YATRA ONLINE PVT.LTD. V/S SAROJ NANDA. - Consumer Court Case

Haryana

Panchkula

CC/622/2019

SAROJ NANDA. - Complainant(s)

Versus

YATRA ONLINE PVT.LTD. - Opp.Party(s)

A.L NANDA

23 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL, COMMISSION PANCHKULA, HARYANA.

BAYS 3-4 SECOND FLOOR , SECTOR-4, PANCHKULA.

Complaint Case No. CC/622/2019

( Date of Filing : 28 Nov 2019 )

1. SAROJ NANDA.

W/O SHRI A.LA NANDA RESIDENT OF H.NO.506,SEC-16,PANCHKULA

...........Complainant(s)

Versus

1. YATRA ONLINE PVT.LTD.

UNITECH CYBER PARK TOWER B,11TH FLOOR UNITECH CYBER PARK,SEC-369,GURGAON-122001

............Opp.Party(s)

BEFORE:

PRESENT:

Dated : 23 Jul 2024

Final Order / Judgement

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

Consumer Complaint No	:	622 of 2019
Date of Institution	:	28.11.2019
Date of Decision	:	23.07.2024

Saroj Nanda w/o Shri A.L.Nanda, resident of H.No.506, Sector-16, Panchkula.

….Complainant

Versus

1. Yatra Online Pvt. Ltd. Unitech Cyber Park Tower B, 11^th Floor, Unitech Cyber Park, Sector-39, Gurugaon-122001

2. Qantus Airways Ltd., 8^th Floor, A Wing, RNA Corporate Park, Kalanagar-Bandra East, Mumbai-400051, through its authorized representative ..….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before: Sh.Satpal, President.

Dr.Sushma Garg, Member

Dr.Suman Singh, Member

For the Parties: Sh.Varun Chawla, Advocate, for the complainant.

Sh.Dixit Garg, Advocate, for OP No.1.

OP No.2 given up vide order dated 11.03.2024.

ORDER

(Satpal, President)

1. The brief facts, as alleged in the present complaint, are, that the complainant is a senior citizen, who had booked two return air tickets through opposite party no.1(hereinafter referred as to OP no.1) on 06.04.2019 for her and her husband from New Delhi to Sydney(Australia) and back; the said air tickets were booked vide reservation no.GSLJL2 and vide flight no.QF3954 of the Qantas airways i.e. Opposite party No.2(hereinafter referred to as OP No.2); the said booking of air journey through OP No.2 was made for 08.05.2019 with departure time at 0925 hours. It is averred that the complainant alongwith her husband reached the Delhi international airport on the fixed date i.e. 08.05.2019 by hiring a taxi from Chandigarh to Delhi but she was shocked to find that there was no mention of flight no.QF3554 of the Qantas airlines on the departure board. It is stated that the complainant had come to know from the customer service desk at the Airport that the flight of Qantas airways (OP No.2) had cancelled because the same was being operated by the Jet Airways, which had closed their business. It is averred that the OP No.1 had not disclosed at the time of booking of air ticket on 06.04.2019 that the Qantas airways(OP No.2) was being operated by Jet Airways. Further, it was not shown on the website of Yatra.com belonging to OP No.1 that Qantas airlines was being operated by Jet Airways. It is averred that neither the OP No.1(agent) nor the OP No.2 i.e. Qantas airlines had informed the complainant qua the cancellation of the air flight, which eventually has caused mental torture, inconvenience and harassment to the complainant and her husband. It is alleged that the daughter of the complainant had waited for her in Sydney(Australia) and was upset to know that the flight had been cancelled without any intimation. It is averred that the OP No.1 was contacted after reaching at Panchkula and she was told that the OP No.1 had no information about the cancellation of the flight but the OP No.1 offered an alternative flight, which had a halt of 10hours, or full refund. It is stated that the timing of long halt at Hongkong was not suitable to the complainant, so, the OP No.1 was requested vide email dated 09.05.2019 to refund the amount of the air tickets. It is stated that the complainant booked another ticket from another portal by paying a sum of Rs.60,839/- as she had to go to Sydney(Australia) to meet her daughter. It is averred that the OP No.1 has been requested several times telephonically as well as by emails to seek the refund of the price of the air ticket but to no avail. Due to act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2. Upon notice, the OP No.1 appeared through counsel and filed the written statement disputing the territorial jurisdiction of the Commission as per Clause 21 of the User Agreement, signed between the parties, which provide that any dispute between the parties i.e. the complainant and the OP No.1 shall be decided by the courts at Gurugram; the OP No.1 merely acts as an facilitator of services on behalf of the 3^rd party service provider i.e. the airline in the present case; that the OP No.1 is merely an intermediary and therefore, exempted from any liability as per Section 79 and 81 read with Section 2(w) of the Information Technology Act, 2000.

On merits, it is submitted that the complainant had booked the air tickets through it(OP No.1) on 06.04.2019, for herself and her husband, to travel from Delhi to Sydney(Australia) and the air tickets were booked in the name of the Qantas airways(OP No.2) as a code share flight with Jet airways. It is submitted that the OP No.1 inquired into the matter qua the cancellation of the flight on 09.05.2019 after the receipt of information qua the same from the complainant and found that the scheduled flight was cancelled due to closure of the operation of Jet airways. It is submitted that the Op No.1 was not aware of the closure of the Jet airways or cancellation of the scheduled flight on 09.05.2019. It is submitted that the OP No.1 had sent several emails i.e. on 05.11.2019, 08.11.2019, 13.11.2019, 10.01.2020 and 20.01.2020 asking the Qantas airlines(OP No.2) to refund the price of the air tickets to the complainant. It is submitted that the complainant again submitted the refund application bearing no.0005328239 seeking the refund of the air tickets vide her application dated 23.01.2020 but the Qantas airlines(OP No.2) declined the request of the complainant. It is submitted that the OP No.1 has raised multiple refund requests on 13.05.2019, 19.06.2019, 16.07.2019 & 23.01.2020 with Qantas airways(OP No.2) seeking the refund of the price of the air tickets but to no avail.

It is submitted as per written submissions, placed on record 28.05.2024, that a sum of Rs.49,130/- was received from the airlines(OP No.2) which was transferred to the customer account/ complainant account on 22.10.2021 via NEFT. It is submitted that the total amount as paid by the complainant was Rs.50,708/- and after deducting the Yatra.com charges amounting to Rs.1,578/-, balance amount was transferred to the complainant’s account.

It is submitted that the complainant has not impleaded the concerned airline as OP and thus, the complaint is not maintainable on account of non-joinder of the necessary party. As per clause 3.9.2 of part IV, series M Section 3 of the Civil Aviation Requirement dated 06.08.2010, it is duty of the airline to inform the passenger qua delay in the air flight or cancellation of the air flight. Further, it is submitted that as per sub Clause ‘C’ clause 3 of the Part II series M, Section 3 of Civil Aviation Requirement dated 22.05.2008, the refund has to be sent by the airlines to the customers and refund process is to be completed within 30 days. As such, there was no deficiency in service on the part of the OP No.1 and thus, prayed for dismissal of the present complaint.

3. The OP No.2 was ordered to be given up on the basis of statement, which was recorded separately, made by the learned counsel for the complainant, on 11.03.2024.

4. To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 has tendered affidavit Annexure R-1/A along with documents Annexure R-1/1 to R-1/8 and closed the evidence.

5. We have heard the learned counsels for the complainant as well as OP No.1 and gone through the entire record available on the file including the written arguments filed by the OP No.1, carefully and minutely.

6. During arguments, the learned counsel for the complainant has reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) & contended that the complainant was not informed by the OP No.1(travel agent), who had booked the air tickets(Annexure C-1) vide booking reference no.YT35921703 on 06.04.2019 on the payment of sum of Rs.53,416/-, qua the cancellation of the air flight no.QF3594 from Delhi to Sydney(Australia) on 09.05.2019. It was argued that the cancellation of the air flight No. QF3954 by the Qantas Airlines(OP No.2) had occurred on account of closure of Jet Airways, with which Qantas Airlines(OP No.2) had mutual tie up for operation of the air flights. It was argued that the OP No.1 had not informed the complainant personally or by displaying on its website qua the fact that the Qantas Airlines(OP No.2) used to provide its air journey services through the Jet Airways. It was argued that the OP No.1 has refunded the sum of Rs.49,130/- out of Rs.53,416/- on 22.10.2021 i.e. after the filing of the present complaint on 28.11.2019, and as such, the OP has withheld a sum of Rs.4,286/- without any valid justification and thus, the complaint is liable to be accepted by directing the OP No.1 to make the payment of sum of Rs.4,286/-(Rs.53416-49130) & Rs.7,423 (Rs.60489-53416)as incurred on rebooking with another airlines, to the complainant. In addition, it was argued that the complainant is entitled to the payment of interest on the refunded amount along with compensation of Rs.1,00,000/- & Rs.40,000/- on account of mental agony and harassment and litigation charges respectively. Further, the learned counsel has prayed for the payment of sum of Rs. 6,000/- as expenses incurred in hiring taxi from Chandigarh to Delhi and back.

6. On the other hand, the learned counsel on behalf of the OP has disputed the maintainability of the complaint on the following counts:-

That the complaint is not maintainable as per Clause 21 of the User Agreement, which provides that the courts at Gurugram alone shall have exclusively jurisdiction qua adjudication of any dispute between the parties. In this regard, the learned counsel has placed reliance upon the following case laws:-

M/s Swastik Gases P. Ltd. Vs. Indian Oil Corporation Ltd.(2013) 9 SCC 32.

Nariman Films Vs. Dilip R. Mehta and Anr.[2005(31) PTC 571(Delhi)].

Taneja Developers & Infrastructure Ltd. & Ors. (First Appeal Nos. 33 & 126 of 2014)NC.

The aforesaid plea is not tenable. The case laws(supra) as relied upon by the learned counsel for the OP No.1 are of no help to the case of the OP No.1 being distinguishable on the facts and laws. Since the complainant is a resident of Panchkula and made the booking of the air tickets through OP No.1from Panchkula by making the payment of Rs.53,416/-, the Consumer Commission at Panchkula has territorial jurisdiction to entertain and try the present complaint.

That the OP No.1 is merely an intermediary between the consumer on one hand and the service provider on the other hand and as per Section 79 of Information Technology, 2000, it is exempted from any liability, attributable on the part of the service provider.

The aforesaid plea of intermediary taken by the OP no.1 denying its liability in the matter is not tenable. Admittedly, the OP No.1 is a travel agent who had provided its services to the complainant by booking the air tickets in question. The Hon’ble National Commission in the case title as Amazon Seller Services Private Limited Vs. Gopal Krishan, First Appeal no.27 of 2017 decided on 17.02.2017 held that the agent cannot escape its liability qua any deficiency attributable on the manufacturer/ service provider. The Hon’ble Commission in part para no.8 has held that:-

"8....... An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product. It was so held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016."

Further, we may safely place reliance upon the following case laws:-

Amazon Seller Services Private Limited Vs. Dinesh & Ors, First Appeal No.21 of 2018(NC)

M/s Hello Travel Vs. Harish C.Jain & Anr. appeal No.210/219 decided on 27.02.2020(NC)

That the Qantas Airline(OP No.2) which was necessary party in the adjudication of the present case, was given up by the complainant. Reliance was placed on the following case laws:-

Go Airline(India) Pvt. Ltd. Vs Yogesh Kumar(Appeal no.A-07/730)(SCDRC, Delhi)

Sondhi Travels Vs. Jaspreet Singh Makker & Anr. decided on 20.02.2015(NC).

The aforesaid plea is not acceptable because the Qantas Airlines(OP No.2) has already refunded the amount qua air tickets to the OP No.1 and thus, no force and substance is found in the said pleas.

7. On merits, the learned counsel on behalf of the OP No.1 argued that the several emails and refund request were sent to Qantas Airways(OP No.2), who has finally refunded the amount of Rs. 49,130/- and the same transferred by the OP No.1 into the account of the complainant on 22.10.2021. The learned counsel argued that the OP No.1 had no information qua the cancellation of the Air flight in question by the Qantas airways(OP No.2), which was operating its air flight through Jet Airways; thus, no liability can be fastened upon the OP No.1, who was merely an agent qua any deficiency on the part of the Qantas Airlines(OP No.2)and so far the complaint is liable to be dismissed.

8. After hearing the learned counsel for the parties and perusing the record available on the file, it is found that the OP No.1(travel agent) had neither informed or conveyed the complainant, prior to the booking of air tickets in question nor displayed on its website that the Qantas airlines used to operate its services through Jet airways; thus, the OP No.1(travel agent) had kept the complainant in total darkness qua the operation of air flight by Jet Airways. Further, the OP No.1 has not informed the complainant qua the cancellation of the air flight no.QF3954 on 09.05.2019. The OP No.1 has admitted that it had no information qua the cancellation of the said air flight in question or the closure of the Jet Airways, which make it evident that it had failed to keep tracking of the air flights, qua which it had made the booking.

9. Pertinently, the OP No.1, being a travel agent, was duty bound to keep proper tracking with the timing and operation of the air flight in question so as to avoid any kind of inconvenience and discomfort to the complainant/consumer.

10. Admittedly, the OP No.1(travel agent) has failed to discharge its duty, while not informing the complainant qua cancellation of the air flights in question on 09.05.2019 as well as closure of the Jet Airways.

11. Moreover, the OP No.1(travel agent) has not disclosed in the entire written statement as well as affidavit(Annexure R-A) that as to when the Jet Airways had closed the operation of its services; thus, we are clueless as to the date when the Jet Airways has closed its business. In the light of discussion made above, we have reached at the irresistible conclusion that the OP No.1 was deficient, while rendering services to the complainant, for which, it is liable to compensate the complainant.

12. Coming to relief, it is found that a sum of Rs.49,130/- out of total paid amount of Rs.53,416/- qua the booking amount of air tickets has already been refunded to the complainant on 22.10.2021 by OP No.1 via NEFT; thus, a sum of Rs.4,286/- has been withheld by it.

13. We find no valid and justified ground on the part of the OP No.1 in withholding the sum of Rs.4,286/- and thus, the complainant is entitled to refund of Rs.4,286/-along with interest. The prayer of the complainant qua the payment of Rs.6,000/- on account of hiring of taxi from Panchkula to Delhi and back is declined for want of any documentary proof. Further, the prayer of the complainant qua the payment of Rs.7,423/- as allegedly incurred by her on rebooking with another airlines is also declined. However, the complainant is entitled to the payment of adequate compensation on account of mental agony and harassment and litigation charges.

14. As a sequel to the above discussion, we partly allow the present complaint with the following directions:-

The OP No.1 is directed to make the payment of interest on the amount of Rs.49,130/- @9%(s.i.) per annum to the complainant w.e.f. 06.04.2019 i.e. the date when the booking was made till 22.10.2021 i.e. the date of refund of Rs. 49,130/-.