Chandigarh

DF-II

CC/328/2021

Animesh Sharma - Complainant(s)

Versus

Yatra Online Pvt. Ltd. - Opp.Party(s)

In Person

18 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	CC/328/2021
Date of Institution	:	27/05/2021
Date of Decision	:	18/10/2024

 

1.     Animesh Sharma, Aged 36 Years, son of Late Rahul Sharma, Chamber No.96, Punjab and Haryana High Court, Sector 1, Chandigarh, as well as House No.98, Sector 4, Mansa Devi Complex, Panchkula.

2.     Harsharan Kaur Dhaliwal, Aged 35 Years, wife of Animesh Sharma, Resident of House No.715, Sector 8 Chandigarh, as well as House No.98, Sector 4, Mansa Devi Complex, Panchkula.

3.     Anuradha Sharma, aged 59 Years, wife of Late Rahul Sharma, resident of House No.98, Sector 4, Mansa Devi Complex, Panchkula.

4.     Master Jihan Singh Sharma, aged 2 Years, son of Animesh Sharma, resident of House No.98, Sector 4, Mansa Devi Complex, Panchkula, through his father and guardian Animesh Sharma

                                ...  Complainants

V E R S U S

1.     Yatra Online Private Limited, Gulf Adiba, 272, Phase 2, Udyog Vihar, Sector 20, Gurugram 122008, through its Managing Director.

        Alternate Address:

SCO- 85-86, 1st Floor, Sector 34A, Chandigarh, 160022.

2.     Air India Limited, Airlines House, 113, Gurudwara Rakabganj, New Delhi-110001 through its Managing Director.

        Alternate Address :

        Central Accounts Office, Old Airport Kalina, Santacruz Mumbai, Maharashtra, 400029.

3.     Air Canada, Flat No.111, 1^st Floor Ansal Bhawan, 16 K.G Marg, New Delhi-110001, through its Managing Director.

4.     Lufthansa German Airlines, Asset Area No.2 Hospitality District Indira Gandhi International Airport, New Delhi 110037, through its Managing Director.

…. Opposite Parties

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU	PRESIDENT
	SHRI BRIJ MOHAN SHARMA	MEMBER

 

ARGUED BY:
	Ms.Sakshi Sharma, Representative of complainants
	OPs 1 & 3 ex-parte
	Ms. Suman, Adv. Proxy for Sh. Daksh Prem Azad, Counsel for OP-2
	Sh. Hitesh, Adv. Proxy for Sh. Sandeep Suri, Counsel for OP-4

       

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.        The complainants have filed the present consumer complaint alleging that on 21.12.2019, by using the website of OP-1, they had booked flights of multiple airlines for their to and fro journey from India to Canada, as detailed in the consumer complaint, and paid total sum of ₹2,00,331/-. However, on 25.3.2020, on account of the COVID-19 pandemic, complete lockdown was imposed in the country.  As the complainants were apprehensive if the scheduled flight would take off on 3.6.2020 or not, so complainant No.1 asked OP-1 about the status of the booked flights and refund policy. Vide email dated 25.5.2020 OP-1 informed that the airline was offering rescheduling of tickets issued upto 31.5.2020 for travel between 1.3.2020 to 31.5.2021. Further vide email dated 30.5.2020 OP-1 informed complainant No.1 that as per policy of Air Canada/OP-3, they were not offering full refund in case of flight cancellation. Thereafter, a lot of emails were exchanged between the complainant and OP-1.  Though, initially vide emails dated 11.6.2020 and 14.6.2020 complainants were informed that approx. ₹19,000/- would be deducted but later on vide email dated 15.6.2020 OPs informed that approx. ₹19,000/- were the cancellation charges per passenger yet vide email dated 10.9.2020 the same was arbitrarily charged to ₹24,455/-. Despite multiple requests made by the complainants, as the entire amount was not refunded to them, therefore, vide email dated 14.9.2020 complainants sought initiation of refund and reserved their right for balance.  Finally, OP-1 vide email dated 19.11.2020 (Annexure C-23) informed the complainants that the refund of ₹1,39,588/- had been processed, which was received by the complainants whereas the total booking amount paid was ₹2,00,331/-.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, complainants have filed the instant consumer complaint seeking refund of the balance amount i.e. ₹60,743/-  alongwith interest, compensation and litigation expenses.
2.        Despite due service, OP-1 & OP-3 did not put in appearance before this Commission and accordingly they were proceeded against ex-parte vide order dated 15.2.2022.
3.        In its written version OP-2 did not dispute that the complainants had booked the flight tickets in question. However, it is averred that cancellation charges are applicable in case the flight is cancelled by the passenger and if the flight does not take off because of lockdown, complete refund to the passenger is processed by the OP.  The remaining allegations have been denied being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-2 prayed for dismissal of the consumer complaint.
4.        In its separate written version OP-4 averred that since the consideration towards the tickets was paid by the complainants to OP-3 through OP-1 and not to OP-4, no liability can be fastened upon OP-4.  It is further averred that as per the judgment of the Hon'ble Apex Court as well as the DGCA circular dated 7.10.2020, complainants’ case for alleged refund of air tickets shall be covered under relevant Civil Aviation Requirements (CAR) Regulations and the complainants cannot now claim full refund of the ticketing amount.  It is further averred that as per CAR regulations, airline cannot be held responsible or liable to pay compensation for cancellation due to extraordinary circumstances beyond the control of the airline.  The flights were being cancelled in compliance of Government orders and the airlines had no role to play in the same.  It is further averred that any default on the part of OP-1 to inform is not attributable to OP-4 and no liability can be fastened on it. OP-4 had duly informed complainant No.1 vide email dated 14.10.2020 that it could not provide any assistance with regard to queries of the complainants pertaining to refund as the tickets were neither purchased from nor booked on the inventory of OP-4.  The remaining allegations have been denied being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-4 prayed for dismissal of the consumer complaint.
5.        Complainants chose not to file replication.
6.        Complainants and OP-4 filed their respective affidavits and documents in support of their case.  However, OP-2 did not file evidence by way of affidavit.
7.        We have heard the learned Counsel for the contesting parties and have gone through the documents on record, including written arguments.
8.        It is observed from the record that the OPs had cancelled the flights for which air tickets were booked by the complainants by paying ₹2,00,331/-.  The flights were cancelled by the OPs/airlines on account of Govt. instructions worldwide to impose lockdown in order to restrict the spread of COVID-19 pandemic. 
9.        It is also observed from the record that it is not the complainants who had cancelled the flights and rather the OPs had cancelled the same due to aforesaid unavoidable circumstances. Hence, the complainants were not at all at fault and they were entitled to the full refund of the amount paid by them to the OPs.  However, instead of refunding the entire amount, OPs had only refunded partial amount i.e. ₹1,39,588/- and thereby wrongly made deduction of ₹60,743/- as the OPs neither had provided any services to the complainants nor refunded the full amount and the said act certainly amounts to deficiency in service and unfair trade practice on their part. 
10.        It is further observed from the record that while receiving the booking amount from the complainants, OP-1 had charged ‘Yatra Service Fee’ from them.  Once, OP-1 had charged ‘service fee’ from the complainants, it cannot claim itself to be just an intermediary to take shelter behind Section 79 of the Information Technology Act, 2000.
11.        No doubt the OPs have claimed that as per policy conditions, they are liable to refund only the proportionate amount and not the full amount to the complainants but the OPs have failed to prove on record that they had disclosed/ supplied the same to the complainants.  Hence, the OPs cannot derive any benefit out of such terms & conditions which were never supplied to the complainants and they are of no help to the OPs.  Here we are strengthened by the judgment of the Hon’ble Apex Court in M/s Modern Insulators Ltd. v. Oriental Insurance Co. Ltd., (2000) 2 SCC 734, wherein it was held as under:-

        “(8) It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since the obligation of good faith applies to both equally.

9. …….. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause…….”

12.        In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed.  OPs are directed to refund the balance amount of ₹60,743/- to the complainants alongwith interest @10% per annum from the date of institution of the present consumer complaint till the date of its actual realization.
13.        This order be complied with by the OPs within 60 days from the date of receipt of its certified copy.
14.        The pending application(s) if any, stands disposed of accordingly.
15.        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

ANNOUNCED 18/10/2024 hg	[AMRINDER SINGH SIDHU] PRESIDENT
	[BRIJ MOHAN SHARMA] MEMBER