ORDERS:

Varinder Pal Singh Saini, Member;

1        The complainant has filed the present complaint under Section 34, 35, 36 and 38 of the Consumer Protection Act (herein after called   as 'the Act') against the opposite parties by alleging that on 4.3.2020, the complainant Jagminder Singh has purchased return flight tickets of O.P. No.1 i.e. Air India from O.P No.2 Goibibo for his family i.e. for total 3 members (Mr. Jagminder Singh, Mr. Harshbir Singh, Mrs. Nirmal Kaur). The said tickets were confirmed for travel from New Delhi to Sydney and departure date was 2nd April 2020 (Timing 13:55 hrs) and further the same tickets were confirmed for return travel from Sydney to New Delhi and departure date was 12 May 2020 (Timing 13:20 hrs). The complainant has paid total Rs.1,94,556/- as payment for the above purchased tickets out of his bank account with the HDFC Bank. The complainant has also taken print out of the confirmed tickets bearing logo of Goibibo. On the same day i.e. on 4.3.2020, the complainant Jagminder Singh has also purchased flight tickets of O.P No.1 i.e. Air India from O.P No.2 Goibibo for his family i.e. for total 4 members (Mr. Jagminder Singh, Mr. Harshbir Singh, Mrs. Nirmal Kaur and Mrs. Ranjit Kaur). The said tickets were confirmed for travel from Amritsar to New Delhi and departure date was 1st April 2020 (Timing 22:50 hrs). The complainant has paid Rs.10,381/- as payment for the above purchased tickets out of his bank account with the HDFC Bank. The complainant has also taken print out of the confirmed ticket bearing logo of Goibibo. As such in total the complainant has spent Rs.2,04,937/- for the purchase of the above said tickets and the payment was made to Air India i.e. O.P No.1 through Goibibo i.e. O.P No.2 by the complainant through his bank account. Thereafter in March, 2020, nationwide lockdown was imposed in the country due to outbreak of COVID-19 and all international as well as domestic flights have been cancelled. As such due to above said reason, the travel tour of the complainant got cancelled and the above tickets have also been cancelled due to COVID situation. As such, the complainant has requested to the O.Ps for refund of the amount of Rs.2,04,937/- spent on the purchase of the above tickets. The concerned officials of the OP No.2 had conveyed to the complainant through online chatting that the process of refund will be started and the amount of refund will be credited to him soon. Afterwards the complainant had for many times contacted the officials of O.Ps. No 1 & 2 and the officials/representatives of the O.Ps. No. 1 and 2 time and again tried to level allegations against each other as the official /representatives of the OP No. 1 have told that the refund will be given by the OP No.2 and the official /representatives of the OP No.2 used to tell that the refund will be given by the O.P No.1. Due to difficulties faced by the passengers who have spent huge amount on the purchase of tickets, the Hon'ble Supreme Court has issued detailed guidelines relating to refund on cancellation of air tickets during COVID-19 lockdown. As per guidelines given by the Hon'ble Supreme Court, the DGCA categorized passengers in three categories for making refund of tickets as follows:- (i)  passengers who those who booked tickets during lockdown for travel during lockdown i.e. from 25^th March 2020 to 24^th March 2020 (ii) passengers who booked tickets any time prior to lockdown but journey up to 24^th May 2020 and cancelled due to COVID-19 (iii) passengers who booked ticket anytime but for journey after 24^th May 2020. As per the above categories the case of the complainant comes within the 2^nd Category.  As per the above categories, the case of the complainant comes within the 2^nd category and as per the judgment of the Hon'ble Supreme Court, the DGCA has directed the Airlines to make refund of the tickets within 15 days from the date of guidelines i.e. from 07-10-2020. The complainant has brought into notice of the O.P's all the above said facts and circumstances again and again and further has requested for so many times to return the amount of cancelled ticket, to reimburse his amount of the ticket as spent by him but no officials/ agents of all the above said addresses have bothered to hear the genuine requests made by the complainant. As such, the complainant could not get the refund of the tickets till today.  The complainant has prayed that the opposite parties may be directed to refund the amount of cancelled tickets i.e. Rs. 2,04,937/- as spent by the complainant for purchasing of the tickets and has also prayed Rs.20,000/- as compensation and Rs.  10,000/- as litigation expenses. Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, Self attested copy of Air tickets of Air India Ex. C-2, Self attested copy of Air tickets of Air India Ex. C-3, Self attested copy of payment invoice Ex. C-4, Self attested copy of Bank statement Ex. C-5, Self attested copy of Chat with Goibibo Agent Ex. C-6, Self attested copy of chat with Goibibo Agent  Ex. C-7, Self attested copy of Adhar Card Ex. C-8.

2        Notice of this complaint was issued to the opposite parties and opposite party No. 1 appeared through counsel land filed written version by interalia pleadings that the present complaint against the opposite party No. 1 is not maintainable. There is no deficiency in service on their part towards the complainant, as he had got booked his ticket through the opposite party No. 2. However, the complainant can get refund of the amount of the ticket when the opposite party No. 2 sent e-mail in Refund Section of Air India Ltd. i.e. delrefunds@airindiain. No cause of action has arisen to the complainant to file this complaint against the opposite party No. 1. The opposite party No. 1 has been unnecessarily dragged in the litigation just to harass and pressurize the air India Authorities, its officers and officials. As such, the complaint is liable to be dismissed qua the opposite party No. 1. The complainant has concealed / suppressed the material facts from this commission, as such, he is not entitled to any relief against the opposite party No. 1. In the month of March, 2020 Nation-wide lock down was imposed in the country due to outbreak of COVID-19 and all the international as well as domestic flights were cancelled. In this respect, advisory for Passengers-Covid-19 was issued by the Air India Pvt. Ltd. on dated 20.3.2020 for cancellation of booking itinerary Intentional/ Domestic Sectors in which it is clearly mentioned that in case of cancelled flights and passenger opting for refunds, no cancellation charges to be levied as per Air India refund policy, also for fare Rules which allow Nil cancellation charges, benefit be passed to the passengers. It was issued by Pratik Majumdar, Sr. Assistant General Manager, Revenue Management, Delhi. As stated above, the complainant can get refund of the amount of his tickets when the opposite party No. 2 sent e-mail in Refund Section of Air India Ltd. through whom the complainant had got booked his tickets. It is not denied regarding guidelines issued by Hon’ble Supreme Court of India relating to refund of the cancellation of air tickets during COVID-19 lockdown. The complainant was duly informed by the Air India Airport Authorities regarding Advisory issued by the Higher Authorities of Air India for the cancellation of the flights during COVID-19 lockdown as well as regarding refund of the amount of the tickets through opposite party No. 2 from whom he had purchased the tickets of the flights in question which were cancelled during the lockdown period. There is no fault of any kind on the part of the officials of the opposite party No. 1. They are providing better and satisfied services to their customers. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.  Alongwith written version, the opposite party No. 1 has placed on record affidavit of Viresh Mehta Ex. OP1/1 alongwith document Ex. OP1/2.

3        The opposite party No. 2 appeared through counsel land filed written version by interalia pleadings that  The Opposite Party No. 2. i.e., IBIBO Group Pvt Ltd. (hereinafter referred to as the "answering Opposite Party"), 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 Opposite Party, 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. The answering Opposite Party is a consumer-centric company, which is managed through online web-portal i.e., www.goibibo.com and mobile application namely, Goibibo. That the Opposite Party 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. The Opposite Party 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 Opposite Party, upon the request received from its customer, forwards the same to the concerned Airlines through softwares 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. All the online transactions by the user of the website or the mobile application of the Opposite Party 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 Opposite Party No. 2. That, any person intending to purchase any product or avail the services of the answering Opposite Party, is governed by the terms and conditions of the User Agreement. For availing the services of the answering Opposite Party, the intended traveller has to enter into an e-contract with the answering Opposite Party by consenting to the terms and conditions of the answering Opposite Party, 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 Opposite Party No. 2. To understand the issue in hand, the answering Opposite Party will brief out the bookings made by the Complainant herein through the answering Opposite Party:

a. Booking ID: GOFLIIOS9FD9B1583319343

b. Booking Date: 04.03.2020

          c. Passengers:

- Jagminder Singh

- Harshbir Singh

-Nirmal Kaur

d. Total Amount Paid: Rs. 1,94,431/- + Rs. 125/- NPGC

e. Flight details:

Onwards Sector

-New Delhi-Sydney via Air India AI-302 dated 02.04.2020

Return Sector

-Sydney-New Delhi via Air India Al-301 dated 12.05.2020

f.       Booking ID: TUAPINS4

g.       Booking Date: 04.03.2020

h        Passengers:

                   -Jagminder Singh

                   -Harshbir Singh

                   -Nirmal Kaur

                   -Ranjit Kaur

i.        Total amount Paid: Rs. 10,381/-

j.        Flight details:

-Amritsar-New Delhi via Air India dated 01.04.2020

On the bare perusal of the Complaint, it is learnt that the Complainant is being aggrieved by the non-refund for the cancellation of the confirmed booking operated by Air India. At the time of booking of the tickets, the intended traveller duly accepts the terms and conditions of the User Agreement. Furthermore, the intended traveller at the time of booking the tickets also duly consents and adheres to the cancellation policy of the Opposite Party No. 2 as well as the concerned Airline. Moreover, the cancellation policy as shared with the confirmed tickets is in consonance with the cancellation terms shared with the customer at the time of booking and the cancellation terms of the Airline i.e. Opposite Party No. 1 in the instant case.  In addition to the User Agreement, the Complainant is also governed by the cancellation and refund policy of the concerned Airlines, which prevail over the terms and conditions of the Opposite Party No. 2 in case of any conflict and same is duly mentioned and agreed upon by the Complainant at the time of booking the tickets. Furthermore, the Complainant was well aware of the same at the time of making the said booking. The relevant terms as mentioned in the User Agreement is reproduced herein below for reference:

"TERMS OF THE AIRLINES

The airline tickets available through the Website are subject to the terms & conditions of the concerned airline, including but not limited to cancellation and refund policies. ibibo merely acts as a facilitator to enable the User to book a flight ticket. The contract of service for utilization of the flight is always between the User and the concerned airline. Airlines retain the right to reschedule flight times, route, change or cancel flights or itineraries independent of and without prior intimation to ibibo. As a facilitator ibibo has no control or authority over the logistics of the airlines and therefore is not liable for any loss, direct or incidental, that a User may incur due to such change or cancellation of a flight. Different tickets on the same airline may carry different restrictions or include different services and price. The baggage allowance on given fare is as per the terms decided by the airline, and ibibo has no role to play in the same. Some of the fares shown in the booking ow are "hand baggage fares" which do not entitle the User for free check in baggage and therefore the User will be required to pay separately for check in baggage. The prices for adding check-in baggage to a booking may vary from airline to airline. The User is advised to contact the airlines for detailed costs."

Further:

"REFUND

Refunds will be processed as per the airline fare rules and cancellation policy. Such refunds shall be subject to ibibo receiving the same from the airlines. However, the convenience fee paid to ibibo paid at the time of booking is a non-refundable fee. All cancellations made directly with the airline need to be intimated to ibibo, in order to initiate the process of refund. The processing time for refunds may vary depending on the mode of payment, bank etc. The refund shall be processed after deducting the ibibo service fee which is independent of the convenience fee as mentioned above. The refund will be credited to the same account from which the payment was made. For example, if the User used a credit card, ibibo will make an appropriate charge reversal to the same credit card; like-wise if the User used a debit card, ibibo will credit the money to the same debit card. In the event of cancellation and refund of partially utilized tickets, upfront discount and promo code discoun availed at the time of booking would be deducted from the refund amount".

The Opposite Party No. 2, being the facilitator between the concerned service provider and the intended traveller was under the obligation to provide the confirmed booking/tickets to its customers. Once the tickets are confirmed by the concerned service providers, the same is shared with the intended traveller Moreover, once the confirmed ticket is issued to the customer, the Opposite Party No. 2 is discharged from its obligations and duties qua the said bookings. Further, according to the User Agreement, liability for any aspects of the standards of services provided by the concerned service providers is not attributable to the answering Opposite Party. The relevant portion of the User Agreement has been reproduced hereunder for the sake of brevity of this Hon'ble Commission:

"Unless ibibo explicitly acts as a reseller in certain scenarios, ibibo always acts as a facilitator by connecting the User with the respective service providers like airlines, hotels, restaurants, bus operators etc. (collectively referred to as "Service Providers" ibibo 's liability is limited to providing the User with a confirmed booking as selected by the User Any issues or concerns faced by the User at the time of availing any such services shall be the sole responsibility of the Service Provider. ibibo will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence on part of any Service Provider.

Unless explicitly committed by ibibo as a part of any product or service:

o        ibibo assumes no liability for the standard of services as provided by the respective Service Providers.

o        oibibo provides no guarantee with regard to their quality or fitness as represented.

o        ibibo doesn't guarantee the availability of any services as listed by a Service Provider

By making a booking, User understands ibibo merely provides a technology platform for booking of services and products and the ultimate liability rests on the respective Service Provider and not bibo. Thus the ultimate contract of service is between User and Service Provider."

Further, according to the User Agreement, which was duly consented to and agreed by the Complainant himself before making the said confirmed bookings, the end service provider i.e., Opposite Party No. 1 reserves the right to refuse / cancel any booking at its end for various reasons including but not limited to behavioural issues, public safety, health hazards, infectious diseases, government orders notification, COVID-19 etc. Vide the same clause, User has also agreed to the fact that in case of such refusal cancellation no liability shall be borne by the Opposite Party No. 2. The relevant portion of the User Agreement has been reproduced hereunder for the sake of brevity of this Commission:

"COVID-19 related terms & condition

User agrees that due to recent outbreak of COVID-19 pandemic, which has been declared as a national disaster by the Government of India, there may be instances, where the end service provider either cancels the booking or refuses to provide the services, as agreed with the User, by assigning or not assigning any specific reason for such refusal. Refusal of service may be due to the reasons including but not limited to the User: exhibiting any symptoms associated with COVID 19. refusing to comply with safety advisories, like wearing protective gear, complying with social distancing norms etc.

suffering of any ailment making the User vulnerable to the virus posing a threat to the health and safety of others submitting a self-declaration form prior to entering a transit point like airport, railway station etc. or at the time of checking-in for a flight, into a hotel etc. Accordingly, the User must ensure downloading of Arogya Setu App on their smartphones or provide any other alternate such as self-declaration when demanded.

User further understands that due to the outbreak of COVID-19, the Central Government through its ministries, State Governments and statutory bodies have/may come up with detailed set of guidelines or standard operating procedure (SOP) that a traveler will have to follow in order to undertake the travel.

The User agrees to abide with all such guidelines/SOP while undertaking any travel. Failure to abide by such detailed set of guidelines/SOP, may lead to a situation where the service provider or any person authorized by the Central Government, State Government or statutory body may disallow the User to undertake the travel. In such circumstances, ibibo will not be held liable for such refusal to travel and refund, if any, shall be strictly as per the terms of the service provider.

User understands that the Central Government, State Governments and various other bodies, may mandate downloading of Arogya Setu App or submitting a self- declaration form prior to entering a transit point like airport, railway station etc. or at the time of checking- in for a flight, into a hotel etc. Accordingly, the User must ensure downloading of Arogya Setu App on their smartphones or provide any other alternate such as self-declaration when demanded.

User undertakes that all bookings are subject to certain minimum medical wellbeing criteria specified by the Govt. / appropriate authority from time to time. User should have no medical history of the COVID-19 virus 28 days before the date of scheduled travel, especially in case of inbound travel. In this regard the User may be required to furnish a medical proof or health declaration in an applicable format.

Further:

"TERMS OF THE AIRLINES

The airline tickets available through the Website are subject to the terms & conditions of the concerned airline, including but not limited to cancellation and refund policies.

ibibo merely acts as a facilitator to enable the User to book a flight ticket. The contract of service for utilization of the flight is always between the User and the concerned airline.

Airlines retain the right to reschedule flight times, route, change or cancel flights or itineraries independent of and without prior intimation to ibibo. As a facilitator ibibo has no control or authority over the logistics of the airlines and therefore is not liable for any loss, direct or incidental, that a User may incur due to such change or cancellation of a flight.

Without admitting anything herein, it is submitted that due to grave and sudden outbreak of COVID-19 pandemic across the Globe, first measure Governments of all Countries adopted to stop the spread of the virus was stopping air travel, due to which the global air passenger traffic plunged 94 percent in April, 2020. It is further submitted that more than 200 countries and territories worldwide have imposed measures that restrict or deter people from entering their respective borders, according to a report released by the United Nations World Tourism Organization. The Complainant, at the time of making of the aforementioned booking and while accepting the terms of User Agreement, also agreed with the 'force majeure' clause. Under the said clause, it has been specifically mentioned that in case of some unforeseen and untoward incidents arise, which are beyond the control of the answering Opposite Party and which may cause hindrances in the completion or honour of the bookings, the answering Opposite Party will not be held liable since the answering Opposite Party is merely a facilitator of the services and products booked, cannot be held responsible for any such Force Majeure circumstance.

The relevant clauses of Agreement are herein reproduced below for reference:

"Force Majeure

There can be exceptional circumstances where ibibo and/or the Service Providers may be unable to honor the confirmed bookings due to various reasons like act of God, labor unrest, insolvency, business exigencies, government decisions, terrorist activity, any operational and technical issues, route and flight cancellations etc. or any other reason beyond the control of ibibo. If ibibo has advance knowledge of any such situations where dishonor of bookings my happen, it will make its best efforts to provide similar alternative to the User or refund the booking amount after deducting applicable service charges, if supported and refunded by that respective service operators. The User agrees that ibibo being merely a facilitator of the services and products booked, cannot be held responsible for any such Force Majeure circumstance. The User has to contact the Service Provider directly for any further resolutions and refunds.

The User agrees that in the event of non-confirmation of booking due to any technical reasons (like network downtime, disconnection with third party platforms such as payment gateways, banks etc.) or any other similar failures, ibibo's obligation shall be limited refunding the booking amount, if any, received from the customer. Such refund shall completely discharge ibibo from all liabilities with respect to that transaction. Additional liabilities, if any, shall be borne by the User. In no event shall ibibo and be liable for any direct, indirect, punitive, incidental, special or consequential damages, and any other damages like damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the Website or any other Sales Channel."

In the present case, the confirmed flight bookings were not honoured by the concerned Airline, i.e., Air India due to the outbreak of the COVID-19 pandemic. The said outbreak of the COVID-19 pandemic was declared as a Force Majeure event by the Ministry of Finance in the month February, 2020 itself. Thus, the instant case will squarely be covered within the four corners of a 'force majeure' event. Hence, in light of the fact that COVID-19 has been declared as a 'force majeure' event in India and the term of force majeure' agreed by the Complainant while agreeing to the terms of User Agreement at the time of booking, the answering Opposite Party cannot be held liable for cancellation of air tickets booked by the Complainant. In the present case, the complainant has miserably failed to apprise this Commission that due to the Nationwide Lockdown being imposed by Government of India and further as per guidelines issued by Ministry of Home Affairs ("MHA") dated 24.03.2020, almost all the flights operated by various airlines were grounded till further orders. However, despite the fact that answering Opposite Party was discharged from its duties once a confirmed ticket was issued to the Complainant, the answering Opposite Party being a consumer-centric company, moved proactively and sought refund from the concerned Airline i.e., the Opposite Party No. 1 against each and every booking made through its platform including the Complainant' ticket. Thus, it is amply clear that the answering Opposite Party has acted proactively in such unprecedented times. Due to outbreak of the COVID-19 and subsequent imposition of the lockdown the offices of the answering Opposite Party are closed till date, due to which the answering Opposite Party had to with half work force with new policy of work from home. The answering Opposite Party being the biggest OTA in the travel industry, is trying with best endeavours to resolve the issues faced by its customers due to COVID-19 towards the booking. Nevertheless, the answering Opposite Party acted proactively by approaching Opposite Party No. 1 to seek refund on behalf of the Complainant for the Delhi- Sydney Sector and duly raised Refund Applications bearing Numbers:

- 4000137257

- 4000137259

- 4000137261

Further, the answering Opposite Party has also raised Refund Applications dated 17.11.2020 for the Amritsar - Delhi sector on behalf of the Complainant. Judgment dated 01.10.2020 passed by the Supreme Court in the case titled as 'Pravasi Legal Cell versus Union of India & Anr.' and the Refund Policy made by the DGCA in pursuant to the same. The multibillion-dollar tourism sector, which is a growth engine in many economies, stares at gigantic losses. In fact, thousands of workers from top executives to ticketing staff, forex dealers, housekeeping personnel, guides and hawkers at tourist that directly or indirectly are connected to tourism industry are on the grim of existential crisis. It is further submitted that the travel, tourism and hospitality industry is among the first sectors to be hit by the COVID - 19 pandemic and the attendant closure of borders; and shall take the longest time to revive. In light of the aforementioned plight of both airlines and passengers a Public Interest Litigation was filed before the Hon'ble Supreme Court titled as "Pravasi Legal Cell versus Union of India & Anr.", Vide Diary No. 10966 of 2020. The said matter was pending before the Hon'ble Supreme Court since 21.04.2020 and was finally decided on 01.10.2020. The Hon'ble Supreme Court vide Judgment dated 01.10.2020 (hereinafter referred to as 'Order') has clearly directed that;  

"the Airlines shall make all endeavours to refund the collected amount to the passengers within 15 days from today. If on account of financial distress, any airline / airlines are not able to do so, they shall provide "Credit Shell" equal to the amount of fare collected, in the name of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31.03.2021. It is open to the passenger either to utilise such "Credit Shell" upto 31.03.2021 on any route of his choice or the passenger can transfer the Credit Shell to any passenger including the travel agent through whom he / she has booked the ticket and the Airlines shall honour such a transfer."

This Commission may kindly note that, the Hon'ble Supreme Court vide the aforementioned Order has directed the Airlines to process refund to the customers like the Complainant herein through their Travel Agents such as the answering Opposite Party. The Hon'ble Supreme Court also specified that the Travel Agents shall process the refund to its customers such as Complainant in the present case, only once refund is received from the concerned Airlines. Further, the Hon'ble Supreme Court has observed that if the concerned Airlines failed to refund the amount paid by the customers, the concerned Airlines shall provide "Credit Shell" equal to the amount of fare collected, in the name of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31.03.2021. Hence, it is clear from the Order dated 01.10.2020, as observed by the Hon'ble Supreme Court that it is the SOLE liability of the concerned Airlines to process the refund or provide Credit Shell to the customers, like the Complainant herein, and the concerned Travel Agency, like the answering Opposite Party herein shall forward the same to the customers as soon as the same received from the concerned Airlines. Once the confirmed ticket is booked by the intended traveller and the tickets of the same are shared with the intended traveller, the Opposite Party No. 2 is discharged from its obligations qua the said bookings. In case of any cancellation or rescheduling of the tickets, the Concerned Airlines shall refund or reschedule the tickets or bookings in lieu of charges duly agreed upon at the time of making the bookings. Further, in case of any other technical fault, lapse, change in prices, sell-outs, cancellation, prepones, postpones, or error in confirming/confirmed bookings, the Airlines are liable to compensate the customer for the same. In addition to the User Agreement, the intended traveller is also governed by the cancellation and refund policy of the concerned Airlines, which prevails over the terms and conditions of the Opposite Party No. 2 in case of any conflict. In the present case, the flights have been cancelled by the Opposite Party No. 1 due to the outbreak of the COVID-19 pandemic and the consequential imposition of the Nationwide Lockdown dated 24.03.2020. In light of the Order passed by the Hon'ble Supreme Court, and Circular issued by DGCA, the said booking made by the Complainant, fall in Category No. 2. As per the directions issued under Category 2 and in case if booking is made through travel agent, the Airlines are liable to process refund to the travel agent which is to be forwarded to the intended travellers. However, if Airlines are facing any financial distress, the Airlines are liable to create a Credit Shell for the intended travellers to be used by 31.03.2020. In case of issuance of Credit Shell, Airlines will have to provide a nominal interest of 0.5 percent and 0.75 percent on the value of Credit Shell. Thus, basis the aforementioned submissions, it is amply clear that actual liability of refund is of the Airline and the same is acknowledged by the Hon'ble Supreme Court in its Order dated 01.10.2020 and the Circular dated 07.10.2020, issued by the DGCA in pursuant to the Order dated 01.10.2020.  The office of the Director General of Civil Aviation, prior to the issuance of the Circular and the Order of the Hon'ble Supreme Court, had issued Civil Aviation Requirements, Section - 3 Air Transport, Series 'M', Part 11, Issue 1, dated 22nd May, 2008 whereby Airlines have been directed to compensate the customers in the event of cancellation of ticket/flight and when the tickets were booked by through the Agent, the Agent shall only be liable to refund the booking amount, upon receiving the same from the concerned Airlines. In the present case, concerned Airlines i.e., Air India / Opposite Party No. 1 is liable to compensate the Complainant for the cancellation of the said confirmed flight bookings. Hence the answering Opposite Party shall not be held liable for the same. The office of the Director General of Civil Aviation, prior to the issuance of the Circular and the Order of the Hon'ble Supreme Court, had issued Civil Aviation Requirements, Section - 3 Air Transport, Series 'M', Part II. Issue I, dated 22^nd May 2008 whereby Airlines have been directed to compensate the customers in the event of cancellation of ticket/flight and when the tickets were booked by through the Agent, the Agent shall only be liable to refund the booking amount, upon receiving the same from the concerned Airlines. Hence the answering Opposite Party shall not be held liable for the same. Answering Opposite Party proactively raised Refund Applications on behalf of the Complainant. On the bare perusal of the Complaint, it is learnt that the Complainant has filed the present Complaint being aggrieved by the non-refund for the cancellation of the said confirmed flight bookings from Amritsar to New Delhi dated 01.04.2020. For the to and fro sector of Delhi - Sydney dated 02.04.2020 and 12.05.2020 respectively. In light of the Order passed by the Hon'ble Supreme Court and Circular issued by DGCA, the said booking made by the Complainant falls in Category No. 2 and the answering Opposite Parties have duly acted and followed the guidelines and directions issued by the Hon'ble Supreme Court as well as DGCA, and forwarded the Open Ticket to the Complainant dated 19.05.2020, as directed by the Opposite Party No. 1. However, after the passage of the Order dated 01.10.2020 and the Circular dated 07.10.2020, the answering Opposite Party, in accordance to the aforementioned Order and the Circular, has proactively raised Refund Applications to the Opposite Party No. 1 on behalf of the Complainant for the Delhi- Sydney Sector via Refund Applications bearing Numbers:

• 4000137257
• 4000137259
• 4000137261

Further, the answering Opposite Party has also raised Refund Applications dated 17.11.2020 for the Amritsar - Delhi sector on behalf of the Complainant. The Opposite Party No. 1 has failed to process the refund, despite the clear and specific directions issued by the Hon'ble Supreme Court and guidelines issued by the DGCA. The answering Opposite Party shall refund the same to the Complainant as soon as the refund is received from the Opposite Party No.1. Hence it is clear from the aforesaid, that without prejudice, the Opposite Party No. 1 is liable to initiate the refund process and hence, the present Complaint deserves dismissal qua the Opposite Party No. 2 at this threshold itself.  On the basis the submissions made in preceding paragraphs it is amply clear that primary liability of refund is of the concerned Airline i.e. Opposite Party No. 1, and the answering Opposite Party which act as merely an agent, is supposed to process refund only once it has been processed by the Opposite Party No. 1 to the Opposite Party No. 2. The same has been already proactively processed in the present case. Hence, no deficiency in service can be made out against the answering Opposite Party as the answering Opposite Party has duly outperformed all its duties. The Complainant has filed the present complaint seeking compensation of approximately Rs. 2,34,937/- with 129% p.a. interest, in toto, in contrast to the admitted amount of dispute valued at Rs. 2,04,937/-, which itself establishes the malafide intention of the Complainant. On the bare perusal of the Complaint, it is learnt that the Complainant is being aggrieved by the non-refund for the cancellation of the confirmed booking by the concerned Airlines i.e. Opposite Party No. 1 due to the force majeure event of the imposition of the Nationwide Lockdown due to the outspread of the COVID - 19 pandemic. However, the Complainant has miserably failed to disclose any cause of action, against the answering Opposite Party in the present complaint. The Complainant has duly admitted to the fact that the answering Opposite Party has provided the confirmed tickets of the flights from Amritsar to New Delhi dated 01.04.2020, from Delhi to Sydney dated 02.04.2020 and from Sydney to Delhi dated 12.05.2020. On the bare perusal of the Complaint, it is learnt that the sole grievance of the Complainant herein is for the refund of the amount paid towards the bookings. It is pertinent to mention here that once the confirmed tickets are shared, the answering Opposite Party is discharged from all the obligations and liabilities qua the said bookings. However, as per the terms and conditions duly agreed upon by the Complainant at the time of booking the tickets, the Complainant has been duly informed that the refund shall be processed to the Complainant by the answering Opposite Party as soon as the same is received by the answering Opposite Party from the concerned Airlines i.e., Opposite Party No. 1. In addition to the User Agreement, the intended traveller is also governed by the cancellation and refund policy of the concerned Airlines, which prevails over the terms and conditions of the answering Opposite Party in case of any conflict as per the cancellation policy. Hence, at no stretch of the imagination, any cause of action arose qua the answering Opposite Party or any deficient in service is attributable to the answering Opposite Party and therefore the complaint is liable to be dismissed at this ground alone under the provision Order 1 Rule 10 of the CPC. This Commission has no territorial jurisdiction to entertain the present Complaint. This Commission may kindly note that, firstly, the Complainant herein has miserably failed to disclose any cause of action against the Opposite Party No. 2 and further the Complainant has made averments against the Opposite Party No. 2 for flights scheduled from Amritsar and New Delhi. Secondly, the registered office of the answering Opposite Party is situated in New Delhi, and also works for gain in New Delhi. Therefore, the Hon'ble Courts at Amritsar or New Delhi have the requisite territorial jurisdiction to try and adjudicate upon the present complaint. Hence, the present complaint deserves dismissal at this threshold for want of territorial jurisdiction under Section 34 of the Consumer Protection Act. The Complainant himself has admitted in the corresponding paragraph, that the answering Opposite Party duly issued to him the said confirmed flight bookings for the desired dates, for which the Complainant had hired the services of the answering Opposite Party. After the issuance of the confirmed flight bookings, the answering Opposite Party is discharged from all its obligations and duties qua the said confirmed flight booking. The Complainant also duly consented to the User Agreement and the Cancellation Policy of the Opposite Party No. 2. It is submitted that the Complainant himself has admitted that the flights were cancelled due to the force majeure event of the imposition of the Nationwide Lockdown due to the outspread of the COVID-19 pandemic. Hence, the answering Opposite Party cannot be held liable for the aforesaid cancellation since the Complainant duly consented to the 'force majeure' clause of the User Agreement of the Opposite Party No. 2. It is denied that the Opposite Party No. 2 has tried to shift its liability in any way whatsoever. It is submitted that in accordance with the Order dated 01.10.2020 passed by the Hon'ble Supreme Court and the Circular dated 07.10.2020 passed by the DGCA, it is clear that it is the liability of the concerned Airline i.e. the Opposite Party No. 1 to initiate the refund which shall be forwarded to the Travel Agency i.e. the Opposite Party No. 2 herein and the Opposite Party No. 2 thereafter, shall process it to the Complainant. The answering Opposite Party being the consumer centric company has duly filed the respective Refund Applications on behalf of the Complainant with the Opposite Party No. 1 seeking refund of the amount paid by the Complainant. However, the Opposite Party No. 1 despite the order passed by the Hon'ble Supreme Court and guidelines issued by the DGCA, the Opposite Party has miserably failed to refund the same.  The opposite party . The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 2 has placed on record affidavit and documents Ex. RW1/A to R-9.

4        We have heard the Ld. counsel for complainant, opposite party and have also carefully gone through the evidence and documents on the file.

5        In the present case it is not disputed that on 4.3.2020, the complainant Jagminder Singh has purchased return flight ticket of Air India from Goibibo for his family i.e. for total 3 members i.e. Jagminder Singh, Mr. Harshbir Singh and Mrs. Nirmal Kaur. It is also not disputed that in the month of March 2020 nationwide lockdown was imposed in the country due to outbreak of COVID-19.It is also not disputed that due to COVID 19 all intentional as well as domestic flights were cancelled. Due to difficulties faced by the passengers who have spent huge amounts on the purchase of tickets, the Hon'ble Supreme court has issued detailed guidelines relating to refund on cancellation of air tickets during COVID-19 lockdown. As per guidelines given by the Hon'ble Supreme Court, the DGCA categorized passengers in three categories for making refund of tickets as follows:- (i)Passengers those who booked tickets during lockdown for travel during lockdown i.e. from 25^th March 2020 to 24^th March 2020 (ii)passengers who booked tickets any time prior to lockdown but journey up to 24^th May 2020 and cancelled due to COVID-19 (iii) passengers who booked ticket anytime but for journey after 24^th May 2020. As per the above categories the case of the complainant comes within the 2^nd Category. Further, the Hon'ble Supreme Court has observed that if the concerned Airlines failed to refund the amount paid by the customers, the concerned Airlines shall provide "Credit Shell" equal to the amount of fare collected, in the name of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31.03.2021. Moreover, it is contended by the complainant that the said tickets were confirmed for travel from New Delhi to Sydney and departure date was 2^nd April 2020 (Timing 13:55 hrs) and further the same tickets were confirmed for return travel from Sydney to New Delhi and departure date was 12nd  May, 2020 (Timing 13:20 hrs). The complainant has paid total Rs.1,94,556/- as payment for the above purchased tickets out of his bank account with the HDFC Bank. The complainant has also taken print out of the confirmed tickets bearing logo of Goibibo. On the same day i.e. on 4.3.2020, the complainant Jagminder Singh has also purchased flight tickets of O.P No.1 i.e. Air India from O.P No.2 Goibibo for his family i.e. for total 4 members (Mr. Jagminder Singh, Mr. Harshbir Singh, Mrs. Nirmal Kaur and Mrs. Ranjit Kaur). The said tickets were confirmed for travel from Amritsar to New Delhi and departure date was 1st April 2020 (Timing 22:50 hrs). The complainant has paid Rs.10,381/- as payment for the above purchased tickets out of his bank account with the HDFC Bank. The complainant has also taken print out of the confirmed ticket bearing logo of Goibibo. As such in total the complainant has spent Rs.2,04,937/- for the purchase of the above said tickets and the payment was made to Air India i.e. O.P No.1 through Goibibo i.e. O.P No.2 by the complainant through his bank account. Thereafter in March, 2020, nationwide lockdown was imposed in the country due to outbreak of COVID-19 and all international as well as domestic flights have been cancelled. As such due to above said reason, the travel tour of the complainant got cancelled and the above tickets have also been cancelled due to COVID situation. The above said facts have not been denied by the opposite parties in their written version and the same are not disputed. The opposite party No. 1 in the present case stated in its reply that the amount of refund is to be given by the opposite party No. 1 as the tickets have been purchased through Goibibo i.e. opposite party  No. 2 because the complainant has made the payment to the opposite party No. 2. So the complainant should approach the opposite party No. 2 to send email in the refund section of Air India. On the other the opposite party No. 2 has also not denied regarding the purchase of air tickets and cancellation of air tickets due to COVID situations. However, the opposite party No. 2 has stated in its written version and explained the terms and conditions of Air lines and stated that the opposite party No. 2 is merely acting as facilitator for the booking of the confirmed tickets with concerned service providers. The contract of service for utilization of the flight is always between the User and the concerned airline. Airlines retain the right to reschedule flight times, route, change or cancel flights or itineraries independent of and without prior intimation to ibibo. The opposite party No. 2 acted proactively by approaching Opposite Party No. 1 to seek refund on behalf of the complainant for the Delhi- Sydney Sector and duly raised Refund Applications bearing Numbers:

- 4000137257

- 4000137259

- 4000137261

Further, the Opposite Party No. 2 has also raised Refund Applications dated 17.11.2020 for the Amritsar - Delhi Sector on behalf of the complainant.  It is sole liability of the airline to process refund. As such in this case as per version of the opposite party No. 1 the complainant is entitled to refund through opposite party No. 2 and as per version of the opposite party No. 2 he raised refund applications on behalf of complainant to the opposite party No. 1. But inspite of approaching the complainant as well as applications raised by the opposite party No. 2, the opposite party No. 1 has miserably failed to refund the same.

6        In view of above discussion and admission made in the written version versions, the opposite parties have admitted that Air India is bound to refund the amount.  Opposite Party No. 2 is appointed by the opposite party No. 1 and opposite party No. 2 is acting for the benefit of opposite party No. 1 and is providing the services on behalf of opposite party No. 1, therefore, the opposite parties are bound to refund the amount of cancellation of ticket in question to the complainant.

7        In view of above discussion, the present complaint is allowed and the opposite party No. 1 is directed to refund the amount of Rs. 2,04,937/- for cancelled flight tickets to the complainant. The complainant has been harassed by the opposite parties for a long time, the complainant is also entitled to Rs. 20,000/- as compensation on account of harassment and Rs. 10,000/- as litigation expenses. Opposite Party No. 1 is directed to comply with the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realization. The present complaint against the opposite party No. 2 is dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19.  Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.

Announced in Open Commission.

21.06.2023