Chandigarh

DF-I

CC/385/2015

Vaibhav Bagolia - Complainant(s)

Versus

Make My Trip - Opp.Party(s)

Munish Gupta

24 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/385/2015
Date of Institution	:	17/06/2015
Date of Decision	:	24/08/2016

 

1.     Vaibhav Bagolia son of S.K. Bagolia, resident of House No.1155, Sector 33/C, Chandigarh currently residing at 6729, Cambie Street, Vancouver Canada through his Special Power of Attorney namely Sh. Jasmeet Singh son of Darshan Singh, resident of 147, Zail Singh Nagar, Ropar (Punjab).

2.     S.K. Bagolia son of Sh. L.B. Bagolia, resident of 1155, Sector 33/C, Chandigarh

…..Complainants

V E R S U S

1.     Make My Trip, SCO No.43-44, Level I, Sector 8-C, Madhya Marg, Chandigarh through its Branch Manager.

2.     Air India, SCO No.162 & 164, Sector 34/A, Chandigarh through its Branch Manager.

……Opposite Parties

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                       

                                                                       

ARGUED BY	:	Sh. Nihal Singh, Proxy counsel for Sh. Munish Gupta, Counsel for complainants.
	:	Sh. Naveen Sharma, Counsel for OP-1
	:	Sh. S.R. Chaudhri, Counsel for OP-2

                         

PER DR. MANJIT SINGH, PRESIDENT

1.         S/Sh. Vaibhav Baglolia and S.K. Bagolia, complainants have brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Make My Trip and another, Opposite Parties (hereinafter called the OPs) praying that the OPs be directed to pay Rs.94,249/- alongwith interest @ 24%; Rs.1.00 lac as compensation for mental agony; Rs.1.00 lac as penal costs on account of pain and suffering  and Rs.35,000/- on account of cost of litigation.

                The facts, in brief, are that on 15.12.2014, complainant No.2 booked online air ticket through his credit card for his son (complainant No.1) who was to travel from Delhi to London (Heathrow) to Vancouver and made payment of Rs.94,249/-. E-ticket in the name of complainant No.1 was issued with departure date of 6.1.2015 from New Delhi International Airport Terminal No.3.  However, on 6.1.2015, when complainant No.1 arrived at the Delhi airport, he was shocked to know that the flight had been cancelled. The flight delay and cancelation certificate was issued by Air India in favour of complainant and it was told that the money shall be refunded. A refund tracker dated 10.1.2015 was issued to the complainant mentioning the expected date of refund as 16.1.2015 and the refund amount as Rs.93,999/-.  However, despite visiting the office of the OPs, making requests and service of legal notice, the aforesaid amount was not refunded. Hence, this complaint praying for the reliefs mentioned above. 

2.         OP-1 resisted the claim of the complainants, inter alia, taking the preliminary objections that the complaint filed by the complainants is not maintainable either on merits or as per law and is liable to be out-rightly dismissed qua it. It is alleged that the contents of the complaint are wholly misconceived, vexatious, misleading, misrepresented, unsustainable, false, frivolous and are nothing but a flagrant abuse of the process of law.  There is no deficiency in service on the part of OP-1 and, therefore, no case is made out against it under the provisions of the Consumer Protection Act, 1986.  It is alleged that the complainant at the time of booking the ticket in question had specifically agreed to the terms and conditions of OP-1 online website User’s agreement by clicking on ‘I Agree’ link before confirming the booking in question. It is further alleged that as per User Agreement agreed between the User and OP-1 at the time of booking, this Forum does not have jurisdiction to entertain the present complaint as the jurisdiction is with the courts of NCR Delhi. It is stated that OP-1 simply acted as a facilitator for booking the tickets in question for complainant and it has no role in respect of the services to be rendered by the concerned service provider. Thus, OP-1 prayed for dismissal of the complaint.
3.         OP-2 also resisted the claim of the complainants, inter alia, pleading that while the flight No.AI-115 was cancelled due to over booking, the passenger was accepted on flight AI-111 on the same day.  However, he did not turn up at the gate for the alternate flight. The allegation of the complainants that Air India staff told that no other flight could be arranged is denied. It is alleged that such allegation of the complainants are false and baseless.  So far as the delay in respect of the refund is concerned, it is pleaded that the booking agent (OP-1) arranges a seat on the flight of the service provider (OP-2) and collects the fare amount from the passenger. He submits his weekly statements of Accounts to the service provider while retaining his permissible commission.  However, in case the journey is not performed, for whatever reason, the ticket money becomes refundable subject to cancellation charges, if any. In this case, the agent (OP-1) could have made the refund and the amount would have been adjusted against the weekly future sales done on Air India Flights. Thus, it is OP-1 who is responsible to refund the ticket money to the passenger ultimately.  Denying its liability or any deficiency in service on its part, OP-2 prayed for dismissal of the complaint.   
4.         Rejoinder was filed by the complainants denying all the averments in the written statement of the OP-1.
5.         The parties led evidence in support of their contentions. 
6.         We have gone through the record, including the written arguments of complainants and OP-2, and heard the arguments addressed by the learned Counsel for the parties.
7.         The learned counsel for the complainants argued that the flight was cancelled by OP-2 because of over booking and complainant No.1 was not allowed to board the flight for which he had purchased the ticket.  As such, there is deficiency in service on the part of OP-2. He further argued that OPs 1 & 2 have failed to return the ticket amount of the complainants well within time, therefore, this act of the OPs amount to deficiency in service and unfair trade practice.  So, the present complaint is to be accepted and the complainants are to be adequately compensated.
8.         The learned counsel for OP-1 argued that OP-1 has refunded a sum of Rs.79,499/- on 30.9.2015 during the pendency of the complaint and that OP-1 was only a facilitator who booked the ticket for the complainants and had no control over OP-2.  He argued that in fact the flight had been cancelled by OP-2. OP-1 has no responsibility and the responsibility, if any, is that of OP-2.  He further argued that once the complainants have been refunded the amount as per the terms and conditions of the agreement, they are left with no cause of action to claim compensation etc. against OP-1.
9.         The learned counsel for OP-2 argued that because of overbooking complainant No.1 was not allowed to board the flight for which he had purchased the ticket, but, he was provided the facility of alternative flight on the same day, which he refused to avail and requested for refund of his money. As such, there is no deficiency in service on the part of OP-2. He further argued that as per the arrangement between the complainants and OPs 1 & 2, OP-1 was to refund the amount of the complainant.  As such, there is no deficiency in service on the part of OP-2.
10.         It is admitted case of the parties that complainant No.2 booked air ticket through his credit card with OP-1 and his son, complainant No.1 was to travel from Delhi to London (Heathrow) to Vancouver. An amount of Rs.94,249/- was charged from the complainant. It is also admitted fact that complainant No.1 was to board flight AI-115 on 6.1.2015, but, the said flight was cancelled. The allegation of the complainants that no alternative flight was arranged is false and baseless. Annexure C-3 is the copy of flight delay and cancellation certificate dated 6.1.2015 which clearly proves that the flight, AI-115 which had departure on 6.1.2015, was cancelled, but, complainant No.1 was accepted on another flight AI-111 on the same date i.e. 6.1.2015, but, he was not interested for that flight and requested for refund of the money. Annexure C-3 further clearly proves that complainant No.1 asked for the refund of the money. Annexure C-4 proves that the cancellation request of complainant No.1 was accepted and refund tracker was issued for refund of an amount of Rs.93,999/-.  In the present case, though the complainant No.1 was not allowed to board the flight for which he had purchased the ticket because of over booking, but, an alternative flight No.AI-111 was arranged for him.  Though OP-2 was deficient in services in disallowing complainant No.1 to board the flight for which he had purchased the ticket, but, once OP-2 had offered him another flight on the same day, then it cannot be said OP-2 was deficient in services. The complainant No.1 had the right to travel by another flight on 6.1.2015 itself.  Once an alternative flight was arranged for complainant No.1, then he is left with no grievance to say that OP-2 is deficient in services. In the present case, complainant No.1 voluntarily requested for refund of the amount and OP-2 issued the refund tracker of Rs.93,999/-. As such, OP-2 was not deficient in services.  Since the money was paid to OP-1, so it was OP-1 only who was to refund the amount and not OP-2. OP-2 could only arrange the alternative flight for complainant No.1 for the same day, which it did, but since he was interested for refund of the amount, so the refund was to be made by OP-1. Hence, there is no deficiency in service on the part of OP-2.
11.         As per the arrangement between OPs 1 & 2, in case of cancellation of ticket, OP-2 was to issue the refund tracker and since the money was received by OP-1, so it was to refund the amount as per the tracker. Annexure C-4 is the refund tracker which proves that the expected refund date was 16.1.2015 meaning thereby after deducting the necessary charges a sum of Rs.93,999/- was to be refunded to the complainants by OP-1, but, the said amount was not refunded. The complainants have to approach this Forum and ultimately during the pendency of this complaint, OP-1 refunded a sum of Rs.79,499/- on 30.4.2015.  OP-1 has not refunded the whole of the amount which was to be refunded. 
12.         The learned counsel for OP-1 has failed to disclose when the refund tracker of Rs.93,999/- was issued in favour of the complainants by OP-2, why whole of the amount has not been paid and only an amount of Rs.79,499/- has been refunded, that too after such a long time. It was the duty of OP-1 to refund the total amount of Rs.93,999/- to the complainants on or before 16.1.2015, which it has failed to refund. Thus, OP-1 is not only deficient in services, but, it also illegally and unauthorisedly deducted a sum of Rs.14,500/-. Due to the act and conduct of OP-1 in delaying refund of the amount and deducting an amount of Rs.14,500/- unnecessarily, the complainants have to suffer physical and mental harassment. They have to rush to this Forum and engage a counsel. So, the complainants are not only entitled to refund of the balance amount of Rs.14,500/-, but, they are also entitled to compensation on account of harassment and mental agony faced by them because of the act and conduct of OP-1.
13.         In view of the above discussion, we are of the opinion that the present complaint deserves to succeed. The same is accordingly partly allowed qua OP-1. OP-1 is directed as under:-

(i)     To pay to the complainants the balance amount of Rs.14,500/- which was illegally deducted by it with interest @ 9% per annum w.e.f. the date of filing of the present complaint i.e. 17.6.2015 till payment.

(ii)    To pay Rs.15,000/- to the complainants as compensation for mental agony and harassment caused to them;

(iii)   To pay Rs.5,000/- as costs of litigation to the complainants. 

14.         This order be complied with by OP-1 within one month from the date of receipt of its certified copy, failing which it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
15.         The consumer complaint qua OP-2 is dismissed with no order as to costs. 
16.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
24/08/2016	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Dr. Manjit Singh]
hg	Member	Member	President