BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.271 of 2019
Date of Instt. 18.07.2019
Date of Decision: 01.03.2023
1. Sameer Sehgal age 47 years son of Sh. Sudhir Sehgal.
2. Mr. Rishab Sehgal age 21 years S/o Sameer Sehgal
Both residents of 336, Lajpat Nagar, Jalandhar.
..........Complainants
Versus
1. Yatra Online Private Limited, 1101, 11th Floor, Tower B, Unitech Cyber Park 5353 Gurugram, Haryana.
2. M/s Etihad Airlines, 2nd Floor, Narain Manzil 23, Barakhamba Road, New Delhi 11001, India.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Anuj Mehta, Adv. Counsel for the Complainants.
Sh. Karanvir, Adv. Counsel for OP No.1.
Sh. Kunwar Sood, Adv. Counsel for OP No.2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainants, wherein it is alleged that OPs are claiming their self as one of the best companies in their respective fields and further they attract their customers by giving various advertisements that they are providing best services and the complainant no.1 Sameer Sehgal came under their impression and got booked round trip Air Tickets in the name of his son i.e. complainant no.2 Rishab Sehgal through the web site of OP No.1 i.e. Yatra.Com from Jalandhar on dated 21.03.2019 from the Airlines of OP No.2 i.e. Etihad Airlines. The said tickets were booked from “Chicago to New Delhi” for dated 05.05.2019 and for return ticket from “New Delhi to Chicago” for dated 20.08.2019. The complainant no.1 Mr. Sameer Sehgal had paid an amount of Rs.64,753/- to OPs for the said round trip air tickets through his credit card of SBI and thereafter OPs e-mailed that tickets to complainant at his e-mail address. The OPs at that time assured complainants to provide their best services and also gave Yatra Reference No.2103996233654 and issued him e-tickets to complainants. Unfortunately, complainant no.2 Mr. Rishab Sehgal, few days before the boarding of the flight from Chicago had lost his Passport in U.S.A. and he immediately on 03.05.2019 reported the matter to U.S. Police and applied for his fresh passport over there. The complainant no.2 Mr. Rishab Sehgal immediately on dated 04.05.2019 contacted and mailed the OP No.2 at their official website and requested them to re-schedule his flight for 05.05.2019 but OPs did not give any response to the complainants. Thereafter complainants also gave several calls at their official toll free number but even then no response had been given from their end. The complainants also approached OP No.1, but their representative told the complainants to pay another sum of Rs.79,000/- beside Rs.15,800 as additional Yatra.com charges for the re-scheduling and tax of the flight. Although a new flight was available at that time for just an amount of Rs 40,000/- So, it clearly showed the unfair trade practice on their part. The complainants aggrieved by their act and conduct again requested them to refund their amount in case they are unable to re-schedule the flight but they also refused in this regard. On dated 07.05.2019, complainants received an e-mail from the office of OP No.2 whereby they suggested the complainants to contact at their Global Contact Centre no.600555666. But before their said response, the complainant no.2 Rishab Sehgal had already missed his flight on dated 05.05.2019 from Chicago to Delhi for the reason stated above. The complainants thereafter tried their level best to contact on the said number Le. Global Contact Centre no. i.e. 600555666 but the same was not reachable at all and when the call has been picked they suggested contacting on email. Then complainants also called their family friend who is residing at UAE to approach the head office of OP No. 2 and he also made his best effort but of no result. Thereafter complainants again gave them an email on 12.05.2019 whereby requested them to the OPs to maintain his return booking for dated 20.08.2019 from "New Delhi to Chicago" as he had already paid the price of the said ticket and also sent so many reminders in this regard. On the same date, the complainants received one email from OP No.1 whereby they stated that their representative shall contact with complainants as soon as possible. But thereafter no reply was given by any representative of OP No. 1. On 14.05.2019, the Complainants again received a email from the OP No.2 to contact Global Contacts Centre Number but again the same was not in operation. The complainants again approached the OPs regarding their act and conduct but instead of giving any proper response to complainants, they told the complainants that they had also cancelled the return ticket of complainant no.2 from "New Delhi to Chicago". However, the complainants were never asked by them in this regard nor any consent or approval from the complainants ever taken by the OPs. It is worth to mention here that the current cost of the flight has now been raised upto Rs.1.20,000/- and just for their own benefit, the OPs had cancelled the return flight of the complainants. Due to said act and conduct at their end, complainants have suffered a lot and have been frustrated and harassed. The complainants also issued legal notice to the OPs through their counsel, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of tickets i.e. Rs.64,753/- alongwith current amount of air tickets i.e. Rs.1,20,000/- and compensation of Rs. 1,00,000/- for harassment, mental agony and on account of unfair trade practice on the part of the opposite parties in the interest of justice, equity and fair play.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed its written reply and contested the complaint by taking preliminary objections that the complainant has not approached this Commission with clean hands, and has suppressed the true and correct facts & documents from this Commission, on which ground alone the complaint deserves to be dismissed at the threshold. It is further averred that the present complaint is baseless and is not tenable at all. The complaint under reply is nothing but an abuse of the process of law and as such the same is liable to be dismissed. It is further averred that that the users of the OP are bound by the terms and conditions of the Master User Agreement (herein referred to as "User Agreement") which they accept at the time of using the website of the OP. Upon perusal of the terms of the User Agreement, it is clear that this Commission has no jurisdiction to try the present case. The User Agreement consists of a Jurisdictional clause. As per Clause 21 of the User Agreement any disputes which arise between a user and the OP shall be subject to the exclusive jurisdiction of the courts of Gurgaon, Haryana. It is further averred that the OP is an intermediary between the service providers and the customers and it does not have any interference in the modus operandi or working of merchants/service providers and the liability for any changes, deficiencies related to the services provided by the service providers. The OP is merely a facilitator of services on behalf of third party service providers. It is a platform where the service providers and the customers meet and it markets travel related services to particular destinations and warrant that travel to such destinations is without risk and help the user make an informed choice while purchasing any tickets. On merits, the factum with regard to paying an amount of Rs.64,753/- for the round trip air tickets by the complainant No.1 to the OP is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against OP No. 2, Etihad Airways, or even against OP No. 1, as there has been no deficiency in service or negligence on the part of the OPs. It is stated that complainant No.2 was unable to utilize his confirmed ticket for the ostensible reason that he did not have his passport which he had statedly lost. It is stated that Complainant No.2 did not even present himself at the airport on the date of travel, that is, 05.05.2019, nor did he take steps to cancel his ticket prior to travel, and hence, was declared a no-show leading to the automatic cancellation of the entire ticket. It is stated that Complainant No.1 has chosen to purchase a ticket with restrictions/a very high cancellation fee as can be seen from the ticket itself. It is stated that Complainant No.1 purchased a non-refundable ticket as non-refundable tickets are cheaper. It is further stated that the Complainants were, at all times, aware that no refund was payable on cancellation as can be seen from the ticket itself which records the airline cancellation fee as 60,100/- as against the cost of the total ticket of Rs.64,753/-. It is stated that the Complainants also did not wish to pay the rescheduling charges and the difference in fare, nor did they wanted to cancel the ticket knowing that no refund was payable on cancellation and hence, the Complainants chose to purchase another ticket for travel on a later date of their choice. It is stated that no fault whatsoever can be attributed to either of the Opposite Parties in Complainant No.2 not being able utilize his confirmed booking made by Complainant No.1, which was purely on account of loss of passport of Complainant No.2. Hence, the present complaint is liable to be dismissed. On merits, the factum with regard to purchasing of the ticket by the complainant No.2 from OP No.1 on 21.03.2019 is admitted and it is also admitted that the complainant No.2 lost his passport in USA, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder not filed by the complainant.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OPs very minutely.
7. The complainants have filed the present complaint for wrongly cancelling the return ticket of the complainants and for not rescheduling the tickets despite the previous information given to the OPs. The OP No.1 has submitted that present complaint is not maintainable qua OP No.1 as the OP is an intermediary between the service providers and the customers and it does not have any interfere in the working of the service providers. He has further submitted that the liability for any changes or deficiency is of service providers and not of the OP No.1. The OP No.1 is merely a facilitator of the services, therefore, the complaint is liable to be dismissed.
8. He has further submitted that the tickets issued by the OP No.2/Airline were non-refundable. The tickets are to be cancelled as per terms and conditions of the policy. On the ticket, it has clearly been mentioned that the cancellation and date change fee are applicable before departure and in case of rescheduling or any amendment, a passenger has to pay the airline and yatra fee alongwith fare difference, if any. The complainant was duly informed about the process of the cancellation and it was also informed about the penalty applicable for the cancellation and the complainant was further informed that they would proceed with the cancellation only when they receive the consent of the complainant. The complainant has filed false complaint and there is no fault or deficiency in service on the part of the OP No.1. Request has been made to dismiss the complaint.
9. The Ld. Counsel for the OP No.2 has also submitted that there is no deficiency in service or negligence on the part of the OPs. The complainant No.2 himself has not utilized the confirmed ticket for the reason that he was not having his passport which was lost. He did not try to cancel his tickets prior to travel nor presented himself at the airport, therefore he was declared a no-show leading to the automatic cancellation of the air ticket. It was the fault of the complainant, who himself has purchased the ticket with a very high cancellation fee. The ticket was non-refundable. It was the complainant, who did not wish to pay the rescheduling charges and the difference in fare, therefore there is no fault of the OP No.2. Request has been made to dismiss the complaint.
10. It is admitted fact that the complainants got booked round trip air tickets for complainant No.2 on 21.03.2019 for 05.05.2019 from Chicago to New Delhi and return ticket from new Delhi to Chicago for 20.08.2019. Ex.C-1 and Ex.R-2/1 proves the fact that the complainant purchased a round trip ticket for 05 May, 2019 and return ticket for 20.08.2019. It is also admitted fact that the complainant did not present himself at the airport and did not utilize the ticket as he had lost his passport in USA and the matter was reported to the Police as per Ex.C3 regarding the loss of passport. As per Ex.C-4, the complainant informed the OPs about the loss of passport and requested to reschedule his flight for 05.05.2019, but no response allegedly was given by the OPs. There is lot of correspondence through emails between the complainant and the OPs regarding the rescheduling and cancellation of the tickets. It is admitted that the complainant No.2 missed his flight on 05.05.2019 from Chicago to Delhi. The complainant has proved that he has sent emails to OPs Ex.C-6 & Ex.C-7 requesting them to maintain his return booking for 20.08.2019, but despite the request made by the complainant, the ticket was cancelled by the OPs.
11. The OP No.1 has alleged that the OP No.1 is intermediary between the complainant and the OP No.2 and is not liable, but this contention is not tenable as it was the duty of OP No.1 to explain that the ticket is non-refundable. The conditions of policy regarding cancellation, penalty and ‘No Show’ and one PNR was never explained by the OP No.1 to complainant. Payment was deposited in the account Yatra Online Pvt. Ltd. as per Ex.C-2. Therefore, OP No.1 cannot escape from their liability.
12. The OPs have relied upon the copies of agreement between the customer and the OPs Ex.C1 and Ex.R2-1 i.e. E-ticket shows that there are number of terms and conditions on the ticket which shows that the cancellation and date change fee are applicable before departure and regarding the fare difference also. There is a condition in Ex.C-1/R-2 that any change to a confirmed ticket including cancellation, postponement and change of itinerary must be done at least 24 hours prior to flight departure. In case a passenger becomes a no-show, only the applicable taxes will be refunded to the passenger as per airline policy. The condition mentioned in this ticket itself shows that the tickets can be cancelled 24 hours prior to the departure. Nothing has been mentioned that in case a passenger becomes no show, the penalty will be levied for cancellation or return ticket will be cancelled automatically as alleged by the OPs. It has not been mentioned in the ticket that the penalty will be levied for cancellation of return ticket. The payment made to the OPs for the tickets is not disputed. The statement of account has been proved by the complainant to show the payment Ex.C-2. The emails Ex.C-4 and Ex.C-5 itself show that the complainant has sent the email to the OPs 24 hours prior to the departure informing them regarding the loss of passport and rescheduling his flight and also sent email to the OPs to maintain his return ticket. Number of reminders have been sent to the OPs by the complainant and in these reminders, he has also mentioned the fact that he has been calling number of times, but the calls are not being picked up by the OPs. He has also sent email regarding rescheduling his ticket. There is a reply to the notice given by the OPs, wherein it has been mentioned by the OPs that this is the common practice as guests are unable to travel out of sequence and return journey could not be utilized after the outward journey being missed. From this reply, it can very well be gathered that there is no such rule to cancel the return ticket automatically rather this is a practice as per the reply given by the OPs. Ex.OP-3 is the email, wherein the OPs have alleged that they have informed the complainant about the charges for rescheduling the flight. Perusal of this document shows that airline penalty has been imposed, but there is no such terms and conditions in the ticket that airline penalty is to be levied in case of rescheduling or cancellation. In the conditions only the word ‘fees’ has been mentioned and not the penalty. Similarly, in Ex.OP-7, the airline cancellation penalty has been imposed for cancellation, but there is no such condition in Ex.C-1/R2-1 and Ex.OP-4. Though, in Ex.OP-8, the OPs have mentioned that in case a passenger does not board onward flight having round trip booking on one single PNR, the airline automatically cancels the PNR and the passenger is not allowed to board return flight, but this reply in Ex.OP-8 is against the defence taken by the OPs in written statement wherein it has been mentioned that there will cancellation penalty and they will wait for the consent of the complainant for the cancellation of return ticket, but despite this email sent to the complainant, they cancelled the ticket without obtaining the consent of the complainant. The OP No.2 has relied the conversation between the complainant and the OP No.2, but this conversation is of no help to the OP No.2 as the complainant may not be ready for the payment for rescheduling, nothing has been mentioned in the conversation regarding the return ticket of August, 2019. This is all regarding the ticket of May, 2019. Rules have been relied upon by the OP No.2 as Ex.R2/4 and in these rules, there is a mention of no-show charges USD 600, but what is ‘no-show’? nothing has been explained in the ticket, it has not been mentioned anywhere that if the passenger is granted one PNR for return trip and in case of non-boarding of one trip, the return ticket shall be cancelled automatically rather it has been mentioned that the taxes shall be refundable so, the OPs are violating their own policy. The complainant has already sent emails to the OP for retaining their return ticket in the month of May i.e. 3 months prior to the ticket i.e. August, 2019, but despite that they have cancelled the ticket without receiving the consent. Though, the complainant has not boarded the flight on 05.05.2019 and missed the flight without getting the same rescheduled and it is the fault of the complainant only, but nothing has been mentioned in the e-ticket Ex.C-1 regarding the fact that in case of cancellation of return ticket the same is non-refundable and no-show word has not been explained and without receiving the consent of the complainant, the ticket has been cancelled. This is deficiency in service and unfair trade practice on the part of the OPs and thus, the complainant is entitled for the relief as claimed.
13. In view of the above detailed discussion, the complaint of the complainant is partly allowed and after deducting the fare for flight from Chicago to Abu Dhabi confirmed on 05.05.2019, the OPs are directed to refund the amount of tickets i.e. Rs.32,376/-. (Since the amount for return ticket has not been mentioned in statement of account Ex.C2 nor in ticket Ex.C-1, therefore 50% of the total amount of Rs.64,753/- spent by complainant is considered). Further, OPs are directed to pay a compensation of Rs.10,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
01.03.2023 Member Member President
