Haryana

Ambala

CC/62/2022

Sh Pritpal Singh - Complainant(s)

Versus

The GM Make my Trip India Pvt ltd - Opp.Party(s)

Kuldeep Kumar

11 Dec 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	62 of 2022
Date of Institution	:	22.02.2022
Date of decision	:	11.12.2024

Sh. Pritpal Singh son of Sh. Labh Singh r/o H.No.14, Gobind Nagar, Ambala Cantt.        

  ……. Complainant

Vs.

1. The General Manager, Make My Trip India Pvt. Ltd. DLF Building No.5, Tower B, DLF Cyber City, DLF Phase 2, Sector 25, Gurugram, Haryana 122002.
2. Managing Director, Air Asia Aviation Group Ltd. 4^th Floor, RMZ Galleria, Commercial Block, Yelahanka, Bengaluru-560064.

                                                                                   ….….  Opposite parties

Before:        Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Satinder Garg, Advocate, counsel for the Complainant.

                      Shri Gaurav Rajpoot, Advocate, counsel for OP No.1.

                   Shri Daksh Prem Azad, Advocate, counsel for OP No.2.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund the amount of Rs.39,981/-  alongwith interest @12% p.a. w.e.f. 02.3.2020, till realization.
2. To pay Rs.1,00,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.55,000/-, as litigation expenses.

            

2.           Brief facts of the case are that the complainant had booked the air tickets for a family trip vide booking No.G7VJPH from Delhi to Goa for the period from 23.03.2020 to 27.03.2020, and paid Rs.39,981/- to the OPs.  As per the schedule, the complainant had to travel on 23.03.2020 from New Delhi to Goa and on 27.03.2020 from Goa to Delhi via Bombay. On 23.03.2020, complainant was not allowed to enter New Delhi, due to Lockdown imposed by the Central Government of India in all States, because of outbreak of Pandemic of Covid-19 (Corona Virus). Due to this reason the complainant was not able to travel from Ambala to Delhi and as such, failed to board the flight. Complainant requested the OPs to refund the amount paid by him in advance but the OPs refunded him only a nominal amount. Complainant again requested the OPs to refund the remaining amount but they did not do so. Complainant served a legal notice dated 06.01.2021, upon the OPs, but of no avail. Hence, the present complaint.
3.           Upon notice, the OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability, no case of action and no territorial jurisdiction etc. On merits, it has been stated that the OP No.1 vide booking ID No.NF78147269873904 booked air tickets of Air Asia for the complainant from Delhi to Goa for 23.03.2020 and returned tickets of Vistara Airlines from Goa to Delhi via Bombay for 27.03.2020, for an amount of Rs.39,981/-. At the time of booking of the said tickets, the complainant has accepted the terms and conditions of the user agreement. Once, the concerned tickets were confirmed and shared with the complainant, the answering OP was discharged from its obligations and duties qua the said booking. According to the User Agreement, the liability for any aspects of the standards of services provided by the concerned Airlines, is not attributable to the Opposite Party. The relevant portion of the User Agreement has been reproduced hereunder:

‘LIMITED LIABILITY OF MMT’

“Unless MMT explicitly acts as a reseller in certain scenarios, MMT always acts as a facilitator by connecting the User with the respective service providers like airlines, hotels, restaurants, bus operators etc. (collectively referred "Service Providers"). MMT's liability is limited to providing the User with a confirmed booking as selected by the User.

 

Any issues or concerns faced by the User at the time of availing any such services shall be the sole responsibility of the Service Provider. MMI will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence on part of any Service Provider.

 

Unless explicitly committed by MMT as a part of any product or service:

 

MMT assumes no liability for the standard of services as provided by the respective Service Providers.

 

MMT provides no guarantee with regard to their quality or fitness as represented.

 

MMT doesn't guarantee the availability of any services as listed by a Service Provider.

 

By making a booking, User understands MMT merely provides a technology platform for booking of services and products and the ultimate liability rests on the respective Service Provider and not MMT. Thus the ultimate contract of service is between User and Service Provider.

 

User further understands that the information displayed on the Website with respect to any service is displayed as furnished by the Service Provider. MMT, therefore cannot be held liable in case if the information provided by the Service Provider is found to be inaccurate, inadequate or obsolete or in contravention of any laws, rules, regulations or directions in force."

 

                   Further, according to the User Agreement, the end service provider reserves the right to refuse / cancel any booking at its end for various reasons including but not limited to behavioural issues, public safety, health hazards, infectious diseases, government orders/notification etc. Vide the same clause, the Complainant had also agreed to the fact that in case of such refusal/cancellation no liability shall be borne by the Opposite Party. The relevant portion of the User Agreement has been reproduced hereunder:

"TERMS OF THE AIRLINES

 

The airline tickets available through the Website are subject to the terms & conditions of the concerned airline, including but not limited to cancellation and refund policies.

 

MMT merely acts as a facilitator to enable the User to book a flight ticket. The contract of service for utilization of the flight is always between the User and the concerned airline. Airlines retain the right to reschedule flight times, route, change or cancel flights or itineraries independent of and without prior intimation to MMT. As a facilitator MMT has no control or authority over the logistics of the airlines and therefore is not liable for any loss, direct or incidental, that a User may incur due to such change or cancellation of a flight. Different tickets on the same airline may carry different restrictions or include different services and price.

 

The baggage allowance on given fare is as per the terms decided by the airline, and MMT has no role to play in the same. Some of the fares shown in the booking flow are "hand baggage fares" which do not entitle the User for free check in baggage and therefore the User will be required to pay separately for check in baggage. The prices for adding check  in baggage to a booking may vary from airline to airline. The user is advised to contact the airlines for detailed costs”.

4.           It is further stated that the complainant was duly apprised of the No-Show Policy, wherein it was clearly mentioned that at the instance of the complainant, failing to board the concerned onward sector flight, no refund shall be applicable, and the same has been duly mentioned in the cancellation policy in the E-tickets issued to the complainant. Complainant failed to board the flight, hence, no refund is applicable in the present case. In the complaint, it is alleged that the complainant could not board the concerned onward Sector flight owing to restrictions for entering Delhi, due to restrictions imposed by the Central Government due to the outspread of the COVID-19 pandemic. However, Ministry of Home Affairs had impose the National wide Lockdown on 25.03.2020 and the notification of the same was published on 24.03.2020, i.e one day after the original day of departure of the concerned onward sector flight. Complainant has miserably failed to place on record any evidence to corroborate the concocted claim that he was not allowed to enter the state of NCT of Delhi. It is further stated that the air Asia apprise the answering OP that the concerned Airline was operational and the complainant was marked as No-Show, hence, no refund is applicable in the present case. It is further stated that the concerned returned sector flight was cancelled by the concerned Airlines i.e Vistara Airlines and in lieu of the same Vistara Airlines has processed the applicable refund amounting to Rs.18,228/-, on 10.11.2020 and the answering OP proactively processed the applicable refund of Rs.17,528/- on 12.11.2020, after the deduction of the Non-Refundable Convenience Fee amounting to Rs.700/- in accordance with the User Agreement and the Cancellation Policy of the answering OP and Vistara Airlines, which was duly agreed to by the complainant at the time of making the concerned flight bookings with it. The same has also been admitted by the complainant in the complaint as well. Hence, the answering OP has duly outperformed all its duties and no liability of any refund can be fastened upon it. It is further stated that the liability to refund the amount towards the cancellation of the flight bookings lies upon the concerned Airlines i.e Air Asia and Vistara Airlines. It is further stated that the OP has proactively forwarded the applicable refund to the complainant, as received from Vistara Airlines. Further, Air Asia has miserably failed to process any refund to the OP since the concerned onward sector flight was operational and the complainant had failed to board the concerned flight and hence, no refund is applicable. Hence, in accordance with the Order dated 01.10.2020, the OP shall only be liable to process any refund of the concerned onward sector, if Air Asia processes the same, to the OP. Complainant is being aggrieved by the non-refund for the onward-sector flight booking operated by Air Asia, which he failed to board himself. However, at the time of making of the concerned flight booking the complainant was duly apprised of the No-Show Policy of the OP, wherein it was clearly mentioned that at the instance of the complainant, failing to board the concerned onward sector flight, NO REFUND SHALL BE APPLICABLE and the same has been expressly mentioned in the E-Ticket issued to the complainant by the OP. Further, as stated above, Air Asia apprised the answering OP that the concerned Airline was operational and the complainant was marked as No-Show, hence, no refund is applicable in the present case. It is of utter importance that Air Asia, be impleaded as a party to the present case for proper examination of Air Asia, to corroborate the fact that the concerned flight was operational. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with exemplary costs.
5.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability etc.  On merits, it has been stated that complainant has alleged that due to nation-wide lockdown, he was not able to travel to New Delhi and sought refund of Rs.39,981/-, allegedly paid towards the booking amount against the PNR No.G7VJPH. It is further stated that in Parvasi Legal Cell Vs. Union of India (W.P. No.10966 of 2020, the Hon’ble Supreme Court has directed to refund the collected fare to passengers whose booking is made from 25.03.2022 onwards. The relevant part of the judgment is mentioned herein below:

          “……1 If a passenger has booked a ticket during the lockdown, period (from 25^th March, 2020 to 24^th May 2020) for travel during lockdown period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation.

2. If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the agent to the passengers…..”

In the present case, the travel date was 23.03.2022 and as there was no restrictions on the operation of answering OP on that particular day but complainant voluntarily choose not to travel on that day, accordingly the ground-staff to the answering OP had no other option but to treat it as “Gate NO Show”. Thus, the answering OP is not liable to refund the entire booking amount (except for the statutory charges, i.e Tax amount) to the complainant as the said cancellation is a voluntarily one and same does not come under the period eligible for full refund as specified by the Hon’ble Apex Court. It is further stated that PNR shared by the complainant is only between DEL-GOA and the payment received by it responded against the said PNR is only Rs.19,336/-. The answering OP was operating its flights on the date of departure i.e on 23.03.2020 and the complainant voluntarily choose to miss the said flight, accordingly, the agent of answering OP had no other option but to treat it as “Gate No Show” in terms of Article 8 (g) (ii) of the Conditions of Carriage (COC). Being a case of “Gate No Show”, the answering OP was not obliged to refund the entire amount paid by the complainant for the missed flight, except for the tax amount that is charged on the flight ticket. The tax is refunded to the passenger only upon receipt of an express request from the passenger in accordance with the COC of the airline. The complainant being the ticket holder of the answering OP is bound by the terms and conditions of the COC and is obligated to act in the manner stated in the COC, which has not been done by the complainant and as such, the answering OP is not liable to refund the entire booking amount (except for the statutory charges). Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with costs.

6.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-13 and closed the evidence on behalf of complainant.  Learned counsel for OP No.1 tendered affidavit of S. Sreesh, Senior Associate (Legal) and Authorized Signatory of OP No.1-MakeMy Trip India Pvt. Ltd., having its registered office at 19^th Floor, Epitome Building No.5, DLF Phase-III, DLF Cyber City, Gurugram, Haryana-122002 as Annexure RW1/A alongwith documents as Annexure R-1 to R-8 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 has tendered affidavit of Vanshika Chandra, Authorized Signatory of OP No.2 as Annexure OP2/A alongwith documents as Annexure OP2/1 to OP2/2 and closed the evidence on behalf of OP No.2.  
7.           We have heard the learned counsel for the parties and have carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OP No.1.
8.           Learned counsel for the complainant submitted that due to the imposition of lockdown by the Governments of Delhi and Haryana because of the outbreak of COVID-19 pandemic, complainant was not allowed to travel from Ambala to Delhi Airport and as such, he was unable to board the flight. Since, due to unavoidable circumstances, the complainant failed to board the flight, therefore, he is entitled to get the refund of the amount, paid by him, but by making refund of the part amount, the OPs are deficient in rendering service.
9.           On the other hand, learned counsel for OP No.1 (Make My Trip) submitted that it being a facilitator has booked the confirmed tickets for the journey of the complainant for the period from 23.03.2020 to 27.03.2020. He further submitted that since it has been informed by OP No.2 (Airlines) that the complainant failed to board the flight on 23.03.2020, as a result of which he was declared as No Show Case by OP No.2 and thereafter the amount was refunded to him, after making deductions by OP No.2, as per terms and conditions of the airlines contract.
10.           Learned counsel for OP No.2 submitted that the complainant failed to board the flight on 23.03.2020, as a result of which he was declared as No Show Case by OP No.2 and thereafter the amount was refunded to him, after deducting the amount, as per terms and conditions of the airlines contract. He further submitted that the complainant failed to present adequate evidence to show that he was not allowed to travel from Ambala and enter Delhi and board the flight due to the lockdown. He also placed reliance on the judgment of the Hon’ble Supreme Court in the case of Parvasi v. Union of India, (Writ Petition No.570 of 2020) decided on 01.10.2020 to contend that full refund claims are applicable only to those customers, who were to travel from 25.3.2020 onwards and could not travel, due to the national lockdown imposed  and not to the customers who were to travel by air before that 25.03.2020
11.           It is not in dispute that the complainant had booked a flight of Air Asia i.e. OP No.2 and Vistara Airlines through OP No.1 for travel between Delhi-Goa-Delhi scheduled to take place on  23.03.2020 and 27.03.2020, on making payment of Rs.39981/- vide tickets, Annexure C-6 colly. The issues for consideration before this Commission are:-

 

1. Whether the complainant was indeed unable to board the flight due to the imposition of the lockdown by the Governments of Delhi and Haryana and the OPs were liable to refund the entire amount, paid by the complainant.

12.           In order to prove his case that the complainant could not travel from Ambala to Delhi Airport, due to the global outbreak of COVID-19 and the imposition of lockdown by the State Governments of Delhi and Haryana, he has placed on record order dated 22.03.2020 (Annexure C-3), issued by the Government of Delhi, which mandated a complete lockdown in Delhi from 23.03.2020 onward, resulting in the suspension of all public transportation, including flights and also an  order dated 23.03.2020 (Annexure C-1), issued by the Government of Haryana, which similarly imposed a complete lockdown w.e.f. 22.03.2020 to 31.03.2020 in Haryana.
13.           It may be stated here that the complainant has provided valid and verifiable evidence of the lockdowns imposed in Delhi and Haryana. As per the Government of Delhi’s order dated 22.03.2020 (Annexure C-3), a complete lockdown was enforced in Delhi, which led to the suspension of all public transport, including domestic and international flights, from that date onward. This lockdown was not limited to any specific area but applied to the entire city of Delhi, thereby impacting the complainant’s ability to travel to the airport and board his flight. Similarly, the Government of Haryana’s order dated 22.03.2020 (Annexure C-1) imposed a lockdown until 31.03.2020, which directly affected the complainant's ability to travel from Haryana to Delhi. These lockdown orders clearly establish that the complainant was unable to travel due to government-mandated restrictions, which were out of his control. The complainant’s inability to board the flight was not due to personal negligence or failure on his part, but because of the official travel restrictions imposed by the authorities in both Delhi and Haryana in response to the COVID-19 pandemic.
14.           On the other hand, the OPs rely on the judgment of the Hon’ble Supreme Court in the case of Parvasi v. Union of India, wherein it was held that passengers who were unable to travel due to the national lockdown imposed on 25.03.2020 were entitled to partial refunds. However, this judgment pertains specifically to the period from 25.03.2020 onward, when the nationwide lockdown was imposed in other parts of the Country from 25.03.2020 and not from 23.03.2020. In contrast, the complainant’s flight was scheduled to take place prior to the nationwide lockdown in other parts of country, and during the time when lockdowns had already been enforced by the state governments of Delhi and Haryana. The complainant’s inability to board the flight occurred due to the specific local restrictions in these states, which were in force before the national lockdown. The OPs cannot use the judgment in Parvasi v. Union of India as a defense to escape liability. The lockdown orders issued by the Governments of Delhi and Haryana were in effect during the complainant’s scheduled travel dates, and these restrictions directly prevented the complainant from boarding the flight. Therefore, the OPs' reliance on the national lockdown date (25.03.2020) is misplaced, as the complainant’s claim is based on state-specific lockdowns that were in place earlier.
15.           Thus, it was OP No.2 which was to refund the amount received from the complainant qua the air tickets from Delhi to Goa booked for 23.03.2020 but to the contrary, by failing to adequately consider the lockdown orders imposed by the State Governments of Delhi and Haryana, OP No.2 has unjustly denied the complainant a full refund. The complainant’s inability to board the flight was a direct consequence of the government-mandated restrictions, not due to any fault or negligence on his part. By making refund of part amount only OP No.2 is deficient in providing service to the complainant. Given that the complainant was unable to travel because of circumstances beyond his control, the OP No.2 is liable to refund the amount paid for the tickets to it.
16.           Since, no deficiency in service has been proved on the part of OP No.1 and it was only responsible for booking the tickets in question, therefore, complaint against OP No.1 is liable to be dismissed.
17.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.1 and partly allow the same against OP No.2 and direct it, in the following manner:-  
    1. To refund the amount received from the complainant alongwith interest @6% per annum, from the date of receipt of the amount onwards, after deducting amount already paid to him.
    2. To pay Rs.3,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/-, as litigation expenses.

                   The OP No.2 is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order,  failing which the OP No.2   shall pay interest @ 8% per annumon the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 11.12.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President