DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of December 2022
Filed on: 01/12/2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C.C.398/2020
Between
COMPLAINANT
Lejin N. Lalan, S/o. Lalan, Lal Bhavan, Liberty Lane, Ashoka Road, Kaloor, Kochi 682017
(Rep. by Adv. V.P. Joly, Vempiliath, angamaly.
V/S
OPPOSITE PARTIES
1. M/s Make My Trip India Pvt. Ltd., DLF Building No. 5, Tower B, DLF Cyber City, DLF Phase – 2, Sector 25,. Gurugram, Haryana 122022.. rep. by its Director.
2. M/s. Air Asia, 4th & 5th Floor, RMZ Galleria, Yelehanka, Bangalore 56030. Rep. by its Manager.
(Rep. by Adv. Sunil Nair Palakkatil, Central Law Form, Mega Arcade, Power House Road, Kochi – 18)
FINAL ORDER
D.B.Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainant had booked certain air tickets from the 1st opposite party on the flights operated by the 2nd opposite party in December 2019. Along with the above-mentioned tickets, one other ticket on a foreign flight namely Rio Sul was also booked by the complainant. The dates of the proposed journey in the 2nd opposite party's flights were 20-02-2020 and 27-02-2020. The complainant paid Rs.65,953/- including the ticket fare of the flight also to the 1st opposite party. Even though the complainant and his family including a child was all set for the proposed journey, situations changed and it became impossible as the Covid 19 pandemic began to spread in many parts of the world by that time. The complainant contacted the 1st opposite party in the 1st week of February 2020 and requested rescheduling the journey to September 2020 due to the dangerous circumstances that prevailed all over. Though the first opposite party's attitude was favorable initially, they changed their attitude, lagged the matter, and finally just 2 days prior to the journey, directed the complainant to contact the 2nd opposite party for the above purpose. Even though the complainant contacted the 2nd opposite party immediately, that attempt also became futile. The opposite finally turned down the complainant's reasonable demand without any justification. The cancellation of the complainant's proposed journey was not due to any fault or lapse on the complainant's side. The journey was cancelled as it became impossible due to the Covid 19 pandemic and the request for rescheduling the journey was given to the opposite parties sufficiently early. However, the opposite parties turned down the complainant's rightful demand without any proper justification. The contention taken by both the opposite parties is not justifiable. The allegation that the complainant and his family are considered "No show" passengers is not correct. The complainant had given a request for rescheduling the date of the journey well in advance. But the opposite parties did not consider the complainant's request from the proper perspective. The total amount paid by the complainant to the 1st opposite party is Rs.65,953/- including Rs.7,870/- that was paid to another flight operator other than the 2nd opposite party. The admitted amount by the 1st opposite party is Rs.58,768/- and the admitted amount by the 2nd opposite party is Rs.48,783/- The opposite parties are bound to refund the amount that they received from the complainant. The complainant had approached the Commission seeking an order directing the opposite parties to refund Rs.65,953/- refund the amount they received from the complainant along with Rs.1,00,000/- as compensation and the cost of the proceedings.
2. Notice
Notices were issued from the Commission to both opposite parties. The opposite parties received the notices, entered appearances, and filed versions.
3) Version of the First Opposite Party
The Opposite Party No. 1 is a company duly incorporated under the Companies Act, of 1956, and enjoys immense goodwill and a 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 Opposite Party is a consumer-centric company, which is managed through an online web portal i.e. www.makemytrip.com, and a mobile application namely, MakeMyTrip. That the answering Opposite Party provides all the travel-related unblemished services and information to its customers but is not limited to air ticketing, railways ticketing, bus booking, and hotel bookings at very competitive prices. That the answering Opposite Party 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 software embedded in its web portal. Upon receiving the User that in the event of non-confirmation of booking due to any technical reasons or any other similar failures, MMT's obligation shall be limited to refunding the booking amount if received from the customer. Such refund shall completely discharge MMT from all liabilities with respect to that transaction Additional liabilities, if any, shall be borne by the User. At the time of booking the flight tickets, the answering Opposite Party duly shared confirmed E-tickets along with the cancellation policy and Modification/date change policy, in which it was clearly mentioned that upon cancellation, the Flight tickets are Non- Refundable and Date Changeable Option is not available. However, the Complainant merely misled this Commission has annexed only partial E-tickets in the complaint. For the case of this Hon'ble Commission, A screenshot reflecting the cancellation policy and date change policy of the flight Concerned Traver flights by the Airlines. It is pertinent to mention here that in the present case, admittedly, the concerned flight booking was not cancelled by the concerned Airline i.e., Opposite Party No. 2, and the Complainant himself had cancelled the booking at his end which has been duly admitted by the Complainant himself in the Complaint.
Even the Hon'ble Supreme Court has not considered the traveling prior to 25.03.2020 as Covid-19 cancellations. Further, it is submitted that the concerned Airlines i.e. Opposite Party No. 2 were functioning and the said flight was not cancelled by the Airlines. However, the Complainant himself chose not to board the flight. Therefore, the complaint is liable to be dismissed on this ground alone. It is 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 flight bookings to travel from Kochi to Phuket via Kuala Lumpur dated 20.02.2020 and return flight from Phuket to Kochi dated 26.02.2020, for which the Complainant had hired the services of the answering Opposite Party. Further, as stated above, 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 was duly informed that No-Refund and/or No Date Changes option is available with the Complainant as per the policies of the answering Opposite Party and Opposite Party No. 2. Hence, at no stretch of the imagination, any cause of action arose qua the answering Opposite Party and therefore the Complaint is liable to be dismissed at this ground alone.
4) Version of the second Opposite Party
There is no privity of contract between the Complainant and the 2nd opposite party. The ticket was booked by 1st opposite party and the 1st opposite party has not raised any request for cancellation of the tickets or refund of the fare till this time. As scheduled the 2nd opposite party carried out their services on 20.02.2020 and on 27.02.2020. There was no travel ban anywhere in the world during the scheduled period for the complainant. International travel bans suspending all international flights were imposed in India effective from 22.03.2020. The travel ban came into force in Malaysia on 18.03.2020 and in Thailand on 25.03.2020. On 20.02.2020 the flights of the 2nd opposite party operated as usual and there were no cancellations due to covid, border descriptions, or any other reasons. The complainant and his co-passengers did not check in and the pre-flight department has confirmed that the passengers are indicated as "No Show" passengers. It is clear from the said status that the complainant and his co-passengers did not board the flight on that day. These facts are not disputed by the complainant. Thus, what is borne out is that the Complainant unilaterally decided not to travel, hence he wants a refund of his ticket charges. This is not legally possible since neither the cancellation policy of the 2nd opposite party nor the provisions of Civil Aviation Requirements (CAR). The Complainant relies on the Circular issued by the Office of the Director General of Civil Aviation in the light of the Judgment of the Honourable Supreme Court of India in Pravasi Legal Cell & Ors Vs Union Of India & Ors Writ Petition (C) D. No. 10966 of 2020 and connected Writ Petitions. The said Judgment and the Circular have no relevance in the instant case. The said Judgment and Circular are issued with regard to the travel plans between 25 March 2020 and 24 May 2020. The heading of the circular itself is "Sub: Refund on cancellation of air tickets during covid-19 lockdown", Hence the Supreme Court Judgment and the Circular envisaged the refund of ticket charges during the period of the Pandemic or giving a credit shell to such passengers. The complainant claims that he falls under the second category which says Passengers who booked tickets any time prior to lockdown but journey up to 24" May 2020 and cancelled due to Covid-19." The complainant cannot be given to interpreting that since he booked a ticket prior to lockdown he will fall under this category because his travel is scheduled before 24th May 2020. The said clause cannot be read in isolation. It has to be read along with the Supreme Court Judgement, Intention of the Circular (which is clearly described in its title as Subject), and Category No. 1. These circular as well as the judgment of the Honourable Supreme Court caters to the grievance of the passengers who could not travel during the lockdown period. It does not mean that someone who booked a ticket on any date before lockdown for travel up to 24th May 2020 and failed to travel can claim back the amount. For example, if someone booked a ticket for travel on 1st January 2020 and could not travel. Can he claim back the amount on the strength of Category two? No. Here the petitioner booked the ticket before the lockdown and travel was scheduled before the lockdown, at which time there were no restrictions for travel anywhere in the world. He unanimously took a decision not to travel, maybe considering the news about Novel Corona Virus. But that is not protected either by the Supreme Court Judgement or the Circular issued by the Civil Aviation Department. In order to get the benefit of the Supreme Court Judgment or the Circular, the travel scheduled must be within the lockdown period. The 2nd opposite party is not against the Complainant getting the eligible refund as per the Civil Aviation Requirements (CAR) or as per the 2nd opposite party’s cancellation policy. The complaint is devoid of merits and hence liable to be dismissed.
5) . Evidence
The complainant had filed a proof affidavit and 3 documents that were marked as Exhibit-A-1 series, Exbt. A-2 series and Ext. A-3. The complainant had cross examined by the 2nd opposite party as PW1.
Exhibit A-1: True copy of the judgment pronounced in Writ Petition (C) no.570 of 2020, 595 of 2020, and 952 of 2020.
Exhibit A-2: Copy of Circular
Exhibit A-3: A true copy of the lawyer notice
6) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
The issues mentioned above are considered together and are answered as follows:
The Complainant falls under the ambit of the definition of a 'consumer' as defined in the Consumer Protection Act, 1986. As per Section 2 (d) a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had booked air tickets from the 1st opposite party on the flights operated by the 2nd opposite party in December 2019. Along with the above-mentioned tickets, one other ticket on a foreign flight namely Rio Sul was also booked by the complainant. The dates of the proposed journey in the 2nd opposite party's flights were 20-02-2020 and 27-02-2020. (Exhibit-A-1 series) Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, of 1986. (Point No. i) goes against the opposite parties.
In the present case in hand, the claim of the complainant is that he is entitled to a refund of the ticket charges for his scheduled travel from Kochi to Kulalampur on 20/02/2020 and his return on 27/02/2020 from Bangkok to Kochi since he did not fly. He also claims compensation. He says he cancelled his journey on account of the outbreak of the Covid-19 pandemic across the world.
The Complainant submitted that the allegation by the 2nd opposite party to the effect that they have not received any communication for rescheduling is not true. The complainant requested rescheduling the tickets to the 1st opposite party who is the agent of the 2nd opposite party initially and finally to the 2nd opposite party as well. However, the opposite parties were neither ready to reschedule the date nor to refund the collected amount. The conduct of the opposite parties in this regard clearly amounts to a deficiency of service. The Hon’ble Supreme Court had considered the concerned issue and was pleased to issue specific directions in the matter of refund of the air ticket by the judgment pronounced in Writ Petition (C) number 570 of 2020, 595 of 2020, and 952 of 2020. In furtherance to the above-mentioned judgment by the hon'ble Supreme Court, the Office of the Director General of Civil Aviation, Govt. of India issued a circular in the matter. A true copy of the above-mentioned circular is produced herewith as Annexure 2. The complainant is eligible for a refund of ticket charges as per category -II of paragraph 2 of the above-mentioned circular. It is specifically stated in the circular that "in all other cases wherein the tickets have been booked for the journey up to 24th May 2020 and have been cancelled due to Covid situation, the airlines shall make all endeavours to refund the collected amount to the passengers within 15 days from today." Provisions for the enhanced amount and credit shell are also provided in the above direction. The complainant is eligible for a refund as his proposed journey was cancelled due to the covid 19 situation as envisaged in the above-mentioned direction. However, the opposite parties were not ready to refund the amount collected from the complainant even after the receipt of the lawyer’s Notice issued to them. The conduct of the opposite parties in this regard amounts to a grave deficiency of service and the complainant had to suffer a huge loss due to the above-mentioned conduct of the opposite parties.
As per the terms and conditions of the travel guidelines of the 2nd opposite party the passengers should report to the airport within the specified time as per clause 6(3), the passenger must be present at check on time, and in case of his failure to board aircraft, the fare paid will not be refunded. Clause 6(3) is extracted below for the convenience of reference:
The opposite parties submitted that the booking made herein by Complainant cannot be designated under any category as specified by the Order dated 01.10.2020 and the Circular dated 07.10.2020 and in such cases, the process of refund shall be done as per the Civil Aviation Requirements issued by the DGCA dated 22.05.2008. In pursuant to the same, the answering Opposite Party has proactively pursued the concerned Airline i.e. Air Asia/Opposite Party No. 2 to process the applicable refund. However, the same was not processed by the concerned Airlines as the flight tickets were non-refundable and non-date changeable, in accordance with the User Agreement and the Cancellation/Refund Policy of the answering Opposite Party as agreed to by the Complainant.
"Clause 6(3)- No Show-You must be present at check-in on time and be present at the boarding gate not later than the time specified by us at the time of check-in. Failing to check in on time and board the aircraft by the time the aircraft departs, the fare you paid will not be refunded to you for any reason whatsoever."
The cancellation of the complainant's proposed journey was not due to any fault or lapse on the complainant's side. The journey was cancelled as it became impossible due to the Covid 19 pandemic and the request for rescheduling the journey was given to the opposite parties sufficiently early. However, the opposite parties turned down the complainant's rightful demand without any proper justification. The lawyer’s notice sent by the complainant to the opposite parties. Both the opposite parties received the above-mentioned notice, but they have not sent a reply to the complainant.
The complainant had to suffer huge financial loss together with immense hardship and mental agony due to the unjust and improper attitude of opposition parties in the matter. It is respectfully submitted that the conduct of both the opposite parties in the matter amounts to a deficiency of service.
We examined the evidence presented by the complainant, Air Asia declaring him as a no-show for the flight and offered to reschedule the flight before any day till September 30, 2020. Air India was well aware that the international flight bans due to the Covid situation continued even to 2021 and in this case, it cancelled the flight due to an unavoidable situation.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
- The Opposite Parties No. 1 and 2 shall pay the complainant Viz. (Rs.58,768/- and Rs.48,783/-) Total 1,07,551/- (Rupees one lakh seven thousand five hundred fifty one) towards the refund of ticket fare Paid by the complainant to the 1st and 2nd opposite parties respectively.
ii. The Opposite Party shall pay the complainants Rs.5,000/- (Rupees five thousand only) as compensation for loss caused to the complainants due to the deficiency in service and unfair trade practice of the opposite party.
iii. The Opposite Party shall also pay the complainant Rs.5,000/- (Rupees five thousand only) towards the cost of the proceedings.
The above-mentioned directions shall be complied with by the Opposite Parties jointly and severaly within 30 days from the date of the receipt of a copy of this order. Failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission this 30th day of December 2022.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s evidence
Exhibit A-1: True copy of the judgment pronounced in Writ Petition (C) no.570 of 2020, 595 of 2020, and 952 of 2020.
Exhibit A-2: Copy of Circular
Exhibit A-3: A true copy of the lawyer notice
Opposite parties’ evidence
Nil
Depositions:
PW1: Lejin N. Lalan (Complainant)
CC/398/2020
Order date: 30/12/2022
