District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.409/2020.
Date of Institution: 27.10.2020.
Date of Order: 23.11.2022.
Lisha Bhudhiraja D/o Sh. Sita Ram Budhiraja, W/o Pawan Sharma R/o Mavai, Sector-90, Naharpar, Greater Faridabad-121001
...........Complainant
Versus
1. Head Office, Make My Trip India Pvt. Ltd., DLF Building No.5, Tower-B. DLF Cyber City, DLF Phase-2, Sector-25, Gurugram, Haryana-122002
2. Regional Office: Make My Trip India Pvt. Ltd. 1G, 44-Bp Main Road, opp. Bus Stand, NIT, Faridabad. Haryana.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Himanshu Rawat and Sh. Nitin Singh counsel for the complainant.
Sh. Harsh Vardhan, counsel for opposite parties Nos.1 &2.
ORDER:
The facts in brief of the complaint are that the complainant booked a trip of Bali, Indonesia for 6 nights from 22nd March, 2020 to 29th March, 2020 with Respondent No.1 on 06.01.2020 which was confirmed on 7.01.2020, The MMT Booking Id is NL2201582255358. The package price offered by Respondent No.1 was Rs 105,771(Rupees One Lakh Five Thousand Seven Hundred and Seventy One Only). The complainant made the payment of Rs 63,000/- (Rupees Sixty Three Thousand Only) as advance booking amount. complainant received an intimation from Respondent No.1 that the trip has been cancelled from your side due to Covid-19 Pandemic and the company will refund the payment made at the time of the booking i.e Rs 63,000/-. When complainant received no intimation from Respondent No. 1regarding the refund of payment for 3 months, therefore she was constrained to inquire about the refund of the booking amount. On 23.05.2020 complainant inquired about the status of the refund through email to the customer support service of Respondent No. 1 on which one of the executive of Respondent No. 1 informed complainant that she would get the refund within 07 days and complainant waited for another 07 days but to her utter shock she didn't get the refund. The complainant called grievance department of Respondent No.1 a number of times and told her grievance with their Executive Ms: Raumi Pandit wherein their executive accepted the mistake of Respondent No.1 for not refunding the booking amount on time. Moreover, complainant also discussed her query with senior executive of Respondent No.1 Mr. Pankaj Kumar but he didn't give any satisfactory answer and didn't provide solution to the problem of complainant. On 13.06.2020 complainant again sent an email to Respondent No. 1 to know the status of refunding of amount but there also she didn't get any satisfactory answer as Respondent No.1 directed complainant to know the status of the flight herself. On 22.08.2020 complainant asked regarding the refund of booking amount through an email and this time also Respondent No. I assured the complainant to refund the booking amount or to update regarding the same on 26.08.2020 but again complainant confronted with the unprofessional behavior of the employees of Respondent No.1 as nobody bothered to give any kind of update or further instructions to get the refund of the booking amount paid by complainant. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay an amount of Rs63,000/- alongwith interest @ 18% p.a.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 25,000 /-as litigation expenses.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that to understand the issue in hand, the Opposite Party No. I will brief out the bookings made by the Complainant herein through the Opposite Party No. 1:
a. Booking ID: NL2201582255358
b. Package Details: Best of Bali 6 Nights/7 Days (hereinafter referred to as
"Tour Package")
c. Booking Date: 07.01.2020
d. Dates: 22.03.2020-29.03.2020.
e. Total Amount: Rs. 1,00,960/- (Rupees One Lakhs, Nine Hundred and
Sixty Only)
f. Total Amount Paid by the Complainant: Rs. 63,000/- (Rupees Sixty-
Three Thousand Only)
g. Passenger(s): 2 Adults
h. Flight Details:
Onward Sector
New Delhi - Denpasar Bali via VietJet Air dated 22.03.2020
Return Sector
Denpasar Bali - New Delhi via Air Asia dated 22.03.2020
i. Hotels Details:
Mahogany Hotel, Bali from 23.03.2020 to 26.03.2020 Aldeoz Grand Kancana Villa from 26.03.2020 to 29.03.2020.
It was submitted that the Complainant duly agreed to the User Agreement & Cancellation Policy of the answering Opposite Party. Further the complainant was also governed by the cancellation and refund policy of the concerned hotels, which prevails over the terms and conditions of the opposite party NO.1 in case of any conflict and same was duly mentioned and agreed upon by the complainant at the time of booking the tour package. The outbreak of the COVID 19 pandemic was declared as a Force Majeure event by the Ministry of Finance in the month February, 2020 itself. Hence, the Complainant did have the knowledge of the prevalence of the pandemic of the COVID-19 and thus, the instant case will squarely be covered within the four comers of a 'force majeure" event. Hence, in light of the fact that COVID-19 has been declared as a 'force majeure' event in India and the term of 'force majeure' agreed by the Complainant while agreeing to the terms of User Agreement at the time of booking, the Opposite Party No. 1 cannot be held liable for the cancellation of the tour package by the concerned Airlines i.e. VietJet, Air Asia and the concerned Hotels. In the present case, since the Complainant was designated under Category No. 3, the Opposite Party No. I had duly acted and followed the guidelines and directions issued by the Hon'ble Supreme Court, DGCA and Civil Aviation Requirements (CAR), and proactively raised refund requests to the concerned Airlines i.e. VietJet, Air Asia and the abovementioned concerned Hotels, on behalf of the Complainant, to process the refund for the Complainant. This Hon'ble Commission may kindly note that despite being aware of the fact that the refund has to be processed by the concerned Airlines and the concerned Hotels, the Complainant has miserably failed to implead the Viet Jet, Air Asia and the concerned abovementioned Hotels as a necessary and proper party in the present quagmire. Therefore, the present complaint shall be dismissed on ground of non-joinder of parties. In the present case, the booking made herein by Complainant falls under Category No. 3 as specified by the Order dated 01.10.2020 and the Circular dated 07.10.2020 and that 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 had proactively pursued the concerned Airlines VietJet Air, Air Asia and the abovementioned concerned Hotels to process the applicable refund. However, it was only after the passage of the Order dated 01.10.2020, passed by the Hon'ble Supreme Court and the guidelines issued by the DGCA, that Air Asia, Mahogany Hotel, Bali & Aldeox Grand Kancana Villa acknowledged their respective refund liabilities and processed the applicable refund amounting to Rs. 30,284/- (Rupees Thirty Thousand, Two Hundred and Eighty-Four Only) to the answering Opposite Party. However, despite the Order dated 01.10.2020 and the Circular dated 07.10.2020 issued by the DGCA and despite repetitive reminders from the answering Opposite Party, VietJet Air, instead of refunding the concerned amount of Rs. 32,716/- (Rupees Thirty-Two Thousand, Seven Hundred and Sixteen Only) had issued Credit Shell to the Complainant, worth the same amount to be utilized till 22.03.2021. The same was clearly evident by the email dated 11.09.2020 sent by VietJet to the answering Opposite Party, wherein VietJet had issued Credit Shell to be utilised until 22.03.2020, against the Booking of the Complainant. Hence, no liability for the non-refund can be shifted upon the answering Opposite Party. Opposite parties denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite parties– Make My trip India Pvt. Ltd. & Anr. with the prayer to: a) pay an amount of Rs63,000/- alongwith interest @ 18% p.a. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 25,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of complainant, Annx.CW-2 – ticket & emails, Annx. CW-3 – email.
On the other hand counsel for the opposite parties strongly agitated
and opposed. As per the evidence of the opposite parties Ex.RW-1/A – affidavit of Ekank Mehra, working as Manager (Legal) & Authorized Officer of Make My Trip (India) Pvt. Ltd. Having its corporate office at 19th floor, Tower A, B & C, Building NO.5, DLF Epitome, DLF Phase-III, Cybercity, Gurugram, Ex.RW-1 – Resolution, Ex.RW-2 – Agreement between User and Make My Trip, Ex.RW-3 – copy of various media reports, wherein the Ministry of finance had declared the COVID-19 pandemic as Force Majeure event,EX.RW-4 – Print this P, Ex.RW-5 – Writ petition, Ex.RW-6 – Circular, Ex.RW-7 – Guidelines on the measures to be taken by Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities for containment of COVID-19 Epidemic in the country, Ex.RW-8 – Escalation for VJ refund pending, Ex.RW-9 – letter dated 22.5.2008 regarding refund of airline tickets to [passengers of public transport undertakings, Ex.RW-10 – letter regarding facilities to be provided to passengers by airlines due to denied boarding, cancellation of flights and delay in flights, Ex.RW-11 – email, Ex.RW-12 – Company Mater data.
6. During the course of arguments, Shri Harsh Vardhan, counsel for the opposite party has made a statement that the company is willing to refund the amount of Rs.30,284/- towards the advanced received from the complainant against the hotel booking and booking of air asia airlines. A balance amount of Rs.32,716/- has been paid towards the flight booking with Vietjet Air, which had not been received by the company till date despite the clear order by the Hon’ble Supreme Court. Hence, the company expresses its inability to make the balance payment.
7. Lodging of several complaints to opposite parties personally as well as on 13.6.2020 & 22.08.2020 through emails vide Annexure CW2 in which it has been mentioned that we are trying our best to help you in every way we can & checking for below both options:
a) Full refund as a first preference
b) or for date change with extended dates in case of no refund.
8. Keeping in view of the above submissions as well as the statement of the counsel for the opposite party, the Commission is of the opinion that the deficiency in service on the part of the opposite parties have been proved. Hence complaint is allowed.
9. Opposite parties, jointly & severally, are directed to :
a) pay Rs.63,000/- alongwith interest @ 6% p.a. from the date of filing of complaint till its realization.
b) pay Rs.5500/- as compensation on account of mental tension, agony and harassment.
c) pay Rs.5500/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 23.11.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
