BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.316 of 2020
Date of Instt. 24.09.2020
Date of Decision: 23.06.2023
Gurbaz Singh S/o Satnam Singh R/o Tehsil Nakodar, Village Pandori Khas Jalandhar 144040
..........Complainant
Versus
1. Air Canada 111, First Floor, Ansal Bhawan, 16KG Marg, New Delhi, 110001, through its General Manager.
2. Goibibo 19th Floor, Tower A, B, C Epitome Building Number 5, DLF Phase 2, Sector 24 Gurugram, Haryana, PIN Code 122002, through its General Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Rohit Kapoor, Adv. Counsel for the Complainant.
Sh. BKS Chhabra, Adv. Counsel for OP No.1.
Sh. A. K. Gandhi, Adv. Counsel for OP No.2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant purchased a Ticket from Air Canada Airlines through Goibibo on 04.07.2020 bearing ticket No.014-3760990520, for a sum of Rs.60,342/-, which was paid through ICICI Bank bearing reference no.ACC00800150934. The above said flight has to be departed from Vancouver international airport on 03.08.2020 and it has to be reached at New Delhi Airport on 04.08.2020. This flight has been cancelled by Air Canada due to unknown reason. The intimation regarding the cancellation of flight has been given by Air Canada airline to the complainant through email. The complainant requested to Air Canada Airlines at that time for giving another or alternative flight, but unfortunately, they refused the request at that time. The visa limit of complainant expired on 29.04.2020. So, in this critical situation complainant has not been left any other option and he has to book another flight from Air India Airlines. Due to this cancellation, the complainant suffered huge economic loss and mentally harassed in this pandemic situation. The complainant requested OPs so many time, but inspite of repeated request made by the complainant through emails, but OPs failed to give any satisfactory reply. Air Canada Airline reply to complainant to take the voucher but these vouchers are not beneficial for complainant because visa limit of complainant had been expired on 29.04.2020. Due to pandemic situation complainant stuck in Canada more than three month due to which complainant mentally harassed. The complainant served a legal notice upon the OPs, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the entire amount of Rs.60,342/- paid to him and also be refunded the price of air tickets of Rs.54,000/- alongwith interest @ 18% per annum and Rs.1,00,000/- as compensation and litigation expenses be also given.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable before this Commission. It is an admitted case that the tickets were bought from Canada through the online payment. It is also an admitted case that the intended travel was from Vancouver, Canada to Delhi on August 3, 2020. The said flight was to terminate at Delhi Airport. It is also an admitted fact by the Complainant that the said flight got cancelled (due to Covid Restrictions). It is also an admitted fact that the Ticket was booked by the Complainant (Para 2) where the Complainant states ‘And the above said flight ticket was booked by Mr. Gurbaaz Singh’. It is also an admitted fact that when the tickets were booked, Gurbaaz Singh was in Canada at that time (Para3). In the entire complaint, there is nothing to suggest that any cause of action arose in Jalandhar or within the jurisdiction of this Commission. The Complainant has made a false submission that the ticket was booked from Jalandhar. Thus, the present complaint is liable to be dismissed on this ground alone. It is further averred that the Hon'ble Supreme Court of India, vide its judgment dated October 1, 2020 in Diary No. 10966/2020 (Pravasi Legal Cell & Others Vs. Union of India and Others) has given directions for refund only in certain cases while allowing airlines to also provide credit shells, in case of flights originating from India i.e. Ex-India. It may be added that the said Judgment is applicable only for flights originating from India i.e. Ex-India. In case of flight originating from outside India and in all other cases, International Airlines are to follow their own refund policy governed by the law of their originating country. In the instant case, vouchers have been handed over to the Passengers in lieu of the ticket as per the Canadian Government policy i.e. policy and framework of The Air Passenger Protection Regulations (APPR) for refund to passengers. Thus, Air Canada has not acted in an arbitrary or illegal manner, while offer vouchers to the Passenger. These policies have been adopted by respective governments in view of the once in a century pandemic situation and to maintain the balance so that the airlines do not bleed and suffer bankruptcy. The Complainant has been handed over vouchers in lieu of the cancelled flight and the same was accepted by the Complainant without any protest. It is only after acceptance of the voucher, that the passenger has filed the present complaint. It is also submitted that when Air Canada sent the information about cancellation of flight, they also gave an option for re- scheduling/rebooking on the next available flight. The Complainant opted for vouchers instead. The complainant and his family have filed 5 separate complaints for the same Booking reference numbers, which is also a gross abuse of the process of law. It is submitted that the tickets were booked together for all passengers and even the payment was made in one single transaction. Thus, 5 separate complaints are not maintainable. It has been done so by the Complainant and his family only with ulterior motives. In any case, all the passengers were in Canada and the booking was made from Canada from travel to Delhi and thus the present complaint is not maintainable before this Hon'ble Forum on the basis of jurisdiction. The present complaint cannot be maintainable as separate and independent claims too. It is further averred that the complainant has alleged that several emails were sent and even a Legal Notice was sent to OP Air Canada. It is denied that any such email or Legal Notice was sent. The Complainant has not filed any proof of the same or the dispatch of the Legal Notice, thus the said submissions cannot be accepted. On merits, the factum with regard to all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant, thus is no entitled to claim any equities from the OP No.2, by way of the present complaint. It is further averred that the present complaint, filed by the complainant, is absolutely frivolous, misconceived and malafide. Hence, it is an abuse of the process of law and this Commission. It is further averred that the complainant has failed to approach this Commission with clean hands, bonafide intents and on top of that have twisted and suppressed the material facts and circumstances of the present complaint, Hence, as such guilty of suppression very and suggestion falsi. It is further averred that the present complaint filed by the complainant is with malafide intentions with a view to force the OP No.2 to accede to the whims and comforts of the complainant. It is further averred that the OP No.2, i.e. Ibibo Group Pvt. Ltd., is a company duly incorporated under the Companies Act, 1956 and enjoys immense goodwill and reputation for providing superlative services to thousands of consumers. Besides other accolades bestowed upon and recognitions awarded to the answering OP, it has also been awarded as Best Travel Portal India by World Travel Awards, indicating the highest customer satisfaction and a fundamentally strong position in the industry. It is further averred that the answering OP is a consumer-centric company, which is managed through online web-portal i.e. www.goibibo.com and mobile application namely, 'Goibibo". The OP No.2, provides all the travel related unblemished services and information to its customers but not limited to air ticketing, railways ticketing, bus booking, hotel bookings at very competitive prices. It is further averred that the OP No. 2 merely acts as a facilitator for booking the confirmed air tickets/hotel bookings on behalf of its customers with the concerned service providers. That the answering OP, upon the request received from its customer, forwards the same to the concerned Airlines through software embedded on its web-portal. That upon receiving the confirmation from concerned service providers, the Booking ID is generated and confirmed bookings/tickets is shared with the Customer. It is further averred that all the online transactions by the user of the website or the mobile application of the OP No.2 are governed by the website's and application's User Agreement, applicable to the person intending to purchase or inquiring for any products and/or services of the OP No.2. That, any person intending to purchase any product or avail the services of the answering OP, is governed by the terms and conditions of the User Agreement. It is further pertinent to mention here that for availing the services of the answering OP, the intended traveler has to enter into an E-contract with the answering OP by consenting to the terms and conditions of the answering OP, by clicking on the "I Agree" pop up or button. Hence, the customers are bound by the terms and condition of the User Agreement of the OP No.2. On merits, the factum with regard to issuance of the confirmed tickets by the OP No.2 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the arguments from the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the counsel for the OP No.2 very minutely.
7. It is admitted case of the parties that the complainant got booked air tickets from OP No.1 through OP No.2 on 04.07.2020 for which amount of Rs.60,342/- was paid through ICICI Bank. It is also admitted fact that the above said flight was to be departed from Vancouver International Airport on 03.08.2020 and it was to be reached at New Delhi Airport on 04.08.2020. It is also admitted and proved that the air tickets were duly confirmed tickets. It is also admitted and proved that the flight has been cancelled by the OP No.1 due to unknown reason, but the intimation of the same was sent to the complainant vide intimation letter Ex.C-2. The tickets were cancelled on 03.08.2020. The complainant has proved on record the copy of the bank statement Ex.C-3 showing that the payment of Rs.60,342/- was made through OP No.2 for the purchase of the ticket. It has been alleged by the complainant that despite the cancellation of the flight, the OPs have not refunded the booking amount deposited by him till the filing of the complaint. The complainant has further alleged that he requested the OP No.1 to give another and alternative flight, but they refused at that time. The visa limit of the complainant expired on 29.04.2020, therefore, the complainant was to return to India and he had to purchase the ticket of another flight from airlines, which has been proved as Ex.C-5 and the copy of the passport has been proved as Ex.C6 and he has sought the refund of the amount alongwith interest and cost of litigation.
8. The contention of the OP No.1 is that the ticket was not got booked by the complainant Gurbaz Singh individually, but 5 persons connectively purchased the tickets under single booking reference number. The complainant was given the option either to get alternative flight in lieu of the cancelled flight or to accept the vouchers, but the complainant opted for vouchers, but despite accepting the vouchers, he has filed the present complaint falsely. It has been denied by the OP No.1 that he has ever made request for any alternative of flight. The visa of the complainant had already expired and still he was residing in Canada on expired visa, therefore, the present complaint should be dismissed on this ground only. The cancellation of the flight was due to Covid Restrictions imposed on international flights, which has been notified from time to time, therefore, there is no deficiency in service on the part of the OPs. He has further submitted that as per the guidelines of the Hon’ble Supreme Court, the airlines are to refund only in certain cases while allowing airlines to also provide credit shells in case of flights originating from India i.e. ex-India and the judgment is applicable only for flights originating from India. The complainant on the other hand has denied the acceptance of the vouchers as alleged.
9. The contention of the OP No.2 is that the OP No.2 is just the facilitator for booking the the air tickets or hotel booking on behalf of its customers with concerned service providers. The OP No.2 upon the request received from its customer forward the same to the concerned airline through software and upon receiving the confirmation from the concerned service provider, the booking ID is generated and the ticket is shared with the consumers. The refund is to be made by the OP No.1. It has been alleged by the OP No.2 also that the complainant got booked the tickets through OP No.2 of OP No.1. it has been alleged by the OP No.2 that the confirmed flight bookings were not honoured by the concerned airlines i.e. OP No.1 due to outbreak of the Covid-19 pandemic as the same was declared as Force Majeure event by the Ministry of Finance in the month of February, 2020 itself. Therefore, the case of the present complainant is also covered within the four corners of a ‘force majeure’ event. He has also relied upon the judgment passed by the Hon’ble Supreme Court in case titled as ‘Pravasi Legal Cell Vs. Union of India & Anr.’, which was decided on 01.10.2020. The same judgment has been relied upon by the OP No.1 also. He has further submitted that as per the guidelines issued by the Hon’ble Supreme Court and the circular issued by the Directorate of Civil Aviation, the OP No.2 has pursued the OP No.1 to process the complainant’s refund to the OP No.2 so as the same could be refunded to the complainant by the OP No.2 in accordance with the order of the Hon’ble Supreme Court dated 01.10.2020 and the circular dated 07.10.2020, but it is the OP No.1, who has not processed the refund as per the Civil Aviation Requirements issued by the DGCA dated 22.05.2008, therefore, there is no liability or deficiency in service on the part of the OP No.2 nor there is any unfair trade practice.
10. As discussed above, the facts of booking tickets and depositing the money by the complainant has been admitted. As per the judgment passed by the Hon’ble Supreme Court Ex.R-4, where the passengers got booked the tickets, where a booking is ex-India a refund must be governed by the provisions of applicable Civil Aviation requirement according to the DGCA circular. Since, the complainant had got booked the ticket after 24th May of 2020, therefore, he has been put in the category 3 of the passengers as per the directions and guidelines issued by the Hon’ble Supreme Court. The circular has also been proved by the OP Ex.R-5, wherein the passengers have been put in three categories and this circular has been issued as per the order passed by the Hon’ble Supreme Court in case titled as ‘Pravasi Legal Cell Vs. Union of India & Anr.’,. As per Section-3 of the Civil Aviation Requirements, Serious M, Part-II, the refund in case of cash payment should be made immediately by the airlines office from where the tickets was purchased and in case of credit card payments, refund shall be made by the airlines within seven days of the cancellation to the account of credit card holders. As per clause-C of Section-3, in case of purchase of tickets through travel agent/portal, onus of refund shall lie with the airlines as agents are their appointed representative. The airline shall insure that the refund process is completed within thirty working days.
11. In the present case, the ticket was got booked on 04.07.2020 and the date of cancellation of the ticket is 03.08.2020. As per submission of OP No.2, the request for the process to refund the payment was made. The cancellation was not got done by the complainant rather it was done by the OP No.1 due to the Covid pandemic. It is the responsibility and duty of the OP No.1 to make the refund of the payment received by them as the tickets remained unused. So far as the acceptance of vouchers is concerned, no record has been produced on record by the OP No.1 to show that the vouchers were issued and accepted by the complainant. As per the Civil Aviation Rules, if the tickets are booked through agents, then the refund is to be made to the agent who shall further process and pay it to the complainant or consumer. The cancellation was confirmed on 03.08.2020 and as per these rules, the refund was to be made within a period of 30 days from the date of cancellation, but the OP has not made the payment till today. Since, the amount has not been received by the OP No.2 from OP No.1, therefore, there is no delay or deficiency in service on the part of the OP No.2. So, there is clear cut deficiency in service and unfair trade practice on the part of the OP No.1 and the complainant is entitled for the refund.
12. In view of the above detailed discussion, the complaint of the complainant is partly allowed qua OP No.1 and disposed of qua OP No.2. The OP No.1 is directed to refund the price of the entire amount i.e. Rs.60,342/- to the complainant with interest @ 6% per annum from the date of booking the tickets, till realization. Further, OP No.1 is directed to pay a compensation for causing mental tension and harassment to the complainant, to the tune of Rs.10,000/- and litigation expenses of Rs.8000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
23.06.2023 Member Member President
