking; or b.
should you choose to travel at another time, retain the value of your fare in a credit account for your future travel provided that you must re-book within three (3) months therefrom.
14.
Bare perusal of the aforesaid Article, clearly reveals that Opposite Party No.1, had the right to cancel the flight, either on technical grounds or even on commercial grounds. However, in the event of cancellation of flight, Opposite Party No.1, on its own discretion, was required to comply with one of the conditions, mentioned in Article 9.2. When intimation, vide Annexure E, was given to the complainants, it was for them, to exercise one of the options, mentioned in Article 9.2 of the terms and conditions, aforesaid. The refund of amount of fare, as admitted, had been made, in favour of the complainants, on their request, by Opposite Party No.1, immediately, after the intimation vide Annexure E, regarding cancellation of flight, was sent to them (complainants). Once, the complainants, accepted the refund of amount of fare, and did not raise a little finger, immediately thereafter, later on, it did not lie in their mouth, to say that they were not afforded an opportunity, to exercise their option, as per Article 9.2 of the terms and conditions. In case, the refund was not acceptable to the complainants, they could intimate Opposite Party No.1, that they were not accepting the same and were exercising one of the other options, contained in Article 9.2, referred to above. The complainants filed the complaints, after about five months of the receipt of refund of fare. The District Forum, was, thus, right, in holding that the Opposite Parties were neither deficient, in rendering service, nor indulged into unfair trade practice. The complainants were, thus, rightly held disentitled, to the reliefs, claimed by them. The findings of the District Forum, in this regard, being correct, are affirmed.
15. No other point, was urged, by the Counsel for the applicants/appellants, in the appeals, referred to above.
16. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
17. For the reasons, recorded above, the applications for condonation of delay of 31 days, as per the applicants/appellants (28 days, as per the office report), are dismissed. Consequently, the appeals, under Section 15 of the Act, are also dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs.
18. Certified copy of the order, shall also be placed, in appeal file Nos. 115 of 2013, 116 of 2013 and 117 of 2013.
19. Certified copies of this order, be sent to the parties, in each appeal, free of charge.
20. The files be consigned to Record Room, after completion Pronounced.
05.04.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg.