BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 118 of 2018

Date of Institution:16.2.2018

Date of Decision: 13.2.2019  

1. Sh. Gulwinder Singh S/o Sh.Tarlok Singh Mobile No. 9646102550
2. Mrs.Rupinder Kaur W/o S.Gulwinder  Singh both resident of A-624, New Amritsar, Amritsar
3. Sh.Manmohan Singh S/o Sh.Mohinder Singh
4. Mrs.Paramjit Kaur W/o S. Manmohan Singh, both resident of L-12/618, Gali No. 6, Kot Harnam Dass,Sultanwind Road, Amritsar
5. Sh.Prem Singh S/o Sh.Arjan Singh
6. Mrs.Randhir Kaur W/o S. Prem Singh both resident of House No. 146, Gali No.2, Partap Avenue, Amritsar
7. Sh.Shankar Kiran S/o Sh. Roshan Chand
8. Mrs.Sheetal Kumari W/o Sh.Shankar Kiran both resident of A-630, New Amritsar,Tehsil and Distt.Amritsar
9. Sh.Sanjiv Kumar S/o Sh.Darshan Kumar R/o 23, Krishna Square I, Shivala Bhaiyan, Amritsar
10. Sh.Mangat Ram S/o Mansa Ram R/o 711-10/11, Gali No.2, Nehru Colony, Majitha Road, Amritsar
11. Sh.Nathu Ram Sharma S/o Sh.Tara Chand Sharma R/o 10 Hukum Singh Road, Street No.1, Amritsar

Complainants

Versus

1. Yatra Online Private Limited (Yatra.com) through its Officer Incharge/Regional Manager, 6^th Floor, Tower D, Unitech Cyber Park, Gurugram (Haryana) 122002
2. Spicejet Private Limited through its Officer Incharge/Regional Manager, 319, Udyog Vihar, Phase IV, Gurugram 122016 (Haryana)

Opposite Parties

Complaint under section 12  of the Consumer Protection Act, 1986

 Present : For the complainant :         Sh.Avik Mehra,Advocate

                For the opposite party No.1 : Mrs.Preeti Mahajan,Advocate

               For the Opposite Party No.2 : Sh.Ajay Mehta,Advocate

Coram:

Sh. Charanjit Singh, President

Mr.Anoop Sharma,  Member        

Ms. Rachna Arora, Member

Order dictated by:

Sh. Charanjit Singh, President

1.       Present complaint has been filed by Gulwinder Singh & others as stated in the head note of the complaint jointly under section 12 of the Consumer Protection Act, 1986 on the allegations that opposite party No.1 deals in arranging tours/holiday packages besides other services, whereas opposite party No.2 is an Airline company. Opposite party No1 offered  a trip via online advertisements to Kerala  to which the complainants become ready to avail the same  .  The complainants  booked a holiday package to Kerala under reference No. YH 3577557 for  6N/7D initially for 10 adults but another person i.e. complainant No.11 was inducted in the package later , before starting of the trip. The time span of the trip was from 15^th September 2017 to 21^st September 2017 from New Delhi to Kerala and back to New Delhi. It is pertinent to mention here that the deals offered in the package included the following:-

a.       Return Airfare from New Delhi to Kerala and back to New Delhi

b.       6 nights accommodation including breakfast

c.       All transfers and sight seeing as per the itinerary in an air condition vehicle.

Opposite party No.1 promised to give “A” star rating services during stay in Kerala and also promised to arrange stay in below mentioned or similar category hotels.

Travel Options:-

New Delhi to Kochi

Date 15.9.2017   

By  Vistara Airlines      

UK-991

03h 00m/Non Stop/Free Meal

Departure : 06:20 AM

RETURN FLIGHT

Trivandrum to New Delhi

Date 21.9.2017

By Spice Jet

SG 942

03h 25m/Non stop

Departure 12:20 p.m.

On the aforesaid assurances of opposite party No.1, complainants agreed to avail these services and paid package amount well in advance through complainant No.1. This amount costing Rs.2,20,749/- + 9320/- thus making grand total Rs. 2,30,069/- through SHI Account No. 00000065009779913 of Amritsar branch. Accordingly, opposite party No.1 booked air tickets from New Delhi to Kochi for 11 passengers in Vistara Airlines flight No. UK 881 departing from New Delhi, IGI Airport at 6.20 a.m. on 15^th September 2017 and return journey by Spice Jet Airlines from Trivandrum to New Delhi having flight No. SG 942 departing on 21^st September 2017 at 12:20 p.m. Opposite party No.1 also provided/arranged accommodation as per following details:-

To the utter surprise of the complainants, the hotel said to be provided at Munnar was not actually in Munnar but approximately 12 Kms. Away from the main town in sub urbans at Devikullam.  Being Hilly Area it took about 40-45 minutes journey to the hotel from Munnar.  Similarly at Thekkady, the hotel provided was also approximately 14 kms away from the main town Thekkady. It was actually situated at a suburban area at Vendiperiyar. Thus, precious time was wasted which could have otherwise been utilized for sight seeing.  It is worth to mention here about the unfair trade practices carried on by opposite party No.1  as these hotels were in remote area where there was no other restaurant near by these hotels.  Therefore, complainants were compelled to buy expensive meals and avail expensive services provided by these hotels, because there was no other option.  The hotel provided by opposite party No.1 at Munnar and Kovallam were deficient in their services and were nowhere close to the ratings  as per their advertisements  as the syncs and taps of the hotel rooms were broken and the LED’s in most of the rooms were not functional. On 20^th September 2017 when complainants were at Kanyakumari , they received a message from opposite party No.2 at about 13:25 p.m. to the effect that the flight SG 942 dated 21.9.2017 from Thiruvanthapuram to New Delhi has been cancelled due to operational reasons and alternative flight can be provided on 23^rd September 2017 and also they will process fare refund for all the passengers. The complainants were virtually stranded 3200 kms. away from home with no alternative accommodation and transportation facility and even no resources to avail these due to deficiency of cash in hand at that relevant time. They repeatedly requested opposite party No.1 to make necessary arrangements for their return journey as they were duty bound and were the service provider.  Despite repeated requests by the complainants, the opposite parties paid little attention and informed the complainants that flight from Trivandrum will only be available on 23.9.2017 instead of 21.9.2017 and when the complainants requested the opposite party that due to pre occupations at Amritsar they had to reach Amritsar and in such a situation opposite party No.1 taking advantage of the situation further harassed the complainants by enforcing a condition that they can get flight from Cochin instead of Thiruvanthpurram on 21.9.2017 which was about 300 km away from Kovalam  and complainants were compelled to pay Rs. 30,800/- extra for their return tickets from Cochin to Delhi. The complainants were left with no other alternative but to concede to the demand of opposite party No.1 which was got transferred by complainant No.1 from one of his relative namely Abhijot Singh having card No. 489377XXXXXX9565 from HDFC Mohali. The receipt of amount has also been acknowledged by opposite party No.1. The remaining part of the tour was totally spoiled due to cancellation of flight and indifferent behavior by opposite parties. Due to cancellation of flight by opposite party No.2, the complainants had to cancel their railway ticket booked from Hazrat Nizammudin to Amritsar for 21.9.2017  for 21.9.2017 which cost them a loss of Rs. 2627/- charged by IRCTC as cancellation charges and further made arrangement in reaching Amritsar by booking air tickets for all the complainants for Rs. 35,759/-. The aforesaid act of the opposite parties amounts to deficiency in service, unfair trade practice . Vide instant complaint, complainants have sought for the following reliefs:

(a)     Opposite parties be directed to pay for the excessive charges incurred by the complainants for buying air tickets from Kochi to New Delhi i.e. Rs. 30,800/-  and also to refund Rs. 2627/- as cancellation charges of train  as well as Rs.35,759/- incurred by the complainants for reaching Amritsar from New Delhi ;

(b)     Compensation to the tune of Rs. 1,00,000/- alongwith litigation expenses  to the tune of Rs. 20000/-may also be awarded to the complainants.

Hence, this complaint .

2.       Upon notice, opposite party No.1 appeared and filed written version in which it was submitted that  answering opposite party runs a platform which provides tour booking facility and as such are only an intermediary between the customer and service provider i.e. the airline. Role of answering opposite party is limited to the extent of providing valid bookings based on the information and selection entered by the customer. Thereafter any rescheduling/cancellation/preponement/delay/ refund etc is solely within the control of the airlines who are actual service providers. The complainants had booked a holiday package to Kerala (Booking reference No. HY 3577557) for 6D/7 N for 10 adults and one person complainant No.11 was included in the package later.  The time span of the trip was from 15.9.2017 to 21.9.2017 and the amount paid for the same was Rs. 2,30,069/-. It was admitted that all the bookings were made by the answering opposite party as per the itinerary of Holiday Package to Kerala provided to complainants by way of e-mail dated 17.8.2017.. The major issue raised by the complainant in this complaint is regarding the cancellation of flight from Thiruvanathpuram to New Delhi by opposite party No.2.  On 20.9.2017 opposite party No.1 was informed that opposite party No.2 cancelled the return flight. Opposite party No.1 is a travel agent which provides the bookings as per instructions of the customers. Return flights were booked as per the requirements of complainant and there was no issue regarding the same.  The Airlines are not under control of opposite partyNo.1 and opposite party No.1 is not responsible for any cancellation or modification of flights by the airlines which in this case was opposite party No.2. It was the duty of the opposite party No.2 to operate fights as per the tickets sold by it.  Therefore the compensation regarding inconvenience and additional expenses incurred by the complainants due to cancelation of flight is the sole responsibility of opposite party No.2 and opposite party No.1 is not liable for the same. Without admission of any liability, opposite party No.1 as a gesture of goodwill offered the complainants  an alternate flight which was available and was departing from Kochi to which the complainants agreed and opposite party No.1 cancelled their return flight with full refund INR 44,480 from Spice Jet. New flight was booked on Indigo Airlines which costed opposite party No.1 an amount of Rs.76,857/-  as such opposite party No.1 charged only Rs. 30,800/- as difference of the same. Also as gesture opposite party No.1 itself bore additional travelling cost of tempo traveler from Trivandrum to Kochi against which opposite party No.1 paid Rs. 1900 to the cab vendor.  The role of opposite party No.1 was only to make the bookings and it cannot compel the opposite party No.2 to operate the flights in time or refund/compensate for the same. The allegations regarding the services at hotel  at Munnar and Hotel Springdale at Thekkady are denied being incorrect as in the itinerary it clearly shows the list of hotels that would be provided and there is no dispute that the same hotels were not provided to the complainants.  While denying and controverting other allegations, dismissal of complaint was prayed.

3.       On the other hand opposite party No.2 in its written version has  submitted that the present complaint is not maintainable as  all the passengers/guest of the answering opposite party No.2 are governed by the terms of carried contained in the e-ticket, framed in accordance with carriage by Air Act 1972. It was submitted that the complainant got booked tickets for travel from Trivendrum to Delhi on 17.8.2017 with travel date as 21^st September 2017. The cost of tickets was Rs. 22,240/- which were booked through Yatra Online Pvt.Ltd, opposite party No.1. It was submitted that due to operational and technical reasons, opposite party No.2 had to cancel the said flight and intimation in this regard was sent to all passengers through e-mail  well in advance on 20.9.2017 at about 1.00 p.m. The aforesaid facts have been admitted by the complainants in their complaint.  It was submitted that  present complaint filed by the complainants is not maintainable  as complainants did not have any direct privity of contract with opposite party No.2. Complainants admittedly approached opposite party No.1 for the complete “Tour package” as mentioned in the complaint. In these kind of tour packages, the organizers also charged for taking care of these kind of eventualities i.e. flight delays and cancellations, as such in case of cancelation of flight of opposite party No.2, making alternate arrangements as per the choice of complainants was responsibility of opposite party No.1 . It was submitted that when opposite party No.2 informed the complainants about cancellation of flight, they contacted staff of opposite part No.2 and they were told that either their entire fare can be refunded or alternate arrangements can be made by providing tickets in flight on 23.9.2017. As such  as per Civil Aviation Requiremets issued by DGCA, the answering opposite part offered refund of the entire amount and the entire ticket amount was refunded to them on 21.9.2017 and no fault lies on the part of answering opposite party  and the complaint is liable to be dismissed .

4.       Ld.counsel for the complainant has vehemently contended that the complainants  booked a holiday package to Kerala under reference No. YH 3577557 for  6N/7D initially for 10 adults but another person i.e. complainant No.11 was inducted in the package later , before starting of the trip for the period from 15^th September 2017 to 21^st September 2017 from New Delhi to Kerala and back to New Delhi. The deals offered in the package included the following:-

a.       Return Airfare from New Delhi to Kerala and back to New Delhi

b.       6 nights accommodation including breakfast

c.       All transfers and sight seeing as per the itinerary in an air condition vehicle.

On the aforesaid assurances of opposite party No.1, complainants made payment of Rs. 2,30,069/- through SHI Account No. 00000065009779913 of Amritsar branch. Accordingly, opposite party No.1 booked air tickets from New Delhi to Kochi for 11 passengers in Vistara Airlines flight No. UK 881 departing from New Delhi, IGI Airport at 6.20 a.m. on 15^th September 2017 and return journey by Spice Jet Airlines from Trivandrum to New Delhi having flight No. SG 942 departing on 21^st September 2017 at 12:20 p.m. It was the case of the complainant that the hotel said to be provided at Munnar was not actually in Munnar but approximately 12 Kms. Away from the main town in sub urbans at Devikullam.  Being Hilly Area it took about 40-45 minutes journey to the hotel from Munnar.  Similarly at Thekkady, the hotel provided was also approximately 14 kms away from the main town Thekkady. It was actually situated at a suburban area at Vendiperiyar. Thus, precious time was wasted which could have otherwise been utilized for sight seeing.  It is worth to mention here about the unfair trade practices carried on by opposite party No.1  as these hotels were in remote area where there was no other restaurant near by these hotels.  Therefore, complainants were compelled to buy expensive meals and avail expensive services provided by these hotels, because there was no other option.  The hotel provided by opposite party No.1 at Munnar and Kovallam were deficient in their services and were nowhere close to the ratings  as per their advertisements  as the syncs and taps of the hotel rooms were broken and the LED’s in most of the rooms were not functional. The further case of the complainant that on 20^th September 2017 when they were at Kanyakumari , they received a message from opposite party No.2 at about 13:25 p.m. to the effect that the flight SG 942 dated 21.9.2017 from Thiruvanthapuram to New Delhi has been cancelled due to operational reasons and alternative flight can be provided on 23^rd September 2017 and also they will process fare refund for all the passengers. The complainants were virtually stranded 3200 kms. Away from home with no alternative accommodation and transportation facility and even no resources to avail these due to deficiency of cash in hand at that relevant time. They repeatedly requested opposite party No.1 to make necessary arrangements for their return journey as they were duty bound and were the service provider.  Despite repeated requests by the complainants, the opposite parties paid little attention and informed the complainants that flight from Trivandrum will only be available on 23.9.2017 instead of 21.9.2017 and when the complainants requested the opposite party that due to pre occupations at Amritsar they had to reach Amritsar and in such a situation opposite party No.1 taking advantage of the situation further harassed the complainants by enforcing a condition that they can get flight from Cochin instead of Thiruvanthpurram on 21.9.2017 which was about 300 km away from Kovalam  and complainants were compelled to pay Rs. 30,800/- extra for their return tickets from Cochin to Delhi. The complainants were left with no other alternative but to concede to the demand of opposite party No.1 which was got transferred by complainant No.1 from one of his relative namely Abhijot Singh having card No. 489377XXXXXX9565 from HDFC Mohali. The receipt of amount has also been acknowledged by opposite party No.1. The remaining part of the tour was totally spoiled due to cancellation of flight and indifferent behavior by opposite parties. Due to cancellation of flight by opposite party No.2, the complainants had to cancel their railway ticket booked from Hazrat Nizammudin to Amritsar for 21.9.2017  for 21.9.2017 which cost them a loss of Rs. 2627/- charged by IRCTC as cancellation charges and further made arrangement in reaching Amritsar by booking air tickets for all the complainants for Rs. 35,759/-. Ld. Counsel for the complainants submitted that the act of the opposite parties amounts to deficiency in service as well as unfair trade practice .

5.       On the other hand Ld.counsel for opposite party No.1 has vehemently contended that  answering opposite party runs a platform which provides tour booking facility and as such are only an intermediary between the customer and service provider i.e. the airline. Role of answering opposite party is limited to the extent of providing valid bookings based on the information and selection entered by the customer. Thereafter any rescheduling/cancellation/preponement/delay/ refund etc is solely within the control of the airlines who are actual service providers. The complainants had booked a holiday package to Kerala (Booking reference No. HY 3577557) for 6D/7 N for 10 adults and one person complainant No.11 was included in the package later.  The time span of the trip was from 15.9.2017 to 21.9.2017 and the amount paid for the same was Rs. 2,30,069/-. It was admitted that all the bookings were made by the answering opposite party as per the itinerary of Holiday Package to Kerala provided to complainants by way of e-mail dated 17.8.2017.. The major issue raised by the complainant in this complaint is regarding the cancellation of flight from Thiruvanathpuram to New Delhi by opposite party No.2.  On 20.9.2017 opposite party No.1 was informed that opposite party No.2 cancelled the return flight. Opposite party No.1 is a travel agent which provides the bookings as per instructions of the customers. Return flights were booked as per the requirements of complainant and there was no issue regarding the same.  The Airlines are not under control of opposite partyNo.1 and opposite party No.1 is not responsible for any cancellation or modification of flights by the airlines which in this case was opposite party No.2. It was the duty of the opposite party No.2 to operate fights as per the tickets sold by it.  Therefore the compensation regarding inconvenience and additional expenses incurred by the complainants due to cancelation of flight is the sole responsibility of opposite party No.2 and opposite party No.1 is not liable for the same. Without admission of any liability, opposite party No.1 as a gesture of goodwill offered the complainants  an alternate flight which was available and was departing from Kochi to which the complainants agreed and opposite party No.1 cancelled their return flight with full refund INR 44,480 from Spice Jet. New flight was booked on Indigo Airlines which costed opposite party No.1 an amount of Rs.76,857/-  as such opposite party No.1 charged only Rs. 30,800/- as difference of the same. Also as gesture opposite party No.1 itself bore additional travelling cost of tempo traveler from Trivandrum to Kochi against which opposite party No.1 paid Rs. 1900 to the cab vendor.  The role of opposite party No.1 was only to make the bookings and it cannot compel the opposite party No.2 to operate the flights in time or refund/compensate for the same. The allegations regarding the services at hotel  at Munnar and Hotel Springdale at Thekkady are denied being incorrect as in the itinerary it clearly shows the list of hotels that would be provided and there is no dispute that the same hotels were not provided to the complainants.  Ld.counsel for opposite party No.1 submitted that there is no deficiency of service on the part of opposite party No.1. On the other hand Ld.counsel for opposite party No.2 has submitted that due to operational and technical reasons, opposite party No.2 had to cancel the said flight and intimation in this regard was sent to all passengers through e-mail  well in advance on 20.9.2017 at about 1.00 p.m. It was submitted that when opposite party No.2 informed the complainants about cancellation of flight, they contacted staff of opposite part No.2 and they were told that either their entire fare can be refunded or alternate arrangements can be made by providing tickets in flight on 23.9.2017. As such  as per Civil Aviation Requiremets issued by DGCA, the answering opposite part offered refund of the entire amount and the entire ticket amount was refunded to them on 21.9.2017 and no fault lies on the part of answering opposite party  . It was submitted that  present complaint filed by the complainants is not maintainable  as complainants did not have any direct privity of contract with opposite party No.2. Complainants admittedly approached opposite party No.1 for the complete “Tour package” as mentioned in the complaint. In these kind of tour packages, the organizers also charged for taking care of these kind of eventualities i.e. flight delays and cancellations, as such in case of cancelation of flight of opposite party No.2, making alternate arrangements as per the choice of complainants was responsibility of opposite party No.1 .

6.       But however, from the appreciation of the facts and circumstances of the case it is not disputed that the complainants availed the services of opposite party No.1  and booked a holiday package to Kerala for 6N/7D for 11 persons for the period from 15.9.2017 to 21.9.2017. The case of the complainant that the hotels provided by the opposite party No.1 at Munnar as well as Thekkady  were far away from the main town due to which precious time was wasted to reach the main town for sight seeing. But, however, the opposite party No.1 has provided the hotels which were duly promised to be provided to the complainants and at this stage complainants cannot take the plea that the hotels were far away from the main town . As such this plea of the complainants is not sustainable. The second  allegation of the complainants is that on 20.9.2017 when they were enjoying their stay at Kanyakumari, they received a message from opposite party No.2 vide which their flight SG 942 dated 21.9.2017 from Thiruvanthpuram to New Delhi has been cancelled  and it was also informed to the complainants that the alternative flight can be provided on 23.9.2017. No doubt the opposite party No.2 made refund of the entire fare charges to the complainants but due to the said act the complainants have to suffer harassment mentally as well as financially . As  the complainants have no alternative but to reach at home and as such the opposite party No.1  by taking advantage of the situation enforced a condition that they can get flight from Cochin instead of Thiruvanthpurram on 21.9.2017 which was about 300 kms away from Kovalam and compelled the complainants to pay Rs. 30800/- extra for their return tirckets from Cochin to Delhi.  The complainants have been harassed firstly by listening the cancellation of their flight which as per opposite party No.2 has been cancelled due to technical reasons  and in this regard opposite party No.2 informed the complainants one day prior to the return journey i.e. on 20.9.2017 and secondly when opposite party No.1 instead of making alternative arrangements for the complainants compelled the complainants to travel 300 kms. away to get the flight and also charged Rs. 30800/- whereas it was the duty of opposite party No.1 being organizers to arrange for the flight at their own expenses and to make arrangements for covering the distance to get the flight . Not only this the complainants have to cancel their railway ticket which were got booked by them from Hazrat Nizammudin to Amritsar  for 21.9.2017 and a cost of Rs. 2627/- was charged by IRCTC as cancellation charges. However, both the opposite parties tried to shift their onus on each other . No doubt the opposite party No.2 cancelled the flight due to operational/technical reasons, but they have to arrange for the alternative flight for the passengers . As such both the opposite parties are liable to make good the loss of the complainants.

7.       However, regarding relief the complainants have sought relief for refund of Rs. 30,800/- as charged by opposite party No.1 as  difference of air tickets from Kochi to New Delhi as well as Rs. 2627/- as cancellation charges for cancellation of train tickets from Hazrat Nizammudin to Amritsar  and also prayed relief for Rs. 35,759/- which they incurred on air tickets for their journey from New Delhi to Amritsar . The complainants are only entitled to refund of Rs. 30,800/- which the opposite party No.1 has charged for difference of air tickets from Kochi to New Delhi as well as Rs. 2627/- as cancellation charges for cancellation of train tickets. However, the demand of Rs. 35,759/- is not genuine as it was the complainants who have to choose their journey by train or by air for reaching Amritsar and the complainants for their convenience chosen the journey for reaching Amritsar by air and incurred Rs. 35,759/- , as such the same is not refundable .

8.       In view of the above discussion, we allow the complaint and the opposite party No.1 is directed to refund Rs. 30,800/- and Rs. 2627/- to the complainants. As the complainants have been harassed in the hands of the opposite parties, as such both the opposite parties are liable to compensate the complainants to the tune of Rs. 10000/- while litigation expenses are assessed at Rs. 5000/-. Compliance of the order be made within a period of one month from the date of receipt of copy of this order ; failing which complainants shall be entitled to get the order executed through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.