Date of filing:      16.04.2019

                                                                                                                   Date of disposal: 13.06.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                      .…. PRESIDENT

                 THIRU.P.VINODH KUMAR, B.Sc., B.L.,                                                           ......MEMBER-I

                 THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L.,                                            ....MEMBER-II

RBT/CC. No.110/2022

THIS TUESDAY, THE 13^th DAY OF JUNE 2023

(CC.No.103/2019 sent from DCDRC, Chennai North)

Ms.U.P.Swepna,

D/o.Unnipparan Purushothaman,

No.1/1, Kannaiya Street,

Aminjikarai, Chennai 600 029.                                                                ……Complainant.    

                                                                          //Vs//

1.Air Asia Head Office,

   Rep. by its Manager ,

   Kempgegowda,

   International Airport,

   Ground Floor, Alpha 3 Building,

   Devanahalli,

   Bangalore, Karnataka – 560 300.

2.Air Asia (Booking Office),

   Rep. by its Manager,

   Beside Income Tax Office,

   Basement,

   Nungambakkam High Road,

   Nungambakkam, Chennai 600 034.

3.Make Mytrip India Private Limited,

   Rep. by its Manager,

   18^th Floor A, B & 19^th Floor, Tower ABC,

   Building No.5,

   Cyber City, DLF Phase –III,

   Gurgaon Haryana – 122 002. India.                                            .......Opposite parties.

Counsel for the complainant                                     :   M/s.P.Suresh, Advocate.

Counsel for the 1^st and 2^nd opposite parties           :  Exparte.

Counsel for the 3^rd opposite party                           :  M/s.Deepika Kumari, Advocate.

This complaint has been filed before DCDRC, Chennai (North) as CC.No.103/2019 and transferred to this commission by the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as CC.No.110/2022 and this complaint coming before us on various dates and finally on 25.05.2023 in the presence of M/s.P.Suresh counsel for the complainant and M/s.Deepika Kumari counsel for the 3^rd opposite party and 1^st and 2^nd opposite parties were set exparte upon and perusing the documents and evidences of both sides, this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER - I

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite parties in not refunding the Air ticket cost to the complainant along with a prayer to direct the opposite parties to refund the Air ticket amount of Rs.18,561/- to the complainant and to pay a sum of Rs.10,00,000/- towards mental agony and hardship caused to the complainant due to the deficiency in service on the part of the opposite parties.

Summary of facts culminating into complaint:-

The case of the complainant is that she had booked Air tickets from Cochin to Bankok travelling on 05.05.2018 and return ticket on 10.05.2018 from 1^st and 2^nd opposite parties through 3^rd opposite party by paying a sum of Rs.18,561/-.  During the third week of April 2018, the complainant has sudden fever with reddish boils on the skin.  Hence, she contacted customer care of the opposite party and informed the same.  The customer care of the opposite party informed that the actual amount of Air tickets will be transferred, if she produced the medical certificate to the opposite parties. The opposite parties demanded the complainant to produce the medical certificate and accordingly she had produced the medical certificate from her family Doctor where she had received treatment for her illness.  The complainant submitted the medical certificate in the website of 1^st and 2^nd opposite party several times.  However, the opposite parties stated that the documents uploaded by the complainant were not received by them.  On 04.05.2018 again the complainant uploaded the documents and a complaint No.04351330 was given by opposite parties.  Again on 23.05.2018, the opposite parties informed that they had not received the documents from complainant. The complainant again sent the documents on 23.05.2018 and the opposite parties also confirmed that the case was submitted.  Further, the opposite parties informed that the name in the medical certificate mismatched with the Air tickets. The initial in the medical certificate was not expanded.  One of the officers of the opposite parties suggested her to get a fresh medical certificate by expanding the initial.  Even after receipt of the medical certificate the opposite parties had not processed the refund.  Inspite of repeated phone calls and follow ups, the opposite parties have not taken any action till date to refund the ticket cost.  Hence, the complainant issued legal notice dated 16.11.2018 and 31.01.2019 calling the opposite parties to pay compensation.  Even after receipt of legal notice, the opposite parties have not taken any action and hence the complaint.

Crux of the defence put forth by the 3^rd opposite party:-

That the 3^rd opposite party contended that it is only an intermediary between the complainant and service provider such as Air Asia, Airline.  They merely act as a facilitator to enable the user to book a flight ticket.  The contract of service is always between the complainant and concerned Airline.  Refund will be processed by 3^rd opposite party as per the Airline fare rules and cancellation policy.  90 days of credit amount limit was shared by the Airline and the same is not available with the 3^rd opposite party. The role of the 3^rd opposite party limited to booking the tickets and the 3^rd opposite party duly fulfilled its role.  There is no grievance against the 3^rd opposite party.  That the parties are governed by the terms and conditions agreed between them at the time of booking.  The 3^rd opposite party has acted with utmost care and diligence.  There is no deficiency in service on the part of the 3^rd opposite party and therefore the complainant is not entitled for any compensation and prays to dismiss the complaint.

On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to A12 was submitted. On the side of 3^rd opposite party written version filed but proof affidavits and written arguments were not filed.  Though one M/s.Revathi M.Kannan, Advocate filed Vakalath for the opposite parties 1 & 2 they did not file any written version and hence they were called absent and set exparte on 14.11.2019.

Points for consideration:

1)    Whether there is any deficiency in service committed by the opposite parties as alleged by the complainant?

2)    To what reliefs the complainant is entitled?

Point No.1:-

It is the case of the complainant that she had booked tickets from Cochin to Bangkok travelling on 05.05.2018 and return ticket on 10.05.2018 from 1^st and 2^nd opposite party through 3^rd opposite party by paying a sum of Rs.18561/-.  Due to sudden ill health, she could not travel and requested the opposite parties by producing medical certificate to cancel the ticket.  Inspite of repeated phone calls and follow ups, the opposite parties have not taken any action till date to refund the ticket cost.  The complainant issued legal notice dated 16.11.2018 and 31.02.2019 calling the opposite parties to refund the ticket cost besides compensation. Even after receipt of legal notice, the opposite parties have not taken any action till date.  The complainant filed this complaint seeking refund of the ticket cost along with compensation.

To prove the case the complainant deposed proof affidavit along with 12 documents which were marked as Ex.A1 to Ex.A12.  Ex.A1 is the copy of Passport of the complainant, Ex.A2 is the copy of Air ticket, Ex.A3 is the copy of Medical certificate dated 30.04.2018, Ex.A4 & Ex.A5 are the copy of complaints, Ex.A6 is the copy of Medical Certificate expanding the initial of the complainant, Ex.A7 is the copy of screenshot of the document sent to the 1^st opposite party, Ex.A8 is the copy of legal notice issued by the complainant to the opposite parties, Ex.A9 is the returned cover of the 2^nd opposite party, Ex.A10 is the copy of reference No.08065032 issued by the 1^st opposite party to the complainant, Ex.A11 is the email sent by the 1^st opposite party to the complainant and Ex.A12 is the copy of legal notice issued by the complainant to the opposite parties.

Per contra, the 3^rd opposite party contended that it is only an intermediary between the complainant and the service provider such Air Asia Airline.  There is no contract between the complainant and the 3^rd opposite party.  The role of the 3^rd opposite party is limited to book the tickets and accordingly the 3^rd opposite party fulfilled its role.  The parties are governed by the terms and conditions agreed between them at the time of booking.  There is no deficiency in service and the 3^rd opposite party prays to dismiss the complaint.

The 3^rd opposite party had not filed their proof affidavit and hence evidence on the side of 3^rd opposite party was closed.  During the course of arguments, the complainant filed an application under Section 38(9) of Consumer Protection Act 2019, directing the opposite parties to produce the pretex for the non refundable policy maintained by opposite parties during 2018 before this Commission. Even after receipt of summons, the 1^st and 2^nd opposite parties had not appeared before this Commission.  This application was allowed and the opposite parties 1 & 2 had failed to produce the necessary documents as requested by the complainant .  The 3^rd opposite party alone filed the agreement entered between the 3^rd opposite party and the service provider.  On perusal of the agreement, it revealed that there is no clear picture about the refund policy.

Ex.A1 is the Air ticket and Ex.A3 is the medical certificate.  Ex.A6 is the medical certificate expending the initials of the complainant.  Ex.A5 is the complaint registered by the complainant.  Ex.A8 is the legal notice issued by the complainant.

On perusal of Ex.A11, email from the 1^st opposite party, it revealed that the opposite parties have credited a credit account in the name of the complainant and the complainant can utilize the said amount within 90 days for further booking.  The act of the 1^st opposite party is not disclosing the refund policy to the complainant is nothing but unfair trade practice and deficiency in service.  It is bounden duty of the Airlines to disclose the cancellation of tickets and its refund policy to the customer at the time of booking. More over the 1^st and 2^nd opposite parties had not chosen to appear before this commission to defend the case by producing necessary documents.

The 1^st and 2^nd opposite parties have not shown any inclination to defend the case even after receipt of summons from this Commission.  The act of the 1^st and 2^nd opposite parties clearly indicates its disinterest in pursuing the case.  Therefore we have no other option except to accept the pleadings and documents filed by the complainant.

We have heard the arguments of complainant and 3^rd opposite party and perused the documents filed by both the parties. We have carefully gone through the exhibits filed by the complainant.  We have come to the conclusion that the opposite parties have committed deficiency in service to the complainant. This point is answered accordingly.

Point No.2:-

Since we have come to the conclusion that opposite parties had committed deficiency in service, the complainant has to be compensated adequately for her mental agony and deficiency in service committed by opposite parties in addition to refund of air tickets cost.  We are inclined to direct the 1^st and 2^nd opposite parties to refund the ticket price of Rs.18,561/-.  Further we also directed the opposite parties 1 to 3 to pay Rs.1,00,000/- towards compensation and Rs.10,000/- towards cost.  This point is answered accordingly.

In the result, the complaint is partly allowed

a) Directing the 1^st and 2^nd opposite parties to refund a sum of Rs.18,561/- (Rupees eighteen thousand five hundred sixty one only) being the Air ticket charges paid by the complainant;

b) Directing the opposite parties 1 to 3 to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

c) The above order shall be complied within six weeks from the date of receipt of this copy of the order, failing which, amount in clause (a) shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the Member I to the steno-typist, transcribed and computerized by him, corrected by the Member I and pronounced by us in the open Commission on this the 13^th day of June 2023.

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MEMBER-II                                              MEMBER I                                        PRESIDENT

List of document filed by the complainant:-

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MEMBER-II                                          MEMBER I                                       PRESIDENT