DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday the 29^th day of November 2024

CC.211/2020

Complainant

Jayaprakash Kizhakkekara Narayanan Nair,

S/o. Narayanan Nair,

Jayanivas House,

Koyilandy, Kozhikode - 673305

(By Adv. Sri. Navaneeth. P.P and Sri. Muhammed Akbar. P)

Opposite Parties

1.              M/s. Make My Trip India Pvt. Ltd,

DLF Building No.5, Tower B,

DLF Cyber City, DLF Phase2,

Sector – 25, Gurugram,

Haryana – 122002

2.               M/s. Make My Trip India Pvt. Ltd,

Door No.70/2752, Ground Floor,

Mathew Sons Trade Centre,

Deshabhimani Junction,

Near JLN Metro Station,

Kaloor, Cochi - 682017

ORDER

By Sri.V.BALAKRISHNAN  - MEMBER

            This is a complaint filed under Section 35 of the Consumer Protection Act, 2019.

2.  The case of the complainant, in brief, is as follows:

The first opposite party is an online travel company in India, providing a range of travel services including flight bookings, hotel bookings, holiday packages, reservation of train tickets etc. The company is having the headquarters at Gurugram, Haryana and the second opposite party is the subordinate office of the first opposite party. In the month of November 2019 the complainant decided to visit foreign countries Kuwait, Jordan, Israel, Palastheen and Egypt along with his wife. Scheduling the planned trip from 26/11/2019 to 07/12/2019 he booked air tickets through the first opposite party. On 26/11/2019 the complainant along with his wife started their trip from Calicut international airport to Kuwait. After visiting Kuwait, Jordan, Israel and Palasthen they reached Egypt on 03/11/2019. Earlier they had taken an economic class ticket through the opposite party from Cairo to Calicut for the return journey. From Egypt it was upgraded by him to a business class paying an additional amount of Rs. 30,780/-. For visiting various places of Egypt they had planned their travel trips in historical important places of Egypt in the remaining 4 days. For booking of hotel and taxi services an amount of Rs. 25,054/- and Rs. 10,784/- was paid.

3. On 05/12/2019 the complainant received a whatsapp message and e-mail communications from the opposite parties informing him that their flight Oman Air (WY-406) from Cairo to Calicut had been cancelled due to the operational issues by the Airline Company. The whatsapp message and mail was sent by the opposite party. On receiving the same he immediately tried to contact the customer care executives of the opposite parties and the Airlines Company. There was no effective response. With immense sadness and disappointment he cancelled the tickets from Cairo to Calicut of the scheduled trip on 07/12/2019. Subsequently, the complainant booked a flight ticket through the opposite party from Cairo to Calicut via Abudabi operated by Etihad Airlines on 06/12/2019. The cost of the Airline ticket was Rs. 64,919/-. They could not complete the entire trip and lost Rs. 25,054/- for the hotel bookings and Rs. 10,784/- for the taxi services already paid. Left with no other alternative they were forced to leave Egypt on 06/11/2019 without completing their trip visiting historical places of Egypt.
4. After reaching Calicut on 09/12/2019 he checked whether refund of the cancelled ticket is credited to his bank account. It is found that the refund was not initiated by the opposite parties. The customer care executive of the opposite parties were contacted immediately. The complainant was then instructed to wait for 2 more days and promise was given that they would refund the entire amount within 2 days. On 11/12/2019 he received a mail from the opposite parties in which they requested to forward the information mail of cancellation. On 12/12/2019 the complainant sent the whatsapp message and the mail informing about the cancellation of the flight. While contacting the opposite parties on 19/12/2019 they reiterated that refund would be initiated within a short period of time. It was also informed that they had escalated the case to the backend team and would be resolved shortly. As no refund of cancellation was received the complainant contacted the concerned Airline. Surprisingly, he received the information that the flight was operational on that day. So the mail and message sent by the opposite parties were false. On 29/12/2019 the opposite parties sent a mail stating that there were no changes in the booking and the flight was on time and because of that refund is not possible as it is a case of NO-SHOW since the complainant did not turn up for the flight. There is clear cut evidence that they had sent a wrong message stating that the flight was cancelled due to the operational issues. So there is negligence and deficiency in services on the part of the opposite parties and due to this financial loss injury hardship and mental agony etc. are suffered by the complainant and his family.
5. The complainant has approached this Commission to pass an order directing the opposite parties to pay Rs. 93,062/- towards the cost of air ticket from Cairo to Kozhikode including the upgradation expenses already paid for the flight on 07/11/2019. The complainant also demands of Rs. 64,914/- with interest for the cost of the new Air ticket from Cairo to Calicut, which was booked after receiving false and wrong whatsapp messages and mail from the opposite parties. He also demands an amount of Rs, 35,838/- with interest which was paid for hotel booking and taxi services that could not be availed due to the preponement of flight. Also the complainant prays to pass an order directing the opposite parties to pay Rs. 3,00,000/- as compensation for the hardship, financial loss and mental agony suffered.
6. The opposite parties 1 and 2 jointly filed the version. Almost all the averments in the complaint are denied by them. According to them, they are a company duly incorporated under the Companies Act 1956, and enjoys immense goodwill and reputation for providing services to thousands of customers. They admitted that the complainant booked their flight tickets  through the opposite parties with booking ID NN7911848916324. The flight ticket booked was Cairo Muscat Calicut by Oman Air WY486 and WY297 dated 07/12/2019. The total amount paid was Rs. 62,282/-.
7. The contention of the opposite parties is that the cause of action has not arisen within the jurisdiction of this Commission. The complainant has given the complaint for not refunding the ticket of the above flight starting from Cairo to Kozhikode via Muscat. The registered office of the opposite party is situated in Gurugram and also works for gain in Gurugram. According to them the Hon’ble Court at Cairo, Egypt and Gurugram has the requisite territorial jurisdiction to try adjudicate upon the present complaint.
8. Other contention of the opposite party is that Oman Air Airlines has not been impleaded despite being a necessary and proper party. Once the confirmed tickets are booked by a traveller the message is given by the opposite party to the intended travellers. In the case of any cancellation or rescheduling the flight, the concerned Airlines has to inform the traveller and they have to refund/compensate for the tickets or bookings. In the case of other technical fault, change in prices, sell outs, cancellation, prepones, postpones or error in confirming bookings, the Airlines are liable to compensate customers for the same. They also contended that according to Director General of Civil Aviation the Airlines are responsible to compensate the customers in the event of cancellation or modification of the flight.
9. The complainant had no issue for the travel from Kozhikode to Kuwait, Jordan, Israel, Palastheen and Egypt. They had the difficulties for their return flight to Calicut. Being a customer centre company the opposite party had already approached Oman Air to process the refund of the complainant’s booking and only Rs. 3,810/- was refunded. In order to retain the trust of the complainant the opposite party pursued with the Oman Air by raising Agency Credit Memos for processing the remaining refund. Therefore the concerned Airlines Oman Air is solely liable to refund/compensate the complainant and the opposite party cannot be liable for the same. In view of the above facts and circumstances the opposite parties pray to dismiss the complaint as there is no deficiency of service or unfair trade practice on their part.     
10. The points that arise for determination in this complaint are;

1. Whether this Commission has territorial jurisdiction to entertain the complaint?
2. Whether the complaint is bad for non-joinder of necessary parties?
3. Whether there is any unfair trade practice or deficiency of service on the part of the opposite parties, as alleged?

4) Reliefs and costs.

11. Evidence consists of oral evidence of PW1 and Exts A1 to A8 on the side of the complainant. No oral evidence was let in by the opposite parties.
12. Heard. Argument note is filed by the complainant.
13. Point No 1: As per the provisions of the Consumer Protection Act 2019, Section 34, a complaint shall be instituted in a District Commission within the local limits of whose jurisdiction, the complaint resides or personally works for gain and the cause of action, wholly or in part arises. In the present case the complainant is from Koyilandy, a place within the territorial jurisdiction of this Commission. The ticket was booked through online from his residence. So the cause of action had arisen in part, within the jurisdiction of this Commission. So the argument of the opposite parties that this Commission has no territorial jurisdiction to entertain the complaint cannot be sustained.
14. Point No. 2: The opposite parties has a contention that the complaint is bad for non-joinder of necessary party since, Oman Air is not impleaded. The grievance of the complainant is that the sole reason for his misery and hardship was the wrong and false message sent by the opposite parties regarding cancellation of the flight. The complaint has no grievance against the airlines Oman Air and not seeking any relief against them. So the non-joinder of this said Airline is not a necessary party to the proceedings. The complaint is not bad for non-joinder of the necessary parties.
15. Point No. 3: In order to substantiate his case, the complainant got himself examined as PW1. PW1 has filed proof affidavit and deposed in terms of the averments in the complaint. Ext A1 is the E-ticket booked through the opposite parties from Calicut to Kuwait for the scheduled trip on 26/11/2019, Ext A2 is the printout of the whatsapp message sent by the opposite parties to the complainant on 05/12/2019, Ext A3 is the copy of e-mail sent by the opposite parties to the complainant on 05/12/2019, Ext A4 is the copy of the e-ticket booked through the opposite parties from Cairo to Calicut Via Abudhabi for the journey date on 06/12/2019, Ext A5 is the invoice of E-ticket booked through the opposite parties from Cairo to Calicut, date of journey 06/12/2019 booked on 05/12/2019, Ext A6 is the copy of the E-ticket booked through the opposite parties for the trip on 07/12/2019 from Cairo to Calicut (Via) Muscat, Ext A7 is the invoice of up gradation for the scheduled flight of Oman Air on 07/12/2019 and Ext A8 are the copy of mail communications between complaint and opposite parties.
16. The specific case of complainant is about the return flight ticket from Cairo to Calicut. From the starting date of their trip from Calicut, from 26^th November 2019 to 5^th December 2019 everything went smoothly. Their return trip from Cairo to Calicut Via Muscat booked with opposite party was scheduled on 07/12/2019. On 5^th December 2019 the complainant received an e-mail and whatsapp message stating that his flight WY-406 scheduled on 07/12/2019 from Cairo to Muscat was cancelled by the Airline Oman Air due to operational issues. The information is evident as per Ext A2 and A3. The contention of complainant is that it was a false message from opposite party. After reaching Calicut when he contacted the Oman Air it was informed to him that their flight was in operation and their tickets were in state of NO-SHOW.
17. According to the complainant due to false message received they have to cut shot their trip and additional ticket was booked through the opposite party preponing the departure to 06/12/2019. The main contention of the complainant is that due to the false message and e-mail given the complainant and his wife could not visit majority of historical places in Egypt and for booking the preponed flight additional expenses were met by him in addition to already paid taxi bills and room rent for the remaining days of tour that was planned as per the earlier schedule.
18. The opposite parties contention is that they had acted upon the message received from the Oman Air, which was the airline selected by the complainant for their return trip from Cairo to Calicut on 07/12/2019. They had also taken steps and follow up actions to get back the refund of the cancelled tickets soon on receiving the cancellation request from the complainant. So according to the opposite parties the sole responsibly for all the sufferings is on the airlines and they are to be impleaded.
19. It is an undisputed fact that the message about cancellation of flight WY-406 of Oman Air was sent to complainant as per Exts A2 and A3. In Ext A3, the opposite parties had given the alternatives either to contact the airline so that they would accommodate the travellers in alternative flight or if not interested file a special claim with opposite party to refund the ticket amount. It is an admitted fact that the complainant opted for refund and booked another flight ticket in ETHIHAD AIRWAYS through the opposite parties for their return flight from Cairo to Calicut. The complainant had stated in cross examination that the booked flight of Oman Air departed on time from Cairo. Also the opposite parties have not produced and marked any documents received by them from the concerned airlines about the cancellation of flight, before giving intimation of Ext A2. What they stated in version is only about the screen shot received from Oman Air on 10^th  March 2019, after the date of scheduled departure. No evidence was let in by the opposite parties in support of their contention in the version.
20. If the flight was cancelled by the airlines as mentioned in the version, the opposite parties are responsible for refunding the fully paid ticket amount of the cancelled flight, as the ticket was booked through them and they could have initiated the refund process perfectly in time.
21. As per the passenger charter Ministry of Civil Aviation Govt. of India Scenario 1-“You are informed of the flight cancellation less than two weeks before but, up to 24 hours of the scheduled departure time the passenger is to be given an alternative flight allowing him to depart or refund the ticket, as accepted by the passenger’’. In the present case the passenger had accepted the refund.
22. As the ticket is booked through the opposite party, the cancellation process is the sole duty of opposite party and they are responsible for the non-receipt of the refund amount. According to opposite parties the flight in question was a cancelled flight. So the complainant is eligible for the full refund. As the refund is not received so far the deficiency of service and unfair trade practice on the part of the opposite parties are established.
23. The case of complainant is that the opposite parties had given a wrong message that the flight scheduled on 07/12/2019 was cancelled, whereas the flight of Oman Air was operational. Further according to the complainant on returning and enquiring directly at the customer service of Oman Air he received the information that the flight was operational on that day and mail and message sent by the opposite parties were false.
24. A careful examination of Ext A8 the mail communication dated 29/12/2019 reveals that the booking ID NN7911848916324, the flight of Oman Air (WY-406) was operational and no changes were found. Also the opposite parties have not shown any information or message received from Oman Air before 05/12/2019 , on the day they conveyed the message of cancellation. So there is no documents in hand or produced by the opposite parties obtained from the Oman Air that would support  Ext A2 and Ext A3, the cancellation message sent to the complainant.
25. Going through the evidence and available documents, we are of the view that the opposite parties had given a wrong message that the flight scheduled on 07/12/2019 was cancelled. From the document Ext A8 is the e-mail communication dated 29/12/2019 at12.55pm it is proved beyond doubt that the flight of Oman Air was operational. In such a case, for the hardship and sufferings caused to the complainant only the first and second opposite parties who sent the wrong message (Ext A2 and Ext A3) are responsible. Only because of the false message and e-mail sent by the opposite parties the complainant was not able to travel in Oman Air flight WY-406 on 07/12/2019. Hence the deficiency in service and unfair trade practice on the side of the opposite parties are proved beyond any doubt.
26. The invoice of Ext A6, shows for the flight booking scheduled on 07/12/2019 WY-406 and WY-297 Cairo to Calicut Via Muscat, the complainant paid Rs. 62,282 to the opposite parties. Also for the up gradation of the seats in above flights an amount of Rs.30,780/- was paid by complainant. This is evident from Ext A7. So the complainant is eligible to get back an amount of Rs. 62,282+30,780=93,062. Hence the opposite parties are liable to pay to the complainant Rs. 93,062/- with 9% interest from the date of filing the complaint.
27. The complainant came back to Calicut on 06/12/2019 just before one day prior to earlier scheduled departure flight. There is no evidence produced by the complainant to show about the already expended taxi pre-paid arrangements and hotel tariff. In the absence of any valid evidences the claim for pre-paid taxi fares/ hotel bills cannot be allowed.
28. But the complainant and his family were not able to complete the remaining days of tour programme in Egypt. Also there is a total failure on part of opposite parties for paying back the cancellation amount. So the complainant is eligible to get compensation from the opposite parties. We find Rs. 20,000/- will be a proper amount of compensation in this regard. Also he is to be paid Rs. 5,000/- as cost of proceedings. The opposite parties are jointly and severally liable.
29. Point No. 4:- In the light of the finding on the above points, the complaint is disposed of as follows;

a)  CC.211/2020 is allowed in part.

b) The opposite parties 1 and 2 are directed to pay to the complainant Rs. 93,062/- (Rupees ninety three thousand sixty two only) with 9% interest per annum from the date of filing the complaint (14/10/2020) till actual payment.

c) The opposite parties 1 and 2 are directed to pay Rs. 20,000/- to the complainant as compensation for the hardship and mental agony suffered.

d) The opposite parties 1 and 2 are directed to pay Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to the complainant.

e) The order shall be complied with, within 30 days of the receipt of copy of this order.

f) The liability of the opposite parties to make payment shall be joint and several.

Pronounced in open Commission on this, the 29^th  day of November, 2024.

Date of Filing: 14/10/2020

                                        Sd/-                                                             Sd/-                                                  Sd/-

                               PRESIDENT                                                 MEMBER                                         MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – E-ticket booked through the opposite parties from Calicut to Kuwait for the scheduled trip on 26/11/2019.

Ext.A2 – Printout of the whatsapp message sent by the opposite parties to the complainant on 05/12/2019.

Ext.A3 – copy of e-mail sent by the opposite parties to the complainant on 05/12/2019.

Ext.A4 – Copy of the e-ticket booked through the opposite parties from Cairo to Calicut Via Abudhabi for the journey date on 06/12/2019. 

Ext.A5 – Invoice of E-ticket booked through the opposite parties from Cairo to Calicut, date of journey 06/12/2019 booked on 05/12/2019.

Ext.A6 – Copy of the E-ticket booked through the opposite parties for the trip on 07/12/2019 from Cairo to Calicut (Via) Muscat.

Ext.A7 – Invoice of up gradation for the scheduled flight of Oman Air on 07/12/2019.

Ext.A8 - Copy of mail communications between complaint and opposite parties.

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1 -  Jayaprakash Kizhakkekara Narayanan Nair (Complainant)

                                       Sd/-                                                                 Sd/-                                                   Sd/-

                              PRESIDENT                                                      MEMBER                                       MEMBER

True Copy,   

                                                                                                                                                          Sd/-

                                                         Assistant Registrar.