BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM.

                               Dated this the 30^th day of November 2023.

          PRESENT:

Shri. D.B.Binu                                                 President

Shri.V.Ramachandran                                      Member

          Smt. Sreevidhia T.N                                         Member

 C.C. No.263/2019

Complainants

1. E.M Muhammed Ibrahaim, House No.150, Sumangali, Aditya Nagar, Vadakkevila P.O., Kollam, Kerala
2. Smt.Sandhy Rani, Thevalasseril -3, Adinadu North P.O., Karunagappally, Pin-690 542

(By 2^nd complainant Adv.P.B.Bijimon, Room 806, KHCAA Chamber Complex, Near High Court of Kerala, Ernakulam)

Opposite parties

1. Stuart Crighton, Chief Executive Officer, Clear Trip Private Ltd., Unit No.001, Ground Floor, DTC Building, Sitaram Mills Compound, N M Joshi-Marg, Lower Parel, Mumbai-400 011

(Adv.Ajay N.S. Prudence Attorney’s Fathima Plaza, Providence Road, Ernakulam)

2. Customer Care Executive Clear Trip, First Floor, Suraj Ganga Soft Park, Potential House- 3^rd Phase, J.P.Nagar, Bengaluru, Kartnataka, Pin-560 078

(By Adv.P.A Gireeshkumar, Flat No.8, Castle Apartments, Gate No.1, Ashok Nagar-2, Ayyanthole, Thrissur-3)

3. Ajay Singh, CEO, Spice Jet Ltd., Corporate Head Office, 319, Udyog Vihar, Phase IV, Gurgaon-122 016
4. Harish Sing, Customer Experience Spice Jet Ltd., 321/Udyog Vihar/phase IV, Gurgon-122 016

(Ops 3 and 4 rep. by Adv.Baby Abraham, Kanakkassery Building, Opp. Zeenath Theatre, Sub Jail Road, Aluva-1)

O R D E R

V.Ramachandran, Member

This consumer complaint is filed by two complainants namely, E.M.Muhammed Ibrahim House No.150, Sumangali, Aditya Nagar, Vadakkevila P.O., Kollam as 1^st complainant, and Smt.Sandhy Rani, Thevalasseril -3, Adinadu North P.O., Karunagappally as the 2^nd complainant.  The opposite parties 1 and 2 in this complaint are clear Trip Private Limited and 3^rd and 4^th opposite parties are Spice Jet Ltd air ways represented by its CEO and Customer Experience Spice Jet Ltd.. The complainants states that they had booked 2 tickets on 09.03.2019 by using the website of the 1^st and 2^nd opposite parties for their return journey from NewDelhi to Kochi through Banglore on 12.04.2019 (Trip ID 190309116064) in spice Jet flight managed by the 3^rd and 4^th opposite parties. The online payment of Rs.11582/- was also paid through SBI account No. 30029476542 maintained with SBI Thevally Branch, Kollam by the 1^st opposite party.

However, two online tickets bearing number PNR TYLNKZ issued to the complainants were got cancelled by Spice Jet Ltd on 30.03.2019 by sending a message dated 30.03.2019 (after 3 weeks) by stating “grounding of Boeing 737 max as per regulatory directive.  The flight SG 197/SG 748 dated 12 April 2019 from Delhi to Cochin via Bangalore has been cancelled”. It is also stated in the said message to the first complainant that he can rebook himself on an alternate flight or opt for full refund by visiting https://changes.SpiceJet.com.  But later clear trip has sent another message stating that “April 12^th Friday New Delhi-Kochi 2 adults trip cancelled on Saturday 30 March and Rs.8884 should be credited in the first complainant’s account by using original payment method by Sunday 31 March”.

Though the first complainant had contacted through the customer care number of Clear Trip and intimated the fact to the 2^nd opposite party and requested to refund the full amount, they have not paid any heed to the request.  They somehow evaded from refunding the full charges of the cancelled ticket.  As a result of cancellation of the said flight, the complainants had to book 2 tickets through Easemytrip.com. on the very next day by paying Rs.19,743/-.  Again the 2^nd opposite party had intimated by sending message that Rs.8884/- should be refunded within 5-7 working days.  But even the said amount was not refunded till date alleges the complainant.

Since the cancellation of the trip of Spice Jet SG 197 and SG 748 were made by the 3^rd and 4^th opposite parties due to their own reasons, the ticket were cancelled, the same has caused much mental agony apart from financial loss to the complainants.  In the above circumstances the complainants were forced to book 2 tickets at a higher rate for their return Journey by paying Rs.19743/- and thereby paid an excess amount of Rs.8161/- due to the fault of opposite parties No. 1 to 4.

The complainants have caused to send lawyer notice intimating the above facts and calling upon the first and 3^rd opposite parties to repay the cancelled ticket charge, excess amount spent and the cost of notice.  Though the notice sent through email by the lawyer was received by the opposite party, the 1^st opposite party has neither refunded the amount nor sent any reply.  The 3^rd opposite party representing the Spice Jet Airlines sent a reply stating that the amount had already been transmitted to clear trip and hence they have no liability.  However, the 3^rd and 4^th opposite parties have not directed the other opposite parties to repay the cancelled ticket charge to the complainants.  In the circumstances it is clear that there is deficiency in services and unfair trade practice on the part of the opposite parties 1 to 4. 

Part of the cause of action arose at Cochin which is within the territorial jurisdiction of the Commission.  Hence this Commission has ample jurisdiction to entertain the complaint and to dispose of the same on merit.

In the circumstances, the complainants are entitled to get full refund of ticket charges of Rs.11,582/- along with the excess amount of Rs.8161/- spent by the complainants and Rs.50,000/- being compensation for the mental agony suffered by the complainants along with the costs from the opposite parties jointly and severally.

2)       Notice

Upon notice from this Commission, the opposite parties appeared and 3^rd and 4^th opposite parties field their version.  The opposite parties 1 and 2 do not file their version in time and they were set ex-parte.

3)       Version of the opposite parties 3 and 4

          In the version filed by the opposite parties 3 and 4 it is contended that due to the sudden direction from the DGCA affected the air operations of the opposite parties and the opposite parties due to large fleet of grounded aircrafts 737 Max, was unable to arrange for alternate flights.  In view of the aforesaid, the cancellation of the flight in question was beyond the power and control of the opposite party and the cancellation was a result of directions from the DGCA.  It is submitted that the scheduled date of flight was 12.04.2019.  The opposite party immediately upon receipt of the said direction from DGCA, informed the complainant about cancellation of the flight by sending sms on 30.03.2019, so that no inconvenience is caused to the complainant and other passengers.  It is submitted that the due to above mentioned reasons which were beyond the control of the opposite party, the said flight was cancelled and the opposite party cannot be held liable for the same.  It is submitted that as per the guidelines in this regard are contained in CAR, effective from 15.08.2010, the airline is not responsible for cancellation of flight and payment of compensation as consequence of the same, if the reasons for cancellation of flight were beyond the power and control of the airline.  In the present case, since the reasons for cancellation of the flight in question were beyond the power and control of the airline.  Hence the opposite party is not liable to pay any compensation to the complainants on any account, whatsoever.  It is submitted that consequent upon cancellation of the flight in question, the entire ticket amount of Rs.11,042/- was immediately refunded by the answering opposite party into the account of the agency ie., through which, the ticket in questing was got booked.  It is clear and apparent that there is neither any negligence nor any deficiency in providing any service by the opposite parties to the complainant as such, this compliant is liable to be dismissed.

          It is also submitted that the present complaint is not maintainable and is liable to be dismissed in as much as the complainant has filed the present complaint claiming exorbitant and frivolous compensation without any basis for the same.  It is submitted that a bare perusal of the compensation claimed by the complainant would reveal that the same has no nexus, whatsoever, with the cancellation of the flight and as such the complaint filed on behalf of the complainants is liable to be dismissed with heavy costs.  It is further submitted that the alleged reasons or damages were never contemplated between the parties prior to, at the time of and after booking of the flight in question and as such, cannot be the basis of alleged damages or compensation.  In view of the same, the present complaint is not maintainable and is liable to be dismissed with heavy costs.  It is sated that the said alleged damages are superfluous and imaginary and are not within the contemplation of the parties when the complainants purchased ticket for travelling in the aircraft of the opposite party.  As per the ‘Terms of Carriage’, which is a contract binding upon the parties, the opposite parties had an unequivocal and unconditional authority to delay/cancel/ pre-pone the flight or divert its route due to bad weather or other technical defects or for other reasons beyond the power and control of the opposite party, for which the opposite party could not be made liable.  In the instant case, the flight was cancelled due to the aforesaid reasons, as mentioned above, which were not in control of the opposite parties.  It is submitted that the opposite parties had also remitted entire ticket amount of Rs.11,042/- in lieu of the cancelled flight directly to the account of the agency from which the booking was made.  It is submitted that if 1^st and 2^nd opposite parties have not refunded the said amount back to the complainants or they have deducted any amount from the same, the negligence and deficiency on their part and not on the part of the opposite parties. 

          It is stated that the alleged demand of appx.Rs.1.30 lakhs, on account of the alleged losses, harassment, damages, litigation charges etc. have no nexus, whatsoever, with the alleged incident of cancellation of flight and as per the terms of carriage, the opposite parties was well within its right to cancel the same due to the aforesaid peculiar circumstances.  It is further submitted that without prejudice to the aforesaid contentions of the opposite parties that it is not liable to for any alleged compensation or alleged damages suffered by the complainant, it is submitted that the entire complaint is vague and evasive and no damages or compensation can be granted on the basis of such vague and evasive complaint, which is devoid of material particulars.  In view of the same, the present complaint is liable to be dismissed with costs.

          It is stated that the present complaint is not maintainable in as much as without prejudice to the aforesaid contentions of the opposite party there is no documents filed on record by the complainants substantiating the alleged loss suffered by them.  It is submitted that in absence of the said documents, the present complaint is not maintainable and is liable to be dismissed.   It is submitted that the opposite party had also remitted a sum of Rs.11,042/- in lieu of the cancelled flight directly to the account from which the booking was made ie., in the agency’s account.  In view of the same, the complaint is liable to be dismissed with costs.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

5. Evidence

The complainant had filed Exbt.A1 to A6 documents which are marked and the opposite party do not have produced any evidence. The complainant was examined in box as ‘PW1’. 

6)       The following are the main points to be analysed in this case:

(i)      Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?

ii)       If so, whether the complainant is entitled to get any relief from the side of the opposite parties?

(iii)     Costs of the proceedings if any?

7. Point No. (i)

On going through the complaint, version filed by the opposite parties and on examination of all the evidences produced by them and also on the basis of the argument notes filed by the 1^st and 2^nd opposite parties and upon hearing the counsels at the time of hearing observed that complainant had booked flight tickets on 09.03.2019 for their return journey from Newdelhi to Kochi. The 1^st complainant had booked 2 e-tickets by using the website of the 1^st opposite party which is evident from Exbt.A1. ie., Clear Trip Pvt. Ltd from New Delhi  to Kochi via Banglore in the spice Jet flight operated by 3^rd and 4^th opposite parties.  Thereafter the said 2 online tickets bearing No.PNRTYLNKZ issued in the name of the complainants were cancelled by the 3^rd opposite party on 30.03.2019 after 3 weeks from the date of booking.  In this connection, communication was made by the opposite parties to the complainants stating that due to the grounding of Boeing 737 max as per regulatory directive, the flight SG 197/SG 748 dated 12.04.2019 from Delhi to Cochin via Banglore has been cancelled which is evident from Exbt.A2.  Exbt.A3 is a communication sent by the complainant to the opposite parties through his counsel demanding for refund of an amount and compensation.  Exbt.A4 goes to show that as a result of the cancellation of the said flight the complainants had to book another 2 air tickets through Easemytrip.com for which an amount of rs.19,743/- was incurred by the complainant.  Exbt.A5 shows that on 18.01.2023 an amount of Rs.7140/- was paid into the account of the complainant. Exbt.A6 is a letter received from the opposite party by the complainant explaining regret and review regarding the  inconvenience caused to the complainant.

The opposite parties 2 and 3 agreed that the complainants had booked 2 flight tickets on 09.03.2019 by using clear Trip India Pvt. Ltd operated by the 1^st and 2^nd opposite parties for their journey from Delhi to Kochi through Banglore on 12.04.2019 in the Spice Jet operated by the 3^rd and 4^th opposite parties.  They also had accepted that the online payment of Rs.11582/- was done through the account maintained by the complainant with SBI Thevally Branch, Kollam by the 1^st complainant.  Further, on 30.03.2019, the 3^rd and 4^th opposite parties communicated to the complainant that the tickets booked for the complainants were cancelled for the reason that the grounding of Boeing 737 max Aircraft on regulatory directive.   The cancellation of the flight was a result of direction from the DGCA and it is beyond the control of the opposite parties.  Later on 30.03.2019, the 1^st and 2^nd opposite parties sent messages to the complainants regarding the cancellation of the flight and intimated that an amount of Rs.8884/-shall be credited into the account of the complainant against the payment of Rs.11582/-.  The main arguments of the opposite parties 3 and 4 are that there are certain conditions regarding the terms and conditions of carriage contained in the e ticket at the time of booking which was agreed by the complainant.  One of such terms of carriage is that where bad weather for instances beyond control has resulted being cancelled or delay Spice Jet will try to assist you to get to your destination but will not be liable in any way for the delay or cancellation. The company reserve to itself the right without assigning any reason to cancel or delay the commencement or continuation of the flight or to alter the stopping place for deviate from the route of the journey the type of aircraft in use without there by incurring any liability in damages or otherwise to the passengers for any other person on any ground for what so ever. The company also itself have the right to refuse to carry any person unfit to travel for whom in the opinion of the company may constitute risk to the aircraft or the persons on board. 

  It is further stated by the opposite parties 3^rd and 4^th that the air craft which was to be operated on 12.04.2019 was Boeing 737 Max. The Regulatory authority that the Director General of Civil aviation conduct a technical check and found that air craft were unfit for flying and directed to all air operators to ground the set aircrafts because of the manufacturing defect of such air crafts.  Accordingly the 3^rd and 4^th opposite parties had no option but go ground all aircraft of the model and make Boeing 737 Max,  The sudden direction of the DGCA affected air operation of the 3^rd and 4^th opposite parties were unable to arrange alternative flight.  Hence cancellation of the flight is beyond the control and power of the opposite parties. The opposite parties immediately on getting the direction from the DGCA informed the complainant about the cancellation of the flight by sending sms on 30.03.2019.  The schedule flight date was 12.04.2019.  This is the main contention taken by the opposite parties and they have produced some documents to substantiate their arguments which are not marked.  At the time of further hearing the 1^st and 2^nd opposite parties appeared and filed their argument note and they also have been granted opportunity for hearing.

          As per the argument note filed by the opposite parties 1 and 2 they are one and same entity and therefore consolidated evidence (Argument note) is filed, as follows:-

The opposite party No. 1 is merely a travel agent and an intermediary/organizer/facilitator and therefore it does not control or own or operae any airlines.  The opposite party No.1 refunded the entire amount to the Complainants that was received from the Airline company and any alleged inconvenience ensuing from the alleged delay in refund or alleged deduction from the refundable amount, cannot be attributed to the opposite party No.1 herein. The terms and conditions of the opposite party No. 1 specifically mentions that “Cleartrip is merely acting in a limited role as an agent of the service providers offering their services on the Cleartrip platform, and that cleartrip merely provides intermediary services in order to facilitate services to you.  Cleartrip is not the  last mile service provider to you and therefore cleartrip shall not be deemed to be responsible for, and shall have no liability for, any lack, or deficiency, interruption, change, rescheduling, delay, or cancellation of services provided by any person or entity (including airline, hoel, activity provider or similar agency) that, you may engage or, hire from the content available on the Site (through Cleartrip may pass on such information to customers when requested to do so by any person providing such services).  Cleartrip is not responsible for any refunds in connection wth any services offered by any person on the  cleartrip platform (except for passing on such refunds when received from such persons to customers), other than refunds of convenience fees paid made to cleartrip for the services it provides to customers (subject to such refund requests being in compliance with these terms and conditions and with the terms of the applicable ticket/booking).

The Commission after making an overall examination of all documents and upon hearing both sides reached into the following derivation that the opposite parties had committed serious deficiency of service by cancelling the scheduled flight long after booking the tickets and not by arranging alternate flight and also by not refunding the full amount of the fare paid by the complainants and the complainant had to undergone severe difficulties and hardships due to the sudden cancellation of the flight for travel.  Therefore point no. (1) is found in favour of the complainant and therefore point Nos. (ii) and (iii) are also decided accordingly and the following orders are issued.

O R D E R

1. The opposite parties shall refund a total amount of Rs.4442/- to the complainants along with interest @9% from 09.03.2019 for an amount of Rs.11,582/-.  (The amount of Rs.4442/- is derived by deducting Rs.7140/- paid by the opposite parties to the complainant on 18.01.2023 against the amount of Rs.11,582/-). 

2. The opposite parties shall pay a total amount of Rs.50,000/- (Rupees Fifty Thousand) as compensation to the complainants.  If the order is not complied within 30 days an amount of Rs.50,000/- (Rupees Fifty Thousand) ordered above shall also attract interest @9% from the date of order till the date of realization
3. The opposite parties shall also pay a compensation of Rs.10,000/- to the complainants as cost of the proceedings.  

Pronounced in the Open Commission on 30^th day of  November 2023.

                                                                                      Sd/-

                                                                   V.Ramachandran, Member

Sd/-

                                                                     D.B.Binu, President

                                                                                      Sd/-

                                                                     Sreevidhia T.N., Member

                                                                Forwarded by Order

                                                                    Assistant Registrar

APPENDIX

Exbt.A1       :: copy of e tickets

Exbt.A2       :; copy of gmail communications

Exbt.A3       :; copy of notice sent to the opposite parties  by the 1^st complainant through mail  communications dated 19.04.2019.

Exbt.A4       :: copy of confirmed e tickets

Exbt.A5       :: copy of screen shot in which an amount of Rs.7140/- was paid into the account of the complainant through G pay.

Exbt.A6       :: copy of reply notice sent by the opposite parties to the complainant dated 20.04.2019 through gmail.

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