IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 03rd day of June, 2020
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 287/17 (filed on 28/12/2017)
Petitioner : Gins P. Cyriac,
S/o. Cyriac,
Parekunnel House,
Pakalomattom P.O.
Kuravilangadu,
Kottayam – 686633.
(Adv. Avaneesh V.N.)
Vs.
Opposite Parties : Yatra online Pvt. Ltd.
Rep. by its Managing Director,
B2, 202, 2nd Floor,
Marathon Innova,
Marathon Nextgen Complex,
Ganpatra kadam Marg,
Lower Parel (West)
Mumbai – 400013.
(Adv. Robin K.N. and Adv. Rinsha K.N.)
O R D E R
Smt. Bindhu R, Member
The complainant’s case is as follows.
The complainant is a computer professional and used to purchase through online including flight ticket for himself and his sister. On 24/07/17 the petitioner booked round tickets for his sister from Frankfurt to Cochin through the respondent in Air Berlin and an amount of Rs.42,330/- was paid to the respondent towards ticket charges by invoice No.A/1806/216936 with booking reference No.YT23526831. The said amount was including the service charge. The complainant made the payment through his account in HDFC bank from Kuravilangad. The journey was fixed on 28/11/17, 29/11/17, 28/12/17 and 29/12/17. In the middle of October he was informed by his sister that Air Berlin had got bank rupted and cancelled all the flights after October. Then the petitioner sent an E-mail to the respondent to verify the genuity of the news on 15/10/2017. On 16/10/2017 he got reply that Air Berlin had got bank rupted and flights were cancelled so the respondent was working for the refund and stated that it depends on the airline. On 17/10/17 and 19/10/17 the petitioner contacted the respondent through E-mail and on 20/10/17 the respondent intimated that there would be no refund and the petitioner can process for new ticketing. When the petitioner contacted the customer care over phone they intimated that the petitioner had to pay for new booking and they could not adjust the amount paid by the petitioner towards the new booking. The petitioner paid the amount to the respondent through online including service charge of Rs.422.88/- to the respondent. So the petitioner is a consumer of the respondent and the respondent has a legal liability to refund the amount to petitioner. The non refund of the amount to the petitioner amounts to deficiency in service and unfair trade practice on the part of the respondent. Hence this complaint is filed for the refund and compensation.
Upon notice received from this Forum, opposite party appeared and filed version.
Preliminary submission of the opposite party is that every person transacting through online platform www.yatra.com is directly bound by the terms of use of website namely the Master User Agreement to be found on http:www.yatra.com/yatra-user-agreement.html. That here the complainant having used the online platform has become “User” and by virtue of accepting the terms of Master User Agreement has agreed to this contract. It is a settled principle of law that when two courts of concurrent jurisdiction, parties may, by agreement, oust the jurisdiction of one of the courts. So this Forum has no jurisdiction to entertain the complaint as the office of the opposite party is located in Gurgaon, Haryana and the booking was made in the said office. This Forum lacks territorial jurisdiction to adjudicate present complaint. As per the terms and conditions of the agreement, the parties have agreed that courts at Gurgaon will have the exclusive jurisdiction to try in dispute between them. As there is a close of exclusive jurisdiction the opposite party is out of the jurisdiction of the Forum. Moreover the opposite party company is merely a ticketing agent providing facility through the medium of internet and phone as per Users convenience with best possible rates.
It is admitted that opposite party has provided valid tickets as per the requirements of the complainant. The dispute is regarding the bankruptcy of Air Berlin and the complainant can file the complaint against the Airline which is the actual service provider of the complainant. The opposite party is not responsible for any service providing under the booking made by the customers. So the allegation of the deficiency in service or unfair trade practice can be maintainable only against Air Berlin. Thus opposite party validily issued booking confirmation to the complainant. This respondent is merely a booking platform and is not the actual service provider, whose role is restricted to making booking in accordance with the details to be given by the customers. It is a responsibility of the Airline to keep its flight’s operations.
It is sufficiently clear that the agreement of customers for providing actual services is directly with airlines. It is clearly mentioned in Clause 5.3 of the Master User Agreement-
5.3 Although Yatra makes reasonable commercial efforts to ensure that the description and content in the TOS and on each page of the Website is correct, it does not, however, take responsibility for changes that occurred due to human or data entry errors or for any loss or damages suffered by any User due to any information contained herein.
Also, yatra is not the service provider and cannot therefore control or prevent changes in the published descriptions or representations, which are always based upon information provided by the service providers. Yatra acts only as a facilitator of Services and shall not be held liable for any changes, deficiencies, disputes etc. Related to the services being provided by Service Providers, including the matters related to delays in refunds or no refunds, of the fares and charges paid to Service Providers. All refunds to User/customer on account of cancellation of any tickets/services or otherwise shall be made subject to receipt of such refunds by Yatra from the respective Service Provider including Airlines.
As soon as the booking were made by the complainant the amount was transferred to the Airline confirmation. Respondent is not in the possession of the amount paid by the complainant and the same has not been refunded by the Airline. So there is no deficiency in service or unfair trade practice on the part of the respondent and the complaint is liable to be dismissed.
The complainant adduced evidence through affidavit in lieu of chief examination. Documents were marked as Ext.1 to A3. No evidence from the side of respondent.
On a detailed perusal of the facts and evidences on record, we findthat the following points are to be considered:
1. Whether this forum has jurisdiction?
2. Whether there is any deficiency on the part of the oppositeparty?
3. Whether the complainant is liable for cost and compensation?
Point No.1
Here, the opposite party has rendered the E ticketing service to the complainant by receiving service charge vide ExhibitA2 receipt. In A2, Rs.422.88 is shown as Yatra Service Charge and the total amount of Rs.42,831/- is collected on behalf of the Airline. So there is no ambiguity regarding the locus standi of the complainant as to whether he is a consumer or not. The order was placed and the payment was made by the complainant from Kuravilangadu, in Kottayam District which is within the jurisdiction of this forum. Thus there is no doubt that this forum has ample jurisdiction to try this complaint as part of the transaction has originated within the territory of the forum. Moreover, the opposite party has taken a contention that the agreement itself contains the jurisdiction clause by which litigation against the opposite party can only be filed before the courts at Gurgaon. No document has been produced. In this regard we find that a vast discussion had been made by the apex courts. The jurisdiction clause itself is ultra vires and in this aspect we dismiss the contention of jurisdiction as the consumer is at liberty to select the court with appropriate jurisdiction even if different courts have jurisdiction. S.3 of the consumer protection act :
Section 3 of the Consumer Protection Act defines
“Act is not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.
Moreover, this petition has filed by the complainant not on the ground of breach of contract, but on the deficiency of service from the part of the opposite party. Point no 1 is found accordingly.
Point No2 and 3
For the sake of convenience Point No.2 and 3 are considered together.
As the opposite party has offered their service to the complainant and received service charge for the same, the complainant is entitled to receive uninterrupted service from the opposite party. But here, even though the opposite party issued tickets from Frankfurt to Kochi along with return ticket, for the sister of the complainant, due to the bankruptcy of the Airline ie. Air Berlin the complainant’s sister couldn’t travel because Air Berlin had cancelled the flights. The opposite party had collected Rs.42,330/- from the complainant on behalf of Air Berlin and a service charge of Rs.422.88 to the opposite party. We find that after several communication, the opposite party could not arrange the refund of the ticket amount to the complainant or even arrange an alternate facility to travel. This is found as a deficiency on the part of the opposite party as the complainant sought the service of the opposite party. To this extent the opposite party is liable to compensate the loss and mental agony of the complainant. Being a facilitator of Air Berlin, the opposite party surely be having a valid contract with the airline to indemnify the loss occurred if any due to various reasons. Here we find that the Consumer Protection Act is a social welfare legislation and is intended to protect the interest of the consumers from exploitation of such service providers and facilitators. Hence Point No.2 and 3 is found in favour of the petitioner.
The complainant in expectation of his sister’s safe journey and with the good faith in the opposite party had booked tickets in Air Berlin flight but quite shockingly, Air Berlin became bankrupt. As the opposite party couldn’t make the refund or alternate arrangement to the complainant, complainant is liable to be compensated. The opposite party has received the amount of Rs.42,330/- from the complainant and hence liable to refund the money as they have failed to render the assured service.
In view of the above discussion we allow the complaint and pass the following order.
1.The opposite party is directed to return Rs.42,330/- and Rs.422.88 in total Rs.42752.88/- to the complainant with an interest @9% from 24.7.17 till the date of realization.
2. The opposite party is directed to give Rs. 7500/- to the complainant towards compensation within 30 days from the date of order in default of which pay an interest @9% per annum till realization.
3.The opposite party is directed to give Rs. 2500/- towards litigation cost.
Order shall be complied with within a period of 30 days from the date of receipt of Order. If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Forum on this the 3rd day of June, 2020.
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1 : Copy of E-ticket
A2 : Copy of invoice dtd.24/07/17
A3 : Copies of E-mail dtd.15/10/17, 16/10/17, 17/10/17,c 18/10/17, 19/10/17
and 20/10/17.
By Order
Senior Superintendent
