Haryana

Ambala

CC/329/2021

Sumit Gupta - Complainant(s)

Versus

Make My Trip India Pvt Ltd - Opp.Party(s)

Ankit Aggarwal

01 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	329 of 2021
Date of Institution	:	25.10.2021
Date of decision	:	01.02.2024

Sunit Gupta, aged about 54 years, son of late Sh. Brij Mohan Gupta, resident of H.No.673, Inder Nagar, Ambala City.

          ……. Complainant

                                                Versus

1. Make My Trip India Pvt. Ltd., DLF Building No.5, Tower-B, DLF cyber city, DLF Phase-2, Sector-25, Gurugram-122002, Haryana Through its Authorized Officer.
2. Jet Airways (India) Ltd., Terminal 3, New Delhi, Delhi 110037, Through its Authorized Officer.

                                                                                   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Ankit Aggarwal, Advocate, counsel for the complainant.

                       Shri Gaurav Rajput, Advocate, counsel for the OP No.1.

                    OP No.2 already ex parte vide order dated 18.07.2022.

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.36,400/- with interest @ 18% p.a. and also Rs.39,318/- which the complainant paid to Goibibo for immediate bookings
2. To pay Rs.2,00,000/- as compensation on account of causing harassment, mental pain, agony, financial loss, loss to precious time etc., and
3. To pay Rs.50,000/- as cost of litigation
4. Grant any other relief, which this Hon’ble Commission may deem fit.

 

2.           Brief facts of the case are that the complainant approached the OP No.1 in the month of March, 2019 and booked tickets for his daughter Shivangi Gupta from Paris to Delhi for 18.5.2019 and return tickets for 9.6.2019 from Delhi to Paris through its website, on making payment of Rs.36,400/- through net banking. On 17.4.2019, OP No.2 was ceased and therefore flights booked by the complainant were cancelled. Due to the sudden discontinuation of the Jet Airways, the complainant approached to some other airlines service provider i.e. "Goibibo" and booked tickets there from in hasty manner and paid the excess amount because daughter of the complainant was in Paris for study and if she couldn't go on that time, she couldn't go home until the next six months. Thereafter daughter of the complainant approached OP No.1 for the refund of the amount paid by her as the flights were cancelled but to no avail.  Due to lockdown because of COVID-19 all movements, gathering and travelling etc. were strictly stopped by the Health Authorities. After the flights were resumed by the authorities, the daughter of the complainant came back to India on 10.10.2021.  After cancellation of flights of OP No.2 no arrangements were made by the OPs for alternative flights. Number of requests made by the complainant to the OPs for refund of the amount paid did not yield any result. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that this complaint is not maintainable; the complainant is guilty of supressio veri and suggestion falsi, this complaint is barred by limitation; this Commission has no territorial jurisdiction of this complaint; etc. On merits, it has been stated that OP No.1 merely being a facilitator has provided the confirmed tickets to the complainant, which were booked by him for his daughter on its website. At the time of booking of the said tickets, the complainant has accepted the terms and conditions of the user agreement. The case of the complainant is governed by the cancellation and refund policy. As per refund policy, refund was to be processed as per the airlines fare rules. However once the confirmed tickets were provided by OP No.1, it was discharged from its liability. OP No.1 had duly initiated the refund process application of the complainant with OP No.2, which had cancelled the said bookings at its end.  As per the DGCA Guidelines dated 22.05.2008 (23-16/2016-AED), in case if a passenger/traveler books a ticket through travel agent, onus of refund in case of cancellation of ticket shall lie with the airlines and not the travel agent. It has been stated that OP No.2 Airlines has declared itself as bankrupt and has approached NCLT. OP No.1 has duly filled all the details of claims of the customers with NCLT. In order to resolve the issues regarding refund of cancelled tickets of the customers, including complainant, in view of order passed by the NCLT one Resolution Professional  Mr.Ashish Chhawchharia was appointed as the Resolution Professional for Jet Airways and the Resolution Professional filed the Application No. 2081 of 2020, under Section 30(6) read with Section 31 of the Insolvency and Bankruptcy Code, 2016 in CP (IB) No. 2205/MB/2019, titled as State Bank of India Vs. Jet Airways (India) Ltd. before the Hon'ble NCLT, Mumbai Bench, seeking approval of the Resolution Plan as amended by the version dated 30.09.2020 and as supplemented and amended by the addendum dated 02.10.2020 along with the exemptions and waivers sought, submitted by consortium of Mr Murari Lal Jalan and Mr Florian Fritsch (Jalan Fritsch Consortium). Vide Order dated 22.06.2021, the Hon'ble NCLT, Mumbai APPROVED the aforementioned Resolution Plan submitted by the Resolution Applicant while observing the salient features of the SRP, including the rights of the Passengers, who are designated as Operational Creditors during the insolvency proceedings, who could not obtain the refund for the cancelled flight bookings by the OP No. 2. The Hon'ble NCLT observed that the SRP proposes to pay a fixed sum of Rs.15,000/- to each of the claimants classified as Operational Creditors irrespective of their claim amount i.e. an amount not exceeding a total sum of Rs.10 Crores, to the Operational Creditors towards settlement of their total outstanding dues as set out in the list of Creditors (Admitted OC Claims). Wherever, the Operational Creditor has an admitted claim of less than Rs.15,000/- and then the actual amount claimed and admitted by the applicant shall be paid by virtue of the SRP to such Operational Creditor. In furtherance to the aforesaid, the SRP submitted that the Operational Creditors classified as 'Ticket Refund' in the list of Creditors, which stands at 5081 dated 03.10.2020, shall have the option to either choose to get cash refund or seek credit for future tickets, but not both. Further, no claims relating to lost Jet Privilege Miles shall be entertained. It is clarified that the liquidation value payable to claimants of ticket refunds will be paid in cash. The details of the same have been summarized herein below:

For Passengers choosing Cash refund:

1. For claims up to Rs. 15,000/-, refund will be processed as per actuals.
2. For claims over Rs. 15,000/-, refund will be processed to a maximum amount of Rs. 15,000/-.
3. For Passengers choosing Cash refund:
4. For claims up to Rs. 15,000/-, credit for future tickets will be provided as per actual admitted claim amounts..
5. For claims above Rs. 15,000/-, credit for future tickets will be provided subject to a maximum amount of Rs. 15,000/-
6. Credit for future tickets will be issued in the form of redeemable vouchers in the multiples of Rs. 1,000/-.
7. Vouchers will be transferable in nature (prior to issuance of any ticket). No tickets will be transferable in nature.
8. Vouchers can be redeemed against more than 1 (One) ticket.
9. Booking of tickets against redemption of such vouchers must be completed within 1 Year of Jet Airways re-commencing its domestic operations.
10. Tickets can be availed during April-June Quarter and August- October Quarter on any sector where Jet Airways flies.

The Hon'ble NCLT further observed that the SRP proposes that the payment to all the Operation Creditors, including the Passengers, shall be made within 175 days from the Effective Date which is the date of the fulfilment of all the conditions precedent as stated in clause 7.6.1, which shall be complied within 90 Days, which shall be extendable at the pleasure of the Hon'ble NCLT.  Hence, it is clear that in accordance to the Order dated 22.06.2021 and the due Refund Applications raised by the OP No.1 on behalf of the complainant, the Complainant shall only be entitled to Rs.15,000/- as the refund for the cancellation of the concerned flight booking, which shall be processed by Jet Airways ONLY. Hence, in accordance with the Order dated 22.06.2021, no liability for the refund or the cancellation can be fastened upon OP No.1.  After the passage of the said Order dated 22.06.2021 by the Hon'ble NCLT, on 28.07.2021, an Appeal was filed by Punjab National Bank (hereinafter referred to as "PNB") before the Hon'ble National Company Law Appellate Tribunal, Principal Bench, New Delhi (herein after referred to NCLAT) in Company Appeal (AT) Insolvency No. 584/2021 of 2021, tied as Punjab National Bank Verma Ashish Chhawchharia & Ors, challenging the Order dated 22.06.2021, as passed by the Hon'ble NCLT in Application No. 2081 of 2020 in CP (IB) No. 2205/MB/2019, titled as "State Bank of bedia Va. Jet Airways (India) Ltd. Further, vide the aforementioned Appeal, PNB has challenged the SRP and the same is pending adjudication before the Hon'ble NCLAT. However, now OP No.2 has approved refund of Rs.2857/- and only the said amount of Rs.2857/- has been forwarded to OP No.1, which is ready to refund the same to the complainant. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with exemplary costs.

4.                Upon notice, none appeared on behalf of the OP No.2, before this Commission, therefore, it was proceeded against ex-parte vide order dated 18.07.2022.

5.                Learned counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-4 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of S.Sreesh, Assistant Manager (Legal) and, Authorized Representative of the OP No.1-Company-MakemyTrip (India) Pvt. Ltd. Annexure OP-1/A and OP-1/B alongwith documents Annexure OP-1 to OP-12 and closed the evidence on behalf of OP No.1.

6.                We have heard the learned counsel for the complainant and learned counsel for the OP No.1 and have carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OP No.1.

7.                Learned counsel for the complainant submitted that despite the fact that the booking of the tickets was done through OP No.1 for OP No.2 airlines, which was later on cancelled unilaterally, as such both the OPs are jointly and severally liable to refund the amount paid by him and also to compensate him for the loss suffered, yet by not doing so, the OPs are deficient in providing service, negligent and adopted unfair trade practice.

8.                On the contrary, the learned counsel for the OP No.1 submitted that  OP No.1 being travel agent has provided confirmed tickets to the complainant, but the same stood cancelled by OP No.2 Airlines only, as such, as per refund policy, it is OP No.2 only which is liable to refund the entire amount, as sought for. He further submitted that because OP No.2 has gone into liquidation therefore the complainant should approach the relevant authorities of NCLT for getting his amount. He further submitted that now OP No.2 has approved refund of Rs.2857/- and only the said amount of Rs.2857/- has been forwarded to OP No.1, which is ready to refund the same to the complainant.     

9.                First question that falls for consideration is as to whether this Commission has territorial jurisdiction to entertain and decide this complaint. It may be stated here that as the complainant is a resident of Ambala, which falls under the territorial jurisdiction of this Commission as such, in this view of the matter, this Commission has territorial jurisdiction to decide this complaint in view of Section 34 (2) (d) of CPA 2019 and therefore, objection taken by the OPs in this regard is rejected.

10.              The next question is as to whether this complaint is barred by limitation, it may be stated here that admittedly the tickets in question were booked for May 2019 and June 2019. Thus, if two years of limitation period is taken from June 2019 after excluding the period from 15.03.2020 due to COVID 19, in view the order dated 23.03.2020 passed by the Hon’ble Supreme Court in Civil Original Jurisdiction, Miscellaneous  Application  No. 21  of 2022 In  Miscellaneous  Application   No. 665 of 2021 In Suo  Motu  Writ  Petition (C)  No. 3 of 2020, In  Re:  Cognizance  For  Extension of Limitation, that the period from 15.03.2020 till 28.02.2022 (with extension of 90 days) i.e. till the end of May 2020 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings, this complaint filed on 25.10.2021 is within limitation. Thus, objection taken regarding time barred is rejected.

11.              Admittedly OP No.1 being travel agent/facilitator has provided confirmed tickets of OP No.2 airlines for the daughter of the complainant for the said journey. In the case of Pravasi Legal Cell & ors. Vs. Union of India & Ors. 2021 (1) BCR 443, the Hon’ble Supreme Court of India, New Delhi, has held that where the tickets have been booked through agent, after cancellation of the said ticket, refund has to be made by the airlines through agent.  

12. However, at this stage, it is important to add here that it is clearly coming out from the order dated 22.06.2021, Annexure OP-9 that OP No.2 had went into liquidation under Insolvency and Bankruptcy Code 2016, which stood accepted by the Learned National Company Law Tribunal, Mumbai and resolution plain stood approved vide order dated 22.06.2021. Facing with this situation, we are of the considered opinion that now no other option is left with the complainant except to approach OP No.2 for seeking the refund amount towards the tickets in question in line with the said order dated 22.06.2021.

13. It is pertinent to mention here that, the OP No.1 in its written version has fairly admitted that OP No.2 has approved refund of Rs.2857/- , which is forwarded to it and OP No.1 is ready to refund the same to the complainant. Under these circumstances, we hereby dispose of the present complaint with the direction to OP No.1 to refund the said amount of Rs.2857/- alongwith interest @6% p.a. from the date when the said amount stood transferred to it by OP No.2, within a period of 45 days from the date of receipt of certified copy of this order, failing which OP No.1 shall pay penal interest @8% per annum on the said amount till realization.

14. The complainant is at liberty to approach OP No.2 for seeking the remaining amount, towards the tickets in question in line with the said order dated 22.06.2021, if permissible. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

 Announced:- 01.02.2024.

 

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