ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not refunding the amount paid towards booking air ticket to go from Bangalore to New york and for refund of Rs.2,73,224/- along with damages and cost of the proceedings and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant wanted to visit New york along with family members during the month of January 2020, he booked two tickets from Bangalore to New york with OP by paying Rs.2,73,224/-, of which Rs.45,299/- being the cost of domestic flight ticket at US.  Due to covid pandemic situation and international travel restrictions imposed by Government of India, the travel plan became impossible. Hence he had to abandon the tour and requested OP company to refund the amount.  Though he contacted the customer care of OP, they were not responsive.  He had to send emails and request letter to OP for refund of flight charges on 26.03.2020.  By way of reply OP intimated that they have processed for refund of US domestic flight charge for Rs.45,299/- INR, whereas they missed in respect of refunding Rs.2,27,925/- INR the flight cost from Bangalore to New York.  Afterwards they also responded and informed that same also would be refunded within 15 working days in their email dated 06.04.2020.  Inspite of it, OP did not respond and refund the amount.  In view of non-refunding the amount, OP has committed criminal offences.  Notice was also issued to OP and inspite of service , OP they have neither replied nor complied.  There is utter negligence on the part of OP in not discharging its duty to refund the amount.  Complainant has been suffering hardship due to non-refund of the amount.  Hence he had to raise a complaint to the National Consumer Forum Grievance Cell, wherein, OP replied admitting their liability and expressing their unconditional apology.  It is also informed by OP to the grievance cell that they would refund the amount as soon as they get the amount from the airlines. Inspite of it, OP has not refunded the amount and hence there is deficiency in service. OP is liable to refund the same with interest penalty and damages.  Hence prayed the commission to allow the complaint.

3.      Upon the service of notice, OP appeared before the Commission and filed the version contending that the complainant suffers from non-joinder of necessary parties as the airlines has not been made as party.  Further the complaint is frivolous, vexatious, baseless, devoid of merits and not maintainable either in law or on facts.

4.      It has admitted that the complainant booked two tickets from Bangalore to New york and return flight ticket by paying Rs.2,27,925/- under booking ID No.TUANG3B8T and also booked two flight tickets from Newyork to Orlando and back by paying Rs.45,299/- and the booking ID SEA12118244652.  Due to covid 2019 pandamic situation resulting in travel restrictions worldwide, complainant requested for refund of the said amount.  The claim of the complainant is false and baseless.  OP is not in fact liable in any manner for deficiency in service or negligence.  Complainant booked the ticket over OP plot form in the airlines selected by the complainants.  The date of travelling was also selected by the complainants.  The same could not be used successfully due to worldwide covid pandemic situation.  

5.      OPPOSITE PARTY is only providing online plot form of various services including booking of tickets, online accommodation, hotel and holiday packages. It is a service provider. It acts as a intermediary between the end user such as the complainant and service provider i.e., the airlines.  The amount paid towards flight tickets have been paid to the concerned airlines, who have issued E tickets upon receiving the said amount.  Since the tickets are cancelled it is the primary duty of the airlines to refund the amount of the ticket.  OP has on its part already raised refund application to claim the applicable refund amount from the concerned airlines and also informed that the complainant is entitled for refund of the entire amount in respect of the booking of the ticket. They will refund the amount when they received the same from the concerned airlines. The airlines have received the application and accepted the same but yet to refund the amount.  In view of the same the complainant has filed this complaint on the wrong assumption that OP is liable to pay the said amount, forgetting for the moment that it is only acting as intermediary in booking the ticket.

6.      As per the DGCA rule 133 A of the aircraft rules and ministry civil aviation order 13030/105/2007 dated 12.05.2008, it has been held that in case of purchase of travel ticket through travel agent/portal, onus of refund shall lie with the airlines as agents are appointed representatives and the airlines shall ensure that the refund process is completed within 30 working days. The KSCDRC has in appeal No.233/2021, Make my trip Pvt. Ltd., -vs- Shanmukha upheld the above directions of the DGCA.   If at all the complainants are entitle for the flight ticket refund the airline is liable to refund the same. In view of the same the allegations made against it are all false, baseless and prayed the Commission to dismiss the complaint.

7.      In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Party?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

9.     POINT No.1 AND 2:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute rather admitted by OP that the complainant booked two tickets through it for travel from Bangalore to New york and also from there to Orlando under International Flight as well as in the domestic flight at US.  It is also not in dispute that due to the pandemic situation of Covid 2019, there were severe restrictions for the airlines and the people for their moment.

10.   Under the above circumstances, complainants could not perform journey, for which they claimed refund of the amount. OP has also admitted that the complainant is entitled for refund of the entire amount, whereas it is its specific contention that it has already initiated the refund process, whereas the airlines has not yet refunded the amount and hence they are not in a position to pay back the same. It is the specific contention that the airlines has to pay the amount and not by it.

11.   It has relied on the circular issued by DGCA wherein it is mentioned that in case of purchase of ticket through travel agent/portal, onus of refund shall lie with the airlines as agents are their appointed representatives. The airlines shall ensure that the refund process is completed.  Under this guideline, OP wanted that the entire liability should be on airlines and not on it.

12.   On perusing the ticket details produced by the OP, a sum of Rs.2,27,925/- has been paid by OP to the airlines on behalf of the complainant to travel from Bangalore to Delhi and then to John F Kenady airport at New york and further Rs.45,334.9 to jet blue airways from LaGuardia airport to organdy international airport and back to New york.  In view of this and as the OP has already initiated refund process with the airlines, though the circular envisages that the amount has to be refunded by the airlines we do not know and the OP has not placed any materials to show that the said amount has been or not been credited to its account.  It is quite usual that the agency are the agent will get back the refund amount and then the same will be passed on to the concerned consumer.  There are quite number of insistences wherein the travel agencies keep the customers amount for themselves for a long period and utilize the same for their own purpose. The said fact cannot be ruled in this case also and further it would be very difficult for the complainant to approach the air India and also Jet Blue airways to seek refund of the amount.

13.   Under the circumstances, we are of the opinion that to direct OP to pay and recover the amount of Rs. 2,27,925/- and claim the same from the airlines as it could be easy for the OP to recover the same as it would be doing business with the said airlines and even it is quite possible for them to have a book adjustment. Under the circumstances not refunding the amount amounts to deficiency in service and hence we answer point No.1 in the affirmative and in the result OP is directed to refund the Rs.2,73,224/- along with interest at 12% p.a., from 26.03.2020 till the date of payment of the entire amount along with damages of Rs.25,000/- and litigation expenses of Rs.10,000/- to the complainant which OP is entitle to recover from the airlines as, as per the said guidelines the airlines ought to have refunded the amount within 30 days which both airlines have failed to adhere to inspite of OP raising the refund process, and answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to refund the Rs.2,73,224/- along with interest at 12% p.a., from 26.03.2020 to till the date of payment of the entire amount.
3. OPPOSITE PARTY is further directed to pay a sum of Rs.25,000/- towards damages and Rs.10,000/- towards litigation expenses to the complainant.
4. OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 23RD DAY OF MARCH 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Confirmation of the booking

Ex P2: Email correspondences wherein OPPOSITE PARTY has admitted to refund the amount within 15 working days

Ex. P3: Notice sent by me to OP

Ex P4: Documents relating to registering the consumer complaint

Ex P5: Legal notice

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Rohini Gajgopal, Manager, Legal of OP

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Resolution

Ex R2: User Agreement

Ex R3: DGCA Circular regarding refund of airline ticket to the passenger of public transport undertaking.

MEMBER                 MEMBER                       PRESIDENT

HAV*