State Consumer Disputes Redressal Commission
Yatra Online Private Limited vs Gulwinder Singh on 5 May, 2022
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
1)
First Appeal No.280 of 2019
Date of Institution : 15.05.2019
Date of Reserve : 20.04.2022
Date of Decision : 05.05.2022
Yatra Online Private Limited (Yatra.com), 6th Floor, Tower D,
Unitech Cyber Park, Gurugram (Haryana), through its
authorized signatory Mr.Abhay Nath, General Manager
(Operations).
.....Appellant/Opposite party No.1
Versus
1. Sh.Gulwinder Singh S/o Sh.Tarlok Singh
2. Mrs. Rupinder Kaur W/o S.Gulwinder Singh both resident of
A-624, New Amritsar, Amritsar.
3. Sh.Manmohan Singh S/o Sh.Mohinder Singh
4. Mrs.Paramjit Kaur W/o S.Manmohan Singh, both resident of
L-12/618, Gali No.6, Kot Harnam Dass, Sultanwind Road,
Amritsar.
5. Sh.Prem Singh S/o Sh.Arjan Singh
6. Mrs.Randhir Kaur W/o S. Prem Singh both resident of House
No.146, Gali No.2, Partap Avenue, Amritsar.
7. Sh.Shankar Kiran S/o Sh.Roshan Chand
8. Mrs.Sheetal Kumari W/o Sh.Shankar Kiran both resident of
A-630, New Amritsar, Tehsil and Distt. Amritsar.
9. Sh.Sanjiv Kumar S/o Sh.Darshan Kumar R/o 23, Krishan
Square-I, Shivala Bhaiyan, Amritsar.
10. Sh.Mangat Ram S/o Mansa Ram R/o 711-10/11, Gali No.2,
Nehru Colony, Majitha Road, Amritsar.
11. Sh.Nathu Ram Sharma S/o Sh.Tara Chand Sharma R/o 10
Hukum Singh Road, Street No.1, Amritsar.
....Respondents/Complainants
First Appeal No 280 of 2019 2
12. Spicejet Private Limited, 319, Udyog Vihar, Phase IV,
Gurugram-1222016, Haryana, through its officer Incharge/
Regional Manager.
....Respondent/opposite party No.2
2)
First Appeal No.582 of 2019
Date of Institution : 05.09.2019
Date of Reserve : 20.04.2022
Date of Decision : 05.05.2022
1. Gulwinder Singh, aged about 55 years, S/o Sh.Tarlok
Singh (Mob-9646102550),
2. Rupinder Kaur w/o Sh.Gulwinder Singh, both residents of
House No.A-624, New Amritsar, Distt. Amritsar, Punjab.
3. Manmohan Singh S/o Sh.Mohinder Singh
4. Paramjit Kaur w/o Sh.Manmohan Singh, both residents of
House No.L-12/618, Gali No.6, Kot Harman Dass,
Sultanwind Road, Amritsar.
5. Prem Singh S/o Sh.Arjan Singh
6. Randhir Kaur w/o Sh.Prem Singh, both residents of House
No.146, Gali No.2, Partap Avenue, Amritsar.
7. Shankar Kiran S/o Sh.Roshan Chand,
8. Sheetal Kumari w/o Sh.Shankar Kiran, both residents of
House No.630, New Amritsar, Tehsil and District Amritsar.
9. Sanjiv Kumar S/o Sh.Darshan Kumar, resident of House
No.23, Krishna Swuare I, Shivala Bhaiyan, Amritsar.
10. Mangat Ram son of Sh.Mansa Ram, resident of House
No.711-10/11, Gali No.2, Nehru Colony, Majitha Road,
Amritsar.
11. Nathu Ram Sharma son of Sh.Tara Chand Sharma,
resident of House No.10, Hukum Singh Road, Street No.1,
Amritsar.
Appellants No.2 to 11 through the appellant No.1 being
their attorney holder.
....Appellants/Complainants
First Appeal No 280 of 2019 3
Versus
1. Yatra Online Private Limited (Yatra.com) through its Officer
In Charge/ Regional Manager, 6th Floor, Tower-D, Unitech
Cyber Park, Gurugram, Haryana.
2. Spicejet Private Limited, through its Officer In Charge/
Regional Manager, 319 Udyog Vihar, Phase -IV,
Gurugram, Haryana.
....Respondents/Opposite parties
First Appeals against the order dated
13.02.2019 of the District Consumer
Disputes Redressal Forum (now
'Commission'), Amritsar
Quorum:-
Mr.Rajinder Kumar Goyal, Presiding Member
Mrs.Kiran Sibal, Member Present (F.A. No.280 of 2019):-
For the appellants : Sh.Sachin Ohri, Advocate For respondents No.1 to 11: Sh.Rushil Sharma, Advocate For respondent No.12 : None RAJINDER KUMAR GOYAL, PRESIDING MEMBER This order will dispose of the above noted two appeals, which have been preferred against the same order dated 13.02.2019 passed by District Consumer Disputes Redressal Forum, (now 'Commission'), Amritsar (in short, "the District Commission"), whereby the complaint filed by the complainant, under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act'), was allowed and opposite party No.1 was directed to refund Rs.30,800/- and Rs.2627/ to the complainants. Further, both the opposite First Appeal No 280 of 2019 4 parties were made liable to compensate the complainants to the tune of Rs.10,000/- and Rs.5,000/- as litigation expenses.
2. Facts are taken from F.A. No.280 of 2019. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts, as averred in the complaint are that the complainants booked a online holiday package to Kerala with opposite party No.1, vide reference No.YH 3577557 for 6N/7D for 10 adults, however, one more person i.e. complainant No.11 was inducted in the package later, before starting of the trip. The time span of the trip was from 15.09.2017 to 21.09.2017 from New Delhi to Kerala and back to New Delhi. On giving the assurances and allurement given by opposite party No.1 relating to provide hassle free and top class services, the complainants agreed to avail the services and paid a total amount of Rs.2,30,069/- well in advance through complainant No.1. The opposite party No.1 accordingly booked Air tickets from New Delhi to Kochi for 11 passengers in Vistara Airlines flight No.UK 881 to be departed from New Delhi on 15.09.2017 at 6:20 a.m. and return journey from Trivandrum to New Delhi having flight No.SG 942 departing on 21.09.2017 at 12:20 p.m. The opposite party No.1 provided hotel accommodation in Pine Tree which was said to be provided at Munnar, but was not actually in Munnar and approximately 12 kms away from main town in sub-urbans at Devikullam. Being hilly area, it took about 40-45 minutes journey to reach the hotel from Munnar. Similarly at First Appeal No 280 of 2019 5 Thekkady, the hotel provided was also approximately 14 Kms away from the main town Thekkady, which was actually situated at a suburban area at Vendiperiyar. Due to which, the time was wasted, which could have otherwise been utilized for sightseeing. Further submitted that on 20.09.2017 when the complainants were at Kanyakumari, they received a message from opposite party No.2 at about 13.25 p.m. to the effect that "Your flight SG 942 dated 21.09.2017 from Thiruvanthpuram to New Delhi has been cancelled due to operational reasons". An e-mail was also received from opposite party No.1 to this effect. The opposite party No.1 stated that Airline agent Ahmed informed that alternate flight can be provided on 23.09.2017 or they will process fare refund for all the passengers. The complainants were virtually stranded 3200 kms away from home with no alternative accommodation and transportation facility and even no resources to avail these, due to deficiency of cash in hand at that relevant time. The complainants requested the opposite parties that due to pre-occupations at Amritsar they had to reach Amritsar as scheduled earlier. Taking advantage to the situation, they further harassed the complainants by enforcing a condition that they can get flight from Cochin instead of Thiruvanthpurram on 21.09.2017 which was about 300 kms away from Kovalam and that too at the complainants expenses and the complainants were compelled to pay Rs.30,800/- for their return tickets from Cochin to Delhi. Further submitted that due to cancellation of flight by the opposite party No.2 the complainants First Appeal No 280 of 2019 6 had to cancel their railway tickets booked from Hazrat Nizammudin to Amritsar for 21.09.2017 which cost them a loss of Rs.2,627/- charged by IRCTC. Having no other option, the complainant No.1 with the help of his relative booked air tickets for all the complainants from New Delhi to Amritsar at the cost of Rs.35,759/-. The complainants suffered a lot at the hands of the opposite parties. This act and conduct of the opposite parties amount to deficiency in service and unfair trade practice on the part of the opposite parties. The complainants then filed the complaint before the District Commission and sought the following directions to OPs:-
i) to pay Rs.30,800/- as excessive charges incurred by the complainants for buying air tickets from Kochi to New Delhi. Also to pay Rs.2,627/- on account of cancellation charges paid to IRCTC and to pay Rs.35,759/- to book tickets for their journey from New Delhi to Amritsar due to breach of contract. Along with interest at the rate of 18% per annum.
ii) to pay Rs.1,00,000/- to each complainant as compensation for harassment, mental agony and inconvenience caused; and
iii) to pay Rs.20,000/- as cost of litigation expenses.
4. Upon notice, opposite parties appeared and filed reply separate replies.
First Appeal No 280 of 2019 7
5. Opposite party No.1 filed its reply taking preliminary objections that the answering opposite party runs a platform which provides tour booking facility and as such are only an intermediary between the customer and service provider i.e. the airline. The role of answering opposite party is limited to the extent of providing valid bookings based on the information and selection entered by the customer. The opposite party has already made all the bookings and transferred the amount to the respective service providers. Thereafter, any rescheduling/cancellation/preponement / delay/ refund etc. is solely within the control of the airlines who are actual service providers. The complainants booked a holiday package to Kerala vide Booking reference No.HY 3577557 for 6D/7 N for 10 adults and one person complainant No.11 was included in the package later. The time span of the trip was from 15.09.2017 to 21.09.2017 and the amount paid for the same was Rs.2,30,069/- On merits, further it was admitted that all the bookings were made by the answering opposite party as per the itinerary of Holiday Package to Kerala provided to the complainants by way of e-mail dated 17.08.2017. The major issue raised by the complainant in this complaint is regarding the cancellation of flight from Thiruvanathpuram to New Delhi by opposite party No.2. On 20.09.2017, opposite party No.1 was informed that opposite party No.2 has cancelled the return flight. Opposite party No.1 is a travel agent which provides the bookings as per instructions of the customers. Return flights were booked as per the requirements of First Appeal No 280 of 2019 8 complainants and there was no issue regarding the same. The Airlines are not under control of opposite party No.1 and opposite party No.1 is not responsible for any cancellation or modification of flights by the airlines which in this case was opposite party No.2. Further submitted that it was the duty of the opposite party No.2 to operate flights as per the tickets sold by it, therefore, the compensation regarding inconvenience and additional expenses incurred by the complainants due to cancellation of flight is the sole responsibility of opposite party No.2 and opposite party No.1 is not liable for the same. Without admission of any liability, opposite party No.1 as a gesture of goodwill offered the complainants an alternate flight which was available and was departing from Kochi to which the complainants agreed and opposite party No.1 cancelled their return flight with full refund of Rs.44,480/- from Spice Jet. Further submitted that a new flight was booked on Indigo Airlines which costed opposite party No.1 an amount of Rs.76,857/-, as such, opposite party No.1 charged only Rs.30,800/- as difference. Opposite party No.1 as a gesture itself bore additional travelling cost of tempo traveler/cab from Trivandrum to Kochi against which opposite party No.1 paid Rs.1900/- to the cab vendor. The role of opposite party No.1 was only to make the bookings and it cannot compel the opposite party No.2 to operate the flights in time or refund/compensate for the same. Further submitted that all the allegations as detailed by the complainant in First Appeal No 280 of 2019 9 his complaint were denied and prayed for dismissal of the complaint.
6. Opposite party No.2 filed its reply taking preliminary objections that the complaint is not maintainable as all the passengers/ guest of the answering opposite party No.2 are governed by the terms of carried contained in the e-ticket, framed in accordance with carriage by Air Act, 1972. It was further submitted that the complainants got booked tickets for travel from Trivandrum to Delhi on 17.08.2017 with travel date as 21.09.2017. The cost of tickets was Rs.22,240/- which were booked through Yatra Online Pvt. Ltd. i.e. opposite party No.2. Further, it was submitted that due to operational and technical reasons, opposite party No.2 had to cancel the said flight and intimation was sent to all the passengers through e-mail well in advance on 20.09.2017 at about 1:00 p.m. It was also submitted that the said facts have been admitted by the complainants in their complaint. Further submitted, that there is no direct privity of contract with opposite party No.2. The complainants admittedly approached opposite party No.1 for the complete "Tour Package". In these kind of tour packages, the organizers also charged for taking care of these kind of eventualities i.e. flight delays and cancellations, as such, in case of cancellation of flight of opposite party No.2, making alternate arrangements as per the choice of the complainants was the responsibility of opposite party No.1. It was further submitted that when opposite party No.2 informed the complainants about First Appeal No 280 of 2019 10 cancellation of flight, they contacted staff of opposite party No.2 and were told that either their entire fare can be refunded or alternate arrangements be made by providing tickets in flight on 23.09.2017. As such, as per Civil Aviation requirements issued by DGCA, the answering opposite party offered refund of the entire amount to the complainants on 21.09.2017 and no fault lies on the part of the answering opposite party. On merits, all the averments as averred by the complainants in their complaint were denied and prayed for dismissal of the complaint.
7. Both the sides produced evidence in support of their respective averments before the District Commission, which after going through the same and hearing learned counsel appearing on their behalf, allowed the complaint by granting the reliefs as stated above, vide impugned order. Hence, this appeal filed by the appellant/opposite party No.1 with a prayer to set aside the impugned order.
8. We have heard learned counsel for the appellant and respondents No.1 to 11, whereas none has appeared on behalf of respondent No.12 at the time of final arguments. We have also carefully gone through the record as well as written arguments filed by the appellant and respondents No.1 to 11.
9. Learned counsel for the appellant / opposite party No.1 argued that as per the Rule 133A of the Aircraft Rules and Ministry of Civil Aviation Order No.AV 13030/105/2007-DT dated 12.05.2008, the complaint is liable to be dismissed against the First Appeal No 280 of 2019 11 appellant and the appellant cannot be burdened with the compensation that has no control over the airlines. The District Commission has no territorial jurisdiction to adjudicate the complaint, neither any cause of action was arisen at District Commission, Amritsar nor the appellant has any office at Amritsar. Moreover, the payment was received at Gurgaon. It is argued that the District Commission in its para 6 of the order itself stated that both the parties are liable to make good loss of the complainant, but in the relief para, it has been directed to the appellant to pay the compensation. The findings given by the District Commission is wrong and illegal. The District Commission has failed to appreciate that fault or any deficiency in service was on the part of the Airline i.e. Spice Jet. There is no deficiency in service or unfair trade practice committed by the appellant. Finally, it is prayed to allow the appeal by setting aside the impugned order.
10. On the other hand, learned counsel for respondents No.1 to 11 argued that the District Commission has not properly appreciated the evidence and awarded only Rs.30,800/- and Rs.2,627/- to the respondents No.1 to 11, but has not awarded the cost of air tickets from Nizammuddin to Amritsar which is Rs.35,759/-. The District Commission has failed to consider the fact that the amount of Rs.35,759/- was spent by the respondents No.1 to 11 due to the sole reason of negligence and deficiency in service by the appellant. The appellants suffered a lot at the hands of the appellant and respondent No.12/opposite party No.2 and this fact First Appeal No 280 of 2019 12 was not considered by the District Commission and passed the award. The District Commission has allowed the compensation on a very lower side. Finally, it is prayed to dismiss the appeal with an exemplary cost amounting to Rs.1,10,000/- to be paid to the respondents No.1 to 11.
11. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellants and respondents No.1 to 11.
12. Brief facts of the case as per documents placed in record are that respondent No.1 to 10/complainants initially booked a holiday package to Kerala for 6 Nights / 7 Days from 15.09.2017 to 21.09.2017 from New Delhi to Kerala and back to New Delhi for Rs.2,20,748.60p as per Ex.C-1. The respondent No.11/ complainant No.11 was inducted in the package later before start of the trip. The package coverage was including:
• Breakfast • Return Airfare • 6 Nights Accommodation • All transfers and sightseeing as per the itinerary in an air-conditioned vehicle.
• Road Taxes, Parking fees, fuel charges, Interstate taxes.
13. A payment of Rs.2,30,069/- was made to the appellant/opposite party No.1 through SBI Account No.00000065009779913 from Branch Amritsar, Ex.C-2.
Accordingly, the appellant/opposite party No.1 booked air tickets, vide Ex.C-5 from New Delhi to Kochi for 11 passengers in Vistara First Appeal No 280 of 2019 13 Airlines flight No.UK881 departing from IGI Airport-New Delhi at 6:20 a.m. on 15.09.2017 and return journey by Spicejet Airlines from Trivandrum to New Delhi having flight No.SG942 departing on 21.09.2017 at 12:20 p.m. booked vide Ex.C-6. The appellant/opposite party No.1 also arranged Hotel/Resort accommodation at various places of visit. The respondent / complainants No.1 to 11 felt aggrieved with the following issues with the opposite parties:
i) Hotel accommodation provided at Munar was not actually in Munar but approximately 12 Kms. away from the main town in sub-urbans at Devikullam.
ii) Similarly at Thehkady the hotel was provided 14 kms.
away from the main town and was situated at Sub-
urban Area at Vendiperiyar.
iii) The hotel provided at Munar and Kovallam were deficient in their services.
iv) On 20.09.2017 at 13:25 p.m. the respondents/ complainants No.1 to 11 received a message from M/s Spicejet vide Ex.C-13 that flight SG942 dt. 21.09.2017 from Trivandrum is cancelled due to operational reasons and alternate flight will only be available on 23.09.2017. Due to pre-occupation at Amritsar, the respondents/complainants No.1 to 11 did not agree and the appellant/opposite party No.1 booked Indigo Flight 6E439 from Kochi to New Delhi via Mumbai departing Kochi at 4:00 p.m. on 21.09.2017 and charged difference of fair for Rs.30,800/- from all the respondents/complainants No.1 to 11.
v) Due to the unscheduled flight, the
respondents/complainants had to cancel railway
First Appeal No 280 of 2019 14
booking from Nizammudin to Amritsar and had to book air flight to reach Amritsar.
14. Now the issue is to decide whether the opposite parties were deficient in rendering their services or not?
15. As far as the averments of the complainants that hotel stay was provided at the location far away from the main town, the respondents/complainants were issued a package itinerary, Ex.C- 4, wherein the complainants were informed about the hotels booked at Munar, Thekaddy etc. At Munar Pine Tree Hotel at Devikulam was provided and at Thekkady Hotel Springdale Heritage Vandi Periyar was provided as per itinerary. Regarding deficiency in service by the hotel at Munar and Kovallam the respondent/complainants have not placed any evidence. Therefore, as the hotels were provided as per package itinerary there is no deficiency in service on the part of opposite party No.1.
16. Regarding the issue of cancellation of the booked Spicejet flight from Trivandrum to New Delhi, as far as the opposite party No.2 i.e. Spicejet is concerned, the counsel for the appellant/ opposite party No.1 referred a circular dated 06.08.2010 of DGCA regarding facilities to be provided to passengers by airlines due to denied boarding, cancellation of flights and delays in flights. Para 3.3.1 of the said circular states as under:
"3.3 Cancellation of Flight 3.3.1 In order to reduce inconvenience caused to the passengers as a result of the cancellations of the flights on which they are booked to travel, airline shall inform the passenger of the cancellation at least two weeks before the scheduled time of departure and arrange alternate flight / refund as acceptable to the passenger. In case the First Appeal No 280 of 2019 15 passengers are informed of the cancellation less than two weeks before and up to 24 hours of the scheduled time of departure, the airline shall offer an alternate flight or refund the ticket, as acceptable to the passenger."
17. Further, as per reply of the respondent/opposite party No.2 para -11 in the District Commission the Spicejet has stated that the answering opposite party informed the cancellation of the flight and also opted for alternate flight on 23.09.2017 or refund of the entire amount. The respondents/complainants No.1 to 11 could not be accommodated in the next alternate flight on 22.09.2017 as they were 11 in numbers and they wanted to travel together. The amount was refunded as per their request.
18. In view of the above, as per DGCA requirements, there is no deficiency in service on the part of the respondent/opposite party No.2.
19. The appellant/opposite party No.1 arranged an Indigo flight from Cochin to New Delhi and charged difference of fare of Rs.30,800/- extra. As per package coverage listed in above para 12, the appellant/opposite party No.1 was required to pay the 'Return fare', whether it is from Trivandrum to New Delhi or from Cochin to New Delhi. Therefore, the extra charging of Rs.30,800/- is beyond the package coverage. The appellant/opposite party No.1 was deficient in charging extra payment of Rs.30,800/- from all the complainants. Due to unscheduled flight they took from Cochin to New Delhi the further train booking was to be cancelled as such, the appellant / opposite party No.1 is to make up the First Appeal No 280 of 2019 16 consequential loss to the respondent/complainants amounting to Rs.2,627/-.
20. In view of the above, there is no merit in the appeal and the same is hereby dismissed.
21. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.15,000/- in compliance of the order dated 22.07.2019 against receipt No.1821537 dated 08.08.2019. Both these sums, along with interest which has accrued thereon, if any, shall be remitted by the Registry of this Commission to the District Commission, after the expiry of 45 days of the sending of certified copy of the order to them. The concerned party may approach the District Commission for the release of the above amount to the extent of his/its entitlement and the District Commission may pass the appropriate order in this regard, in accordance with law. Registry is further directed to remit the amount of Rs.3,500/- deposited as costs, to the respondents /complainants No.1 to 11, in equal shares, if not already remitted, in pursuance to the interim order dated 17.05.2019.
First Appeal No.582 of 2019
22. The instant appeal has been filed by the appellants/complainants No.1 to 11 on the ground that the District Commission only awarded Rs.30,800/- and Rs.2,627/- to the appellants but has not awarded the cost of Air tickets from New Delhi to Amritsar. The District Commission has rightly observed in First Appeal No 280 of 2019 17 the order that it was the complainants who have to choose their journey by train or by air for reaching Amritsar and the complainants for their convenience chosen the journey for reaching Amritsar by air and incurred Rs.35,759/-, as such the same is not refundable."
23. The appellants/complainants No.1 to 11 has averred that the compensation awarded by the District Commission does not justify the losses, harassment and the same be enhanced. In the instant case, the appellants/complainants No.1 to 11 enjoyed their tour from 15.09.2017 to 20.09.2017 as per package and only on 20.09.2017 when they were informed of the cancellation of flight from Trivandrum to New Delhi, they complained to the opposite parties wherein the opposite parties acted in their way. Alternate flight from Trivandrum to New Delhi on 23.09.2017 was suggested which was not suitable to the appellants due to urgency at Amritsar. Therefore, the opposite party No.1 booked the flight from Cochin to New Delhi and also arranged a cab to reach Cochin.
24. We are of the opinion that the appellants/complainants No.1 to 11 were harassed due to cancellation of flight but it does not mean that they can be awarded an exorbitant compensation of Rs.11,00,000/- The Consumer Foras are not for undue enrichment of the consumers.
25. In view of the above, the appeal is partly allowed and the order of the District Commission is modified to the extent that the respondent/opposite party No.1 is directed to pay a compensation First Appeal No 280 of 2019 18 of Rs.22,000/- instead of Rs.10,000/- as awarded by the District Commission. The other part of the order of the District Commission is upheld.
26. The appeals could not be decided within the statutory period due to heavy pendency of the court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER May 05,2022 parmod