Chandigarh

DF-II

CC/441/2018

Gautam Dutt - Complainant(s)

Versus

Cleartrip Pvt. Ltd., - Opp.Party(s)

Shiti Jain Dutt Adv.

20 Aug 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	441 of 2018
Date  of  Institution	:	08.08.2018
Date   of   Decision	:	20.08.2019

 

 

 

 

Gautam Dutt s/o Late Sh.S.K.Dutt, resident of H.No.2163, Sector 21-C, Chandigarh 160022  

             ……..Complainant

 

Versus

 

1]  Cleartrip Pvt. Ltd., 312-316, 3^rd Floor, Vipul Agora Building, next to Sahara Mall, M.G.Road, Gurgaon, 122002 through its Proprietor/Manager/Authorised Signatory.

 

2]  Go Airlines (India) Ltd., 1^st Floor, C-1, Wadia International Centre (WIC), Pandurang Budhkar Marg, Worli, Mumbai 400025 through its Proprietor/Manager/Authorised Signatory

 

………. Opposite Party

 

 

BEFORE:  SMT.PRITI MALHOTRA    PRESIDING  MEMBER

            SH.RAVINDER SINGH         MEMBER

 

For Complainant      :    Ms.Shiti Jain Dutt, Advocate

For Opposite Party   :    None for OP No.1.

Sh.Gaurav Bhardwaj, Adv. for OP-2

 

PER RAVINDER SINGH, MEMBER

 

         Briefly stated, the complainant on 13.4.2018 booked a flight from Banglore to Pune for travel on 14.7.2018 by paying amount of Rs.1721/-on the Online site of Clertrip (Ann.C-1). The complainant cancelled the said ticket on the next day of booking i.e. on 14.4.2018 by calling on the customer care of Opposite Party No.2 and he was assured to get refund from Opposite Party NO.1 within 5-7 working days.  However, when the complainant did not get any refund, he enquired about it from the customer care of Opposite Party No.1 on 28.4.2018, who in turn told that the booking was still active on their site and was not cancelled (Ann.C-2). Then the complainant again made cancellation on the Online site of Opposite Party No.1 and on 12.5.2018, he received a mail from Opposite Party NO.1 about Rs.0/- as refund on cancellation of the said booking (Ann.C-3). 

         It is submitted that the complainant got refund receipt from Opposite Party NO.2 according to which they charged Rs.1166/- as cancellation charges on the said ticket which is nearly more than 65% of the ticket amount, whereas the complainant was misguided by quoting the ticket as refundable. It is also submitted that the complainant booked the refundable ticket with a belief that the amount paid for the ticket shall be refunded back to him in case of cancellation whereas only Rs.683/- was refunded by Opposite Party NO.2. Furthermore, the Opposite Party NO.1 instead of making the refund of said amount, zeroed the refund of Rs.683/- and no refund was made to him.  Alleging the said act & conduct of OPs as gross deficiency in service, hence this complaint has been filed.

 

2]       Opposite Party NO.1 has filed reply stating that it merely provides a facility/platform for booking of flight tickets and actual service provider are the Airline.  It is stated that while making booking of the air-ticket in question, the complainant received a cash back discount of Rs.400/- and at the time of making booking, a convenience fee of Rs.270/- was charged for transaction done Online using credit card, debit card, net banking payment.  It is also stated that the Go Airline/OP No.2 has provided the ticket to Opposite Party NO.1 at the cost of Rs.1851/- and Opposite Party NO.1 provided it to the complainant on discounted rate of Rs.1721/-.  It is submitted that on receipt of online cancellation request on 12.5.2018, Opposite Party No.1 raised the refund notice on Opposite Party No.2 and Opposite Party No.1 has processed the refund amount as duly received from Opposite Party No.2.  It is also submitted that Opposite Party No.1 received refund of Rs.685/- from Opposite Party No.2 and from said amount, Opposite Party No.1 has deducted an amount of Rs.250/- towards the cancellation charges and Rs.270/- as convenience charges and has also reversed the cash back discount of Rs.400/-, thus in total Nil refund amount has been processed to the complainant.  It is submitted that the Opposite Party No.1 deducted the charges as per terms and conditions well within the knowledge of the complainant. Denying all other allegations and pleading no deficiency in service, the Opposite Party has prayed for dismissal of the complaint. 

         The Opposite Party No.2 has also filed reply stating that a request for cancellation was made by the wife of the complainant and as the tickets were booked as a special fair, the same were non-refundable as per Ann.R-1.  It is stated that the ticket in question was not refundable as the same was offered to the complainant at a special price, so there was no question of refund. Other allegations have been denied with a prayer to dismiss the complaint.

 

3]       Rejoinder has been filed by the complainant reiterating the assertions as made in the complaint. 

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and perused the entire evidence on record.

 

6]       After thorough examination of complete facts in issue and evidence on record, it has been noticed that the complainant on 13.4.2018 took ticket of Go Airlines for air-journey from Bengaluru to Pune for 14.7.3028 on payment of Rs.1721/- through Cleartrip/OP No.1 (Ann.C-1).  The complainant, just on the next day i.e. 14.4.2018 cancelled the said ticket for travel on Go Airlines for 14.7.2018 and made a request refund of the booking amount. 

 

7]       The Opposite Party No.2/GoAirlines (India) Ltd. in its reply (Para No.6) has stated that the ticket was non-refundable and was offered to the complainant at a special price and hence no refund is permissible for the cancellation of ticket.

 

8]       The Opposite Party No.1/Cleatrip Pvt. Ltd., in its reply stated that they have processed the request of the complainant for refund, but found it to be zero refund amount as per terms & conditions applicable thereto. It is stated by Opposite Party No.1 that after deduction of Rs.1166/- as cancellation charges by airline, they have received Rs.685/- from Opposite Party No.2.  However, out of the said amount, they have deducted Rs.250/- as cancellation charges, Rs.270/- towards convenience charges and reversed discount amount of Rs.400/- and as such accordingly no amount was found to be payable to the complainant.

 

9]       After perusal of ticket Trip ID No.180413110932 (Ann.C-1), it is found that the ticket was refundable.  It means that in case of cancellation of ticket, traveler is entitled for refund of the amount of booking.  On the face of the record i.e. Travel Ticket, no conditions of any kind, scribed thereon, which may substantiate the defence of Opposite Party for no entitlement for any refund in this matter.  The complainant has booked the ticket on 13.4.2018 and cancelled the same on 14.4.2018 for the flight on 14.7.2018 i.e. 3 months prior to the scheduled journey.  The confiscation of whole of the amount of Rs.1721/- which the complainant has paid for the ticket despite the ticket being refundable, is against established canon of law. The terms & conditions referred to at this stage by the Opposite Parties regarding booking & cancellation of the ticket in question, is superfluous and cannot be forced to be applicable in this matter.  Such conditions as is envisaged from the ticket Ann.C-1 were never part of the transaction of booking of the ticket Online.  The OPs cannot be permitted to dwell upon such so called irrelevant, superfluous and unreasonable guidelines/terms & conditions, as referred herein in the rebuttal to the claim of the complainant.  

10]      The Hon’ble Supreme Court of India in case Central Inland Water Transport Corporation  Ltd. & Anr. Vs. Brojo Nath Ganguly 1986 AIR 1571 has held as under:-

2.4 Article  14 of     the Constitution  guarantees to all persons equality  before the law and the equal protection of the laws. This principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair  and unreasonable clause in  a contract  entered into  between parties who ae not equal  in bargaining  power. The above principle will apply where the inequality of bargaining power is the result of the      great disparity         in the

economic strength of the contracting parties.  It will apply where the inequality is the result of circumstances, whether of the creating of the parties or not. It  will apply  to situations in which the weaker party  is in  a position in which he can obtain goods or services  or means  of livelihood  only  upon  the  terms imposed by  the stronger  party or  go without them. It will also apply where a  man  has no  choice,  or  rather  no meaningful choice,  but to  give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to  accept a  set of rules as  part  of  the  contract, however, unfair unreasonable or  unconsionable a  clause in that contract  or form or rules may be. This principle will not apply when the bargaining  power of  the contracting parties is  equal or  almost equal.  mis principle  may  not apply where both parties are businessmen and the contract is a commercial  transaction. In today's complex world of giant corporations with their vast infrastructural organisations and with   the State               through    its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result  in unfair and  unreasonable bargains between parties possessing wholly disproportionate    and unequal  bargaining power. The Court must   judge  each   case  on   its  own facts and circumstances when  called upon to do so by  a party under section 31(1) of The Specific Relief Act, 1963.

2.5          In  the  vast majority  of  cases,  however, such contracts with unconscionable term  are entered into by the weaker party  under  pressure  of  circumstances,  generally economic, which results in inequality of bargaining power. Such contracts will not fall within the four corners of the definition of  "undue influence" as defined by section 16(1) of the Indian Contract  Act. The majority of such contracts are in         a standard or prescribed form or consist of a set of rules. They are not contracts between individuals containing terms  meant  for  those  individuals  alone.  Contracts  in prescribed or  standard forms or which embody a set of rules as part  of the  contract are entered into by the party with superior bargaining power with a large number of persons who have far  less bargaining  power or  no bargaining  power at all. Such  contracts which  affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and   unreasonable  are injurious  to  the  public interest. To  say such a contract is only voidable would be to compel  each person with whom  the party  with  superior bargaining power  had contracted  to go to Court to have the contract  adjudged  voidable.  This  would  only  result  in multiplicity of  litigation which  no Court should encourage and also would not be in public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged void under section 23 of the Indian Contract Act, as opposed to public policy.

capable on  proper occasion,  of expansion  or modification. Practices which were considered perfectly normal at one time have  today   become  abnoxious  and  oppressive  to  public conscience. If            there is  no head  of  public  policy  which covers a case, then the court must in consonance with public conscience and in  keeping  with  public  good and  public interest declares  such practice  to be opposed  to  public policy. Above  all, in deciding any  case which  may not be covered by  authority Indian  Courts have  before  them        the beacon light  of the  Preamble to  the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights  and the Directive Principles  enshrined in our Constitution.

The normal rule of Common Law has been that a party who seeks to  enforce an  agreement which  is opposed  to public policy will  be non-suited.  The types of contracts to which the principle  formulated  in  this  case  applies  are  not contracts  which   are tainted   with illegality  but are contracts which  contain  terms which are  so  unfair and unreasonable that  they shock  the conscience  of the Court. They are  opposed  to  public  policy  and  required  to  be adjudged void.

11]        It has been noticed that due to emergence of Online booking system, the scenario of fairness had almost extinguished. The passengers in hundreds traveling in a particular flight have to pay different fares for same kind of travel facilities, destination etc. The Airlines charge fares whimsically even if while sitting and booking the ticket on the same platform at the same time.  The fares differ substantially.  The public transport like buses, railways have fixed rate of charges/fare, but unfortunately the airlines have indulged in charging heavy fares taking benefit of helplessness on the part of needy individuals.  Even if a person while booking the ticket Online for a particular destination by mistake fills a wrong date or date and opt for it, but just after getting the ticket if he realizes and try to correct the mistake and got a proper ticket, he is bound to suffer great loss of money by way of cancellation charges.  The Airlines have high bargaining power, unquestionable stature, have no consideration for the just and legal rights of the innocent public/travelers.

12]        The Airlines often overbook their flights and keep their portals open for booking of ticket even till departure of the flight.  We have seen that the Airlines just before closing of the doors and prior to departure of their flight, in order to adjust other passengers, who have paid heavily due to their helplessness and necessity to reach their destination in time, ask the passengers waiting to board to come forward to postpone their visit in their particular flight making inducements by way of offers, concessions in the next available flight. We have also seen aged passengers at airports, who were dropped by their families coming from long distances and left back for their homes, after check-in and security clearance, waited for hours at the boarding gate, but by the nick of time of departure, they were informed by the airline officials that due to technical snag in the flight, the flight is cancelled and all the passengers shall go back their homes and come back on the next day and they will be tried to be accommodated in the next flight.  Senior Citizens, aged persons/travelers, who have no relations or companions as such left unattended by the airlines at the Airport Waiting Lounge and because of their sheer helplessness, pain and mental agony, distress, cry for help but the airport staff least bother for their stay, meal and other arrangements.  The Airlines are often seen to cancel their flight on one account or the other, either it is on account of technical snag due to poor maintenance of their aircraft or due to some extraneous & lame excuses i.e. climate conditions etc., but they refused to own responsibility on one pretext or the other.  The airlines are bound to pay back the amount which they have got from the passengers on cancellation or change of flight. The terms & conditions as prescribed to justify the confiscation of amount, as in the present case, is unfair and against the public policy as envisaged by the observations by  Hon’ble Supreme Court of India in case Central Inland Water Transport Corporation  Ltd. & Anr. Vs. Brojo Nath Ganguly 1986 AIR 1571  

13]        The regulatory authorities have failed to consider the issues, as discussed above, in the right perspective, rather endorsed the unfair & exploitative modalities of the Airlines especially regarding refund of amount of passenger.  When the airlines authority and the regulatory authorities concerned failed to come to the rescue of the passengers/public in protecting their rights, then definitely judicial hierarchy while discharging judicial or quasi- judicial functions have to come forward to protect the rights of individuals.  This Forum deem it proper to quash and set-aside the terms & conditions, which allow forfeiture of amount of air-ticket/fare on ground of cancellation charges of the air-ticket.  The cancellation of ticket or modification of date of journey made prior to 24 hours from the schedule departure of the flight shall not in any case entail or beget any penalty on the passengers. 

14]        The Ministry of Civil Aviation shall consider this matter and pass appropriate orders to streamline the working of the airlines regarding charging of amount on account of cancellation/modification of air-ticket of schedule flight by the passenger.  

15]        The confiscation of Rs.1721/-, paid by the complainant while booking the air ticket in question, on account of cancellation of ticket, amounts to gross deficiency in service and unfair trade practice on the part of Opposite Parties. 

16]        Keeping into consideration the above facts & circumstances of the case, the present complaint is allowed with direction to the      Opposite Party No.2 to refund an amount of Rs.1721/- to the complainant along with litigation cost of Rs.5000/- to the complainant, within a period of 30 days from the date of receipt of copy of this order.  

           Keeping in view the powers as envisaged under Section 14(f) The Consumer Protection Act, 1986, a copy of this order be also sent to the Ministry of Civil Aviation, Govt. of India, New Delhi as well as to Directorate General of Civil Aviation, New Delhi, for proper consideration of issue of illegal charging of amount by Airlines on cancellation/modification of air-tickets and to issue orders to airlines to discontinue the unfair trade practice and not to repeat them.    

          Certified copy of this order be sent to the parties, as per rules.

Announced

20^th August, 2019                                                                  

 

Sd/-

                                                                    (PRITI MALHOTRA)

PRESIDING MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER