Haryana

Kaithal

242/20

Robin Singla - Complainant(s)

Versus

Make My Trip - Opp.Party(s)

Sh.S.K Mangal

06 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 242 of 2020.

                                                               Date of insttution:   11.08.2020.

                                                               Date of decision:      06.05.2024.

 

Robin Singla s/o Shri Binder Pal Singla, r/o H.No.144, HUDA residential colony No.1, Ward No.7, Cheeka, District Kaithal.

                                                                                      …Complainant.

                                                      Versus

 

1. Make My Trip, 19^th Floor A,B & C Epitome Building No.5, DLF Cyber city Phase II, Gurugram, through its Manager Holiday Operations.
2. Manager Holiday Operations Make my Trip, 19^th Floor A,B & C Epitome Building No.5, DLF Cyber city Phase II, Gurugram.
3. Make my Trip B-36, 1^st Floor Pusa Road New Delhi, through its Authorized Manager (Registered Office).
4. Air Asia Airlines Track Holidays Pvt. Ltd., D-85, First Floor, 100 Ft Road, Chattarpur Enclave, New Delhi, through its Director/Manager.
5. Malindo Air 106, First Floor, Surya Kiran Building, 19 Kasturba Gandhi Marg, New Delhi, through its Director/Manager.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       Shri S.K. Mangal, Advocate for the complainant.   

                   Shri C.L. Uppal, Advocate for Opposite Parties No.1 to 3.

                   Opposite Parties No.4 & 5 ex-parte.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT

          Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019, against the OPs.

2.                In the complaint, complainant alleged that on 05.02.2020, he booked online Bali Holiday package for seven persons namely Robin Singla (himself), Vandana Singla (wife), Virat Singla (son), Charvi Singla (daughter), Sudhir Garg, Shabnam Garg and Ananya Garg (friends family) from 22.06.2020 to 28.06.2020, through OPs No.1 to 3 after paying Rs.3,58,041/-. That he along with other six members were to board flight from New Delhi on 22.06.2020, but unfortunately, due to Covid-19, there was total lockdown and ban on international flights. That on 30.05.2020, he received an email from OPs No.1 to 3 stating to reschedule their trip, upon which, firstly on 31.05.2020 and then on 10.06.2020, he informed them that he does not want to reschedule his booking and wants to continue with his existing Bali Holiday Package and if same is not possible, then to refund the paid amount to him, but OPs No.1 to 3 flatly refused to refund the said amount of Rs.3,58,041/-. That OPs No.1 to 3 in their written reply submitted that OPs No.4 & 5 have not refunded the amount to them inspite of order dated 01.10.2020 passed by the Hon’ble Supreme Court of India and Circular dated 07.10.2020 issued by Director General of Civil Aviations, as such, it has become necessary to steel relief against OPs No.4 & 5. Due to above irresponsible attitude of OPs No.1 to 5, he suffered huge physical harassment, mental agony as well as financial loss, constraining him, to file the present complaint, against the OPs, before this Commission.

3.             Upon notice of complaint, OPs No.1 to 3 appeared before this Commission and filed their respective written statements, whereas, OPs No.4 & 5 failed to appear before this Commission, despite receipt of notices of this Commission, as such, OPs No.4 & 5 were proceeded against ex-parte on 12.07.2023 and 11.11.2022 respectively.

4.                OPs No.1 to 3, in their written statement submitted that OP No.1 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 details of complainant’s booking is as  under:-

1. Booking ID: NL2200982300236
2. Package details: Bali Holiday dated 22.06.2020-28.06.2020.
3. Booking date: 05.02.2020.
4. Total amount paid: Rs.3,58,040/- including Rs.5132/- per persons towards the non-refundable convenience fees/service charges.
5. Passenger: 5 adults & 2 kids.
6. Flights details: Air India, Malindo Airlines.
7. Inclusions: Stay in Hotels.

5.                That the complainant is governed by the cancellation and refund policy of the concerned Airlines, which prevail over the terms and conditions of OP No.1 in case of any conflict and same is duly mentioned and agreed upon by the complainant at the time of booking the tour package. That OP No.1 being the facilitator between concerned service provider and the intended traveler was under the obligation to provide the conformed booking/tickets to its customers and once the confirmed tickets is issued to the customers, the OP No.1 is discharged from its obligations and duties qua the said bookings. That due to outbreak of Covid-19 pandemic, OP No.1 cannot be held liable for the cancellation of the tour package by the concerned Air Asia and Malindo Air and the concerned hotels. That OP No.1 not only acted proactively by approaching the concerned airlines and the concerned hotels, to seek refund on behalf of complainant but has also provided the complainant with the Open Ticket for the tour package with the desired dates of the complainant, but the complainant failed to opt for Open Date Change. That despite the order dated 01.10.2020 and Circular dated 07.10.2020 issued by the DGCA, Malindo Air instead of refunding the amount has issued the open ticket in the name of complainant which shall be utilized till 31.12.2021 and in case the complainant failed to accept the same, the amount shall be refunded to the complainant after deduction of Cancellation Charges of Rs.15010/- per persons. Hence, there is no deficiency in service, on the part of OPs No.1 to 3 and prayed for dismissal the present complaint.

6.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C6.

7.                On the other hand, OPs No.1 to 3 tendered into evidence affidavits Ex.RW1/A, Ex.RW2/A and documents Annexure R-1 to R-16.

8.                We have heard the learned counsel for the parties and perused the record carefully.

9.                Learned counsel for the complainant has argued that on 05.02.2020, the complainant booked online Bali Holiday package for seven persons from 22.06.2020 to 28.06.2020, through OPs No.1 to 3 after paying Rs.3,58,041/-. He further argued that the complainant along with other six members were to board flight from New Delhi on 22.06.2020, but unfortunately, due to Covid-19, there was total lockdown and ban on international flights. He further argued that on 30.05.2020, the complainant received an email from OPs No.1 to 3 stating to reschedule their trip, upon which, firstly on 31.05.2020 and then on 10.06.2020, the complainant informed them that he does not want to reschedule his booking and wants to continue with his existing Bali Holiday Package and if same is not possible, then to refund the paid amount to him, but OPs No.1 to 3 flatly refused to refund the said amount of Rs.3,58,041/-. He further argued that due to above irresponsible attitude of OPs No.1 to 5, the complainant suffered huge physical harassment, mental agony as well as financial loss.

10.              On the other hand, learned counsel for OPs No.1 to 3 has argued that OP No.1 merely acts as a facilitator for booking the confirmed air tickets/hotel bookings on behalf of its customers with the concerned service providers. He further argued that the complainant is governed by the cancellation and refund policy of the concerned Airlines, which prevail over the terms and conditions of OP No.1 in case of any conflict and same is duly mentioned and agreed upon by the complainant at the time of booking the tour package. He further argued that OP No.1 being the facilitator between concerned service provider and the intended traveler was under the obligation to provide the conformed booking/tickets to its customers and once the confirmed tickets is issued to the customers, the OP No.1 is discharged from its obligations and duties qua the said bookings. He further argued that due to outbreak of Covid-19 pandemic, OP No.1 cannot be held liable for the cancellation of the tour package by the concerned Air Asia and Malindo Air and the concerned hotels. He further argued that OP No.1 not only acted proactively by approaching the concerned airlines and the concerned hotels, to seek refund on behalf of complainant but has also provided the complainant with the Open Ticket for the tour package with the desired dates of the complainant, but the complainant failed to opt for Open Date Change. He further argued that despite the order dated 01.10.2020 and Circular dated 07.10.2020 issued by the DGCA, Malindo Air instead of refunding the amount has issued the open ticket in the name of complainant which shall be utilized till 31.12.2021 and in case the complainant failed to accept the same, the amount shall be refunded to the complainant after deduction of Cancellation Charges of Rs.15010/- per persons. Hence, there is no deficiency in service, on the part of OPs No.1 to 3 and prayed for dismissal the present complaint. In order to support his above contentions, he placed reliance upon case laws titled Vipan Sharma Vs. Spice Jet Ltd., CC No.463 of 2020, DOD 26.10.2022 (District Consumer Commission, UT, Chandigarh), Arjun Chauhan Vs. Make My Trip, CC No.248 of 2021, DOD 04.05.2022 (District Consumer Commission, Yamuna Nagar at Jagadhri), Shri Caitano Fernandes Vs. Make My Trip India Pvt. Ltd., CC No.40 of 2020, DOD 07.06.2021 (District Consumer Commission, South Goa at Margao), Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital, MANU/CF/0141/2010 DOD 28.09.2010 (NC), Charan Singh Vs. Healing Touch Hospital and Ors., CA No.767 of 2000, DOD 20.09.2000 (NC), Harpal Kaur Vs. Goibibo, CC No.195 of 2020, DOD 02.08.2022 (District Consumer Commission, Ludhiana).

11.              From Tax Invoice dated 05.02.2020 Annexure C-1, it is evident that on 05.02.2020, the complainant booked Bali Holiday package from 22.06.2020 to 28.06.2020, after paying total amount of Rs.3,58,041/- through OPs No.1 to 3.

12.              Learned counsel for the complainant has submitted that the complainant along with other six members were to board flight from New Delhi on 22.06.2020, but unfortunately, due to Covid-19, there was total lockdown and ban on international flights. He further submitted that on 30.05.2020, the complainant received an email from OPs No.1 to 3 stating to reschedule their trip, upon which, firstly on 31.05.2020 and then on 10.06.2020, he informed them through emails Annexure C-2 to C-6 that he does not want to reschedule his booking and wants to continue with his existing Bali Holiday Package and if same is not possible, then to refund the paid amount to him, but OPs No.1 to 3 flatly refused to refund the said amount, which amounts to gross deficiency in service, on the part of OPs No.1 to 3.

13.              Contrary to it, learned counsel for OPs No.1 to 3 has firstly contended that OP No.1 merely acts as a facilitator for booking the confirmed air tickets/hotel bookings on behalf of the customer with the concerned service providers i.e. OPs No.4 & 5. He further contended that OP No.1, being the facilitator between concerned service provider and the intended traveler was under the obligation to provide the confirmed booking/tickets to its customers and once the confirmed tickets is issued to the customers, the OP No.1 is discharged from its obligations and duties qua the said bookings. But this Commission is not convinced with the above contentions of OPs No.1 to 3, because, from the Tax Invoice Annexure C-1, it is evident that OPs No.1 to 3 are the recipient of booking amount of Rs.3,58,041/-, directly from the complainant and this fact has also been admitted, by OPs No.1 to 3 in their written statement. Moreover, this Tax Invoice Annexure C-1 clearly indicates the PAN number as well as GSTIN number of Make My Trip i.e. OPs No.1 to 3 underneath it. Thus, the complainant has entered into contract with OPs No.1 to 3 on “Principle to Principle” basis, therefore, Make My Trip i.e. OPs No.1 to 3 cannot be escaped, from its liability, as such, OPs No.1 to 3 is liable to refund back, the entire booking amount, to the complainant not OPs No.4 & 5. Even if OPs No.4 & 5 are ex-parte, in the present complaint, in that circumstances also, Make My Trip i.e. OPs No.1 to 3 cannot escape, from its liability, towards the complainant, because they have categorically advised the complainant for credit of booking amount of Rs.3,58,041/-, in their accounts only.

14.              Learned counsel for OPs No.1 to 3 has further contended that due to outbreak of Covid-19 pandemic, OP No.1 not only acted proactively by approaching the concerned airlines and the concerned hotels, to seek refund on behalf of complainant and also provided the complainant with the Open Ticket, which shall be utilized by the complainant till 31.12.2021 and in case the complainant failed to accept the same, the amount shall be refunded to the complainant, after deduction of Cancellation Charges of Rs.15010/- per persons. But this Commission is also not convinced with the above contentions of OPs No.1 to 3, because, it is admitted fact that due to Covid-19, lockdown was imposed in India on 22.03.2020, but contrary to it, from Tax Invoice Annexure C-1, it is evident that the complainant had make booking of tour package, with OPs No.1 to 3 on 05.02.2020 i.e. much before the restrictions of Covid-19 which come into force from 22.03.2020. Moreover, OPs No.1 to 3 contended that they will refund back the booking amount after deduction of Cancellation amount from it, but contrary to it, OPs No.1 to 3 failed to produce any documentary evidence, on the case file, to understand this Commission, on which basis they want to deduct the Cancellation Charges, from the total Booking Amount of the complainant, which draw adverse inference against OPs No.1 to 3. In this way, complainant is liable the refund of full booking amount, without deducting any cancellation charges, from OPs No.1 to 3.  

15.              Learned counsel for OPs No.1 to 3 has further contended that the complainant accepted the Agreement Annexure R-1 on 05.02.2020, wherein, at Page No.41, there is specifically mentioned that The Central Government, State Government and various other bodies, may mandate downloading of Arogya Setu App or submitting a self-declaration form prior to entering a transit point like airport, railway station etc. or at the time of checking-in for a flight, into a hotel etc. Accordingly, the User must ensure downloading of Arogya Setu App on their Smartphone or provide any other alternate such as self-declaration when demanded, but the complainant failed to provide the same. In this regard, learned counsel for the complainant has produced document Mark-B on the case file, wherein, it is specifically mentioned that “Aarogya Setu application was launched by the Government of India on 2 April 2020”.  Since from document Mark-B it is evident that Aarogya Setu App was launched by the Government of India on 02.04.2020, therefore, the question of accepting the Agreement Annexure R-1, about downloading the Aarogya Setu App by the complainant, on 05.02.2020, does not arise. Moreover, OPs No.1 to 3 has also failed to produce any documentary evidence, on the case file, from which, it can be gathered that the complainant had ever accepted the said Agreement Annexure R-1. Hence, we found no force, in the above contentions of OPs No.1 to 3, hence, rejected.

16.              So, keeping in view the above facts and circumstances of the case, we are of the considered view that the complainant booked Bali Holiday package from 22.06.2020 to 28.06.2020, after paying total amount of Rs.3,58,041/- to OPs No.1 to 3, but due to outbreak of Covid-19 pandemic, complainant showed his inability to travel the same and demanded refund of his booking amount from OPs No.1 to 3, by making various written requests time and again, but contrary to it, they (OPs No.1 to 3) failed to refund the same, till today, due to which, the complainant, might have suffered huge physical harassment and mental agony including financial loss, without any fault on his part and was running from one pillar to another to get refund of his amount, and lastly left with no other option, except to knock the door of this Commission. The above act and conduct of OPs No.1 to 3, not only amounts to gross deficiency in service, on their part, but also an act of unfair trade practice on their part. In this way, OPs No.1 to 3, jointly and severally, are liable to refund back the booking amount of Rs.3,58,041/- along with compensation amount + litigation expenses, to the complainant. The case laws, produced by the OPs No.1 to 3 are not disputed, but the same are not applicable, to the case in hand, being rested on different footings. Since no act of deficiency in service, is alleged by the complainant against OPs No.4 & 5, nor the same was proved, therefore, complaint qua OPs No.4  & 5 is liable to be dismissed. 

17.              Thus as a sequel of above discussion, we allow the present complaint against OPs No.1 to 3 and dismiss the same against OPs No.4 & 5. We direct OPs No.1 to 3, jointly and severally, to refund back the booking amount of Rs.3,58,041/- along with compensation amount of Rs.25,000/- + litigation expenses of Rs.5,000/-, to the complainant, within a period of 45 days, from today, failing which, the total award amount shall carry interest @ 6% p.a., from the date of filing of present complaint, till its realization.

18.              In default of compliance of this order, proceedings 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 the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:06.05.2024.

                                                                                       (Neelam Kashyap)

                                                                                       President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

Typed by: Sham Kalra, SSS.