Date of filing: 15.07.2019 Date of Disposal: 12.04.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 12TH DAY OF APRIL, 2023
CONSUMER COMPLAINT NO.1179/2019
PRESENT:
SRI.RAJU K.S,
1) Somashekar Salimath,
S/o. Late M.V. Salimath,
Aged About 58 years,
2) Usha Rani Somashekar,
W/o. Somashekar Salimath,
Aged About 54 years,
Both residing at:
3 AC 978, Kalyan Nagar
-
(Rep by Sri. Adith Jahgirdar, Advocate)
Make My Trip India Private Limited,
A Private Limited Company incorporated
Under Companies Act, 1956,
Having its Registered Office at,
DLF Building No.5, Tower B,
DLF Cyber City, DLF Phase 2,
Sector 25, Gurugram, Haryana-122002,
India, Rep. by its Managing Director.
(Rep. by Sneha Nagaraj, Advocate)
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
01. The complainants have filed this complaint Under Section 12 of the Consumer Protection Act, 1986 seeking for a direction to the opposite party to refund the air ticket amount of Rs.4,07,478/- with interest at the rate of 12% per annum and such other relief as this Commission deems fit in the circumstances of the case.
02. The complainant No.2 is the wife of complainant No.1. It is not in dispute that, the complainants have booked for a travel in Jet Airways airlines from Bangalore to Canada and such other places on 15.03.2019 and the travel date was 27.07.2019. Further the booking was ‘Round trip Business Class’. Further the return ticket was scheduled on 13.07.2019 and the arrival to Bangalore was on 15.07.2019. Further the cost of the air ticket was Rs.4,07,478/-. This being the fact, on 18.04.2019 the complainants received an email from opposite party stating that, all flights including the connecting flights were cancelled due to ‘Flight Non Operational’. Further the opposite party under took to refund the entire cost to the complainants within a period of 07 working days as stated in the email.
03. It is the further case of the complainants that, the opposite party did not resolve the issue or initiate for refund. Hence the complainant was put to severe financial and psychological burden. Therefore the complaint came to be filed.
04. It is the further case of the opposite party that, the complaint suffers from non-joinder of necessary parties. Further opposite party is only an intermediary between the end users and the service providers and has no role whatsoever in the day-today activities of such service providers. Further based on the information given by the Airlines with regard to the confirmation of booking, opposite party had intimated to its customers regard the confirmation of booking. Further in case of purchase of ticket through travel agent, onus of refund shall lie with the airlines as agents are their appointed representatives and the airlines shall ensure that, the refund process is completed within 30 working days as per Rule 133A of the Aircraft Rules and Ministry of Civil Aviation. Hence, it is sought to dismiss the complaint.
05. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.8 documents. The Working Manager – Legal of opposite party has filed affidavit in the form of his evidence in chief and has produced documents.
06 The counsels for both the parties have filed their respective written arguments. The counsel for complainants has filed citations with list of authorities.
07. The points that would arise for consideration are as under:-
(1) Whether there is deficiency of service on the part of the opposite party?
(2) Whether the complainants are entitle for the
relief sought ?
(3) What order ?
08. Our findings on the aforesaid points are as follows:-
Point No.1 : In affirmative
Point No.2 : Partly in affirmative
Point No.3 : As per the final order for the following;
REASONS
09. POINT NO.1:- The complainant (PW.1) and opposite party have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.
10. It is the contention of learned counsel for opposite party that, the Jet Airways should have been a necessary party. Hence the complaint is bad for non-joinder of necessary parties. We feel since the complainants have booked the air tickets through opposite party and opposite party being the booking agent, opposite party itself is sufficient to answer the claim of the complainants. Further whatever the amount paid by the complainants to opposite party, in-turn the opposite party has paid the same to Jet Airways by retaining their commission. Hence Jet Airways is answerable to the agent to the tickets issued by opposite party to their customers. Therefore we feel there is no merit in the contention of learned counsel for opposite party in that aspect.
11. It is the further contention of the learned counsel for opposite party that, the service of opposite party does not come within the meaning of deficiency of service as contemplated Under Section 2(g) of the Consumer Protection Act, 1986. We feel since opposite party had assured with regard to the quality of their service by issuing ticket by receiving money from the complainants vide EX.P.1 to EX.P.3, there is fault on the part of opposite party in materializing the assurance given. Hence we feel the activity of opposite party attracts the definition of Section 2(g) i.e., deficiency of service, hence there is no merit in the contention of the learned counsel for opposite party in that aspect.
12. The other point urged by learned counsel for opposite party is that, the Jet Airways was subject to corporate insolvency resolution proceedings before the Hon’ble NCLT in 2019 and the resolution plan submitted by resolution applicants was approved by the NCLT and Corporate Insolvency proceedings stood concluded. Further only an amount of Rs.125,873,771/- has been admitted for the purpose of ticket refund in favour of opposite party and the remaining amount of claim has been rejected against opposite party claims in the insolvency resolution proceedings. Further as per the approved resolution plan for admitted claims up to Rs.15,000/- refund shall be processed as per actuals and for admitted claims over Rs.15,000/- a maximum refund of Rs.15,000/- shall be processed. It is the contention of learned counsel for complainant that, interim resolution professional in the corporate insolvency resolution proceedings before the Hon’ble NCLT in 2019 and the then Interim Resolution Professional, Mr. Ashish Chhawacharia publicly announced and issued a letter on the website with respect to “Guidance to Refund Claims” to all ticket holders that, all the bookings that were made by a travel agent explicitly stating agents like Make My Trip would also be directly responsible for all refund claims as well. Further Hon’ble NCLT has helped the burdened travellers like the complainants to seek Redressal from agents like Make My Trip.
13. Further it is nowhere stated in EX.R.2 agreement between user and opposite party with regard to the waiver of the ticket amount paid in the event of the cancellation of trip at the instance of the airlines. The counsel for opposite party has brought to our notice the averments made in EX.R.2 with regard to refund. It states that, opposite party is only a facilitator and any refund for any service which are not delivered by the service provider for which the customer is entitle for a refund is subject to Make My Trip receiving the amount from the said service provider. We feel if any dispute with regard to the amount if any in between the facilitators and the service provider, the customer cannot be made as scape good for that. Hence in our view, the said power is an unilateral one. In addition to that, in EX.P.5 the opposite party had assured for refund of the ticket amount. Therefore there is no merit in the contention of opposite party. Accordingly the complainants are entitle for the refund of ticket amount with interest. Accordingly we answer this point in affirmative.
14. POINT NO.2:- The complainants claimed a sum of Rs.4,50,000/- towards mental agony and physical strain. We feel since the opposite party did not refund the ticket amount, the complainants have put in to mental trauma. Further the complainants are entitle for a sum of Rs.20,000/- towards mental agony. Further the act of the opposite party made the complainants to file this complaint through an advocate. Hence the complainants are entitle for a sum of Rs.10,000/- towards litigation cost. Accordingly we answer this point partly in affirmative.
15. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is allowed in part.
The opposite party is directed to refund the cost of the air tickets to the complainant amounting to Rs.4,07,478/- with interest at the rate of 9% per annum from 18.04.2019 (i.e., the date of intimation given by the opposite party with regard to cancellation of air tickets) till realization.
Further the opposite party is directed to pay to the complainant a sum of Rs.20,000/- towards mental agony and damages and a sum of Rs.10,000/- towards litigation cost.
The opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 12th Day of April, 2023)
Witness examined for the complainants side:
Sri. Somshekar Salimath, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.
Documents submitted by the complainants side:
- Copy of confirmation mail dt.16.03.2019 (page 10 to 3) – EX.P.1.
- Copy of statement of account – EX.P.2.
- Copy of E-tickets (Page No.33-38) – EX.P.3
- Copy of cancelation of tickets mailed on 18.04.2019 – EX.P.4.
- Copy of mail dt.18.04.2019, 06.05.2019 & 22.05.2019 – EX.P.5.
- Certificate U/s 65(B) of Indian Evidence Act – EX.P.6
- Copy of list of creditors Under regulation 13(2) of IBBI – EX.P.7.
- Copy of guidance to refund claimants issued by Resolution Professional for Jet Airways – EX.P.8
Witness examined for the opposite party side:
Kum. Rohini, Manager-Legal of opposite party of opposite party (RW-1) has filed affidavit in the form of her evidence in chief.
Documents marked for the Opposite Party side:
1. Copy of Letter of Authorization – EX.R.1
2. Copy of User Agreement between customers and Make My Trip – EX.R.2
3. Copy of confirmation email by the customer – EX.R.3
4. Copy of Document No.1-Civil Aviation Requirement issued in furtherance to Rule 133A of the Aircraft Rules & Ministry of Civil Aviation Order – EX.R.4.
