Karnataka

Bangalore 4th Additional

CC/450/2017

M.V.Sundararaman, - Complainant(s)

Versus

InterGlobe Aviation Limited Known as Indigo Airlines, A Company Incorporated Under the Provisions of - Opp.Party(s)

10 Oct 2018

ORDER

Complaint filed on: 22.03.2017

Disposed on: 10.10.2018

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027

CC.No.450/2017

DATED THIS THE 10^thOctober OF 2018

PRESENT

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

Complainant/s

V/s

Opposite party/s

M.V.Sundararaman,

Aged about 43 years,

R/at No.126, 10^th Cross,

Indiranagar First Stage,

Bangalore-560 038.

By.Adv.Arun Kumar.K.

InterGlobe Aviation Limited

(Known as “Indigo Airlines)

A Company incorporated under the provisions of the Companies Act, 1956

Having its branch office at

Richmond Road, Shanthala Nagar,

Richmond Town, Bengaluru-025.

And having its Registered Office at

Central Wing, Ground Floor, Thapar House, 124, Janpath,

New Delhi-110001

Makemytrip Limited.,

A Company incorporated under the provisions of the Companies Act, 1956. Having its branch Office at 2^nd Floor, The Centrum, Infantry Road, Opposite Cooper Arch, Bangalore-560 025.And having its registered office at Tripper Villa, Tower A, 243, SP Infocity, Phase 1, Udyog Vihar, Gurgaon-122015

By.Adv.C.K.Nandakumar-OP-1

By.Adv.Thakur & Sinha Law Offices LLP –OP-2

Claim against OP-2 is dismissed by order dt.9.6.2017

PRESIDENT: SRI.S.L.PATIL

1. This complaint has been filed by the complainant as against the OPs directing to pay Rs.11,768/- being the cost of the ticket paid for flight, to pay Rs.22,500/- towards compensation as per rule 3.3.2 (b), to pay Rs.23,535/- being the cost of the ticket expended for alternative flight to Bangalore, to pay Rs.1,00,000/- towards mental agony and hardship suffered on account of the deficient service of the OP, to pay interest at 18% p.a. from 1.1.2017 till date of payment, to pay costs and such other reliefs.

2. The brief facts of the case of the Complainant are thatthe complainant is an advocate by profession, practicing in courts and the complainant frequently travels with his family, during court vacations and also on account of his profession.The complainant plans well in advance for his travel and always avails the services of service providers with a proven track record of delivering high quality and timely service to ensure that his travel are undertaken in a smooth and hassle free manner. The OP-1 is an airline company and also is a service provider, engaged in the business of airlines and air transport of passengers and is a provider of service in terms of section 2 (o) of CP Act. The OP-2 is an online travel company that owns a web portal www.makemytrip.com that interalia enables customers to book tickets for the flights operated by OP. In terms of its own representation on its website, the OP claims to be India’s largest passenger airline with a market share of 39.8% as of January, 2017. It further claims that its focus is on three pillars-offering low fares, being on time and delivering a courteous and hassle-free experience. It further goes onto claim that “Indigo has become synonymous with being on-time” Relying on the representation of the OP, on 21.12.2016, the complainant went ahead and booked a return journey ticket for his family members, namely for himself, his son, Master Shreyas Viswanath and his mother Mrs. Savitri Viswanath through an electronic booking portal www.makemytrip.com the OP-2, from Bangalore to Mumbai and back. The ticket was booked for the round trip, Bangalore-Mumbai-Bangalore, with the onward journey on Indigo flight 6E-482 departing Bangalore on 29.12.2016 at 6:10 hours and return journey being on Indigo flight 6E-6939 departing from Mumbai at 12: 30 hours on 1.1.2017. The complainant paid a total amount of Rs.27,978/- by credit card, for the purpose of the ticket. On 1.1.2017, while the complainant was en route to the airport along with his minor son and aged mother, the complainant was shocked and taken aback to receive a text message on his phone from the OP that Indigo flight 6E-6939 scheduled to fly to Bangalore at 12:30 hours was cancelled. No reason whatsoever was given for such cancellation. The text of the message is produced hereunder:

“8.41 AM “IndiGo: Mr.Sundararaman MV IndiGo flt.6E6939 from BOM to BLR on 01 Jan 17 is cancelled. To explore alternate flts or to process refund, log on to https://www.goindigo.in and click on PLAN B or check your email. Inconvenience is regretted”

The complainant immediately contacted the call center of the OP and enquired about the same. It was confirmed that the OP had infact cancelled the flight 6E-482. More pertinently, the complainant was informed by the OP that there was no other flight of the OP scheduled to leave for Bangalore before 18:00 hours that evening. Since court, and schools were re-opening the next day, it was imperative that the complainant and his family departed at the earliest time to reach Bangalore. Being left with no other option, the complainant did not choose to fly with the OP and requested them to refund the ticket charges. The Op informed the complainant that he could either take the late evening flight otherwise the refund would be credited to his credit card account. The complainant was caught completely unaware as to the callous manner in which the OP had unilaterally cancelled Flight 6E-6939 with an extremely late last minute intimation being given about the same. The complainant’s position was even more sensitive and precarious since he also had a minor child, his mother, a senior citizen travelling with him. The complainant and his family in a completely helpless position arrived at the airport but with absolutely no arrangement being made for him and his family to be flown back to Bangalore by the OP. The support staff of the OP was clueless and completely unaware of any requirement for catering to be complainant and his family while at the airport till an alternative flight arrangement was made by them or with regard to providing an alternative flight to the complainant and his family. Suffice it to state, in short, the complainant and his family were left to their own devices and at their own peril to make alternative travel arrangements. After much deliberation with family members and given the extremely precarious situation of being stuck in Mumbai airport awaiting details of another flight from the OP, the OP finally out of sheer desperation decided to book an outward journey ticket on from Mumbai to Bangalore in another airline so that he and his family could reach Bangalore early as planned. He was booked on a Goair Flight No.G8-323 scheduled to depart Mumbai at 14:30 hours. The complainant booked the ticket through OP-2 and had to expend an exorbitant amount of Rs.23,535/-. The complainant was forced to expend money for an outward journey due to the complete disregard shown by the OP in effectively enabling the complainant to be booked on another flight. The Goair flight departed at its scheduled time of 14:30 hours and the complainant and his family arrived in Bangalore at 16:10 hours. Till date, the complainant has not received a refund of the amount expended by him for the outward journey for flight 6E-6939. The OP violated with impunity the directions of the Director General of Civil Aviation (DGCA) in Civil Aviation Requirements: Section-3 Air Transport, Series ‘M’, Part IV, Issue I dt.6.8.2010 (as updated on 1.8.2016) issued by the office.

3.3 cancellation of flight

3.3.1 In order to reduce inconvenience caused to the passengers as a result of the cancellation of the flights on which they are booked to travel, airline shall inform the passenger of the cancellation at least two weeks before the scheduled time of departure and arrange alternate flight/refund as acceptable to the passenger. Incase the passengers are informed of the cancellation less than two weeks before and upto 24 hours of the scheduled time of departure, the airline shall offer alternate flight allowing them to depart within two hours of their booked scheduled time of departure.

3.3.2 Passengers who have not been informed as per the provisions contained in Para 3.3.1, the airlines shall provide compensation in addition to the refund of air ticket in accordance with the following provisions.

a) INR 5,000 or booked one-way basic fare plus airline fuel charge, whichever is less for flights having a block time of upto and including 01 hour

b) INR 7,500 or booked one-way basic fare plus airline fuel charge, whichever is less for flights having block time of more than 01 hour and upto and including 02 hours.

c) INR 10,000 or booked one-way basic fare plus airline fuel charge, whichever is less for flights having a block time of more than 02 hours.

Additionally, the airline shall provide them facilities at the airport in accordance with Para 3.7.1 (a) in the event they have already reported for their original flight and whilst they are waiting for the alternate flight”

In terms of the above, the OP rendered deficient and negligent service to the complainant and has not complied with the DGCA regulations;

(i) The OP has not intimated the complainant in the time period between 24 hours-2 weeks prior to the date of cancellation of the flight

(ii) In the light of the intimation not being given by the OP in the prescribed time period, the complainant is liable to refund the amount due under the ticket as well as pay a compensation amount as detailed in 3.3.2. The complainant is highly aggrieved by the gross deficient service rendered by the OP and therefore, seeks the intervention of this Forum. The complainant submits that the OPs are guilty of rendering gross deficiency of service to the complainant as follows:

There was no adequate intimation of cancellation of flight 6E-6939 by the OP-1
There were no alternative arrangement made by the OP-1 to accommodate the complainant and his family when they waited for an alternative flight
Till date, no refund of amount has been tendered either by the OP or OP-2 for the outward journey ticket amount for flight 6E-6939, in terms of the DGCA regulations
Till date, no compensation amount in addition to the refund amount has been provided in terms of the DGCA regulations by OP-1
Notwithstanding the DGCA regulations, the complainant has availed of the services of the Ops as a service provider and the present complaint requires to be assessed from the perspective of deficiency of services, wherein the complainant has been aggrieved by the inactions of Ops
The Ops forced the complainant to needlessly expend an amount of Rs.23,535/- for booking an alternative flight to Bangalore
No information/reasons were furnished by the OP-1 to the complainant as regards the delay
No facilities were made by the OP-1 to provide food, water and transit stay to the complainant and his family who were left high and dry at the Mumbai airport

The complainant further submits that himself and his family members were put through untold inconvenience, mental agony and trauma on account of the wholly deficient service rendered by the OP. The OP was negligent in taking care of the complainant and his family’s need, who were put through enormous hardship on account of the OP’s inefficiency. The complainant and his family suffered untold mental agony and hardship on account of the OP for which the complainant is entitled to be compensated by the OP. Hence, the complainant submits to allow the complaint.

3. After the issuance of the notice, OP-1 did appear and filed the version. The sum and substance of the version filed by the OP-1 is that it is a low cost carrier with domestic as well as international air carriage operations. There is no disputed between the complainant and the OP-1 with respect to the air travel in question, and any dispute, if so arising is, between the complainant and the OP-2 only. The amount liable to be refunded by the OP-1 in accordance with the applicable law and policies has already been refunded by the OP-1 to the agency account of Make MY Trip Limited., (OP-2) being the relevant travel agency through which the bookings in question were undertaken. If at all any claims lie, they will lie against the OP-2. As per the OP-1’s database, which constitutes the primary record of air carriage with the OP-1, the complainant booked three return air tickets for travel on 29.12.2016 from Bangalore to Mumbai and on 1.1.2017 from Mumbai to Bangalore on IndiGo Flight Nos.6E-482 and 6E-6939 respectively. The said bookings were undertaken by the complainant through the OP-2 and were booked under PNR No.15UCWL. The payment received in respect of the booking was Rs.26,853/- of which the fare for tickets on IndiGo Flight No.6E-6939 was Rs.15,411/-. The complainant admittedly had travelled from Bangalore to Mumbai on IndiGo Flight No.6E-482 successfully and did not face any hassles. The said bookings made by the complainant are governed by c ertain terms and conditions of carriage known as ‘IndiGo Conditions of Carriage-Domestic (‘the IndiGo CoC). The IndiGo CoC were available on the website of the OP-1 and were made known to and agreed to by the complainant at the time of booking his air travel. The bookings were only processed after acceptance of the IndiGo CoC by the Complainant and as such, constitute a binding contractual agreement with the OP-1 for air carriage. The IndiGo CoC are also referred to in the itinerary/receipt of the aforesaid bookings and are available at the airport on request.

Article 13.2 of the IndiGo CoC as applicable on the date of booking, stipulated as under:

13.2 Cancellation, changes of schedule etc.,

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 for commercial reasons.

Circumstances beyond IndiGos control can include, without limitation, weather, air traffic control, mechanical failures, acts or terrorism, acts of nature, force majeure, strikes, riots, wars, hostilities, disturbances, governmental regulations, orders, demands or requirements, shortages of critical manpower, parts or materials, labour unrest etc.

If an IndiGo flight is cancelled, rescheduled to depart more than an hour prior to the original time of departure or delayed by more than two hours (depending on the length of the journey), a Customer shall have to right to choose a refund; or a credit for future travel or IndiGo; or rebooking onto an alternative IndiGo flight at no additional cost (subject to availability); subject to the requirements under the local laws of the country in which the flight has been cancelled, rescheduled or delayed.

All compensation in this matter will be meted out as per DGCA CAR Section 3 Series M.Part IV. Please write to

As per the OP-1’s records, Indigo flight No.6E-6939 was cancelled on account of operational reasons beyond the control of the OP-1 for the purpose of curtailing network delay. The complainant was informed about the said cancellation of Indigo flight No.6E-6939 on 1.1.2017 via short message service (SMS) which was delivered at 8:48 am. By the complainant’s own admission in Paragraph 8 of the complaint, he was in receipt of the said SMS. The contents of the said SMS are extracted below for the convenience:

SMS SUCCESS: Jan 1 2017 8:48 AM “IndiGo: Mr.Sundararaman MV IndiGo flt.6E6939 from BOM to BLR on 01 Jan 17 is cancelled. To explore alternate flts or to process refund log on to https://www.goindigo.in and click on PLAN B or check your email. Inconvenience is regretted”

In accordance with the IndiGo CoC, the OP-1 offered the complainant the option of re-booking on an alternate IndiGo flight scheduled to depart at 6 PM on the same day. As per the Op-1’s records and by the complainant’s own admission in Paragraph 8 of the complaint, the complainant chose not to avail of this option and instead requested a refund of the ticket fare for his booking on IndiGo flight No.6E-6939. Accordingly, on 1.1.2017 the OP-1 refunded an amount of Rs.15,411/-, being the total ticket fare for IndiGo flight No.6E-6939 to the agency account of the OP-2 through which the complainant’s bookings were undertaken. By dint of Article 14.1 of the IndiGo CoC, the complainant may claim this amount from the OP-2 if he has not done so already. Article 14.1 of the IndiGo CoC as applicable on the date of booking, stipulated as under:

14.1 General

Upon failure by IndiGo to provide carriage in accordance with these conditions of Carriage or where a customer requests a voluntary change of his arrangements, refund for an unused booking or portion thereof shall be made by IndiGo in accordance with this Article and in accordance with IndiGo’s regulations, after deducting the applicable fees and charges.

Refunds against the residual value after deduction of the applicable fee will be made available as per the following:

For bookings made through travel partners or online travel portals, the refund may be claimed form the respective travel agents/portals.

Since the complainant’s request for a refund was honoured in accordance with IndiGo CoC and the entire amount of Rs.15,411/- towards the three tickets booked for the complainant on IndiGo Flight No.6E-6939 was processed and refunded by the OP-1, the complainant has exhausted his sole and exclusive remedies and the OP-1 shall have no further liability towards the complainant with respect to the air travel in question. This is borne out by Article 13.4 of the IndiGo CoC. Article 13.4 of the IndiGo CoC, as applicable on the date of booking, stipulated as under:

“13.4-sole Remedy

Upon the occurrence of any of the events set out in Article 13.2 and 13.3 above, the options outlined under 13.2 and 13.3 are the sole and exclusive remedies available to the customers, and IndiGo shall have no further liability towards its customers”

OP submits that the complainant’s claims for compensation in accordance with the Civil Aviation Requirements (CAR) Section 3 Series M, Part IV, issued by the office of the Director General of Civil Aviation, which came into effect on 1.8.2016, are baseless and misconceived. According to the CAR, airlines are not liable to compensate passengers for cancellations and delays which are beyond their control. Clause 1.4 of the CAR stipulates as under:

The operation 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.

Clause 1.5 of the CAR stipulates as under:

“1.5 Additionally, Airlines would also not be liable to pay any compensation in respect of cancelation 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”

Further, incases where cancellation and delays have been caused in the manner contemplated under Clause 1.4 and 1.5 of the CAR, the InterGlobe Aviation Limited shall not be liable to provide meals or accommodation to its passengers. This is borne out by the following Clauses of the CAR. Clause 3.4.3 of the CAR stipulates as under:

An operating airline shall not be obliged to adhere to Para 3.7 if the delay is caused due to extra ordinary circusmtances as defined in Para 1.4 and Para 1.5 which could not have been avoided even if all reasonable measures had been taken

Clause 3.7 of the CAR stipulates as under:

“3.7.1 Passengers shall be offered free of charge the following:

Meals and refreshments in relation to waiting time:
Hotel Accommodation when necessary (including transfers)

OP further submits that IndiGo Flight No.6E-6939 was cancelled on account of operational reasons beyond the control of the OP-1 for the purpose of curtailing network delay. Therefore, the OP-1 has acted in compliance with both the CAR and the IndiGo CoC in refunding the full ticket fare for the cancelled flight to the complainants. As such, the complainant’s claims for compensation under the CAR or otherwise are baseless and frivolous and liable to be dismissed. The complainant alleges that the OP-1 provided deficient facilities at the airport but has not made the nodal officer of the airport a party to the present complaint. Had the complainant required assistance from the OP-1 and requested for the same, the OP-1 by policy provides support services for its customers. Some of the services provided include a wheel chair for senior citizens, free refreshments etc., On these grounds and other grounds prays for dismissal of the complaint.

4. On service of notice, the OP-2 did appeared. On 9.6.2017, the complainant and the OP-2 filed joint memo which reads thus:

The OP-2 has paid to the complainant a sum of Rs.15,411/- vide cheque bearing No.463676 dt.5.6.2017 drawn on HDFC Bank, Kasturba Gandhi Marg Branch, New Delhi towards the cost of the return ticket from Mumbai to Bangalore, in full and final settlement of all disputes and differences between complainant and OP-2. The complainant has acknowledged the receipt of the same, subject to realization of the cheque. Complainant however will continue his other claims against OP-1 in these proceedings.

In the light of the above, it is prayed that this Hon’ble Court may be pleased to dismiss the present complaint only as against OP-2 in the interest of justice and equity.

My learned predecessor by its order dt.9.6.2017 allowed the said joint memo and dismiss the complaint against the OP-2 on receipt of an amount of Rs.15,411/- by the complainant.

5. The complainant to substantiate his case, filed affidavit evidence and got marked as Ex-A1 to A4. The OP-1 has filed his affidavit evidence and got marked as Ex-B1 to B4. The complainant as well as OP-1 has filed written arguments. Heard both sides.

6. The points that arise for our consideration are:

1) Whether the Complainant proves the deficiency in service

on the part of the OP-1, if so, whether he is entitled for the

relief sought for?

2) What Order?

7. Our answers to the above points are as under:

Point No.1 : Negative

Point No.2 : As per the final order for the following

REASONS

8. POINT NO.1: We have briefly stated the contents of the complaint as well as the version of the Opposite Party No.1 so also the joint memo filed by the complainant and the OP-2 in settling the matter between them for full and final settlement for an amount of Rs.15,411/-.

9. It is not in dispute that the IndiGo Flight No.6E-6939 from Mumbai to Bangalore on 1.1.2017 was cancelled. In this context, the OP-1 sent a text message to the complainant which can be seen ongoing through Para-8 of the complaint which read thus:

In this context, the complainant contacted the call center of the OP and enquired about the same. It was confirmed that the OP had infact cancelled the flight 6E-6939. Further, the complainant was informed by the OP that there was no other flight of the OP scheduled to leave for Bangalore before 18:00 hours that evening. Since court and schools were re-opening the next day, it was imperative that the complainant and his family departed at the earliest time to reach Bangalore. Being left with no other option, the complainant did not choose to fly with the OP and requested them to refund the ticket charges. The Op informed the complainant that he could either take the late evening flight otherwise the refund would be credited to his credit card account.

10. According to the case of the complainant, the OP did not inform well within the time in respect of the cancellation of the said flight. To falsify this fact, the OP-1 in Para-4 (F) of its version stated that:

14.1 General

Refunds against the residual value after deduction of the applicable fee will be made available as per the following:

For bookings made through travel partners or online travel portals, the refund may be claimed form the respective travel agents/portals.

11. This fact is not specifically denied by the complainant. The complainant instead of opting the alternate IndiGo flight scheduled to depart at 6 pm on the same day, but he has opted for the refund for the amount of Rs.15,411/- being the total ticket fare for IndiGo Flight No.6E-6939. With regard to the informing well within the time in respect of the cancellation of the said flight, the OP has specifically stated in Para-4 E of its version which read thus:

The complainant was informed about the said cancellation of Indigo flight No.6E-6939 on 1.1.2017 via short message service (SMS) which was delivered at 8:48 am. By the complainant’s own admission in Paragraph 8 of the complaint, he was in receipt of the said SMS. The contents of the said SMS are extracted below for your convenience:

Ongoing through the above SMS, it is evident that the cancellation of the said flight has been in advance informed to the complainant. Under such circumstances, as per the facilities to be provided to passengers by airlines due to denied boarding, cancellation of flights and delays in flights are not violated by the OPs as per the document No.6 ink page No.61. In this context, we come to the conclusion that as the complainant instead of opting for the alternative flight offered by the OP-1, he has sought for the refund of an amount of Rs.15,411/- The said amount has been credited by the OP-1 in the account of the OP-2. In turn, the OP-2 paid the said amount of Rs.15,411/- to the complainant by way of cheque bearing No.463676 dt.5.6.2017 drawn on HDFC Bank, Kasturba Gandhi Marg Branch, New Delhi towards cost of the return ticket from Mumbai to Bangalore, in full and final settlement of all disputes and differences between complainant and OP-2. The said cheque has been duly received by the complainant. Accordingly the claim against the OP-2 has been already dismissed. When the claim of the complainant has been fully settled by the OP-2 who is the agent of the OP-1, under such circumstances, it is needless to proceed against the OP-1 since the OP-1 has promptly refunded the said amount of Rs.15,411/- well within the time towards the cost of the return ticket from Mumbai to Bangalore in full and final settlement. Hence, we do not find any deficiency of service on the part of the OP No.1. Accordingly, this point is answered in the negative.

12. POINT NO.2: In the result, we pass the following:

ORDER

The complaint filed by the Complainant is hereby dismissed.

Looking into the circumstances of the case, we direct both the parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 10^th October 2018).

(ROOPA.N.R)

MEMBER

(S.L.PATIL)

PRESIDENT

1. Witness examined on behalf of the complainant/s by way of affidavit:

M.V.Sundararaman, Advocate,who being the Complainant was examined.

Copies of Documents produced on behalf of Complainant/s:

Ex-A1	Invoice dt.21.12.2016
Ex-A2	SMS dt.1.1.2017
Ex-A3	Invoice dt.1.1.2017
Ex-A4	Section 3-Air Transport Series ‘M’ Part IVissued by DGCA

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

Rahul Kumar, Associate General Counsel-Litigation at InterGlobe Aviation Ltd., who being OP-1 was examined.

Ex-B1		Board resolution dt.11.12.2016
Ex-B2		Ticket summary for PNR 15UCWL
Ex-B3		Screenshot recording the reasons for the cancellation of Indigo Flight
Ex-B4		Copy of the CAR
Other docs		Screenshot recording SMS delivery
	(ROOPA .N.R.) Member		(S.L.PATIL) President

Karnataka

Bangalore 4th Additional

CC/450/2017

M.V.Sundararaman, - Complainant(s)

Versus

InterGlobe Aviation Limited Known as Indigo Airlines, A Company Incorporated Under the Provisions of - Opp.Party(s)

10 Oct 2018

ORDER

PRESENT

(ROOPA.N.R)

MEMBER

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