ORDER

SRI.H.R. SRINIVAS, PRESIDENT

1.      This is the complaint filed by the complainants against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act, 2019 for the deficiency of service in not refunding the amount paid i.e. Rs.1,57,076/- towards booking of the ticket and for refund of the same along with interest at 24% per annum from 06.05.2019 till the payment of the entire amount and For Rs.50,000/- for damages and different head and for cost and other reliefs as the commission deems fit.

2.      The brief facts of the complaint are: that the complainants wanted to go for a trip to North East India i.e. Shillong, Kaziranga, Guwahati and Chirapunji on 02.05.2019 to 07.05.2019 for 5 nights 6 days for sight seeing and booked the tickets with OP during 2^nd week of April 2019 by paying a sum of Rs.1,57,076/- which includes flight charges, hotel accommodation, sight seeing at the places. On 29.04.2019 the tickets were handed over to the complainants by OP-3 and also the information regarding booking of the hotel and the taxi details for their journey at destination. All of a sudden on 25.04.2019 the Indian Metrological department announced that there is a low pressure in bay of Bengal and the sea was going to run rough and there is a likelihood a  cyclone like FANI and predicted that there would be heavy rain. They also searched the Google web site for further information.

3.      In view of the said cyclone, they did not want to take up risk of going for a tour. On 01.05.2019 they decided not to take the tour on 02.05.2019 due to the cyclone.  On that day. at 8.30 pm they called one Sunil Kumar senior executive operation of OP-3 and informed the decision not to take the tour, and wanted to reschedule and rearrange the same.  It was intimated at 12.20 am on that day stating that “as per our phone conversation still we have not got any confirmation on the cyclone in Shilong as per your confirmation still the flights are operating ant there is no assurance of the refund kindly advise on the cancellation of the booking.”

4.      On 2.5.2019 in the morning hours at 10.30 am the said Sunil Kumar again contacted and informed that he will recheck the possibility of rescheduling the journey on the same booking and booking amount will be informed.  After consulting the other complainants, he informed OP to reschedule to 06.05.2019 hoping that by that time the effect of FANI cyclone may come down. 

5.      On 03.05.2019 the said Sunil informed that the reschedule is possible if the complainant pay an additional amount Rs.82,000/-. Again on 04.05.2019 the website of NDTV stated that: “79 flights were cancelled”. Again he sent an email to OP-3 to rearrange the trip on 18.05.2019 instead of 06.05.2019. He got an information that the Kaziranga National park will  be closed from 15.05.2019  and if the complainant starts their tour on 18.05.2019 is not possible for them to visit the same.,  Again they requested to reschedule on 08.05.2019  for which OP informed the complainant to pay Rs.1,17,000/- in addition for rescheduling and penalty charges. At 5.30 pm on that day, complainants informed that they are not taking up the tour by paying additional amount and to refund the amount as it is due to force majeure.  OP did not refund the amount as demanded by sending mails and remainders, ultimately had to issue a legal notice to refund the amount paid.

6.      The itinerary given by the complainant is silent about the policy of booking and refund amount in case of natural calamities which is beyond the control of the human beings.  Only in order to make unlawful gain OPs have not refunded the amount, which is violative the principle of natural justice which also amounts to unfair trade practice and deficiency in service and hence prayed the commission to allow the complaint.

7.      Upon the service of notice, OPs appeared before the commission and filed the version and admitted the fact of booking the tickets with it in the 2^nd week of April 2019 for the journey to be performed from 02.05.2019 to 07.05.2019 by the complainants and also the receipt of Rs.1,57,076 and handing over the confirmed ticket with other details of hotel confirmation vouchers, taxi confirmation vouchers to the complainants. They informed the complainants regarding their apprehension of the cyclone and also request for rescheduling and informed them that the rescheduled cost of Rs.82,000/- for which complainants did not give any confirmation and so also in respect of rescheduling to 08.05.2019 for which a sum of Rs.1,17,000/- was demanded again for which no confirmation was given. 

8.      The demand of the complainant for refund of the amount is untenable, frivolous not maintainable either in law or on facts.  OP is engaged in business of ecommerce travel organizers by providing online platform to book travel tickets, accommodation, holiday packages and they have to pay for the tickets airlines and hotels and taxi operators for arranging the smooth tour of the clients.  Only upon receiving the money, the airlines confirms the tickets the hotels regarding the accommodation, and the cab issuing the vouchers for taking the tourists. OPs have already paid the amounts to the airlines, cab operators and hotel operators which cannot be refundable.

9.      The complainants voluntarily decided not to go ahead with the tour and are giving excuses for force majeure i.e. due to natural calamities.  The question of force majeure do not arise at all as all the flights hotels and cabs booked by the complainants were functional on the said dates and they have not denied their services and there is no shortfall of their duties.  The claim of the complainant for refund of the entire amount is not maintainable and it was up to the service providers i.e. airlines to refund the amount, if any after deducting the cancellation charges. Complainants have not impleaded the hotels, the airlines and the cab operators to seek refund of the amount, hence the complaint is bad for non-joinder of necessary parties.

10.    Since the complainants did not take any decision well in time to reschedule itinerary by paying the amount Rs.82,000/- or Rs.1,17,000/- and as they did not report to the airport at the schedule time of departure on 02.05.2019, their tickets was termed as “NO SHOW” without any refund.  Only 2 hotels accepted for rescheduling without additional charges which the complainants did not agree for rescheduling by paying the above said amounts.   When there is no show at the airport where flight originats the return flight of the complainants would also be termed as “NO SHOW” without any refund. Denying all the other averments made against it in each every para of the complaint, OP prayed the commission to dismiss the complaint.

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

1. Whether the complainants have proved deficiency in service, unfair trade practice on the part of the opposite parties?

2. Whether the complainants are entitled to the reliefs prayed for in the complaint?

12.    Our answers to the above points are:-

POINT NO 1 & 2: IN THE NEGATIVE

               For the following.

REASONS

POINT NO 1 & 2:

13.    On perusing the complaint averments, version, affidavit evidence and documents produced by both the parties, it becomes clear, that the complainants engaged the services of the OPs in booking the tickets , hotels accommodation and cab services by paying a sum of Rs.1,57,076/- for their tour to North East States of India.  It is also not in dispute that the complainant did not want to take up the tour on 02.05.2019 due to the Metrological Departments information that there is a likelihood of Cyclone FENI in the said area and there will be heavy rain lashing in that area and hence they don’t want to take up the risk to the said places.

14.    Though the complainants have placed the metrological departments whether bulletin, that will not suffaice to hold it as force majeure as the airlines for which the complainants have booked the tickets through the OPs have not cancelled the flights . In fact it is the specific contention of OPs that no flights were cancelled and all the activities were in place.  If at all there was cyclone effect in that area which was so severe the flight operator would itself have canceled the flights by giving advance information to the persons who have booked the tickets in their flights.  Though the complainants have stated that NDTV has reported that 79 flights have cancelled, it is not on 2^nd May 2019. 

15.    In view of the complainants not taking a firm decision either to reschedule their tour itinerary by paying the reschedule fee, penalty as informed by OP-3 and as they did not cancel their flight tickets booked for the tour on 02.05.2019, it is a clear case of no show in respect of the said flight. When such being the case the return tickets also be of “NO SHOW”. When there is no show in respect of the passengers nor reporting to the flight, the terms and conditions of refund would follow. In view of this, OPs have received the refund of Rs.16,000/-  from the airlines towards the NO SHOW in respect of the flights which has to be passed on to complainants.  If OPs have not refunded Rs.16,000/- to the complainants, OPs are directed to refund the same to them along with interest at 12% per annum from the date of receipt of the same by OPs from the airlines to the complainants.  

16.    It is to be noted here that, the OP has handed over the confirmed flight tickets, the hotel details with vouchers and also the vouchers issued by the cab operators to the complainants. When looking into theses circumstances one can easily come to the conclusion that there is no deficiency in service or defect in service or unfair trade practice of OPs.

17.    Complainants ought to have taken a quick decision either to cancel the tickets before the departure of the flight, or for rescheduling their tour itinerary. The rules of refund of the amount by the airlines in respect of NO SHOW prevail under these conditions. Hence we are of the opinion that no deficiency in service or unfair trade practice or negligence or defective service proved by the complainants and the evidence adduced in that respect is short of proving the same. Hence we answer POINT NO.1 IN THE NEGATIVE.  In the result complainants are not entitle for any of the reliefs claimed and also answer POINT NO.2 IN THE NEGATIVE and pass the following:-

ORDER

1.  The complaint is hereby dismissed. No order as to cost.

2. 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.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 07^th day of January  2022)

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: Copy of Itinerary given by OP

Ex P2 : Copy of tickets booked through OP.

Ex. P3:Copy of details of hotel reservation and sightseeing.

Ex P4: Copy of Journey tickets

Ex P5: Email correspondences.

Ex P6: Paper publication.

Ex P7: copy of legal notice.

Ex P8: Copyof reply notice.

Ex P9 & P10: Copy of letter dt: 16.08.2019 and reminder dt:21.12.2019.

Ex P11: Copy of another legal notice dt:24.01.2020.

Ex P12: copy of letter

Ex P13: Message in respect of boarding.

Ex P14: Certificate U/S 65-B.

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

RW-1: Rohini Rajgopal, Authorized representative of OPs.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of letter of authorization.

MEMBER                          PRESIDENT

RAK*               

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