Karnataka

Bangalore 4th Additional

CC/2907/2017

Navin Rajendran - Complainant(s)

Versus

M/s. Make My Trip India Pvt. Ltd - Opp.Party(s)

M/s.Lexplexus

02 Nov 2018

ORDER

Complaint filed on: 04.11.2017

                                                      Disposed on: 02.11.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027    

 

 

CC.No.2907/2017

DATED THIS THE 2^nd NOVEMBER OF 2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Navin Rajendran, Aged 41 years, S/o P.K.Rajendran, R/o C-217, Ittina Abha Apartments, Munekollala Road, Marathahalli, Bangalore- 037.   By.Adv.M/s Lexplexus	1	M/s Make My Trip India Pvt. Ltd., Tower A, SP Infocity, 243, Udyog Vihar, Phase I, Gurgaon, Haryana-122 016. Having its Regional Office at, The Centrum, 2nd Floor, Near Safina Plaza, Infantry Road, Bangalore-01.
		2	Cathay Pacific Airways Ltd., # 2, Brady Gladys Plaza, 2nd Floor, 1/447, Senapati Bapat Marg, Lower Parel Mumbai, Mumbai-400013. Having its Regional Office at 1st Floor, Bearys Horizon, No.21, Wood Street, Bangalore-560 025.   By.Adv.Vikhar Ahmed.B.-OP-1 By.Adv.Prateek Kasliwal-OP-2

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Parties jointly and severally directing to pay Rs.47,019/- being the sum of the flight tickets booked at premium rates, to pay interest at 18% on the said sum from 21.1.2017, till the date of payment, to pay Rs.50,000/- towards mental agony and harassment, to pay costs and to pass such other orders.

2.       The brief facts of the case of the complainant are that the complainant had availed services from the Ops to book air tickets for travel from Bangalore to Beijing and back. He had availed the said services from the OP-1 on their portal www.makemytrip.com on 11.1.2017 to book air tickets on the airlines run by OP-2. A hotel accommodation at Beijing was also booked on the said portal. The complainant had booked the onward journey from Bangalore to Beijing on 20.1.2017 and the return journey was scheduled on 24.1.2017. The said travel tickets and stay were confirmed by the OP-1 vide an E-mail dt.11.1.2017 (E-ticket No.-160-1127872944; MMT booking ID-NP 2803163239968). The complainant states that he was expecting to receive the Visa from the Chinese Embassy latest by 18.1.2017. Since he did not receive the Visa on 18.1.2017, he contacted the OP-2 and requested for a reschedule of his travel from 20.1.2017 to 21.1.2017. The OP-2 informed the complainant that since he had booked the air tickets through OP-1, the said request for rescheduling can be done on his behalf only by OP-1. Accordingly, the complainant contacted the customer care executives of the OP-1 on 19.1.2017 at around 1 p.m., and informed them that he had not received the Visa from the Chinese Embassy and therefore, requested for rescheduling of his flight tickets booked from 20.1.2017 to 21.7.2017. The complainant was informed by the OP-1 that they would get in touch with the OP-2 and place the request of complainant for rescheduling his air tickets. However, the complainant states that he did not receive any information from the OP-1 with regard to the request he had made. The complainant further submits that he had made numerous telephonic calls till about 12.30 a.m. on 20.1.2017 to the OP-1, repeatedly requesting them for rescheduling his ticket. However, despite the repeated and relentless follow ups for nearly 12 hours, he could not secure any formal response from the OP-1. Apart from the numerous telephonic calls, the complainant also sought to address his grievance vide face book messenger on January 20^th at about 12:35 am. Thereafter, in response to his face book message on 20.1.2017, at about 2:08 a.m., the OP-1 assured him that they would get back to him at the earliest.  However, to his utter shock and surprise, the complainant received a message from OP-2 on 20.1.2017 at 8:48 a.m. informing him that the tickets booked from Bangalore to Beijing and return tickets from Beijing to Bangalore were cancelled on account of ‘No show’. Inspite of repeated requests made to the OP-1, they failed to intimate the OP-2 of the request made by the complainant for rescheduling. This negligence on the part of the OP-1 in not informing the OP-2 resulted in cancellation of not only the travel from Bangalore to Beijing but also the return tickets from Beijing to Bangalore. The OP-2, although being informed and being notified that the complainant was unable to travel on 20.1.2017 on account of him not receiving his Visa from Chinese Embassy, directed him to approach the OP-1 for the said request. This act of the OP-2 in directing the complainant to approach the OP-1 amounts to unfair trade practice and deficiency in service. The complainant’s request for rescheduling the air tickets from 20.1.2017 to 21.1.2017 in view of his genuine reason of him not having received his Visa could have easily been obliged by the OP-2, despite which the complainant was forced to approach OP-1 on sole ground that he had booked the tickets through them. This act of both OP-1 and OP-2 resulted in untold misery and hardship and ultimately resulted in a financial loss to the complainant. The complainant states that he was travelling to Beijing to attend a business meeting which was earlier scheduled on 21.1.2017. Since he was unable to travel, he convinced his business partners and rescheduled the meeting to 23.1.2017. Due to lack of response and support from both the Ops 1 and 2, he was constrained to book fresh air tickets on Cathay Pacific Airways to travel to Beijing on 22.1.2017 with a return date of 25.1.2017. In so doing, the complainant had to book tickets at premium rates of Rs.47,019/-. Thereafter, the complainant requested the OP-1 for refund of the ticket amount. However, after numerous follow ups with the OP-1, the complainant was informed that he is only entitled for a refund of the tax amount of Rs.4,441/-. Having left with no other alternative, the complainant was constrained to issue a legal notice on the Ops.  The complainant vide legal notice dt.22.9.2017 called upon the Ops to pay a sum of Rs.47,019/- and damages of Rs.50,000/- to the complainant within 7 days from the date of the receipt of the notice with an interest at 18% till the date of realization. The complainant submits that on 21.10.2017 he received a reply (dt.14.10.2017) to the legal notice sent by the complainant (dt.22.9.2017) by the OP-2, giving an untenable reply. In para-3 of the reply dt.14.10.2017, the OP-2 has stated that they did not have any knowledge about the conversation/email/message exchanged between OP-1 and the complainant. Further, in Para-4 of the reply, the OP-2 has stated that no reschedule request was ever received from the OP-1 and that if the OP-2 would have been informed by OP-1 for rescheduling of flight tickets in advance, the OP-2 would not have cancelled the subsequent flight reservations (return tickets were auto-cancelled). This clearly goes to show that OPL-1 failed to inform the OP-2 for rescheduling the flight tickets despite the repeated and relentless follow ups by the complainant. The complainant submits that there was negligence on the part of the OP-1 to intimate the OP-2 to reschedule the flight as requested by the complainant. There was also negligence on the part of the OP-2 in not rescheduling the tickets themselves, when the complainant contacted them directly over the phone. The OP-2 could have easily acceded the request made by the complainant but instead, it re-directed the complainant to approach the OP-1 which act amounts to deficiency in service and unfair trade practice. The said action made the complainant run from pillar to post and in the end left him high and dry. This not only caused him mental agony (since he was to attend an important meeting) but he was also constrained to book flights at a premium rate causing him a financial loss. This illustrates a deficiency of service on the part of both the Ops 1 and 2 within the meaning of the CP Act. Hence, the complainant submits to allow the complaint.

3.       After the issuance of the notice, the Ops 1 and 2 did appear through their respective counsel and filed the separate version. The version filed by the OP-1 is in respect of the denial of the alleged deficiency of service on its part. The OP-1 has taken the specific contention that the complaint filed by the complainant is devoid of merits. Further, it is contended that the controversy in the complaint centres around some alleged dispute in respect of refund of the price of the tickets purchased by the complainant on the website of the OP-1.  It is not disputed that the complainant has purchased a flight + hotel booking for his travel to Beijing on 11.1.2017. Further submits that on or around 18.1.2017, the complainant requested the OP-1 to reschedule the flight ticket from 20.1.2017 to 21.1.2017. Further submits that after considering the request, the OP-1 has found that as per the terms and conditions of the booking, the individual component i.e. either the flight or the hotel stay cannot be cancelled and same was communicated to the complainant.  The complainant has voluntarily, upon fully agreeing with the terms and conditions, purchased the tickets on the website of the OP-1. Further, OP-1 stated that on 20.1.2017 complainant’s ticket got cancelled on account of ‘No show’ for which complainant is looking for a refund. Hence, there is no deficiency in service on the part of the OP-1. Further, contended that on 19.1.2017, the complainant has approached the call center of OP-1 to reschedule the flight ticket from 20.1.2017 to 21.1.2017 citing the reason of delay in his visa. The call center team has clearly informed the complainant that changes in the flight ticket is not possible as per the booking policy. Needless to say that it was a flight + hotel booking and as per booking voucher policy clearly states “ The individual components i.e. either flight or hotel stay cannot be cancelled. In case of cancellation of both the components (flight and hotel stay), cancellation policy of individual components (given below) will be applicable. Flight plus hotel bookings are non-amendable” Further stated that the OP has promptly informed to the complainant with regard to the booking voucher reflecting the terms and conditions. Knowing fully-well the terms and conditions, the complainant has agreed at the time of booking which can be seen ongoing through document No.1. Further, the OP-1 stated that apart from the informing the complainant at the time of booking itself vide booking voucher that the bookings are non-amenable, the call center team has promptly informed him that changes in the booking are not possible. Further, upon contacted by the complainant on face book messenger, Bhawna, officer of the OP-1 has duly contacted the complainant and expressed the inability to amend the booking which is evident from the chat history which is at document No.4. The OP-1 further contended that without prejudice to the same, it is stated that as a gesture of goodwill towards the customer, has rescheduled the hotel booking upon request from the complainant. Further, OP-1 submits that the complainant has only entitled for a refund of the tax amount of Rs.4,441/- from the principal amount as he was no-show on his flight booking. Further stated that upon receipt of the legal notice from the complainant, the OP-1 conducted a thorough investigation of the issues raised by the complainant wherein the claims made by the complainant were found to be devoid of any merits. Further, the OP-1 submits that however it may be clarified that bookings made by the complainant were non-amenable and hence, there was no question of informing the OP-2 about rescheduling the tickets by the OP-1. On these grounds and other grounds, prays for dismissal of the complaint.

          4.       The version filed by the OP-2 is in respect of the denial of the alleged allegations made by the complainant. The OP-2 submits that the complainant has not acted in good faith with respect to this complaint and has approached this Forum with unclean hands, hence in view of doctrine “One who seeks equity must come with clean hands”, the complaint deserves no fate other than outright dismissal. Further submits that the complainant is guilty of suppression vari and suggestion false as will be evident from the facts of the case. Further submits that there is no any deficiency of service on the part of the OP-2. Hence, the complaint filed by the complainant is liable to be dismissed. It is also denied the parawise allegations made by the complainant in his complaint. The OP-2 further submits that it is an admitted fact that the complainant had booked tickets from OP-1 as the visa was not get well within the time, hence, the complainant has sought for cancellation for the ticket which is against the terms and conditions of the policy. The OP-2 has admitted to the extent that the tickets from Bangalore to Beijing and return tickets from Beijing to Bangalore were cancelled on account of ‘No show’. Hence, clause 3.3.6 of the General Conditions of Carriage for Passengers and Baggage, which are binding on the parties to the transaction, provide for cancellation of return or onward reservations on account of ‘No show’. The said clause which read thus:

3.3.6 “Please be advised that in the event you do not show up for any flight without advising us in advance, we may cancel your return or onward reservations”

Further, OP-2 submits that there is no unfair trade practice or deficiency in service on the part of the OP-2. As far as the contents of visa are concerned, it was the duty of the complainant to complete the visa formalities for which OP-2 cannot be blamed. On these grounds and other grounds, prays for dismissal of the complaint.

5. The complainant to substantiate his case, has filed his affidavit evidence and got marked as Ex-A1 to A12. The Ops have filed their affidavit evidence and got marked as Ex-B1 and B2. The complainant as well as Ops has filed their written arguments. Heard both sides.

          6. The points that arise for our consideration are:

 1) Whether the Complainant proves the deficiency in service on

      the part of the OPs, if so, whether he is entitled for the relief

      sought for?

2) What Order?

                  

7.  Our answers to the above points are as under:

Point No.1 : Negative

Point No.2 : As per the final order for the following

REASONS

8. POINT NO.1:    We have briefly stated the contents of the complaint as well as the version of the Opposite Parties.

9.       The undisputed facts which reveals from the pleading of the parties goes to show that the complainant had availed the services from the Ops to book air tickets for travel from Bangalore to Beijing and back. He had availed the said services from the OP-1 on their portal www.makemytrip.com on 11.1.2017 to book air tickets on the airlines run by OP-2. A hotel accommodation at Beijing was also booked on the said portal. The complainant had booked the onward journey from Bangalore to Beijing on 20.1.2017 and the return journey was scheduled on 24.1.2017. The said travel tickets and stay were confirmed by the OP-1 vide an E-mail dt.11.1.2017 found at document No.1 and 2 marked as Ex.A1 and A2. It is also not in dispute that the complainant was expecting to receive the Visa from the Chinese Embassy latest by 18.1.2017. Since he did not receive the Visa on 18.1.2017, he contacted the OP-2 and requested for a reschedule of his travel from 20.1.2017 to 21.1.2017.

10.     The OP-2 informed the complainant that since he had booked the air tickets through OP-1, the said request for rescheduling can be done on his behalf only by OP-1. In this context, the complainant contacted the customer care executives of the OP-1 on 19.1.2017 at around 1 p.m., and informed them that he had not received the Visa from the Chinese Embassy and therefore, requested for rescheduling of his flight tickets booked from 20.1.2017 to 21.7.2017. Further, the complainant was informed by the OP-1 that they would get in touch with the OP-2 and place the request of complainant for rescheduling his air tickets. However, he did not receive any information from the OP-1.

11.     With regard to the expecting to receive the Visa from the Chinese Embassy latest by 18.1.2017 as stated by the complainant is comes within the deficiency of service on the part of the Ops 1 and 2. During the course of arguments, the learned counsel for the Ops 1 and 2 urged before us stating that non-receiving the visa within the stipulated period latest by 18.1.2017 is no way concerned to them. This issue is only between the complainant and the Chinese Embassy office. Further, contended that neither the oP-1 nor OP-2 never taken any responsibility in respect of the availment of the visa to the complainant to his itinerary to China.  In support of their contention, they placed reliance on the decision reported in (2000) 1 Supreme Court Cases 66 in the case of Ravneet Singh Bagga V/s KLM Royal Dutch Airlines and Anr., wherein it is held as under:

Consumer-deficiency in service-Section 2 (1) of Consumer Protection Act, 1986-whether delay due to verification of visa papers constitutes deficiency in service on the part of airline-bonafide action taken by staff of airline cannot be held to be deficiency of service.

In the light of the decision cited supra, we come to the conclusion that non-getting of the visa within the stipulated time by the complainant to his itinerary towards china is not come within the purview of the deficiency of service.

12.     Now turning to the cancellation of the air ticket and hotel booking are concerned, the learned counsel for the complainant submits that the complainant informed to the Ops well within the time in respect of the non-availability of the visa and also for cancellation of the air ticket booked and also booking of the hotel through OP-1. Though this fact was within the knowledge of the Ops 1 and 2, but they did not properly respond, hence, he is entitled for an amount of Rs. 47,019/- being the sum of the flight tickets booked at premium rates with interest at 18% on the said sum from 21.1.2017, till the date of payment, Rs.50,000/- towards mental agony and harassment and also cost of litigation. The OP-1 has taken specific contention stating that there is no any deficiency of service on their service as the controversy in the complaint centres around some alleged dispute in respect of refund of the price of the tickets purchased by the complainant on the website of the OP-1.  Further on 18.1.2017, the complainant requested the OP-1 to reschedule the flight ticket from 20.1.2017 to 21.1.2017. Considering the request, the OP-1 has found that as per the terms and conditions of the booking, the individual component i.e. either the flight or the hotel stay cannot be cancelled and same was communicated to the complainant.  The complainant has voluntarily, upon fully agreeing with the terms and conditions, purchased the tickets on the website of the OP-1. Further, that on 20.1.2017 complainant’s ticket got cancelled on account of ‘No show’ for which complainant is looking for a refund. The complainant has subscribed his signature ongoing through the contents of the terms and conditions of the booking policy.  When such being the fact, the complainant is duty bound to oblige the terms and conditions, hence, there was no question of informing the OP-2 about rescheduling the tickets by the OP-1. But the say of the complainant is that though it was informed to the Ops 1 and 2 for cancellation of the hotel booking, but they did not heed the request of the complainant. Hence, it is nothing but deficiency of service for which he placed reliance on one of the decision reported in 2015 SCC Online NCDRC 4101 in the case of Yogendra Babu Sharma V/s Bhraman Tour & Travels & Anr., British Airways. According to the complainant, the relevant Para No. 8 is relent wherein it is stated as:

We have heard both the parties, none appeared for OP No.2 and perused the above said emails. To our mind this is a matter of contributory negligence. So far as OP No.1 is concerned, his letter dt.29.7.2011 is crucial. It is difficult to fathom why did he advise the complainant to confirm the tickets from the office at London or make necessary changes thereon. It was the bounden duty of the OP No.1 to do the needful immediately. The time was running out. It should have assumed that a wee bit delay would make the tickets redundant. This is an exercise in shirking and fudging rather than confronting the issue. It shows negligence, inaction and passivity on the part of OP No.1. It did not perform its duty properly but on the contrary gave the wrong advice. An agent is supposed to know what is the procedure. What are the duties of a service provider to help or mislead?

Ongoing through the above paragraphs of the said decision, it is evident that, in the said case, the OP-1 therein who was the tours and travels operator written a letter to the complainant stating that to confirm the tickets from the office at London or make necessary changes thereon. So it was the bounden duty of the OP No.1 therein who was the tours and travels to do the needful immediately. But in the instant case, neither the OP-1 nor OP-2 has given an undertaking to the complainant that they will have to cancel the air tickets as well as the hotel booking, hence, the decision cited by the learned counsel for the complainant is not applicable to the present facts and circumstances of the case. Accordingly, we come to the conclusion that the complainant is bound by the terms and conditions of the OP-1 much less OP-2 in the light of the decision reported in 1) Bharathi Knitting Co V/s DHL Worldwide Express Courier (CA No.9057/1996)  (2) II (2012) CPJ 10-Head Note. Accordingly, this point is answered in the negative.

12.     POINT NO.2: In the result, we pass the following:

ORDER

The complaint filed by the Complainant is dismissed.

Looking to the circumstances of the case, we direct both the parties to bear their own cost.

Supply free copy of this order to both the parties.

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 2^nd November 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL)    PRESIDENT

 

 

 

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

Navin Rajendran, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

Ex-A1	E-mail dt.11.1.2017
Ex-A2	E-ticket issued by OP-1
Ex-A3	Screenshot of calls made by complainant to the executives of OP-1
Ex-A4	Message on face book messenger
Ex-A5	Screenshot of calls made by complainant to OP-2
Ex-A6	Tickets issued by OP-2
Ex-A7	Legal notice dt.22.9.2017
Ex-A8,9,10	Postal acknowledgements, receipt of the said legal notice
Ex-A11	Reply to legal notice by OP-2 dt.14.10.2017
Ex-A12	Letter dt.6.11.2017

 

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

Ankita Mishra, Deputy Manager Legal., who being OP-1 was examined.

Mark Sutch, Regional General Manager., OP-2 has filed affidavit.

Copies of Documents produced on behalf of OP 

Ex-B1	Booking voucher
Ex-B2	User agreement

 

(ROOPA.N.R)       MEMBER

(S.L.PATIL)    PRESIDENT