Haryana

Kaithal

319/19

Vikas Dua - Complainant(s)

Versus

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

Sh.Rajiv Goswami

15 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.319/2019.

                                                     Date of institution: 27.09.2019.

                                                     Date of decision:15.06.2023.

Vikas Dua S/o Ramesh Dua, age 36 years, R/o near BDO Office, Karnal Road, Fatehpur, Tehsil Pundri, Distt. Kaithal.

                                                                        …Complainant.

                        Versus

1. Make My Trip India Pvt. Ltd., DLF Building No.5, Tower B, DLF Cyber City, DLF Phase 2, Sector-25, Gurugram, Haryana-122002, India, through its Director/Manager/Concerned Officials.
2. Jet Airways India Ltd., S.M.Centre, Andheri Kurla Road, Marol Naka, Andheri (E), Mumbai-400059, Maharashtra, through its Director/Manager/Concerned officials/Chairman.

….OPs.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Rajiv Goswami, Advocate, for the complainant.   

                Sh. C.L.Uppal, Advocate for the OP.No.1.

                OP No.2 exparte.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Vikas Dua-Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the OPs.

2.             In nutshell, the facts of present case are that the complainant had booked the flight of OP No.2 through OP No.1 for 8 members on 14.03.2019 for the flight Delhi to Kathmandu for 02.06.2019 and for Kathmandu to Delhi for 09.06.2019 i.e. for return flight.  The complainant had paid Rs.49,974/- for his 5 family members vide booking ID No.NN7112231346488 and Rs.29,646/- for three family members vide booking No.NN7116313111170 of his friend Sunny Vatta family.  After the said booking and payment i.e. total Rs.79,620/-, the complainant also booked domestic flight and hotel in Nepal/Kathmandu for stay and journey and spent Rs.64,000/- for the said online booking which were non-refundable.  On 19.03.2019, OP No.1 informed the complainant regarding the cancellation of the flights booked by the complainant for 02.06.2019 and 09.06.2019 and further assured to refund the complete amounts of said 8 tickets for the said flights.  The case of complainant is that the OPs refunded only the amount for 5 tickets till 05.05.2019 and the amount of three tickets was not refunded by the OPs despite repeated requests made by the complainant.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

3.            Upon notice, the OP No.1 appeared before this Commission, whereas OP No.2 did not appear and opted to proceed against exparte vide order dt. 29.03.2022 passed by this Commission.  OP No.1 contested the complaint by filing their written version raising preliminary objections that the OP merely acts as a facilitator for booking the confirmed air tickets/hotel on behalf of its customers with the concerned service providers; that the OP, upon the request received from its customer, forwards the same to the concerned Airlines/service providers through software embedded on its web portal; that on the bare perusal of the complaint, it is learnt that the complainant is being aggrieved by the non-processing of the refund for the booking in the event of cancellation of the confirmed tickets for flights operated by Jet Airways; that at the time of booking of the tickets, the intended traveler  duly accepted the terms and conditions of the User Agreement.  It is further stated that once the confirmed tickets are shared, the OP 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 OP has duly initiated the refund process towards the complainant and the same has been forwarded to the concerned Airlines i.e. Jet Airways and the concerned Airlines refund or reschedule the tickets or bookings in lieu of charges duly agreed upon at the time of making the bookings.  In addition to the User Agreement, the intended traveller  is also governed by the cancellation and refund policy of the concerned Arilines, which prevails over the terms and conditions of the OP in case of any conflict as per the cancellation policy.  There is no deficiency in service on the part of OP.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             To prove his case, the complainant tendered into evidence affidavits Ex.CW1/A & Ex.CW2/A alongwith documents Annexure-C1 to Annexure-C32 and thereafter, closed the evidence.

5.             On the other hand, the OP No.1 tendered into evidence affidavits Ex.RW1/A & Ex.RW2/A alongwith documents Annexure-R1 to Annexure-R 11 and thereafter, closed the evidence.

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             Ld. counsel for the complainant has argued that the complainant booked the flight of OP No.2 through OP No.1 for 8 members on 14.03.2019 for the flight Delhi to Kathmandu for 02.06.2019 and for Kathmandu to Delhi for 09.06.2019 i.e. for return flight.  The complainant had paid Rs.49,974/- for his 5 family members vide booking ID No.NN7112231346488 and Rs.29,646/- for three family members vide booking No.NN7116313111170 of his friend Sunny Vatta family.  It is further argued that after the said booking and payment i.e. total Rs.79,620/-, the complainant also booked domestic flight and hotel in Nepal/Kathmandu for stay and journey and spent Rs.64,000/- for the said online booking which were non-refundable.  It is further argued that on 19.03.2019, OP No.1 informed the complainant regarding the cancellation of the flights booked by the complainant for 02.06.2019 and 09.06.2019 and further assured to refund the complete amounts of said 8 tickets for the said flights.  It is further argued that the OPs refunded only the amount for 5 tickets till 05.05.2019 and the amount of three tickets was not refunded by the OPs despite repeated requests made by the complainant.  So, it is a clear cut case of deficiency in service on the part of OPs.

8.             On the other hand, ld. counsel for the OP No.1 has argued that the OP merely acts as a facilitator for booking the confirmed air tickets/hotel on behalf of its customers with the concerned service providers and the intended traveler was under the obligation to provide the confirmed bookings/tickets to its customers.  It is further argued that at the time of booking of the tickets, the intended traveler duly accepted the terms and conditions of the User Agreement.  It is further argued that once the confirmed tickets are shared, the OP 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 OP has duly initiated the refund process towards the complainant and the same has been forwarded to the concerned Airlines i.e. Jet Airways and the concerned Airlines refund or reschedule the tickets or bookings in lieu of charges duly agreed upon at the time of making the bookings.  In addition to the User Agreement, the intended traveler is also governed by the cancellation and refund policy of the concerned Arilines, which prevails over the terms and conditions of the OP in case of any conflict as per the cancellation policy.  It is further argued that Jet Airways-OP No.2 itself has admitted that the concerned refund shall be subject to a cap of Rs.15,000/- only and the same shall only be disbursed to the complainant by Jet Airways-OP No.2 through OP No.1.  There is no deficiency in service on the part of OP.No.1.  During the course of arguments, ld. counsel for the OP No.1 has submitted written arguments and placed reliance upon the case law titled as Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. decided by Hon’ble Supreme Court on 09.05.1996 bearing Civil Appeal No.9057 of 1996; SBI Vs. Jet Airways (India) Ltd. decided by National Company Law Tribunal on 20.06.2019 bearing CP 2205 (IB)/MB/2019; SBI Vs. Jet Airways (India) Ltd. decided by National Company Law Tribunal on 22.06.2021 bearing IA No.2081 of 2020 in CP (IB) No.2205/MB/2019 and Kunal Bahl and others Vs. State of Karnataka decided by Hon’ble High Court of Karnataka at Bengaluru on 07.01.2021 bearing Criminal Petition No.4676 of 2020 4712 of 2020. 

9.             We have considered the rival contentions of both the parties.  The dispute between the parties is with regard to refund of amount of 3 tickets.  During the course of arguments, ld. counsel for the complainant has drawn our attention towards page No.27 as per Annexure-R4, wherein the process of refund is mentioned as under:-

        ”REFUND

        Refunds will be processed as per the airline fare rules and cancellation policy.  Such refunds shall be subject to MMT receiving the same from the airlines.  However, the convenience fee paid to MMT paid at the time of booking is a non-refundable fee.”     

              Ld. counsel for the complainant vehemently contended that Jet Airways India Ltd. was legally bankrupt on 20.05.2019, whereas refund of 5 tickets was already made on 02.05.2019 and 03.05.2019 by the OPs as per Annexure-C22, so, it was the duty of Make My Trip-OP No.1 to initiate the process of refund the amount of 3 tickets to the complainant.  Ld. counsel for the complainant has further contended that the OP No.1 had to apply with National Company Law Tribunal but the OP No.1 has failed to produce any document from which it could be proved that the OP No.1-Make My Trip had applied with N.C.L.T.  To rebut the contention of complainant, ld. counsel for the OP No.1 has argued the OP has duly initiated the refund process towards the complainant and the same has been forwarded to the concerned Airlines i.e. Jet Airways.  He has placed reliance upon the case law Anil Bhandari Vs. Make My Trip (supra) as per Annexure-R11, whereby the complaint was dismissed by District Consumer Disputes Redressal Commission-II, U.T.Chandigarh on the ground that the OP has already fulfilled all its obligations and duties qua the booking by initiating the refund process on behalf of the complainant on receipt of the cancellation request and the same was forwarded to the concerned airlines.  But in that case, Jet Airways was not made party by the complainant rather in the present complaint, Jet Ariways has been arrayed as OP in the present complaint and Jet Airways was legally bankrupt on 20.05.2019, so, the said authority is not applicable to the facts of instant case.  Hence, we are of the considered view that there is deficiency in service on the part of OP No.1-Make My Trip.

10.            Thus, as a sequel of aforesaid discussion, we direct the OP No.1-Make My Trip to refund the amount of 3 tickets i.e. Rs.29,646/- to the complainant within 45 days from today, failing which, they shall pay interest @ 7% p.a. from the date of this order till its realization and further to pay Rs.5,000/- as compensation for physical harassment and mental agony as-well-as Rs.5,000/- as litigation charges to the complainant.  Hence, the present complaint is accepted accordingly against Op No.1-Make My Trip and dismissed against OP No.2.      

 11.           In default of compliance of this order, proceedings against OP No.1 shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:15.06.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.