BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Consumer Complaint No. 57 of 2016.
Date of Institution: 25.3.2016.
Date of Decision: 10.01.2019.
Manoj Rathi son of Shri Hawa Singh Rathi, Permanent resident of Flat No.521, Palm Court Apartment, VIP Road Zirakpur-160022 (Chandigarh) & now resident of House No.1820, Sector-13, Bhiwani, Tehsil and District Bhiwani, Mobile No. 09729872321.
…..Complainant.
Versus
Yatra.com, 1st Floor, Tower B, Unitech Cyber Park, Sector-39, Gurgaon Haryana-122002 through its Managing Director, Telephone No. + 91-9555800800.
…..Opposite Party.
Complaint under Section 12 of the
Consumer Protection, Act, 1986.
Before: - Hon’ble Mr. Manjit Singh Naryal, President.
Hon’ble Mr. Parmod Kumar, Member.
Hon’ble Ms. Renu Chaudhary, Member.
Present: Shri Satender Ghanghas, Advocate for the complainant.
Shri R. K. Verma, Advocate for the OP.
ORDER:-
PER MANJIT SINGH NARYAL, PRESIDENT
Brief facts of the complainant’s case are that on 12-01-2016 he had tried to book the air tickets from Bangalore to New Delhi of Jet Airways for 3 persons (2 Adult & 1 Child) online through opposite party i.e. Yatra.com, but due to some technical issue with the OP’s website gateway, the complainant failed in booking tickets, whereas an amount of Rs. 10,671/- got debited from his account. It is alleged that the representative of Yatra.com informed the complainant telephonically that he has sent the direct link on his email ID and now he can book tickets without re-entering the passenger’s details and on this the complainant tried to book tickets, but again failed in booking tickets and an amount of Rs.10,671/- has been again debited from his account. It is further alleged that in this way complainant has failed in booking tickets, whereas an amount of Rs.21,342/- (10671 + 10671) has been debited from his account. It is further alleged that the OP on their website has mentioned that the refund period of any wrong deduction is maximum 14 days in case of internet banking. It is further alleged that the complainant waited for 14 days for refund of wrongly debited amount, but the OP failed in refunding the amount. It is further alleged that the complainant has sent an email on 27.1.2016 to OP with the request to refund his amount of Rs.21,342/- (10671 + 10671) deducted twice, which was wrongly debited from his account on 12.1.2016, but OP has only issue refund of Rs.10671/- on 29.1.2016. It is further alleged that the complainant has sent several emails to the OP with the request to refund the remaining amount of Rs. 10671/-, as they have debited the amount of Rs.10671/- twice from his account and they have only refund the amount once, but to no effect. Thus, there is deficiency in service on the part of the OPs. Hence, this complaint.
2. OP on appearance filed contested written statement. It is alleged that the complainant having used online platform www.yatra.com has become “user” and by virtue of having ‘accepted’ the terms of the Master user agreement. It is further alleged that clause 21 of the Master User Agreement clearly states that ‘this agreement and each TOS shall be governed by and constructed in accordance with the laws of India without reference of conflict of laws principles and disputes arising in relation hereto shall be subject to the exclusive jurisdiction of the courts of Gurgaon, Haryana’. It is further alleged that once the jurisdiction of courts at Gurgaon, Haryana was accepted by the complainant, he cannot be allowed to change the same. It is further alleged that this Forum does not have territorial jurisdiction to adjudicate this complaint. It is further alleged that as per Clause 5.6 of the Master User Agreement “the maximum liability on part of Yatra arising under any circumstances, in respect of any Services availed shall be limited up to a maximum of the refund of total amount received from the user/customer for providing the services less any cancellation, refund or others charges, as may be applicable. In no case Yatra shall be liable for any consequential loss, damage or additional expense whatsoever. In no event Yatra shall be liable for any kind of refunds/returns of charges/fee/fares paid to service provider for rendering the services to user/customer”. It is further alleged that the OP ‘s maximum liability is refunding the total amount received from the user/customer. It is admitted that an amount of Rs.10,671/- was deducted twice from the bank account of the complainant, but the same occurred owing to a technical glitch, which was completely unintentional and unknown to the OP. It is further alleged that the OP was merely aware about complainant’s first transaction and that immediately upon becoming aware about the first transaction’s failure, refunded amount of Rs.10,671/- to the complainant. It is further alleged that the failure of second transaction did not appear in the system/records of the OP until recently, hence the same could not be refunded then. It is further alleged that second failed transaction has been recently detected by a team of the OP and therefore the OP is refunding the same to the complainant. Hence, there is no deficiency in service on the part of the OP and prayed for dismissal of complaint.
3. Ld. Counsel for the complainant to prove his case placed on record duly sworn affidavit of complainant as Annexure CW1/A and documents Annexure C1 to C12 and closed the evidence.
4. Ld. Counsel for the OP has placed on record Annexure R1 & R2 and closed the evidence.
5. We have heard ld. counsel for both the parties at length and gone through the case file very carefully.
6. After hearing the learned counsel for both the parties and having gone through the material available on the records, we are of the considered view that complaint of the complainant deserves acceptance, as there is deficiency & unfair trade practice on the part of the OP. The complainant has successfully proved his case by placing on record the copy of certain documents i.e. duly sworn affidavit, emails, bank account statement. The OP even failed to rebut the case of the complainant by placing on record some cogent & convincing evidence. It is pertinent to mention here that the OP in its written statement has admitted the fact that they have failed in refunding the amount (10,671/-) of second failed transaction to the complainant. The plea taken by the OP that this forum has no jurisdiction is not tenable at all, because the tickets have tried to book from Bhiwani online and the amount has been deducted from the complainant’s account, which is he having with SBI at Bhiwani. Thus, this Forum has the jurisdiction to try, entertain & decide present complaint. The further plea taken by the OP is that as per the Master User Agreement OP’s maximum liability is just refunding the total amount received from the customer is also not tenable, because the OP has knowingly and intentionally not refunded the amount of the second transaction to the complainant with some bad intention. Complainant has proved on record by placing on record copies of Emails that the OP’s have the knowledge of the failure of second transaction also and they did not refund the amount of second transaction intentionally. Now the OP cannot take shelter behind the Master User Agreement just to save their skin. It is clearly established on record that the OP has failed in refunding the amount of second transaction i.e. Rs.10,671/- to the complainant with immediate effect, despite making several requests by the complainant. Moreover, it has been brought to the notice of this Forum by ld. counsel for the complainant that during the pendency of this complaint, the OP has refunded the amount of Rs.10,671/- i.e. 2nd transaction amount without any interest or compensation. It is also pertinent to mention here that even after deducting the amount twice from the account of the complainant, the OPs have failed to provide the service for which they deduct/kept the money for long period for which they allured & assured the general public to provide smooth services for travel booking. Thus, there is gross negligence and deficiency in service on the part of the OP and they cannot be allowed to run away from their responsibility.
7. Therefore, in view of the above facts and circumstances, the complaint of complainant is partly allowed with costs. Thus, the OPs are directed to: -
i. To pay interest @ 12% p.a. on the amount of Rs.10,671/- from the date of filing this complaint till the date of actual payment.
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iii. To pay Rs.5000/- as litigation charges.
The compliance of the order shall be made within 30 days from the date of the order. Certified copies of the order be sent to parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: - 10.01.2019.
(Renu Chaudhary) (Parmod Kumar) (Manjit Singh Naryal)
Member. Member. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
