Kanwal Nain Singh filed a consumer case on 12 Nov 2024 against M/s Amazon Seller Services Pvt. Ltd. in the DF-II Consumer Court. The case no is CC/107/2021 and the judgment uploaded on 13 Nov 2024.
Chandigarh
DF-II
CC/107/2021
Kanwal Nain Singh - Complainant(s)
Versus
M/s Amazon Seller Services Pvt. Ltd. - Opp.Party(s)
In Person
12 Nov 2024
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
U.T. CHANDIGARH
Consumer Complaint No.
:
CC/107/2021
Date of Institution
:
15/02/2021
Date of Decision
:
12/11/2024
Kanwal Nain Singh son of Shri Amarjit Singh, 1356, Sector 44-B, Chandigarh 160047.
3.M/s Go Airlines (India) Ltd., 1st Floor, C-1, Wadia International Centre, Pandurang Budhkar Marg, Worli, Mumbai 400025.
…. Opposite Parties
BEFORE:
SHRI AMRINDER SINGH SIDHU
PRESIDENT
SHRI BRIJ MOHAN SHARMA
MEMBER
ARGUED BY:
Complainant in person.
Sh. Chetan Gupta, Counsel for OP-1
Sh. Atul Sharma, Counsel for OP-2
Ms. Niharika Goel, Adv. Proxy for Sh. P.M. Goyal, Counsel for OP-3.
ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT
The complainant has filed the present consumer complaint alleging that on 21.5.2019 he booked air ticket for self and spouse through OP-1 for travel on 20.4.2020 from Chandigarh to Srinagar. However, due to lockdown all flights were grounded and journey could not be performed. OP-3 announced free rescheduling of all flights by passengers for travel within one year of travel date. Complainant visited the site of OP-3 to get ticket rescheduled to 19.9.2020 but the software did not clear rescheduling for free an demanded change fee of ₹4,450/-. Complainant approached OP-1 telephonically as well as by email for help but it asked to contact OP-2. Complainant tried to contact the OPs number of times but he was kept on hold and the calls were not attended. Complainant also sent number of emails. Due to non scheduling of flight complainant abandoned the programme of travelling to Srinagar and sent legal notices via emails. On 8.9.2020 and 19.9.2020, complainant got SMS and call from OP-3 that the flight from Chandigarh to Srinagar on 19.9.2020 had been rescheduled to depart at a time later than scheduled. However, as no confirmation was received, complainant could not have boarded the flight. Under these circumstances, complainant cancelled the ticket online with OPs and thereafter sought refund vide email but with no success. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, complainant has filed the instant consumer complaint seeking refund of the amount paid alongwith interest, compensation and litigation expenses.
In its written version OP-1 averred that it operates and manages the e-commerce marketplace and providing free for all marketplace to buyers. The flight bookings on the e-marketplace are powered by the online travel agency, Cleartrip Private Limited/OP-2 and the consideration for the flight booking was directly paid by the complainant to OP-2. It is stated that only OP-2 and/or OP-3 would be liable for rescheduling or refund, if any, of the ticket and not OP-1. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-1 prayed for dismissal of the consumer complaint.
In its written version OP-2 averred that it is an online travel company and provide intermediary facilities of booking air tickets and hotel reservations in India and abroad and the actual service providers are the Airline companies. It is maintained that OP-2 does not have any role in rescheduling the bookings, instead the bookings are re-scheduled as per availability of flights of independent airline company i.e. OP-3. It is alleged that the complainant had already been provided refund amount by OP-2 as soon as it was received from OP-3 and grievance of the complainant lies only against OP-3 for the alleged delay in processing refund and not against OP-2. The remaining allegations have been denied being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-2 prayed for dismissal of the consumer complaint.
OP-3 in its written reply admitted the factual matrix. However, it is averred that it had already refunded the amount of ₹4,000/- to OP-2 on 11.3.2021 at the time of rescheduling and accordingly the rescheduling was amounted to ₹4,882/- and email dated 12.1.2022 was also sent to the complainant. The remaining allegations have been denied being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-3 prayed for dismissal of the consumer complaint.
In separate replications, complainant controverted the stand of the OPs and reiterated his own. The complainant has specifically denied that any refund was received by him.
The parties filed their respective affidavits and documents in support of their case.
We have heard the complainant in person, learned Counsel for the OPs and have gone through the documents on record, including written arguments.
In view of the specific stand of OP-2 & OP-3 that the refund has already been processed to the complainant, the core question for determination is if the amount had actually been refunded to the complainant or not?
The defence of OP-3/airline is that it had already refunded the amount to OP-2 on 11.3.2021. OP-2 in its defence, in para 12 (preliminary submissions) of its written version admitted that the refund amount had already been provided by it to the complainant as soon as the same was received from OP-3. However, in support of its defence, OP-2 has not adduced any cogent evidence in the shape of its account statement/ledger etc. showing the exact date on which it received the refund from OP-3/airline and the date on which it actually refunded the same to the complainant. Not only this, OP-2 in its written version has not even specifically mentioned the date or mode of refund of the amount by it to the complainant. On the other hand complainant has vehemently denied that the amount had actually been refunded to him.
Moreover, it is settled law that one who asserts must prove and since it is OP-2 who has asserted that it had already refunded the amount to the complainant, burden to prove the same lies on its shoulders only. Here we are fortified by the judgment of the Hon’ble Apex Court in Mahakali Sujatha Vs. Branch Manager, Future Generali India Life Insurance Co. Ltd. & Anr., II (2024) CPJ 66 (SC) and the relevant portion of the same reads as under :-
“50. …….. The cardinal principle of burden of proof in the law of evidence is that “he who asserts must prove”, which means that if the respondents herein had asserted that the insured had already taken fifteen more policies, then it was incumbent on them to prove this fact by leading necessary evidence. The onus cannot be shifted on the appellant to deal with issues that have merely been alleged by the respondents, without producing any evidence to support that allegation………. A fact has to be duly proved as per the Evidence Act, 1872 and the burden to prove a fact rests upon the person asserting such a fact………..”
Hence, it is safe to hold that OP-2 has failed to prove that it had already refunded the amount to the complainant and the said act certainly amounts to deficiency in service and unfair trade practice on its part.
So far as the claim of complainant against OP-1/ Amazon Seller Services Private Ltd. is concerned, once it is clear that OP-1 is merely an intermediary, no deficiency in service or unfair trade practice can be held on its part. Similarly, since OP-2 itself has admitted that it had received refund from OP-3/airline for onward transmission to the complainant, no deficiency in service or unfair trade practice can also be held against OP-3.
In view of the above discussion, we are of the considered opinion that the present consumer complaint deserves to succeed and the same is accordingly partly allowed. OP-2 is directed to refund the amount of ₹4,540/- to the complainant alongwith interest @6% per annum from the date of filing the instant consumer complaint till the date of its actual realization. OP-2 shall also pay lump sum compensation of ₹5,000/- to the complainant for the harassment caused to him.
This order be complied with by OP-2 within 60 days from the date of receipt of its certified copy.
Since no deficiency in service or unfair trade practice has been proved against OP-1 & OP-3, the consumer complaint against them stands dismissed with no order as to costs.
The pending application(s) if any, stands disposed of accordingly.
Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.
ANNOUNCED
12/11/2024
hg
[AMRINDER SINGH SIDHU]
PRESIDENT
[BRIJ MOHAN SHARMA]
MEMBER
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