Tamil Nadu

South Chennai

CC/7/2021

Mr. Terry Thomas - Complainant(s)

Versus

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

G. Derrick Sam

27 Feb 2023

ORDER

                                                Date of Complaint Filed : 21.12.2020

                                                Date of Reservation      : 25.01.2023

                                                Date of Order               : 27.02.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,               :  MEMBER  I 

                        THIRU. S. NANDAGOPALAN., B.Sc., MBA.,        : MEMBER II

 

CONSUMER COMPLAINT No. 07/2021

MONDAY, THE 27^th DAY OF FEBRUARY 2023

Mr. Terry Thomas,

S/o Late PO Thomas,

No. 19, Customs colony,

1^st Cross Street,

Besant Nagar,

Chennai-600 090.                                                                                                                     ...   Complainant          

..Vs..

Make MyTrip (India) Pvt. Ltd.,

Represented by its Managing Director,

Shop G 6, Ground Floor,

Gee Gee Emerald,

151 Village Road,

Nungambakkam,

Chennai - 600 034.                                                                                                                     ...  Opposite Party

                                                                                          ******

Counsel for the Complainant          : M/s. Hari Radhakrishnan

Counsel for the Opposite Party       : M/s. Harsha Vardhan

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and treating the written arguments as oral arguments on endorsement made by the Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to refund the ticket cost of Rs.96,479/- along with interest at the rate of 18% p.a calculated from the date of cancellation of ticket till the date of actual payment and to pay compensation of Rs.1,00,000/- to the Complainant for the deficiency in service, loss and mental agony caused to the Complainant by the Opposite Party along with cost.

2.     The averments of Complaint in brief are as follows:-

 The Complainant booked ticket for travel from Chennai to San Francisco, USA, via New Delhi in Air Flight Al 43 and AI 173 for travel on May 1, 2020. The ticket was booked for his wife, Mrs. Mary Nellissery Lonappan and the make my trip booking id that was sent to him was INIB1581580181635. The return ticket was booked with the departure dated as July 29, 2020 from San Francisco to Chennai via New Delhi, vide Air India Flight Al-174 and Al-42. The tickets mentioned above were booked through 'Makemytrip' web portal on February 13, 2020 after payment of an amount of Rs. 96,479/- in terms of the invoice number 1000000085466900 dated 13.02.2020. The Opposite Party was aware of the outbreak of COVID-19 pandemic which resulted in cancellation of the flights mentioned above. It is further submitted that the Complainant had cancelled the tickets mentioned above directly with the Airline (Air India) and the Airline informed the Complainant that the ticket cost would be refunded to his travel agent, M/s. Make My Trip. Thereafter, he was constantly trying over phone to reach the Opposite Party's customer services team in order to obtain refund of the ticket costs, but in vain. Thereafter, an email dated 28.02.2020 was sent to the Opposite Party, that despite repeated attempts, the Complainant was unable to contact the Opposite Party in order to seek refund of the ticket cost, which was cancelled due to the COVID-19 pandemic. The Complainant brought it to the attention to the Opposite Party that as per the Office Memorandum dated April 16, 2020 of the Ministry of Civil Aviation, Government of India, ticket cost had to be refunded without levying any cancellation charges in respect of all bookings made and payment received during the lockdown period i.e. from 25.03.2020 to 03.05.2020. The Opposite Party had sent an email dated October 31, 2020 requesting the Complainant to raise a query through the web form or chat using the web chat facility through the Opposite Party's website/app.

Despite the above-mentioned attempts made to reach the Opposite Party vide emails/online chat and phone, the Complainant has not received the refund of the ticket cost. This clearly amounts to deficiency in service by the Opposite Party, as much as it is apparent that the Opposite Party is illegally withholding the amount due to the Complainant, despite the fact that the Airline has refunded the ticket cost to the Opposite Party. The lack of response and inaction from the Opposite Party demonstrates lackadaisical and lethargic attitude which amounts to deficiency in service as defined under the Consumer Protection Act, 2019. He had sent a legal notice through his Advocate to the Opposite Party by speed post and also by e-mail dated 23.11.2020 calling upon the Opposite Party to immediately refund the ticket cost of Rs. 96,479/- along with interest at the rate of 18% pa. calculated from the date of cancellation of ticket till the date of actual payment, along with compensation of Rs 1,00,000/- for the mental agony, harassment, loss and deficiency in service of the Opposite Party. There has been no response to the said legal notice. Hence the complaint.

3. Written Version filed by the Opposite Party in brief is as follows:-

At the out the Opposite Party denied the allegations contained in the complaint unless specifically admitted therein. The Complainant had booked flight through the Opposite Party the details are given hereunder:

1. Booking ID: IN1B1581580181635
2. Booking Date: 13.02.2020
3. Passenger:1
4. Total Amount Paid: Rs.96,479/- which includes Rs.6,370/- paid towards the Non-refundable Insurance purchased by the Complainant from the Third Party insurance company.
5. Flight Details:

Onward Sector

Chennai-Delhi via Air India Airlines dated 01.05.2020

Delhi-San Francisco via Air India Airlines dated 02.05.2020 Return Sector

San Francisco-Delhi via Air India airlines dated 29.07.2020

Delhi-Chennai via air India Airlines dated 30.07.2020

 At the time of booking of the tickets the Complainant had duly accepted the terms and conditions of the user agreement and the terms of service.  Furthermore the Complainant had also adhered to the cancellation policy of the Opposite Party as well as the concerned airlines. The Opposite Party submitted that the travel, tourism and hospitality industry is among the first sectors to be hit by the Covid-19 pandemic. In the light of the afore mentioned plight of both airlines and passengers a public interest litigation was filed before the Hon’ble Supreme Court titled as Pravasi Legal Cell Vs. Union of India and another.

           The Hon'ble Supreme Court has directed the Airlines to process refund to the customers like the Complainant through their Travel Agents such as the Opposite Party. The Hon'ble Supreme Court also specified that the Travel Agents shall process the refund to its customers such as Complainant in the present case, only once refund is received from the concerned Airlines. Hence, it is clear from the Order dated 01.10.2020, as observed by the Hon'ble Supreme Court that it is the sole liability of the concerned Airlines to process the refund or provide with credit shell to the customers, like the Complainant herein, and the concerned Travel Agency, like the Opposite Party herein shall forward the same to the customers as soon as the same received from the concerned Airlines.

        In pursuant to the Order passed by the Hon'ble Supreme Court, the Office of the Director General of Civil Aviation (DGCA) i.c., governing authority of all the airlines, issued a circular dated 07.10.2020 (hereinafter referred to as 'Circular") whereby directions were issued to all the Airlines to strictly follow the Order passed by the Hon'ble Supreme Court. That in the present case, the concerned flight bookings do not fall in any category since the concerned flight booking was cancelled by the Complainant himself and the same has been admitted by the Complainant himself. Hence, the refund in the present case, shall be processed in accordance with CAR dated 22.05.2008. It is submitted that as stated above, in accordance with the Order dated 01.10.2020 and Circular dated 07.10.2020, full refund is only applicable when the concerned flight has been cancelled by the concerned Airline. In the present case, the concerned flight booking has been cancelled by the Complainant with the concerned Airline, i.e., Air India itself and Air India had not cancelled the concerned flight booking and in lieu of the same, in accordance with the User Agreement and the Cancellation Policy of the Opposite Party as well as Air India, which was duly agreed to by the Complainant. Consequently, the applicable concerned cancellation charges shall be applied and the same has been done in the present case as well.  It is important to mention here that Air India, in lieu of the concerned cancellation, as done by the Complainant himself, processed an amount of Rs.84,854/- to the Opposite Party on 03.04.2021 and the Opposite Party proactively forwarded the applicable refund of Rs. 86,261/- to the Complainant on 17.03.2021 vide ARN No: 75503721082046988339445 after the deduction of Rs. 6,730/- as the Non refundable Insurance Fee and Rs. 3,848/- as the applicable K3 tax, which was agreed to by the Complainant by virtue of agreeing to the User Agreement and the Cancellation Policy of the Opposite Party. Hence, the Opposite Party has proactively outperformed all its duties.  The Complainant herein has miserably failed to disclose any cause of action against the Opposite Party and, further, the registered office of the Opposite Party is situated in Gurugram, and also works for gain in Gurugram. Therefore, the Hon'ble Court at Gurugram has the requisite territorial jurisdiction to try and adjudicate upon the present complaint. Hence, the present complaint deserves dismissal at this threshold for want of territorial jurisdiction under Section 34 of the Consumer Protection Act hence to dismiss the complaint. 

4. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as  Ex.A-1 to Ex.A-8. The Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of Opposite Parties documents were marked as Ex.B-1 to Ex.B-6.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

The undisputed facts are that the complainant had booked Flight ticket for his wife Mrs.Mery Nellissery Lonappan, through the Opposite Party on 13.02.2020 on payment of Rs.96,479/-  for the travel on 01.05.2020 from Chennai to San Francisco, U.S.A via New Delhi in Air Flight AI 43 and AI 173 and return ticket was booked for the departure on 29.07.2020 from San Francisco to Chennai via New Delhi in Air India Flight AI- 174 and AI-42. The dispute arose as to the refund of ticket charges on cancellation of Flights.

        The Complainant submitted that the Flight tickets booked by him for travel to Chennai from San Francisco with the Opposite Party for his wife’s travel on 01.05.2020 and her return travel on 29.07.2020, Ex.A-1 and Ex.A-2 were cancelled due to the outbreak of Covid-19 Pandemic and that when the Complainant sought for refund of ticket cost from the Opposite Party through various communications, Ex.A-4 to Ex.A-7 the Opposite Party had not refunded the  cost of the ticket paid by the Complainant. The Complainant had also sent a legal notice dated 28.11.2020 to the Opposite Party, Ex.A-8 , which evoked no response from the Opposite Party.

        The contention of the Opposite Party they are only a service provider, acting as an intermediary who are exempted from the liability and as such the Air India the end service provider who are liable for the deficiency in service and that Air India was not made as a party to the complaint cannot be accepted as the Complainant had paid for the tickets to the Opposite Party and that the Air Lines had refunded the Air fare to the Opposite Party who in turn had refunded the amount to the Complainant.

The Complainant had relied upon the Circular dated 16.04.2020 of the Ministry of Civil Aviation, Government of India, Ex.A-3. Clause 3 of the office memorandum  reads as follows:

        The Ministry of Civil Aviation (MoCA) acknowledges the unusual situation that has arisen due to the lockdown being imposed to contain the further spread of Covid-19 and its consequential effect on the air passengers and air lines. After detailed examination of the grievances received from various quarters, the following advisories are issued. 

1. If a passenger has booked a ticket during the first lockdown period (from 25^th of March to 14^th April, 2020) and the airlines has received payment for booking of the air ticket during the first lockdown period for travel during the same period, for both domestic and international air travel and refund is sought by the passenger against that booking being cancelled the Airline shall refund the full mount collected without levy of cancellation charge. The refund shall be made within a period of three weeks from the date of request of cancellation.
2. If a passenger has booked a ticket during the first lockdown period and the airline has received the payment for booking of air ticket during first lockdown period (from 25^th March to 14^th of April, 2020) for travel during the second lockdown period (from 15^th April to 3^rd of May, 2020) for both domestic and international air travel and the passenger seeks refund on cancellation of the ticket, the Airlines shall refund the full amount collected without levy of cancellation charge. The refund shall made within a period of three weeks from the date of request of cancellation.

After filing of the complaint the Opposite Party had refunded a sum of Rs.86,261/- which was refunded by the Air Lines in accordance with the User Agreement and the cancellation Policy of the Opposite Party as well as Air India, which was duly agreed by the Complainant. As and when the refund was made by the Air Lines the Opposite Party duly processed the refund to the Complainant. After deduction of Rs.6730/- as non refundable  insurance fee and Rs.3848/- as the applicable K-3 Tax. As per the Judgement of the Hon’ble Supreme Court in the case of Pravasi Legal Cell Vs. Union of India and Another relied by both the Complainant and Opposite Party it was held that the refund of the Air Tickets should be made in full without levy of cancellation charges. However in the present case the Opposite Party had  refunded the amount which was refunded by the Air lines towards the ticket fare to the Complainant. The Opposite Party contention that according to the Judgement of the Hon’ble Surpreme Court it is the responsibility of the Air Lines to refund the amount, the Complainant having not impleaded the Airlines as a party to the complaint and the Opposite Party having refunded the sum to the Complainant made by the airlines to the Opposite Party, is not liable to pay any amount to the Complainant, as  the Opposite Party had refunded the ticket fare to the Complainant as received from Air India  therefore there is no deficiency of service. Accordingly Point No.1 is answered.

Point Nos.2 and 3:

As discussed and decided Point No.1 against the Complainant, the Complainant is not entitled for the reliefs claimed in the complaint and hence not entitled for any other relief/s. Accordingly Point No.3 is answered.

20.  

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 27^th of February 2023.

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

List of documents filed on the side of the Complainant:-

Ex.A1	13.02.2020	E-Ticket copy with Booking ID No.INI581580181635
Ex.A2	13.02.2020	Invoice No.1000000085466900
Ex.A3	16.04.2020	Office Memorandum of the Ministry of Civil Aviation, Government of India in F.NoAV-29011/27/2020-DT
Ex.A4	19.10.2020	Screen Shot of the message displayed in website of the Opposite Party
Ex.A5	28.10.2020	Email sent by the complainant to the Opposite Party email id in Ex.A6	31.10.2020	Email sent by the Complainant to Opposite Party email id in
Ex.A7	02.11.2020	Screen shot of the chat between the Complainant and the Opposite Party
Ex.A8	23.11.2020	Legal notice sent to the Opposite Party

List of documents filed on the side of the Opposite Parties:-

Ex.B1	-	Annexure-R-1 Copy of the User Agreement.
Ex.B2	-	Annexure-R-2 Copy of the E-tickets booked by along with Cancellation Policy.
Ex.B3	-	Annexure-R-4 Copy of circular issued by the DGCA dated 07.10.2020.
Ex.B4	-	Annexure-R-5 Copy of the guidelines and circulars dated 24.03.2020 issued by the MHA.
Ex.B5	-	Annexure- R-6 Copy of the Civil Aviation Requirement.
Ex.B6	-	Annexure-R-7 Copy of the guideline issued by the DGCA dated 22.05.2008.

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT