State Consumer Disputes Redressal Commission
Etihad Airways vs Mr. Sameer Sehgal on 13 September, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.373 of 2023
Date of institution : 11.05.2023
Date of Reserve : 03.09.2024
Date of Decision : 13.09.2024
Etihad Airways, O-3, Level 4, Terminal-3, Indira Gandhi International
Airport, New Delhi-110037.
.......Appellant/Opposite Party No.2
Versus
1. Mr.Sameer Sehgal, S/o Mr.Sudhir Sehgal, R/o H.No.336, Lajpat
Nagar, Jalandhar-144 001, Punjab.
Email Id: [email protected]. Mobile: 8124318920.
2. Mr.Rishab Sehgal, S/o Mr.Sameer Sehgal, R/o H.No.336, Lajpat
Nagar, Jalandhar-144 001, Punjab.
Email Id: [email protected]. Mobile: 8124318920.
........Respondents No.1&2/Complainants
3. Yatra Online Ltd., Guld Adiba, 4th Floor, Plot No.272, Phase-II,
Udyog Vihar, Sector-20, Gurgaon-122 008, Haryana. Email:
[email protected]
.......Respondent No.3/Opposite Party No.1
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the Order dated 01.03.2023
passed by the District Consumer
Disputes Redressal Commission
Jalandhar in CC No.271 of 2019.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present :-
For the appellant : Sh.S.S.Sharma, Advocate
For respondents No.1&2: None
For respondent No.3 : Sh.Dixit Garg, Advocate
F.A.No.373 of 2023
2
SIMARJOT KAUR, MEMBER
This Appeal has been filed by the Appellant/Opposite Party No.2 under Section 41 of the Consumer Protection Act, 2019 (in short 'The Act') being aggrieved by the impugned Order dated 01.03.2023 passed by the District Consumer Disputes Redressal Commission Jalandhar (in short 'the District Commission') whereby the Complaint of the Complainant had been partly allowed.
2. It would be apposite to mention that hereinafter the parties will be referred, as had been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Complainant before the District Commission are that the Complainant No.1-Sameer Sehgal had got booked round trip Air Tickets in the name of his son Rishab Sehgal-Complainant No.2 through the web site of OP No.1 i.e. Yatra.Com on dated 21.03.2019 vide Yatra Reference No.2103996233654 from the Airlines of OP No.2 i.e. Etihad Airlines. The said tickets were booked from "Chicago to New Delhi" for 05.05.2019 and return ticket from "New Delhi to Chicago" for 20.08.2019. The Complainant No.1 had paid an amount of Rs.64,753/- to OPs for the said booking of tickets through his credit card. The OPs at the time of purchase of the ticket assured the Complainants to provide their best services. Unfortunately, Complainant No.2 Mr.Rishab Sehgal, lost his passport in Chicago, U.S.A. few days before the boarding of the flight from there to Delhi. He had immediately reported the matter to U.S. Police on 03.05.2019. Thereafter, he had applied for fresh passport. The Complainant No.2 immediately F.A.No.373 of 2023 3 contacted and emailed on the official website of OPs on 04.05.2019 with a request to re-schedule his flight for 05.05.2019. However, the OPs did not give any reply to the said email. The Complainants also approached OP No.1, but their representative told the Complainants to pay another sum of Rs.79,000/- to reschedule the flight from Chicago to Delhi. In addition to it OP No.1 asked for Rs.15,800 as service charges + taxes. Although a new ticket was available at that time for an amount of Rs.40,000/-. This was an unfair trade practice on their part of the OPs. The Complainants requested to refund the amount for the previous ticket was declined. The Complainants had received an e-mail on 07.05.2019 from OP No.2, they were asked to Global Contact Centre no.600555666. Thereafter the Complainants tried their level best to contact Global Contact Centre but the same was not reachable at all and when the call has been picked they suggested contacting on email. However, before getting any response, the Complainant No.2-Rishab Sehgal had already missed his flight scheduled on 05.05.2019 from Chicago to Delhi for the reason stated above. Thereafter, Complainants again sent them an email on 12.05.2019 wherein OPs were requested to keep his returned ticket from "New Delhi to Chicago" on 20.08.2019 intact/as it is. On the same day Complainants had received another email from OP No.1 wherein it was mentioned that their representative would contact the Complainants as soon as possible. However, none contacted on behalf of OP No.1. The Complainant again contacted Global Contact Center but the same was not in operation. The Complainants again approached the OPs and asked them that how could they cancel the return ticket of Complainant No.2 without their consent/approval. F.A.No.373 of 2023 4 Meanwhile, the revised cost of the ticket was raised to Rs.1.20,000/-. It was done for their own benefit. Due to said act and conduct of the OPs, the Complainants had suffered a lot of harassment. The Complainants had sent a legal notice to the OPs, but all in vain. Hence, the Complaint filed by the Complainants. They had prayed that following directions be issued to the OPs:-
1. To refund the amount of tickets i.e. Rs.64,753/- along with current amount of air tickets i.e. Rs.1,20,000/-
2. To pay compensation of Rs.1,00,000/- for causing harassment, mental agony on account of unfair trade practice on the part of the OPs.
4. Upon issuance of notice, OP No.1 had filed its written reply by raising certain preliminary objections that the Complainants had not approached the District Commission with clean hands. They had concealed the true and correct facts & documents. It was averred that the Complaint was filed on baseless grounds. It was further averred that the users of OPs were bound by the terms and conditions of the Master User Agreement (herein referred to as "User Agreement") which they accepted at the time of using the website of the OPs. Upon perusal of the terms of the User Agreement, it was clear that the District Commission had no jurisdiction to try the Complaint. The User Agreement consists of a Jurisdictional clause. As per Clause 21 of the User Agreement in event of any disputes between the User and the OP would be subject to the exclusive jurisdiction of the Courts of Gurgaon, Haryana. The OP No.1 is an intermediary between the service providers and the customers. It cannot interfere modus F.A.No.373 of 2023 5 operandi/working of the merchants/service providers. It was not liable towards any changes, deficiencies related to the services provided by the service providers. The OP No.1 is merely a facilitator of services on behalf of third party service providers. It is an online platform where the service providers and the customers meet. It markets travel related services to particular destinations to insure problem free purchase of tickets from service providers. 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 was admitted. All other allegations made in the Complaint were categorically denied and the same be dismissed.
5. OP No.2 filed its separate written reply and contested the Complaint by raising certain preliminary objections that the Complaint was not maintainable against OP No. 2, Etihad Airways, or even against OP No. 1, as there was no deficiency in service or negligence on the part of the OPs. It was stated that the Complainant No.2 was unable to utilize his confirmed ticket for the ostensible reason that he did not have his passport which he had lost in USA. The Complainant No.2 did not even present himself at the airport on the date of travel i.e. on 05.05.2019, nor did he take steps to cancel his ticket prior to travel. Hence, was declared a no-show leading to the automatic cancellation of the said ticket as per the terms and conditions. It was stated that Complainant No.1 had himself chosen to purchase a ticket which had very high cancellation fee. It can be verified from the ticket itself. The Complainant No.1 purchased a non-refundable ticket as same was cheaper than the refundable-ticket. The Complainants were aware being non-refundable ticket, the cancellation charges were as F.A.No.373 of 2023 6 high as 60,100/- against the total cost of Rs.64,753/-. The Complainants neither wanted to pay the rescheduling charges/ difference in fare, nor wanted to cancel the ticket fully knowing that no refund was payable on cancellation. Hence, the Complainants preferred to purchase another ticket for travel on a later date of their choice. No fault can be attributed to either of the OP No.2 as Complainant No.2 was unable to use his confirmed booking made by Complainant No.1, which was on account of loss of passport of Complainant No.2. On merits, the factum with regard to purchase of the ticket by the Complainant No.2 from OP No.1 on 21.03.2019 was admitted and the Complainant No.2 lost his passport in USA. All other allegations made in the complaint were categorically denied. OP No.2 had prayed for dismissed of the Complaint.
6. By considering the averments made in the Complaint as well as in the reply thereof, the Complaint filed by the Complainant was partly allowed vide order dated 01.03.2023 passed by the District Commission. The relevant part of said order is reproduced as under:-
"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 F.A.No.373 of 2023 7 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."
7. The Appellant/OP No.2 has filed the present Appeal being aggrieved by the order dated 01.03.2023 passed by the District Commission by raising a number of arguments.
8. Mr.S.S.Sharma, Advocate, learned Counsel for the Appellant/OP No.2 has argued on the similar lines as per the written reply filed before the District Commission. Learned Counsel has submitted that there was no deficiency in service or any negligence on the part of the Appellant/OP No.2. There was a fault on the part of Respondent No.2/Complainant No.2, who was admittedly unable to travel on account of loss of his passport. Despite this fact the District Commission had wrongly fastened the liability on the Appellant/OP No.2 and Respondent No.3/OP No.1. Learned Counsel has further submitted that despite being aware that Respondent No.2 would not be able to travel on 05.05.2019 due to loss of his passport. Neither Respondent No.1 nor Respondent No.2 took any steps to cancel the booking. Respondent No.2 was declared as "no show" passenger for his flight from Chicago to Abu Dhabi on 05.05.2019. All subsequent sectors on which Respondent No.2 was booked, were automatically cancelled in accordance with IATA rules.
9. Learned Counsel has also submitted that the ticket purchased by Respondent No.1 for travel of Respondent No.2 was a non-refundable ticket and the same was mentioned on the ticket which can be seen from the fact that the ticket was purchased by F.A.No.373 of 2023 8 Respondents No.1&2 for Rs.64,753/- and the cancellation charges were of Rs.60,100/-. Hence, no refund was warranted in the present case as Respondent No.2 was a no-show passenger. It has also been submitted that before a passenger can demand a refund, it is mandatory for the passenger to cancel his ticket and refund is processed only as per the rules with regard to fare.
10. The Complainants were required to inform to the Appellant at least 24 hours prior departure on 05.05.2019. The Complainant No.2 would not be utilizing his onward booking from Chicago to New Delhi on 05.05.2019 and that his return booking for travel from Delhi to Chicago should not be cancelled. However, Respondent No.2 wrote to the Appellant on 12.05.2019 that his return bookings may not be cancelled. The Complainant No.2 was declared as a "no show"
passenger for the flight from Chicago to New Delhi via Abu Dhabi and his subsequent bookings had already been automatically cancelled as per applicable rules on 05.05.2019. To re-book the ticket, the Complainants were required to pay the "no-show" penal charges of USD 600 and reissue charges for ticket of USD 220. The Respondent No.2 failed to do so. Learned Counsel for the Appellant has relied upon the judgments i.e. 1) "SGS India Ltd. Vs. Dolphin International Limited" 2021 SCC online (SC) 879, 2) "Indigo Airlines, Kolkata & Anr. Vs. Kalpana Rani Debbarma & Ors.", (2020) 9 SCC 924, 3) "Ravneet Singh Bagga Vs. M/s. KLM Royal Dutch Airlines & Anr.", (2000) 1 SCC 66, 4) "Seema Dhamija Vs. Air France Air Line Co.", III (2012) CPJ 355 (NC), in support of his arguments. F.A.No.373 of 2023 9
11. Mr.Dixit Garg, Advocate, learned Counsel for Respondent No.3/OP No.1 i.e. Yatra.come has argued on the similar lines as per the written reply filed before the District Commission. The respondent No.3 is an intermediary between the service providers and the customers and it does not have any role in the modus operandi or working of merchants/service providers towards the liability for any changes, deficiencies related to the services provided by the service providers. It has reiterated that the Respondent No.3 is merely a facilitator of services on behalf of third party service providers through online market place. Learned Counsel has further submitted that Respondent No.3 is merely an intermediary and therefore does not incur any liability on the tickets purchased by the Complainants from the Appellant which is an independent Airline. Its role is exempted under the Information Technology Act, 2000. He prayed for dismissal of the Complaint.
12. We have heard the oral arguments raised by learned Counsel for the Appellant as well as Respondent No.3. Sh.Sameer Sehgal-Respondent No.1 who had appeared in person only once on 24.07.2023 and had undertaken to bring authority letter in his favour from Respondent No.2. Thereafter, neither Respondent No.1 had appeared nor any authority letter has been filed in his favour to appear on behalf of Respondent No.2. We have also perused the order dated 01.03.2023 as well as all the relevant documents available on the file.
13. Facts relating to the filing of the Complaint by the Complainant before the District Commission, reply thereof, the oral arguments raised by learned counsel for the Appellant as well as F.A.No.373 of 2023 10 Respondent No.3 and passing of impugned order dated 01.03.2023 by the District Commission, thereafter filing of present appeal before this Commission by the Appellant/OP No.2 are not in dispute.
14. Admittedly, the Complainant No.2/Respondent No.2 purchased a round trip e-ticket through online platform to undertake journey from Chicago-New Delhi (via Abu Dhabi) and thereafter New Delhi-Chicago. The Complainant No.2 had lost his passport in USA. He had applied for a new passport. Consequently, he could not reach the airport to board the flight on 05.05.2019. The Appellant Airline had declared him a "no-show" passenger and cancelled his entire roundtrip ticket. He had to purchase a new ticket for an amount of Rs.1,20,000/- . The Appellant Airline had refused to address his numerous requests for refund of the cancelled ticket and the new ticket. As a result, he had to purchase to undertake his journey from Chicago-New Delhi and then New Delhi-Chicago.
15. The main issue for adjudication before us is as to whether the Appellant is liable to refund towards the amount of cancelled/new ticket of Complainant No.2 or not?
16. To decide the aforesaid issue, we have perused the e- ticket downloaded from Yatra app. (Ex.C-1). In the said document under the caption of Important Information, it has clearly been mentioned that the Air Cancellation fee for the ticket was Rs.60,100/-. It has further been mentioned any change to confirm 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 F.A.No.373 of 2023 11 taxes will be refunded to the passenger as per the airline policy. We have also perused the emails sent by the Complainant to the Appellant airline to reschedule his flight emails dated 04.05.2019 (Ex.C-4). It has also been mentioned in the said email that the customer care helpline had not offered any proper reply. The Appellant airline had responded on 07.05.2019 (Ex.C-5) by advising the Complainant to call the Global Contact Center. The Complainant No.2 was unable to travel as he had lost his passport and reported to the same to US Police on 03.05.2019 (Ex.C-3). Thereafter, the Complainant had sent a number of emails to the Appellant Airline to cancel/reschedule his e-ticket. He had also requested the Appellant to maintain his return ticket from "New Delhi to Chicago" on 20.08.2019 (Ex.C-6). The Appellant continued to reply by taking the same stand that any modification could be entertained by contacting Global Contact Center (Ex.C-8). When the Complainant was not satisfied with the response from the Appellant, he sent a legal notice dated 26.05.2019 (Ex.C-10) asking for refund of the cancelled ticket and the price of new ticket which was Rs.1,20,000/-. The legal notice was acknowledged by the Appellant on 20.06.2019 and it was mentioned that the said notice had been forwarded to guest relations team.
17. Furthermore, a detailed reply to the said notice was sent on 20.06.2019, wherein it was mentioned that the Appellant was unable to consider his request for refund and monetary compensation. The request of the Complainant was rejected on the ground being a "no show" passenger at Chicago airport. The Appellant had failed to appreciate that the Complainant was facing a difficult situation of loss F.A.No.373 of 2023 12 of passport in foreign shores. Besides on perusal of terms and conditions of the e-ticket, nowhere the no-show clause has been explained for the passengers. A mere mentioning of no show clause in the terms and conditions does not mean that the passengers could have understood the meaning of the said term themselves, whereas it is a very technical term.
18. Further to deal with the said clause of 'no show' cited in the ticket, the impugned order passed by the District Commission has been thoroughly perused, wherein, the said issue has been dealt extensively. Said observation of the District Commission is reproduced as under:-
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 F.A.No.373 of 2023 13 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 F.A.No.373 of 2023 14 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.
19. In view of the above mentioned facts and reasons, we do not find any illegality in the order passed by the District Commission. Accordingly, the present Appeal being devoid of any merit is hereby dismissed. The order dated 01.03.2023 passed by the District Commission is upheld.
20. The Appellant had deposited an amount of Rs.23,688/- at the time of filing the appeal with this Commission. Said amount, along with interest, which has accrued on the amount deposited by the F.A.No.373 of 2023 15 appellants, if any, shall be remitted by the Registry to the District Commission after the expiry of 45 days of sending of certified copy of the order to the parties. The concerned parties may approach the District Commission for release of the same and the District Commission may pass the appropriate order in this regard, in accordance with law.
21. Since the main case has been disposed off, so all the pending miscellaneous applications, if any, are accordingly, disposed off.
22. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER September 13, 2024 (Rupinder 2)