Order by:
Smt.Aparana Kundi, Member
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that the complainant purchased air tickets before lockdown from the opposite parties, detail of which is as under: -
i. Booking reference SQLM4A dated 03.12.2019 persons named Kambo Harbhajan Singh, Kambo Harjot Singh.
ii. Booking reference KN7VLU dated 04.12.2019 (ticket for 5 persons named Kambo Harjaap Singh Master (Child), Kambo Mandeep Kaur Mrs., Kambo Raminder Pal Singh, Kambo Sahij, Kambo Sukhman Annextuen (Child).
iii. Booking reference OPUD9F dated 06.02.2020 person named Kambo Gagandeep Singh.
All the tickets were return tickets. The complainant made a payment of Rs.6,63,500/- to the opposite parties, through his bank account bearing No.50200030723321 of HDFC Bank branch Moga, Punjab, India, detail of which is as under: -
i. Rs.1,25,000/- on 29.11.2019
ii. Rs.4,63,500/- on 04.12.2019
iii. Rs.75,000/- on 06.01.2022
In the mean time, due to Covid-19, the flights were cancelled and the government had announced that the amount of tickets will be refunded to the concerned persons. In this regard complainant contacted the opposite party No. 2 Sunil Aggarwal telephonically as well physically number of times and requested him to refund the above payment of Rs.6,63,500/- which has been paid by the complainant to the opposite parties as mentioned above on which the opposite party No. 2 replied that as soon as possible the amount will be transferred in the account of complainant but inspite of number of requests made by the complainant, the opposite parties did not transfer even a single penny in the account of complainant. Further alleged that opposite party No.2, owner of the above said travel agency dealing hand and authorized signatory forcibly wants to give vouchers to the complainant. Further alleged that the purpose to visit India by the passengers has also been elapsed so, there is no need of purchasing air tickets by the complainant, so it is not possible for the complainant to redeem the voucher in future, so vouchers serve no purpose for the complainant. The complainant visited personally to the office of Opposite Parties many times to get the refund of the tickets, but all in vain. A legal notice dated 16.03.2022 was also sent by the complainant to the Opposite Parties, through his counsel, but the Opposite Parties gave a vague reply of the same. One complaint was also sent by the complainant through email as well as registered post to the Opposite Party No.3 and copy of the same is also sent to other Opposite Parties, but all in vain. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to refund the amount of Rs.6,63,500/- to the complainant alongwith Rs.1,92,415/- of its interest @ 12 % per annum for 29 months.
b) To pay an amount of Rs.2,00,000/- as compensation on account of unfair trade practice, deficiency in service and harassment as well as mental agony suffered by the complainant.
c) To pay an amount of Rs.33,000/- at litigation expenses.
d) Any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Parties No.1 & 2 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the present complaint under reply is not maintainable as the same is nothing but is an extortion tactic resorted to by the complainant from the opposite parties by misstating the facts, actual and factual position with regard to the alleged controversy of refund amount of the travel tickets. The complainant just to bring a bad name to the answering opposite parties as well as to cause them an irreparable loss has filed the present false complaint in order to extract money from them. The complainant has not disclosed true facts to this Commission. Actually, the complainant and his family had purchased 10 tickets instead of 8 tickets through the answering opposite parties in different categories i.e. present tickets in question are in non refundable category comparatively cheap tickets whereas other two tickets i.e. E - ticket AC014-3316872266-67 for Sh.Pritpal Singh Kambo and E-ticket AC014-3316872264-65 for Mrs.Paramjit Kaur Kambo were under refundable category. So, vide email dated 17.09.2020 the answering opposite parties had got refunded the amount of above said two tickets meant for Pritpal Singh Kambo and Mrs. Paramjit Kaur Kambo at the request of complainant. Further averred that at the time of purchase of said tickets, the answering opposite parties had categorically and specifically apprised the complainant about the nature of the above said 8 tickets purchased by him for himself as well as for his family members. Further averred that the tickets involved in the present complaint are concerned, the answering opposite parties had made a diehard efforts by corresponding with the concerned British Airways i.e. opposite party no.3 on numerous occasions for refund of the full amount of the tickets in question at the instance of complainant despite the fact of non-refundable nature of the said tickets whereas it was well within the knowledge of complainant that amount of above said 8 tickets in question are not refundable - rather refund voucher is to be issued qua the same by the concerned British Airways i.e. opposite party no.3 and it will remain valid upto 30.09.2023. Answering opposite parties also forwarded the legal notice issued by the complainant through his counsel to British Airways i.e. opposite party no.3 for redressal of his so called grievance i.e. refund of full amount and which could be possible only as per the policy and rules of British Airways i.e. opposite party no.3, whereas there is no fault or deficiency on the part of the answering opposite parties for securing the refund/refund voucher in favour of complainant or his family members from opposite no.3. Son of opposite party no. 2 had also accompanied the complainant to British Airways Office i.e. Opposite Party No.3 for his satisfaction and proper representation which is best possible at the hands of the answering opposite parties. As such there is no cause of action or ground with complainant to seek or to demand any alleged amount of Rs.663500/- with interest along with alleged damages and compensation for Rs.2,00,000/- or any other charges as alleged in the complaint. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Opposite Party No.3 filed written reply taking preliminary objections therein inter alia that the complaint of the Complainant is time barred as the same has been filed beyond a period of two years from the date of arising of the cause of action. The present complaint having been filed on or after 01.06.2022 i.e. beyond the period of limitation of two years from either the date of booking or the date of cancellation or the date of commencement of travel or the date of return travel as can be seen from the table as mentioned in para no.1 of the written reply of Opposite Party No.3. The complainant has failed to mention any specific dates in paragraph 13 so as to demonstrate as to how the complaint is within limitation and a mere averment that "cause of action arose from time to time when the Opposite Parties failed to admit the claim of the Complainants" is vague and cannot be the basis of presuming that the Complaint is within time. The present complaint is not maintainable as the actual consumers, namely the passengers in whose name the tickets have been booked, have not been made a party to the present complaint, however the complaint has been filed in the name of one Mr. Pritpal Singh Kambo in whose name no ticket under dispute was booked. In the absence of any written authorization from the passengers, namely, Mr. Harbhajan Singh Kambo, Mr. Harjot Singh Kambo, Master Harjaap Singh Kambo, Mrs. Mandeep Kaur, Mr. Raminder Pal Singh Kambo, Ms. Sahij Kambo, Sukhman Kambo (child) and Mr. Gagandeep Singh Kambo in whose names the tickets were issued, the Complainant, Mr.Pritpal Singh Kambo is not entitled to maintain the present complaint. Further averred that as per the Conditions of Carriage of Opposite Party No.3, in case of cancellation for reasons beyond the control of the passenger, in case of non-refundable tickets, a passenger may be entitled to credit vouchers of the value of the ticket which can be redeemed for future use. Moreover, even if a case of refund is made out, it is only the person who has made the payment to the airline is entitled to a refund and in exceptional cases, the person named on the ticket is entitled to the refund. In the present case, the payment was received by the airline from the travel agent and therefore, the Complainant being, neither the person who made the payment to the airline nor being the passenger named on the ticket is not entitled to the refund of the ticket as claimed in the prayer clause, from Opposite Party No.3. Opposite Party No.3 in written reply put reliance on the relevant pages of the Conditions of Carriage of British Airways. Further averred that in the present case, tickets purchased were non-refundable tickets and the present case is a case of voluntary cancellation. On merits, it is submitted that flight No. BA 098 from Toronto to London was duly operated on 18/19.03.2020 by Opposite Party No.3 and the cancellation in respect of the entire ticket in respect of all the passengers except Mr. Gagandeep Singh Kambo was made by the travel agent patently on the instructions of the complainant. As on the date of the cancellation having been made, no flight had been cancelled by Opposite Party No.3. Likewise for the passenger, Mr. Gagandeep Singh Kambo, who was booked to fly from Vancouver to London on flight No. BA 084 on 18/19.03.2020, the said flight was duly operated by Opposite Party No.3 and the ticket of Mr.Gagandeep Singh Kambo was voluntarily cancelled before any cancellation of flights was announced by Opposite Party No.3 on account of Covid 19. In the aforesaid circumstances, the passengers who had booked non-refundable tickets, were at best, entitled to credit vouchers on fulfilling the conditions under Article 3 of the Conditions of Carriage. Further alleged that the passengers whose tickets are in dispute in the present complaint were scheduled to travel into India from Canada and the flights on which the passengers were scheduled to commence their travel were from Toronto to London (that is not ex-India) were duly operated and there was no announcement of cancellation in respect of the said flights. It is significant that the complainant has not mentioned the specific date on which the complainant approached Opposite Party No.2 for the refund of the amount said tickets. Further alleged that the tickets in question in the present complaint were for travel ex Toronto/Vancouver in Canada and not from within India and therefore any policy of the Government of India is not applicable to the said tickets. Further averred that as per the Conditions of Carriage and the fact that the tickets in question were non-refundable tickets which were voluntarily cancelled on the instructions of the passengers even though at the time of cancellation of the bookings by the passengers. The flights were scheduled to operate and in fact the flight no.BA 098 from Toronto to London and flight No.BA 084 from Vancouver to London were duly operated by Opposite Party No.3, the alleged policy of refund due to Covid-19 is not applicable to the tickets in question in the present complaint. All other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
4. In order to prove his case, complainant tendered in evidence his affidavit Ex.CW1/A alongwith copies of documents Ex.CA to Ex.CK.
5. To rebut the evidence of complainant, Opposite Parties No.1 & 2 tendered in evidence affidavit of Sh.Sunil Aggarwal, Proprietor of M/s Aggarwal Travel Ex.OP1, 2/A along with copies of documents Ex.OP1, 2/1 to Ex.OP1, 2/7. Whereas, Opposite Party No.3 tendered in evidence affidavit of Sh.Ajay James, Regional Commercial Manager of Opposite Party No.3 Ex.RW/1 alongwith copies of documents Ex.R3/1 to Ex.R3/4.
6. We have heard the counsel for the parties and gone through the written arguments submitted on behalf of the parties and also gone through the documents placed on record.
7. There is no dispute that complainant booked air tickets for himself and his family members from Opposite Parties No.1 & 2, the detail of which is mentioned as under:-
i. Booking reference SQLM4A dated 03.12.2019 persons named Kambo Harbhajan Singh, Kambo Harjot Singh.
ii. Booking reference KN7VLU dated 04.12.2019 (ticket for 5 persons named Kambo Harjaap Singh Master (Child), Kambo Mandeep Kaur Mrs., Kambo Raminder Pal Singh, Kambo Sahij, Kambo Sukhman Annextuen (Child).
iii. Booking reference OPUD9F dated 06.02.2020 person named Kambo Gagandeep Singh.
It is also not disputed that complainant has made the payment of Rs.6,63,500/- to Opposite Parties no.1 & 2. However, the main grievance of the complainant is that due to Covid-19 the flight were cancelled and the government had announced that the amount of tickets will be refunded to the concerned persons, but despite that Opposite Parties no.1 & 2 has not refunded the amount of aforesaid tickets to the complainant. However, the main grievance of the complainant is that Opposite Parties have not refunded the amount of the tickets, which as per the instructions of the Government, the Opposite Parties have to refund.
8. On this, the plea taken by the Opposite Parties no.1 & 2 is that the complainant and his family had purchased 10 tickets instead of 8 tickets through opposite parties no.1 & 2 in different categories i.e. present tickets in question are in non refundable category comparatively cheap tickets whereas other two tickets i.e. E - ticket AC014-3316872266-67 for Sh.Pritpal Singh Kambo and E-ticket AC014-3316872264-65 for Mrs.Paramjit Kaur Kambo were under refundable category. So, vide email dated 17.09.2020 the opposite parties no.1 & 2 had got refunded the amount of above said two tickets, but other tickets were in non refundable category, therefore the refund of the other tickets could not be made and refund of full amount, if any could be possible only as per the policy and rules of British Airways. Further contended that Opposite Parties No.1 & 2 made diehard efforts to get the refund of tickets in question from Opposite Party No.3 and from time to time they sent many mails to Opposite Party No.3 for refund, but Opposite Party No.3 gave no ear to them and even bypass the notification of Government of India for refund of tickets. To prove this fact, Opposite Parties No.1 & 2 placed on record copies of emails Ex.OP1, 2/4 to Ex.OP1, 2/7.
9. On the other hand, the first plea taken by the Opposite Party No.3 is that complaint is time barred as the same has been filed beyond a period of two years from the date of arising of the cause of action. We do not agree with the aforesaid contention of Opposite Party No.3, as ld. counsel for the complainant put reliance of the Order dated 08.03.2021 of Supreme Court of India in Suo Motu Writ Petition (Civil) No.3 of 2020, vide which, the period of limitation for any suit, appeal, application or proceeding has been condoned, the relevant para of the said order is reproduced as under:-
In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
As vide abovesaid order, Hon’ble Supreme Court of India had condoned the limitation period from 15.03.2020 to 14.03.2021. So, the present complaint is well within the limitation period.
10. The second plea taken by the Opposite Party No.3 is that as the actual consumer, namely the passengers in whose name the tickets have been booked, have not been made a party to the present complaint and in the absence of any written authorization from the passengers, in whose name tickets were issued, the present complaint is not maintainable. This plea taken by the Opposite Party No.3 is also not sustainable. No doubt the passengers in whose name tickets were purchased were not impleaded as party to the present complaint, but perusal of the record shows that the tickets were purchased by Pritpal Singh Kambo (complainant) and moreover account of statement Ex.CE placed on record also reveals that the payment of the tickets in question were made from the account of the complainant, so there is no requirement of written authorization from the other passengers.
11. Ld. counsel for Opposite Party No.3 has also taken the plea that the tickets in question were in non refundable category, so the refund of the tickets in question cannot be made. But the aforesaid contention raised by the Opposite Parties No.1 & 2 is not maintainable, as Government of India, vide letter/circular dated 07.10.2020 issued directions ‘regarding full refund on cancellation of air tickets during Covid 19 lockdown’, in the said Circular in para no.2, it is mentioned as under:-
2. As per the directions issued by Hon’ble Supreme Court of India, in its above referred judgement, the passengers whose tickets were cancelled due to covid-10 and are seeking refund can be categorized as under:-
(i) Passenger who booked tickets during lockdown for travel during lockdown i.e. from 25th Mar 2020 to 24th May 2020.
(ii) Passenger who booked tickets any time prior of lockdown but journey upto 24th May, 2020 and cancelled due to Covid-19.
(iii) Passengers who booked ticket anytime but for journey after 24th May 2020.
Ld. counsel for Opposite Party No.3 has also taken the plea that in case of non refundable tickets, a passenger may be entitled to credit vouchers for future travel and complainant was also asked for vouchers, but he refused to accept vouchers, rather he demanded full refund. If we take up this plea of Opposite Party No.3, then reliance has also been made on the directions issued by Government of India vide letter/circular dated 07.10.2020 ‘regarding full refund on cancellation of air tickets during Covid 19 lockdown’, the relevant para of the said circular is reproduced as under:-
4 (a) In cases where passenger have purchased the ticket through an agent, and credit shell is issued in the name of passenger, such credit shell is to be utilized only through the agent who has booked the ticket. In cases where tickets are booked through agent, credit shell as issued in the name of the passenger which is not utilized by 31st March, 2021, refund of the fare collected shall be made to the same account from which account amount was received by the airline.
12. It is evident from the emails placed on record by Opposite Parties No.1 & 2 that he made diehard efforts to get the refund of tickets in question from Opposite Party No.3 and from time to time they sent many mails to Opposite Party No.3 for refund, but Opposite Party No.3 gave no ear to them and even bypass the notification of Government of India for refund of tickets. So, we find no deficiency in service on the part of Opposite Parties No.1 & 2.
13. In view of the above facts and circumstances, we find that Opposite Party No.3 has rendered deficient services by not refunding the amount of tickets in question even after the notification ‘regarding the refund of tickets’ issued by Government of India. Hence, the present complaint is partly allowed against Opposite Party No.3 and Opposite Party No.3 is directed to refund the amount of the tickets in question i.e. Rs.6,63,500/-(Rupees Six Lakh Sixty Three Thousand Five Hundred only) to complainant alongwith interest @ 8% p.a from the date of travel i.e. 18.03.2020 till its actual realization. Opposite Party No.3 is further directed to pay Rs.20,000/-(Rupees Twenty Thousand only) as compensation on account of harassment, mental tension suffered by the complainant and Rs.10,000/- (Rupees Ten Thousand only) as litigation expenses. The complaint against Opposite Parties No.1 & 2 stands dismissed. The pending application(s) if any also stands disposed of. The compliance of the order made by the Opposite Party No.3 within 45 days from the date of receipt of copy of this order, failing which, the Opposite Party No.3 is further burdened with additional cost of Rs.10,000/- (Rupees Ten Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
