Punjab

Faridkot

CC/17/212

Sh Rajesh Rehan - Complainant(s)

Versus

Satish KUmar Sethi - Opp.Party(s)

LALIT MAINI

22 Jan 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C.C. No. :                   212 of 2017

Date of Institution:        3.07.2017

Date of Decision :         22.01.2019

 

Rajesh Rehan son of Ramesh Rehan, age about 33 years, resident of House No.00419, Near Sarkari Dharamshala, The Mall Road, Faridkot.

...Complainant

Versus

1. Satish Kumar Sethi, Sethi Travels, Old Court Road, Near Jain Hospital, Zira.
2. The Via, Level 4, Block B (Magnolia), Manyata Embassy, Business Park, Outer ring road, Nagawara, Bangalore-560045. India.
3. Spice Jet Ltd Airlines, 319, Udyog Vihar, Phase IV, Gurgaon, 122016, Haryana, India.

                                            ....Opposite parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh Ajit Aggarwal, President,

Smt. Param Pal Kaur, Member.

 

Present:      Sh Lalit Maini, Ld Counsel for complainant,    

                  Sh Anil Chawla, Ld Counsel for OP-1,

                   Sh M L Chugh, Ld Counsel for OP-2,

                   Sh Dildeep Singh, Ld Counsel for OP-3.

 

ORDER

(Ajit Aggarwal, President)

                                                          Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops

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seeking directions to OPs to refund Rs.47,850/- alongwith interest and for further directing OPs to pay Rs.40,000/- as compensation for mental agony and  harassment suffered besides Rs.10,000/-as litigation expenses.

2                                                                Briefly stated, the case of the complainant is that complainant alongwith his family consisting of wife; daughter; father; mother; sister; brother in law and their minor children; uncle; aunt and cousins wanted to go to Srinagar and for this purpose he approached OP-1/Sethi Travels, who is agent of OPs and through OP-2 airline, complainant got booked 15 airline tickets of Spice jet Airlines/OP-3 on 22.06.2016 and 23.06.2016. It is pertinent to mention that complainant got booked all these tickets for travelling from Amritsar to Srinagar and departure tickets from Srinagar to Amritsar and for all these tickets, OPs charged Rs.47,850/- from complainant and payment was made by complainant through online mode from Faridkot. Complainant had to start his journey alongwith his family on 2.09.2016 and departure was fixed for 6.09.2016. During the month of July, 2016, a notorious terrorist of Alqaida was encountered and due to adverse conditions in Srinagar, all highways and routes to Srinagar were closed, curfew was imposed by the order of Government and thus, routes to airlines were also cancelled. Complainant and his family were ready to go to Srinagar but could not do there due to cancellation of airlines and curfew imposed by the Government. After cancellation of flights, complainant approached OP-1 and requested to refund the ticket value of Rs.47,850/-, but he did not pay any heed to the requests of complainant. Repeated requests made by complainant to the Ops bore no fruit, which amounts to deficiency in service on the part of OPs. Complainant has suffered a lot of physical pain, mental agony and harassment alongwith his family. Ld counsel for complainant has made request for accepting

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the present complaint and to provide relief sought. He has also prayed for compensation and litigation expenses. Hence, the  instant complaint.

3                                                        The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 3.07.2017, complaint was admitted and notice was ordered to be issued to the OPs.

 4                                                    OP-1 filed written statement taking preliminary objections that complainant has not come to the Forum with clean hands and has concealed the material facts and he has no locus standi to file the present complaint as OP-1 had no privity of contract with complainant. It is averred that answering OP is working at Zira as sub agent of OP-2, who is authorized agent of OP-3. Answering OP was not  approached by complainant, rather he was approached by one Deepak Nanda alias Varinder Kumar and tickets were got booked by said Deepak Nanda by making payment in cash. Complainant never got the tickets cancelled nor made the payment through online mode at Faridkot. It is further averred that this Forum has no jurisdiction to hear and try the present complaint as no cause of action arises against them within the jurisdiction of this Forum. It is asserted that tickets in question were got booked by Deepak Nanda and were also got cancelled by said Deepak Nanda and amount of refund of these cancelled tickets was received back by said Deepak Nanda in cash from OP-1 at Zira and complainant has deliberately concealed this fact from this Forum. Amount of Rs.16,049/-was received from OP-2; out of which Rs.1424/-were deducted by OP-2 from OP-1 which was earlier given as commission at the time of booking of the tickets and thus, total amount of Rs.14,625/-was refunded by OP-1. It is averred that present complaint involves complicated questions of law and facts requiring

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voluminous evidence and thus, present complaint requires to be relegated to Civil Court and moreover, it is bad for mis-joinder of necessary parties and is liable to be dismissed with costs. However, on merits, OP-1 has reiterated the same pleadings taken in preliminary objections and prayed for dismissal of complaint.

5                                    OP-2 also filed reply taking preliminary objections that complaint filed by complainant is false, frivolous and vexatious and complainant has not come to the Forum with clean hands and has concealed the material facts. It is averred that lengthy procedure of law and evidence required in present complaint is not possible in summary procedure of this Forum and this complaint is not maintainable against them as Via.com is an online travel agent i.e intermediatory service provider and not the actual service provider. OP-1 offers only web portal to the customers for booking tickets of their choice in accordance with the terms and conditions of the concerned airlines. OP-1 used the web portal to book the current tickets and thus, OP-1 is the consumer of services offered by via.com and not the complainant. OP-1 booked the air tickets to Spice Jet Airlines through web portal of the answering OP. All cancellation, rescheduling and refunds of the Spice Jet Flights are governed by applicable rules and regulations of the Spice Jet Airlines and are beyond the control of answering OP and only Spice Jet Airlines is responsible for cancellation of flights it operates and refund, if any that has to be paid back by the airlines and not by the agent. Grievance of complainants is only against Airlines and answering OP is not liable for any refund. It is further averred that on receiving the request from complainant for refund of travelling charges, they raised the issue with concerned team of Spice Jet Airlines vide e-mail dated 19.07.2017 and in response to their mail, Airlines replied through their e-mail dated 20.07.2017 that they are not in a position to

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process the full refund. It was informed that above PNRs are cancelled and balance amount has been refunded towards the same agency account from the payment was made. Refund amount received from Airlines was returned to Agency Account of OP-1 on 2.09.2017. however, on merits, OP-2 has denied all the allegations of complainant being wrong and incorrect and asserted that refund received was processed into the account of booking agent on 2.09.2017 and since amount has already been refunded as per rules and therefore, complainant is not entitled to any amount as sought by him. It is further averred that there is no deficiency in service on the part of answering OP and prayed for dismissal of complaint with costs.

6                                       OP-3 appeared in the Forum through counsel and filed written statement wherein they denied all the allegations of complainant being false, frivolous and incorrect and asserted that it is liable to be dismissed as it discloses no cause of action. It is further averred that there is no deficiency in service on the part of OP-3 and complaint filed by complainant is liable to be dismissed. It is asserted that complainants themselves chose not to travel and cancelled the tickets. Complainant /Rajesh Rehan booked five tickets in his own name for himself and his family members on 23.06.2016 for travelling from Amritsar to Srinagar in SG 438, on 2^nd September, 2016 and return from Srinagar to Amritsar, in SG 415 on 6^th September, 2016. Tickets were got booked by complainant through OP-1 and 2 and they got the same booked through Flight Raja Travels Pvt Ltd. complainant paid Rs.16,390/-for five tickets.  On 1.09.2016, complainant made a request for cancellation of said tickets and on his request, answering OP cancelled the tickets and after deducting the cancellation charges as per terms and conditions of carriage, a sum of Rs.5,999/-was remitted by answering OP to the account of travel agent on 2.09.2016. Since, there was no

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direct booking therefore, as per prevailing practice and procedure, refund was made through agent and refund amount was remitted to the account of agent. It is averred that other tickets were booked either in the name of other person or through some other PNR. Since, the names of other passengers and PNR have been disclosed by the complainant, therefore, OP-3 is unable to trace out the record for the same and thus, said agent is liable to make refund for other tickets to the complainant. OP-3 acted as per request for cancellation and has already remitted the amount back  as per terms of cancellation to the account of agent from which it was received. There is no privity of contract between complainant and answering OP. It is further averred that complainant has intentionally and deliberately not disclosed as to which OP, he has made the said payment. OP-3 asserted that complainant and his family was not ready to go to Srinagar and they did not go there due to cancellation of airlines by order of government, rather there was no order of government regarding cancellation of flights and moreover, the flight in question operated during the relevant days. It is a normal case of cancellation by complainant or his agent and as such, after forfeiture of cancellation amount, OP-3 remitted back the entire amount to the complainant through agent. There is no deficiency in service on the part of answering OP and prayed for dismissal of complaint against them with heavy costs.

  7                                                To prove his case, Ld counsel for complainant tendered in evidence affidavit Ex.C-1, documents Ex C-2 to C-9 and then, closed the evidence.

8                                        To controvert the allegations of complainant, Ld Counsel for OP-1 tendered in evidence affidavit of Satish Kumar Ex OP-1 and

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thereafter, closed the evidence on behalf of OP-1. Ld Counsel for OP-2 tendered in evidence affidavit of Shilpa Maria Mathew Ex OP-2/1 and documents Ex OP-2/2 to 5 and closed the same on behalf of OP-2. Ld counsel for OP-3 tendered in evidence affidavit of Vijay Roy Ex Op-3/1 and document Ex OP-3/2 and then, closed the same on behalf of OP-3.

9                                                          Ld Counsel for complainant vehementally argued that complainant alongwith his family wanted to go to Srinagar. He approached OP-1/Sethi Travels/agent of OPs and through OP-2 airline, complainant got booked 15 airline tickets of Spicejet Airlines/OP-3 on 22.06.2016 and 23.06.2016. He got booked all these tickets for travelling from Amritsar to Srinagar and departure tickets from Srinagar to Amritsar and paid Rs.47,850/-to OPs. Payment was made through online mode from Faridkot. Complainant had to start his journey alongwith his family on 2.09.2016 and departure was fixed for 6.09.2016. ld counsel for complainant submitted that during the month of July, 2016, a notorious terrorist of Alqaida was encountered and due to adverse conditions in Srinagar, all highways and routes to Srinagar were closed, curfew was imposed by the order of Government and thus, routes to airlines were also cancelled. Complainant and his family were ready to go to Srinagar but could not go there due to cancellation of airlines and curfew imposed by the Government. After cancellation of flights, complainant approached OP-1 with request to refund the ticket value of Rs.47,850/-, but he did not pay any heed his requests. Repeated requests made by complainant to the Ops bore no fruit, which amounts to deficiency in service. He has prayed for compensation and litigation expenses besides the main relief and stressed on documents Ex C-1 to 9.

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10                                         To controvert the allegations of complainant, ld counsel for OP-1 argued that complainant has not come to the Forum with clean hands and has concealed the material facts and he has no locus standi to file complaint against them as OP-1 had no privity of contract with him. OP-1 is working at Zira as sub agent of OP-2, who is authorized agent of OP-3. OP-1 did not  approach complainant, rather he was approached by one Deepak Nanda alias Varinder Kumar and tickets were got booked by said Deepak Nanda by making payment in cash. Complainant never got the tickets cancelled nor made the payment through online mode at Faridkot. This Forum has no jurisdiction to hear and try the present complaint as no cause of action arises against them within the jurisdiction of this Forum and tickets in question were got booked by Deepak Nanda and were also got cancelled by said Deepak Nanda and amount of refund of these cancelled tickets was received back by said Deepak Nanda in cash from OP-1 at Zira and complainant has deliberately concealed this fact from this Forum. Amount of Rs.16,049/-was received from OP-2; out of which Rs.1424/-were deducted by OP-2 from OP-1 which was earlier given as commission at the time of booking of the tickets and thus, total amount of Rs.14,625/-was refunded by OP-1. It is averred that there is no deficiency in service on the part of OP-1 and prayed for dismissal of complaint with costs.

11                                    Ld Counsel for OP-2 also denied all the allegations of complainant being wrong and incorrect and asserted that there is no deficiency in service on their part. It is further argued that OP-2/ Via.com is an online travel agent i.e intermediatory service provider and not the actual service provider. They offers only web portal to the customers for booking tickets of their choice in accordance with the terms and conditions of the concerned airlines. OP-1 used the

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web portal to book the current tickets and thus, OP-1 is the consumer of services offered by via.com and not the complainant. OP-1 booked the air tickets to Spice Jet Airlines through web portal of OP-2. All cancellation, rescheduling and refunds of the Spice Jet Flights are governed by applicable rules and regulations of the Spice Jet Airlines and are beyond their control and only Spice Jet Airlines is responsible for cancellation of flights it operates and refund, if any that has to be paid back by the airlines and not by the agent. Grievance of complainants is only against Airlines and therefore, OP-2 is not liable for any refund. On receiving the request from complainant for refund of travelling charges, they raised the issue with concerned team of Spice Jet Airlines vide e-mail dated 19.07.2017 and in response to their mail, Airlines replied through their e-mail dated 20.07.2017 that they are not in a position to process the full refund. It was informed that above PNRs are cancelled and balance amount has been refunded towards the same agency account from which the payment was made. Refund amount received from Airlines was returned to Agency Account of OP-1 on 2.09.2017. All the other allegations are denied and averred that refund received was processed into the account of booking agent on 2.09.2017 and since amount has already been refunded as per rules and therefore, complainant is not entitled to any relief for refund of amount as sought by him.

12                                       Ld Counsel for OP-3 brought before the Forum that complaint discloses no cause of action as complainants themselves chose not to travel and cancelled the tickets. Complainant /Rajesh Rehan booked five tickets in his own name for himself and his family members on 23.06.2016 for travelling from Amritsar to Srinagar in SG 438, on 2^nd September, 2016 and return from Srinagar to Amritsar, in SG 415 on 6^th September, 2016. Tickets were got booked

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by complainant through OP-1 and 2 and they got the same booked through Flight Raja Travels Pvt Ltd. He paid Rs.16,390/-for five tickets. On 1.09.2016, complainant made a request for cancellation of said tickets and on his request, answering OP cancelled the tickets and after deducting the cancellation charges as per terms and conditions of carriage, a sum of Rs.5,999/-was remitted by answering OP to the account of travel agent on 2.09.2016. Since, there was no direct booking therefore, as per prevailing practice and procedure, refund was made through agent and refund amount was remitted to the account of agent. It is averred that other tickets were booked either in the name of other person or through some other PNR. Since, the names of other passengers and PNR have not been disclosed by the complainant, therefore, OP-3 is unable to trace out the record for the same and thus, said agent is liable to make refund for other tickets to the complainant. OP-3 acted as per request for cancellation and has already remitted the amount back  as per terms of cancellation to the account of agent from which it was received. OP-3 further stressed that complainant and his family were not ready to go to Srinagar. There was no order of government regarding cancellation of flights and the flight in question operated during said period. It is a normal case of cancellation by complainant or his agent and as such, after forfeiture of cancellation amount, OP-3 remitted back the entire amount to the complainant through agent. There is no deficiency in service on the part of OP-3 and complaint filed by complainant is liable to be dismissed.

13                                                 We have heard the counsel for complainant and have also carefully gone through the pleadings and evidence produced on record by complainant and OP-2 and 3. The case of the complainant is he got booked airline flight tickets from OP-2 and 3 through OP-1 for going to Srinagar and paid

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Rs.47,850/-to them through online mode. But due to killing of notorious terrorists in valley, curfew was imposed and conditions became worthless and by order of government, all air flights were cancelled without cancellation charges. Conditions were so worst there that despite imposition of curfew, protesters and antisocial elements became violent and created great nuisance there. Tickets of complainant were also got cancelled by them, but Ops did not refund the amount of Rs.47,850/-to them which amounts to deficiency in service. Repeated requests for refund also bore no fruit. On the other hand plea taken by Ops that allegations of complainant are wrong and incorrect has no legs to stand upon.

14                                   To prove this case, complainant has relied upon document Ex C-2, which is computer generated copy of invoice for airline tickets given by Sethi Travels/Op-1 that proves the fact that complainant got booked the tickets from OPs on payment of Rs.47,850/-. Ex C-4 is the copy of newspaper clipping that clearly bears the heading that “ No airline cancellation fee for curfew hit passengers in Srinagar” it clearly indicates that all airline flights were cancelled due to curfew in Srinagar. Ex C-5 is the also copy of newspaper, it proves the fact that curfew was imposed in Srinagar after the killing of a notorious terrorist Wani in Kashmir and violent clashes broke out in several areas of Jammu, Kashmir and Srinagar. Ex C-6 further proves this thing that conditions were worst in Srinagar as picture depicts that protesters throw stones at security forces in Srinagar even though a curfew has been imposed. Ex C-7, Ex C-8 and Ex C-9 prove the pleadings of complainant that there was curfew in Srinagar and it was complete shutdown by separatists in Kashmir and Srinagar and despite imposition of curfew, protesters were throwing stones on security forces. Plea taken  by OP-3 that they have refunded the amount of ticket charges in the account of agent Op-1 does

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match  with each other and statements given by OP-2 and OP-3 are not proved by any documentary evidence. Moreover, OP-3 themselves mentioned in their reply that they refunded some amount after deducting cancellation charges, this fact is totally against the government order given in Ex C-4 newspaper cutting which clearly reveals the fact that cancellation for all airline flights including  spicejet would be free of costs, then how OP-3 can deduct cancellation charges from ticket price paid by complainant. Complainant has produced sufficient and cogent evidence to prove his case and invoice for Rs.47,850/- Ex C-2 has nothing to doubt and newspaper cuttings produced on record by complainant from Ex C-4 to Ex C-9 are beyond doubt as curfew was really imposed in Srinagar due to killing of some notorious terrorists in that area. Action of OPs in not refunding the ticket prices to complainant amounts to deficiency in service and trade mal practice on the part of OP-3 and has caused great harassment to him.

15                                               We are fully convinced with the evidence and arguments of Counsel for the complainant. The complainant succeeds in proving his case, therefore, complaint in hand is hereby allowed against OP-3 and stands dismissed against OP-1 and OP-2 as they have no role in making refund of ticket prices. OP-3 is directed to refund the amount of Rs.47,850/- minus Rs.16,049/- already refunded alongwith interest at the rate of 9% per anum from the date of filing the present complaint till final realization to complainant and OP-3 is further directed to pay Rs.5000/- to complainant on account of compensation for harassment and mental agony suffered by him besides Rs.1500/-as litigation expenses. Compliance of this order be made within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of

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the order be supplied to parties free of cost. File be consigned to the record room. 

Announced in Open Forum

Dated: 22.01.2019

                                                  (Param Pal Kaur)                 (Ajit Aggarwal)  

                                                Member                               President