Haryana

Ambala

CC/182/2021

Shubham Gupta - Complainant(s)

Versus

Flipkart Internet Pvt Ltd - Opp.Party(s)

Sandeep Sharma

12 Feb 2024

ORDER

COMMISSION, AMBALA.

Complaint case no.	:	182 of 2021
Date of Institution	:	03.06.2021
Date of decision	:	12.02.2024

 

Shubham Gupta Son of Shri Sukant Gupta Resident of House No-684/9, Inder Nagar, Ambala City, Tehsil and District Ambala.

……. Complainant

                                                Versus

1. Flipkart Internet Private Limited, Buildings Alyssa, Begonia and Clove Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Bengaluru 560103, Karnataka, India through its Manager.
2. Qatar Airways, Office 801-805, 8th Floor, Narain Manzil, 23 Barakambha Road, Cannaught Place, New Delhi through its Manager.
3. Flipkart Internet Private Limited Branch Office C/o E-Cart Store at Baldev Nagar toward Ambala Cantt Road, Ambala City, Tehsil and District Ambala through its Branch Manager.

….….  Opposite Parties

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:-     Shri Sandeep Sharma, Advocate, counsel for the complainant.                                                                                                                            Shri Rajeev Sachdeva, Advocate, counsel for OPs No.1 and 3.                                                                                                                          Shri Sukhpreet Singh, Advocate, counsel for OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund the amount of Rs.46,588/- alongwith interest @12% p.a. from the date of booking of tickets till realization.
2. To pay Rs.25000/- as compensation for mental agony and harassment.
3. To pay Rs.15000/- as cost of litigation.

Or

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant booked a Airline ticket from New Delhi to Montreal, Quebec, Canada Via Qatar (Doha International Airport) on 13/11/2020 for 21/12/2020 for a sum of Rs.46,588/- through Flipkart i.e.  OP No.1, which is a E-commerce Company. The amount of said ticket was paid to the Flipkart through Debit-Card and the booking 1.D. is FF20111310325011 and the PNR Number is SPS6YZ. Due to illness of his parents, the complainant rescheduled this flight from OP No.2 on 16/12/2020 for 18/01/2021 and later on 15/01/2021 to 20/03/2021. The complainant was about to travel in the said flight which was scheduled for 20/03/2021, but the flight got cancelled by OP No.2 on 17/03/2021 and certificate regarding the cancellation of the flight was issued. Due to that reason cancellation the complainant again rescheduled this flight from Qatar Airways for 08/04/2021, which was changed by the Qatar Airlines for 09/04/2021 and also cancelled by the Airlines on the ground flight restriction from India due to spread of Covid-19. After the cancellation of the flight finally the complainant approached OP No.2 for refund of Rs.46,588/-, but to no avail. Thereafter, the complainant sent number of emails to the OPs seeking refund of the amount paid but to no avail.  As per guideline issued by Govt. of India the travel agent and Airlines are liable to refund the full amount of the ticket cancelled during the period of pandemic of Covid-19, but the OPs are not complying with the instructions issued by the Govt. of India time to time and illegally and intentionally with held the amount of the complainant. Legal notice dated 27/04/2021 was also served upon the OPs in the matter but to no avail, except bald promises regarding refund of the amount paid.  Hence, the present complaint.
3.           Upon notice, the OPs No.1 & 3 appeared and filed written version  wherein it has been stated that OPs No.1 and 3 are engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (Mob App) (hereinafter collectively referred to as the "Flipkart Platform"). OPs No.1 and 3 provide online marketplace platform/technology and/or other mechanism/services to the Airline and buyers of ticket to facilitate the transactions, electronic commerce for various goods, by and between respective buyer and enables them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc. 'Flipkart Platform' is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third-party airline and independent end customers. The independent third-party airline use the Flipkart Platform to list, advertise and offer to sell their tickets to the users/buyer who visit the Flipkart Platform. Once a buyer accepts the deal made by the third-party airline on the Flipkart Platform, the airline is intimated electronically and is required to ensure that the tickets are made available and booked in accordance to the terms as per the terms for sale displayed by O.P No.2 on the Flipkart Platform. OPs No.1 and 3 are protected by the provisions of Section 79 of the Information Technology Act, 2000.  OPs No.1 and 3 only acts as an intermediary through its web interface www.flipkart.com and provides a medium to various airlines to offer for sell their tickets to the users of the Flipkart Platform. The airlines are separate entity being controlled and managed by different persons/stakeholders. OPs No.1 and 3 does not directly or indirectly sell any tickets on Flipkart Platform. Rather, all the tickets on Flipkart Platform are sold by third party airline, who avail of the online services provided by OPs No.1 and 3, on terms decided by the respective airline only. In the instant complaint also, it can be evidenced that the actual airline of the tickets is a third party airline i.e O.P No.2 and not OPs No.1 and 3. The complainant has wrongly arrayed OPs No.1 and 3 in the present complaint. Any kind of assurance, whether in terms of refund of the Tickets, Price, Discounts, Promotional Offers or otherwise, are offered and provided by the airline sold on Flipkart Platform. OPs No.1 and 3 neither offer nor provide any assurance and/or offers to the end buyers. Relief sought against OPs No.1 and 3 cannot be granted in the given facts and circumstances. The tickets purchased by the complainant has not been sold by OPs No.1 and 3  and they have no role in providing refund or any compensation of the tickets sold by an airline through the Flipkart Platform of OPs No.1 and 3. The user(s) of the Flipkart Platform are bound by the Terms of Use enumerated on the Flipkart Platform which clearly state that the contract of sell is a bipartite contract between the buyer and the airline only. On the Flipkart Platform i.e. http://www.flipkart.com/s/terms it is clearly mentioned that "All contractual/commercial terms are offered by and agreed to between the buyer and the airline alone. The contractual/commercial terms include without limitation price, cost, payment method, payment terms, date, period and made of Booking, related to tickets. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such contractual/commercial terms between the buyer and the airline. These Terms of use clearly shows that OPs No.1 and 3  have not been involved in any unfair trade practices. The complainant has purchased the tickets from the Qatar airline i.e. O.P No.2 listed on the Flipkart Platform, which clearly states that the order is ordered THROUGH Flipkart. OPs No.1 and 3  are not involved in the entire transaction executed between the airline and the Complainant. There is no privity of contract between the complainant and the OPs No.1 and 3. From perusal of the complaint it transpires those tickets was allegedly cancelled without complainant consent and amount was not refunded to the complainant. The grievance of the complainant should have been only against the airline i.e O.P No.2 and not OPs No.1 and 3. It is a settled proposition of law that the liability to refund the amount to the complainant rests with airline not OPs No.1 and 3. OPs No.1 and 3 being mere an intermediary and not the airline sold to the complainant, in no way, assumes liability, if found.  Rest of the averments of the complainant were denied by OPs  No.1 and 3 and prayed for dismissal of the present complaint with exemplary cost.
4.           Upon notice, the OP No.2 appeared and filed written version wherein it has been stated that it carries on its activities in the Republic of India with strict compliance of the laws of the Republic of India (including international treaties conventions and protocols as mandatorily applicable within the Republic of India). In the present case the flight has been cancelled due to operational reason and covid pandemic protocol and refund has been processed as per the cancellation policy. The Government of India confirmed India's first case of COVID-19 on 30th January 2020 in the state of Kerala, when a university student from Wuhan travelled back to the state. As the number of confirmed COVID-19 positive cases closed 500, The Prime Minister of India, on 19th March, asked all citizens to observe Janata Curfew (peoples' curfew) on Sunday, 22nd March. At the end of the curfew, it was announced that "Janata Curfew is just the beginning of a long battle against COVID-19". Following this, while addressing the nation second time on the 24th March, it was announced the nationwide lockdown from midnight of that day, for a period of 21 days. On the evening of 24th March 2020, the Government of India ordered a nationwide lockdown for 21 days, limiting movement of the entire 1.38 billion (138 crore) population of India as a preventive measure against the COVID-19 pandemic in India. On 25th March 2020 all domestic and international flights were shut down due to the COVID-19 pandemic situation in India and a complete nationwide lockdown was underway. The complainant booked his travel itinerary on 13th November 2020 from New Delhi to Montreal, Quebec, Canada Via Doha for 21 December 2020 through Flipkart i.e.  OP No.1. The tickets were booked successfully and the Complainant/Passenger was issued with the Booking Id is FF20111310325011 and the PNR Number is SPS6YZ. The Original Ticket was issued by OP No.1 being the Travel Agent of the said itinerary. The complainant made a request on 16th December 2020 to reschedule his flight for 18th January 2021. Again on 15th January 2021 the complainant made a request to reschedule his flight to 20th March 2021. Later on rescheduling were made by the complainant. On 16th April 2021 OP  no 2 refunded the said amount to the Travel Agent from where the Original Ticket was booked, under the provisions of Article 11 of the Condition of Carriage issued by the IATA (International Air Transport Association). Rest of the averments of the complainant were denied by OP  No.2 and prayed for dismissal of the present complaint with cost.
5.           Learned counsel for complainant tendered affidavit of the complainant as Annexure CA and affidavit of Sukant Gupta son of Shri Dev Raj Gupta, father of the complainant as Annexure CB alongwith documents as Annexure C-1 to C-45 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for OPs No.1 and 3 tendered document as Annexure OP-1/1 and closed the evidence on behalf of OPs No.1 and 3. Learned counsel for OP No.2 tendered affidavit of Mr.Bennet Michael Stephens, Indian inhabitant, resident of Mumbai having office at Ground Floor, Bajaj Bhawan, Nariman Point, Opposite Inox Cinema Mumbai-400021 working as Regional Manager ISC and Authorized Signatory of OP No.2 as Annexure OP-2/A alongwith documents Annexure OP-2/1 and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by not refunding the amount of fare of Rs.46,588/- to the complainant despite cancellation of the flight in question and thereafter refunding the same, without interest, during the pendency of this complaint, in itself is sufficient to prove that the OPs have committed deficiency in service. He further submitted that the complainant has unnecessarily been dragged into this litigation.
8.           Learned counsel for OP No.1 and 3 while reiterating the objections raised in the written version submitted that since it was the duty of the OP No.2 to refund the amount of Rs.46,588/-, received from the complainant. As and when the same was received by OPs No.1 and 3 from OP No.2, they refunded the same to the complainant.
9.           Learned counsel for OP No.2 while reiterating the objections raised in the written version submitted that since the amount of  Rs.46,588/-  stood refunded to the complainant through OPs No.1 and 3, strictly as per provisions of the Article 11 of the Condition of Carriage issued by the IATA therefore the present complaint deserves dismissal.
10.           Neither the fact regarding booking of the tickets in question and cancellation of the same by the complainant as stated by him in his complaint;  nor refund of the amount of fare after cancellation of the airlines by the OPs are in dispute therefore, the only moot question which needs to be decided by this Commission is, as to whether, the complainant is  entitled for any relief in this case or not.  It is significant to mention here that the complainant has admitted that during pendency of this complaint, OPs No.1 and 3 have refunded the disputed amount of Rs.46,588/- on 29.09.2021, as is evident from Annexure C-45. The plea of the OP No.2 is that on 16.04.2021, it refunded the amount of Rs.46,588/- to the travel agent i.e. OPs No.1 and 3, as per article 11 of the condition of Carriage issued by the IATA. The said fact has not been disputed by the OPs No.1 and 3. Once, the OP No.2 has refunded the amount of Rs.46,588/- to the Ops No.1 and 3 on 16.04.2021 then why it has not refunded the same to the complainant on 16.04.2021 itself.  Had OPs No.1 and 3 refunded the said amount of Rs.46,588/- to the complainant on 16.04.2021 itself or immediately thereafter, the complainant would have escaped from entering into this unnecessary litigation, which has definitely caused him mental agony, harassment and financial loss as he has to hire the services of the Advocate for the same. Under these circumstances, the complainant needs to be suitably compensated for such an act and conduct of the OPs No.1 and 3.
11.           Since no deficiency in providing service has been proved against OP No.2 therefore the present complaint filed by the complainant against OP No.2 is liable to be dismissed.
12.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and partly allow the same against OP No.1 & 3 and direct them, in the following manner:-  
    1. To pay interest @6% p.a. to the complainant on the amount of Rs.46,588/-,  from 16.04.2021 till 29.09.2021.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation expenses.

                   The OPs No.1 & 3 are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs No.1 & 3 shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced:- 12.02.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President