2. In joint reply submitted by OP No.1 and 2, it is pleaded as if complaint not maintainable because role of OP No.1 and 2 is that of booking facilitator, which was duly discharged by getting issued confirmed tickets. It is claimed that request for cancellation was received by cancellation sector from complainants. Present complaint alleged to be filed on conjectures and surmises. There is no deficiency in service on part of OPs and as such consumer complaint not maintainable, but same merits dismissal at limni stage with exemplary cost in view of Section 26 of Consumer Protection Act. Case of complainants and OPs is covered by terms and conditions agreed between them at the time of booking. It is claimed that as per settled position of law, this Forum cannot entertain or interfere in the matter, where terms and conditions of user agreement have been duly arrived at between the parties. This Forum has no jurisdiction to go behind terms of agreement. Rather the parties can be referred to civil court. Besides as per jurisdiction clause of agreement, only courts of NCR Delhi have territorial jurisdiction, more so when through mutual consent parties have agreed to oust jurisdiction of one of the court. No cause of action has accrued either wholly or in part at Mohali and as such this Forum has no territorial jurisdiction. As OPs have no establishment in the territorial jurisdiction of this Forum and as such complaint not maintainable in this Forum. In view of complicated questions of law and facts, voluminous evidence required and as such parties should be referred to competent civil court. Moreover filed complaint alleged to be vexatious and frivolous because of its being filed with motive of harassing OPs. Flight tickets of complainants were cancelled on receipt of request from complainants. Cancellation request was received from an unknown IP address, which does not belong to OP No.1 and 2. OP No.1 and 2 never processed any cancellation of the booking from its end. No quantified loss incurred by complainants though alleged in the complaint. Complainants are not entitled to any damages because they have no supporting proof of sufferance of damages due to acts of omission of OP No.1 and 2. OP No.1 and 2 company is a reputed company acclaimed for tours and travel business and it operates through its offices in New Delhi, Mumbai, Kolkatta, Bangalore, Ahmadabad and Gurgaon. Ankita Mishra, Assistant Manager (Legal) is an authorized officer of OP No.1 and 2. It is admitted that on 25.02.2016, complainants used services of OP Nos.1 and 2 on mobile application and successfully booked air tickets for four persons from Chennai to Colombo. Airline tickets were got booked for scheduled departure of 08.03.2016, but of return departure from Colombo to Chennai on 17.03.2016. Complainants successfully availed their tickets from Chennai to Colombo sector. However, on 17.03.2016 complainants on reaching at desk of Spice Jet Airline i.e. OP No.3 were informed as if their tickets have been got cancelled by OP No.1 and 2. It is claimed that on 08.03.2016 answering OPs received request for cancellation of tickets for Colombo to Chennai sector for scheduled departure on 17.03.2016. After receipt of that request, answering OPs immediately contacted complainants for confirmation of cancellation request, but complainants confirmed that they do not wish to cancel the booking. On this development, booking of complainants was not cancelled and confirmation of the same was given to complainants. This confirmation shared vide email dated 11.03.2016 with complainants. Thereafter on 12.03.2016 OP No.1 and 2 again received an online cancellation request for Colombo to Chennai sector, on which complainants were tried to be contacted, but could not be contacted. As request was generated for cancellation of booking for the aforesaid sector, so OP No.1 and 2 were duty bound to initiate cancellation as per request made by complainants. OP No.1 and 2 have not done anything out of the context at their own, but they acted in accordance with request of complainants. In case a customer/user wants to cancel his booking, then he has to fill in necessary details online including contact number, PNR issued against the booking and as such it is claimed that request for cancellation was made with the consent of complainants. Answering OPs tried to the best of their ability to check the source of IP address from where cancellation request was received, but till date no such information has been retrieved. In view of this it is claimed that cancellation request was raised by the complainants and OP No.1 and 2 stood discharged of their liabilities. Applicable refund of Rs.5,162/- has already been processed back to the account of complainants. Payment was made along with cash back of Rs.1,551/- by way of crediting the amount in the account of complainants. Other averments of the complaint denied.
3. In separate reply filed by OP No.3, it is claimed that complainants have no cause of action against answering OP and more over no relief claimed against OP No.3 and as such present complaint deserves to be dismissed with heavy cost. Rather it is claimed that neither OP No.3 is necessary and nor proper party. There is no allegation of deficiency or negligence in services on part of OP No.3. This Forum has no territorial jurisdiction because OP No.3 has no branch office in Mohali and moreover no part of cause of action accrued in Mohali within jurisdiction of this Forum. Complainants availed tickets from Colombo to Chennai and office of OP No.3 is at Gurgaon and as such complaint could have been filed either in Chennai courts or in courts having jurisdiction over Gurgaon area. Factum of purchase of tickets not denied, but other facts mentioned in the complaint not pertains to OP No.3 and as such prayer made for dismissal of the complaint by claiming that same being false , frivolous and misconceived, deserves dismissal.
4. Counsel for complainants tendered in evidence affidavit of complainant No.1 as Ex.CW-1/1 and documents Ex. C-1 to Ex.C-12 and Mark-A and thereafter closed evidence. On the other hand Counsel for OP No.1 and 2 tendered in evidence affidavit of Ms. Ankita Mishra, Deputy Manager Legal Ex OP-1/1 and documents Ex.OP-1 to Ex. OP-3 and closed evidence. Counsel for OP No.3 tendered in evidence affidavit of Vijay Roy, Sr. Manager Ex.OP3/1 and closed evidence.
5. Written arguments submitted by complainant only. Oral arguments heard and records gone through.
6. Ex.C-1 is e-ticket copy, got booked by complainants through Make My Trip. This Ex.C-1 produced for showing that all the four complainants were to depart from Chennai on 08.03.2016 and arrive at Colombo on the same day at 12.20 hours. Further perusal of Ex.C-1 reveals that all the four complainants were to depart from Colombo on 17.03.2016 at 02.45 hours through flight of OP No.3 and were to reach at Chennai on 17.03.2016 itself at 04.05 hours. There is no dispute regarding the fact that complainants availed services of OP No.1 and 2 for journey from Chennai to Colombo on 08.03.2016, but dispute remains as to whether cancellation of tickets for journey from Colombo to Chennai on 17.03.2016 was as per intimation given by complainants to OP No.1 and 2 or the same was done by OP No.1 and 2 without consent and permission of complainants. As tickets were got booked for journey from Chennai to Colombo and back through OP No.1 and 2, and as such liability remains of OP No.1 and 2 to inform complainants about cancellation. Cancellation of tickets can be done by complainants by logging on to the customer support section of website of Make My Trip. It is the case of OP No.1 and 2 that cancellation of tickets was done on request received in respect thereto from complainants. This cancellation request was received from an unknown IP address which does not belong to OP No.1 and 2. It is contended by counsel for OP No.1 and 2 that there are very less chances that cancellation request can be initiated by any person other than the person having booking details of itineracy, PNR number, mobile number, registered email address etc. and as these details were provided by complainants themselves for cancellation and as such it is vehemently contended that cancellation of tickets for 17.03.2016 was done at the instance of complainants and not at the instance of anybody else. However, all these contentions vehemently refuted by counsel for complainants by contending that no request for cancellation ever submitted by complainants or any of them. If details of PNR number or mobile number or registered email address were bound to be with complainants, then those details also bound to be with booking agent i.e. OP No.1 and 2 and as such merely because booking details known to complainants, due to that alone it cannot be inferred that request for cancellation was submitted by complainants and not by anybody else.
7. If contents of Para No.6 of reply submitted by OP No.1 and 2 taken into consideration that cancellation was processed from an unknown IP address, which does not belong to OP No.1 and 2, then it was duty of OP No.1 and 2 to ascertain as to from which IP address cancellation request was processed or as to whom the IP address belonged, from which request for cancellation was processed. Such attempt not shown to be made by OP No.1 and 2 and nor they made any efforts for raising the matter with Cyber Crime or any other authority for finding as to whose IP address was used for submitting cancellation request. Had such precaution been taken by OP No.1 and 2, then they would have known that the request for cancellation as submitted was processed through proper IP address. Non taking of any steps for ascertaining IP address from which cancellation request submitted itself is an act of negligence on part of OP No.1 and 2, more so when as per case of OP No.1 and 2 themselves they are well reputed and highly acclaimed tour and travel company having its offices in New Delhi, Mumbai, Kolkata and Bangalore etc. When OP No.1 and 2 company is having offices at many places in India and also has branch office in New York, then it has better resources for ascertaining that the fake IP address is not used for cancellation of booking got done by complainants through them. It is admitted case of OP No.1 and 2 that complainants used mobile application on 25.02.2016 for successfully booking air tickets for 4 persons from Chennai to Colombo for scheduled departure of 08.03.2016 and then back from Colombo to Chennai on 17.03.2016. So virtually OP No.1 and 2 themselves have admitted that online tickets were got booked by complainants by use of mobile application of OP No.1 and 2. If that be the position, then responsibility remains of OP No.1 and 2 to ensure that services availed by complainants regarding booking of air tickets are utilized by them properly because they have paid for the same. Total booking cost of four tickets admitted in Para No.10 of the written reply of OP No.1 and 2 as Rs.41,916/-. So there is no occasion with complainants to approach OP No.1 and 2 again and again for confirmation that they will be permitted to avail services for return journey of 17.03.2016 again.
8. Ex.C-2 is email correspondence dated 09.03.2016 sent by Amandeep Kaul, Customer Service Team of OP No.1 and 2 for calling upon complainants to confirm if they want to proceed with cancellation request of booking for return journey or not and in response to same, email dated 10.03.2016 at 12.10 p.m. was sent by complainant No.1 to the effect that they have not requested for cancellation. Rather through this email response of 10.03.2016, it is mentioned by complainant No.1 to OP No.1 and 2 that they want confirmation of their tickets because they will be travelling on the scheduled date. So it is obvious that complainants even after receipt of email from OP No.1 and 2 informed them that they have not requested for cancellation of tickets. It was thereafter that through email Ex.C-3 dated 11.03.2016, OP No.1 and 2 through Amandeep Kaul informed complainants as if they have not done any cancellation for the booking and as such it is obvious that complainants uptill 11.03.2016 kept on informing OP No.1 and 2 that they never contemplated for cancellation of booking for return journey. If that be the position, then it was for OP No.1 and 2 to confirm from complainants about their booking for return journey of 17.03.2016, but response with respect to same not submitted by OP No.1 and 2 and as such fault lays with OP No.1 and 2 in this respect also.
9. Through Ex.C-4 email, OP No.1 and 2 claimed that they are working on resolving the issue of cancellation of their return tickets. Through Ex.C-4 time was sought from complainants by OP No.1 and 2 for investigating the matter. Rather through Ex.C-4 complainants were disclosed that if possible, new booking will be done and invoice will be sent. Through Ex.C-4 itself request was submitted by OP No.1 and 2 to complainants that refund of fare difference will also be made if fault is there on part of OP No.1 and 2. So in view of contents of Ex.C-4, there is no escape from the conclusion that OP No.1 and 2 defaulted in not verifying the matter particularly regarding submitted cancellation request by complainants. However, complainants prior to their scheduled return journey of 17.03.2016 called upon OP No.1 and 2 to confirm about their booking. Being so, negligence and fault remains with OP No.1 and 2 and not with complainants at all.
10. Perusal of Ex.C-5 reveals that complainants had to spend Rs.35,900/- for undertaking return journey from Colombo to Chennai on 17.03.2016. As per Ex.C-5 complainants were to depart from Colombo on 17.03.2016 at 17.05 hours and they were to reach Chennai on 17.03.2016 at 18.45 hours. However, earlier scheduled return departure time from Colombo on 17.03.2016 was 02.45 hours, but time of reaching at Chennai was 04.05 hours of 17.03.2016 as disclosed by contents of Ex.C-1. So this evidence available on record establishes that complainants had to suffer for about 14 hours at Colombo because their departure from Colombo stood delayed by this period. During this period, complainants bound to have rest in a hotel room and also were supposed to have lunch and even avail facility of transportation and as such complainants spent Rs.35,900/- for tickets through Air India as well as 13430 in Hotel Goodwood Plaza Ltd. as mentioned in Ex.C-6 as well as on lunch in Coffee Bean and Tea Leaf as mentioned in Ex.C-7, which amount are liable to be taken into consideration for assessing the quantum of compensation for mental agony and harassment and financial loss. Though in Ex.C-6 mention of 13430 as expenses made, but those expenses borne in Sri Lanka rupees equal of which is Rs.6,150/- approximately in Indian Rupees as per para No.8 of the complaint and as such amount of Rs.6,150/- in Indian currency liable to be taken into consideration while allowing compensation.
11. Complainants failed to avail services of already booked journey from Chennai to Bangalore since from 05.10 A.M. on 17.03.2016 and as such they had to spent amount of Rs.2,476/- extra for such travelling as borne from e-ticket Ex.C-8 and this amount also liable to be taken into consideration.
12. Ex. C-11 and Ex.C-12 are copies of legal notice sent by the complainants to OPs and as such virtually complaint has been filed after serving legal notice on OPs. As fault of cancellation of scheduled return journey is of OP No.1 and 2, because they did not take due care of conduct of investigation as held above, and as such OP No.3 air line through which complainants were to depart on 17.03.2016 is not at fault. It was this act of cancellation of booking that goaded OP No.3 not to provide services and as such fault does not remain with OP No.3 at all. So OP no.3 cannot be held liable for deficiency on part of OP No.1 and 2.
13. Earlier complainants filed complaint before Ld. DCF UT, Chandigarh, but same was withdrawn with liberty to file fresh complaint on the same cause of action before the appropriate Authority/Court/Forum/Commission as revealed by contents of Ex.C-13. As online booking was done by the complainants through their credit card in area of SAS Nagar Mohali and as such certainly this Forum has jurisdiction because after receipt of payment by OP No.1 and 2, they rendered deficient services by not providing facility of scheduled return trip journey.
14. Ex.OP-1 is copy of resolution passed by Board of Directors of Make My Trip showing as if Ms. Ankita Mishra, Assistant Manager- Legal is competent to pursue cases on behalf of OP Ns.1 and 2 and as such submitted affidavit of Ms. Ankita Mishra Ex.OP-1/1 liable to be taken into consideration. Counsel for OP No.1 and 2 vehemently argues that role of OP No.1 and 2 is of facilitator only for booking of air tickets and as such liability on OP No.1 and 2 cannot be fastened. That submission has no force because if we go by contents of Ex.C-1, then it is made out as if air ticket booking charges for destination and return journey were issued by OP No.1 and 2 after acceptance of amount online from the complainants. If role of OP No.1 and 2 is just a facilitator, then it was not for OP No.1 and 2 to accept amount and issue e-ticket. In view of issue of e–ticket Ex.C-1 by OP No.1 and 2, it is obvious that OP No.1 and 2 assured complainants of comfort of their journey to destination and back at Chennai. When such undertaking given by OP No.1 and 2 by issue of e-ticket Ex.C-1, then now OP No.1 and 2 cannot wriggle out from their role of rendering due services to the complainants, more so when cancellation of tickets through logging in to the customer support section of OP No.1 and 2 envisaged by second page annexed with Ex.C-1 itself.
15. It is also contended by counsel for OP No.1 and 2 that office of OP No.1 and 2 is not situate at Mohali and in view of exclusionary jurisdiction clause contained in Ex.OP-2 regarding jurisdiction of courts of NCR, New Delhi only, this Forum has no jurisdiction. This submission advanced by counsel for OP No.1 and 2 has no force because payments transmitted online from Mohali and virtually communication of acceptance of e-booking tickets received by complainants at Mohali and as such virtually communication of acceptance conveyed to complainants at Mohali. Being so this Forum has jurisdiction.
16. Ratio of case titled as Cosmos Infra Engineering India Ltd. versus Sameer Saksena and Anr, 2013 (1) CPC 31 (NC) lays that where relief is claimed as compensation for a wrong to an immovable property situate within the jurisdiction of different courts, then suit can be filed in any of the courts within whose jurisdiction any portion of the property is situate. However, benefit from ratio of this case not available to counsel for OP No.1 and 2 because present is not a case for claiming compensation with respect to a wrong to an immovable property. Rather present is a case of claim for compensation for the rendered deficient services with respect to a contract, acceptance of which communicated to the complainants in territorial jurisdiction of this Forum. No part of cause of action virtually accrued in this case to the complainants in territorial jurisdiction of courts at Delhi and as such virtually through agreement Ex. OP-2 jurisdiction sought to be conferred on a court having no territorial jurisdiction. If two or more courts have territorial jurisdiction only then the parties by choice can restrict the territorial jurisdiction to any of those courts. This is not the position in the case before us and as such exclusionary jurisdiction clause of courts at Delhi cannot be enforced in this case.
17. Even in case titled as Air Arabia through Competent Officer versus Pagdaloo Prashant Naidu and 4 Ors, 2016 (3) CPR 713(NC) it has been held that when due to cancellation of scheduled flight, complainants faced harassment for six hours, then for the deficient rendered services complainants liable to be compensated, more so when prior intimation of flight cancellation not given to the complainants. Same is the position in the case before us and as such certainly complainants are entitled to compensation.
18. In case titled as Gokul Chandra Chakraborty and Ors vs. Chairman and Managing Director Air India Ltd. and Ors. bearing complaint case No.CC/288/2014 decided on 30.01.2017 by Hon’ble West Bengal State Consumer Disputes Redressal Commission, Kolkata it has been held that in case trend is adopted of attributing gross negligence to system error, without presenting any evidence to back up the charge, then raised objection is unprofessional. Same is the position in the case before us because investigation not shown to be carried out by OP No.1 and 2 despite assurance of such investigation communicated to complainants, as discussed above.
19. It is the case of OP No.1 and 2 put forth through Para No.13 of their reply under heading “preliminary objections” that refund of Rs.5,162/- has already been done in the same way as the cash back of Rs.1,551/- has been done. So virtually out of spent amount of Rs.35,900/- on purchase of tickets through Ex.C-5, complainants have got back Rs.6,600/-. So loss of fare on account of purchase of new tickets for 17.03.2016 was of Rs.28,000/- approximately. Rs.6,150/- allowed in view of contents of Ex.C-6 more in addition to the expenses on lunch of Rs.1,000/-. As transportation charges of Rs.6,150/- also were incurred from Chennai to Bangalore journey as held above, and as such by adding these amounts, entitlement of complainants for the sufferings of financial loss assessed at Rs.45,000/-. As complainants had to remain uncomfortable for 14 hours due to cancelation of their scheduled return journey on 17.03.2016 and as such an amount of Rs.80,000/- i.e. Rs.20,000/- per complainant allowed on account of mental agony and harassment and sufferings. Complainant No.2 is handicapped and as such his sufferings bound to be greater as compared to remaining complainants and as such Rs.15,000/- more allowed in favour of complainant No.2 in addition to his 1/4th share of amount of Rs.1,25,000/- as assessed above. Complainants also entitled to litigation expenses. To see that OP No.1 and 2 makes payment in stipulated time, it is ordered that in case payments not made within stipulated period, then OP No.1 and 2 will pay interest on the above adjudged amounts @ 7% per annum from today onwards till payment.
20. Contents of Ex.OP-3 further shows as if request for cancellation submitted by using user ID of Amandeep Kaushal agent of OP No.1 and 2 and as such cancellation was processed and done by OP No.1 and 2 without concurrence of complainant.
21. No other worth mentioning point argued.
22. As a sequel of above discussion, the complaint allowed against OP No.1 and 2 only in terms that they will pay composite amount of Rs.1,25,000/- on account of loss, sufferings, mental agony and harassment to the complainants. In addition to this amount of Rs.1,25,000/-, another amount of Rs.15,000/- more allowed in favour of complainant No.2, in addition to his 1/4th share in the above referred amount of Rs.1,25,000/-. Litigation expenses of Rs.10,000/- more allowed in favour of complainants and against OP No.1 and 2. Payment of amount of compensation and litigation cost be made within 30 days from the date of receipt of certified copy of the order, failing which OP No.1 and 2 will be liable to pay interest on all the above referred amounts @ 7% per annum from today onwards till payment. Complaint against OP No.3, however, is dismissed. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
August 14, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
