| Final Order / Judgement | BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. FA No. 293 OF 2016 AGAINST CC No.562 OF 2016 ON THE FILE OF DISTRICT FORUM- I,HYDERABAD Between : Cleartrip Private Limited, Unit No.001, Ground Floor, DTC Building, Sitaram Mill Compound, Delisle Road, Lower Parel, Mumbai – 400011. ….Appellant / Opposite party AND Sri Ramachandraiah Bollepogu, s/o. Hanmanthu Bollepogu, R/o. H.No.1-3-183/40/16, SBI Colony, Post Gandhi Nagar, Hyderabad District - 80. …..Respondent / Complainant Counsel for the Appellant / Opposite party : Sri R.Anurag & K.Raghava Ramana Counsel for the Respondent / Complainant : Party in Person Hon’ble Sri Justice B.N.Rao Nalla … President & Sri Patil Vithal Rao … Member , Friday the Seventh day of July Two thousand Seventeen Oral Order : (Per Hon’ble Sri. Patil Vithal Rao, Member). *** The Appellant herein is the Opposite Party and the Respondent is the Complainant in C.C.No.562/2015 on the file of the District Consumer Forum-I [for brevity, ‘the District Forum’] Hyderabad. The parties will be referred to hereinafter as arrayed in the complaint. - The brief facts of the case leading to filing of the complaint are that, on 30.09.2015 the Complainant had booked three flight tickets online for himself and his two children through the Opposite Party Agency to perform a journey from Hyderabad to Chandigarh on 03.10.2015 through Spicejet SG 145 Via New Delhi and remitted a sum of Rs.15,459/- through his son’s bank account. His further case is that under unavoidable circumstances he cancelled the trip on 01.10.2015 by informing the Opposite Party Agency over phone and, on enquiry, came to know that after deducting Rs.200/- per ticket towards cancellation charges the balance amount would be refunded to him. As per the Complainant, despite repeated requests, the Opposite Party Agency did not refund the amount and finally informed on 27.10.2015 that he was not entitled for any refund and thereby deceived him resulting in an injustice. Therefore, he sought refund of the flight charges of Rs.15,459/- with compensation of Rs.1,00,000/-.
- The Opposite Party Agency has opposed the claim through its Head –Legal and Authorized Representative before the District Forum by way of filing a written version on the grounds, interalia, that the Forum had no jurisdiction to entertain the case inview of the Arbitration Clause in-corporated in the Agreement. Further, the flight booking for travel was Non-Refundable to the knowledge of the Complainant as it was clearly displayed on the Clear Trip Dash Board. The further defence is that the Opposite Party Agency provides web booking platform which enables the customers to avail the services of the Airline / Hotel (service provider) through the on line platform / website and thus it is only an intermediary having no control over the content provided by the Airline / Hotel which includes information about schedule, availability, fares, booking policy, cancellation and refund. Infact, the Opposite Party Agency could not withheld or suppress any information in the website provided by the member Airline about the rules, terms and conditions with respective booking / cancellation / management etc., of air ticket. As a matter of fact, the entire information about Airline fares rules with regard Non-Refundable booking category was already informed to the complainant by the Opposite Party Agency. Thus, there was no deficiency in service on it’s part and that as such it sought dismissal of the complaint with costs.
- By considering the respective evidence affidavits and documentary evidence under Exs.A1 to A4, for the Complainant and Ex.B1 to Ex.B4, for the Opposite Party and hearing the parties the District Forum by the order dated 24.10.2016 partly allowed the Complaint directing the Opposite Party Agency to refund the amount of Rs.13,959/- [ after deducting the service charges of Rs.500/- on each ticket] with interest @ 6% p.a., with costs of Rs.500/- to the Complainant within 30 days.
- Aggrieved by the above said order the Opposite Party Agency has preferred the present Appeal under section-15 of the Consumer Protection Act, 1986 on the grounds, in brief, that the District Forum did not consider properly documentary evidence adduced by it to establish that the fare details and rules of the Airline pertaining to the booking website was clearly displayed to the Complainant on the booking platform and that the Electronic Generated Tickets were sent to him through his registered e-mail address indicating that the fare was Non-Refundable. The District Forum has also ignored the aspect that the Opposite Party Agency acted as an intermediary having no control in deciding whether and particular booking was refundable or not. Infact, the booking policy is sole prerogative of the Airline. Even otherwise, the case of the Complainant is bad for non-joinder of the Spicejet Airline, which is a necessary party to the dispute and further the Forum has no jurisdiction inview of the binding Arbitration Agreement entered into between the parties. Thus, as per the Appellant / Opposite Party the impugned order is illegal, improper and perverse and that as such liable to be set aside by allowing the present Appeal.
- Perused the material evidence placed on record, the impugned order and the written arguments of both the parties to the case. Heard the learned counsel for the Appellant and the Respondent in person.
- Now the point for consideration is that:
whether the impugned order is erroneous and illegal both on facts and under law and that as such liable to be set aside? - Point :- At the outset it is to be noted that, as per the terms and conditions of the Agreement vide Ex.B2 between the parties, any dispute so arisen, should be referred to the Arbitration. But it is now well settled proposition of law that despite an Arbitration Clause in the mutually agreed contract, a District Forum can entertain the dispute under Section-3 of the Consumer Protection Act, 1986 because the same is not specifically barred under the provisions of the Arbitration And Conciliation Act, 1996. Therefore, we hold that the District Forum has rightly entertained the complaint.
- Undisputedly, the Complainant has booked three flight tickets to undertake a journey from Hyderabad to Chandigarh via New Delhi by availing the services of the Opposite Party Agency on 03.09.2015 and that the journey was to be performed on 03.10.2015 but subsequently he got it cancelled by duly informing the Opposite Party Agency over phone on 01.10.2015. The booking transaction was taken place through online and the travel charges were of Rs.15,459/- inclusive of the Base Fare of Rs.13,497/-. Ex.A1 is a copy of flight booking letter and Ex.A3 is a copy of the flight ticket. The charges were paid by the Complainant to the Opposite Party Agency through the Bank account of his son. Thereafter, in pursuance of the cancellation of the trip, the Complainant sought refund of the entire amount but the Opposite Party Agency informed him that he was not entitled for any refund as the booking was of Non-Refundable Category. This is the only crux of the dispute.
- The Complainant has booked the tickets through online as stated above. Ex.B3 is a copy of Dash Board / Screen Shot of the Opposite Party Agency displayed on it’s website. Basing on the contents of the website only the Complainant had entered into the Agreement with the Opposite Party Agency to undertake the journey. The relevant portion of the Screen Shot under Ex.B3 reads as under:-
Itinerary. Hyderabad to Chandigarh – Sat. 03.10.2015 - The Cleartrip classifies this as a Non - refundable fare.
The Opposite Party Agency has also filed another copy of the Screen Shot under Ex.B4 wherein the category of the booking was shown as Non-refundable. This document also contains names of the complainant and his Co-travelers i.e., his two children. The Opposite Party Agency has specifically stated in para no.11 of the written version that, it had duly informed about all the details of the booking by sending the e-ticket to the Complainant to his e-mail ID i.e., Air India Vs. Susheel Kumar, II (2015) CPJ 75 (NC) held that when terms and conditions of the travel contract were incorporated on electronic ticket by reference to website of the Opposite Party Agency, the Fora below had no jurisdiction to re-write the contract which was already entered between the parties and that as such there was no cause of action to file the complaint. This decision, relied on by the Opposite Party Agency, is aptly applicable to the facts of the present case also. - It is pertinent to note that, the Opposite Party Agency, in the given set of facts and circumstances, had simply acted as an intermediary and that it is not responsible to decide the fare rules, booking policies or the quantum of refund, which is sole prerogative of the Airline. The entire travel fare was evidently received by the Spicejet Airline, which is now in the dispute between the Complainant and the intermediary i.e. the Opposite Party Agency. Under this circumstance, we hold that the said Airline would have been a proper and necessary party to the lis. But the Complainant did not choose to implead it despite a specific defence was set up by the Opposite Party Agency in it’s written version. Therefore, by relying on the decisions in:
Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, AIR 1963 SC 786, and The Competition Commission of India Vs. Steel Authority of India ltd., And another, (2010)10 SCC 744 we hold that the case is bad for non-joinder of a necessary and proper party. - Inview of the aforesaid discussion, we hold that the impugned order is erroneous on facts and under law and that as such liable to be set aside by allowing the present Appeal.
- The point is answered accordingly infavour of the Appellant/ Opposite Party Agency.
- In the result, the Appeal is allowed by setting aside the impugned order but in the peculiar circumstances the parties shall bear their own costs.
PRESIDENT MEMBER Dt.07.07.2017 | |
