State Consumer Disputes Redressal Commission
Yatra Online Pvt. Ltd. vs Vinod Kumar on 29 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No.107 of 2017
Date of institution : 16.02.2017
Reserved on : 15.09.2017
Date of decision : 29.09.2017
Yatra Online Private Limited (Yatra.com), 11th Floor, Unitech, Cyber
Park, Tower B, First Floor, Sector 39, Gurgaon through its
authorized signatory Mr. Abhay Nath, General Manager
(Operations).
.......Appellant-Opposite Party
Versus
Vinod Kumar aged 49 years son of Shri Hanuman, resident of
Village Bazidpur Bhoma, Tehsil Abohar, District Fazilka.
........Respondent-Complainant
First Appeal against the order dated
25.11.2016 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellant : Shri Sachin Ohri, Advocate.
For the respondent : Shri Vinod Kumar (In Person). JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The instant appeal has been filed by the appellant/opposite party against the order dated 25.11.2016 passed by District Consumer Disputes Redressal Forum, Ferozepur (in short, "the District Forum"), whereby the complaint filed by Vinod Kumar, respondent/complainant, under Section 12 of the Consumer Protection Act, 1986 was allowed and the appellant/opposite party was directed to refund ₹21,000/- as remaining amount, out of ₹47,000/- received by them as price of the return air fare and ₹13,250/-, which were incurred in excess by the complainant for purchasing fresh tickets for his journey from New York to New Delhi First Appeal No.107 of 2017 2 to the complainant along with interest @ 9% per annum from the date of filing of the complaint i.e. 13.5.2016 till realization. The opposite party was also directed to pay ₹5,000/-, as compensation for mental agony, pain and harassment and ₹3,000/- as litigation expenses.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the complaint:
3. Brief facts, as averred in the complaint, are that the daughter of the complainant is residing in USA. She was pregnant and the delivery was due in October 2015. In that hour of need the complainant and his wife, Radha Devi, planned to visit New York (USA) to take care of their daughter. The complainant contacted the opposite party for providing to and fro air tickets for the journey from New Delhi to New York (USA) and the fare of one side for one person was ₹23,500/-. Accordingly the complainant paid ₹94,000/- for purchasing to and fro air tickets for the said journey from New Delhi to New York (USA) for himself and his wife. The payment was made by the complainant by using the credit card of HDFC Bank, Sitto Gunno. The opposite party purchased the tickets from the Air Company; namely, UN-Transaero. The journey was planned from New Delhi to New York (USA) on 9.10.2015 and the return journey was planned from New York (USA) to New Delhi on 4.2.2016. The complainant along with his wife boarded the Flight of the UN- Transaero Airlines and reached the destination i.e. New York (USA). However, on return journey the complainant came to know that the First Appeal No.107 of 2017 3 Airline, whose tickets had been purchased and supplied by the opposite party, had stopped its flights as the Airline was not in a position to run the flights for certain reasons. This information was received by the complainant through internet. Thereafter the complainant contacted the opposite party to make some alternate arrangement as the tickets were provided by it to them. Initially assurance was given by the opposite party but it failed to do the needful. Though the return tickets were booked for 4th of February 2016 but the opposite party did not respond to the same. The opposite party told him that there would be no flight from New York (USA) to New Delhi of UN-Transaero Airline. Feeling worried about the same the complainant started searching for the air tickets for return journey and ultimately with the help of his daughter and relatives he bought other tickets of some other Airlines for returning India and spent extra money for the same. On return, the complainant raised the grievance before the opposite party that it should refund the amount of ₹47,000/- as the amount which it had taken from him for the return tickets of both the persons. Not only this, the complainant had to purchase fresh tickets for a sum of ₹60,267/- for himself and his wife for return journey. In this manner the complainant spent excess amount of ₹13,250/-. Besides this, the complainant and his wife suffered harassment and tension due to the non-availability of the flight on the date fixed for return journey. This fact was brought to the notice of the opposite party. The opposite party instead of returning the entire amount of both the tickets i.e. ₹47,000/- returned only ₹26,000/-. The opposite party did First Appeal No.107 of 2017 4 not even pay the excess amount spent on the tickets which the complainant had to purchase for return journey. Feeling aggrieved against the act and conduct of the opposite party the complainant filed the present complaint seeking following directions against the opposite party:-
a) to refund remaining amount of ₹21,000/-;
b) to pay ₹13,250/- paid by the complainant and his wife, in excess over and above the agreed air ticket fare;
c) to pay ₹50,000/- on account of harassment, mental agony, disturbance of mind and damage of reputation of the complainant.
Defence of the opposite party:
4. Upon notice opposite party appeared and took the preliminary objections that the complainant has filed the complaint against the Company i.e. Yatra Online Private Limited, which is an online ticketing service provider and travel agent, providing facility through the medium of internet and phone, so the complainant can only file the complaint against UN-Transaero Airlines. The information displayed on the website of opposite party relating to the flight in question was provided by UN-Transaero Airlines and booking made and tickets issued by the opposite party to the complainant were correct and valid in every respect. The District Forum has no jurisdiction to entertain, try and decide the present complaint. The name of the Airlines was mentioned on the internet and the complainant was fully aware about the same. The complainant also accepted and agreed to clause 5.3 of Master User Agreement, which reads as under:-
First Appeal No.107 of 2017 5
"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 damage suffered by any user due to any information contained therein.
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 providers including Airlines."
There is no cause of action against the opposite party as the entire cause of action and subject matter relates to cancellation of a scheduled flight by UN-Transaero Airlines. It was further pleaded that the opposite party had already refunded ₹26,000/- to the complainant from its own pocket and the complainant had to purchase the tickets due to the fault of the said Airlines, as the flight had been cancelled by the said Airlines on the said route. There is First Appeal No.107 of 2017 6 no deficiency in service on the part of the opposite party. At the most it is the fault of the Airlines. On merits, it was pleaded that the complainant and his wife had already availed one way journey. However, the difficulty arose only with regard to the return journey from New York (USA) to New Delhi. Ultimately, the complainant and his wife had come to New Delhi by purchasing fresh tickets. They have already refunded the amount of ₹26,000/- to the complainant and he is not entitled to refund of any more amount. Denying all other allegations made in the complaint, a prayer for dismissal of the complaint was made.
Finding of the District Forum:
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing the complainant, in person and the learned counsel for the opposite party, allowed the complaint, vide impugned order. Hence, this appeal.
6. We have heard learned counsel for the appellant/opposite party and the complainant in person. We have also carefully gone through the records of the case.
Contentions of the Parties:
7. The only contention raised by the learned counsel for the appellant/opposite party was that the opposite party is not required to pay the amount of the tickets for the return journey and also as per clause 5.3 of the Master User Agreement, it is not the service provider and was not liable for the refund in any circumstances. It can only be claimed from the concerned Airlines i.e. UN-Transaero First Appeal No.107 of 2017 7 Airlines. However, the complainant has not impleaded the said Airlines as a party. E-ticketing was issued at New Delhi online and, as such, the District Forum had no territorial jurisdiction to try, entertain and decide this complaint. The District Forum has committed an illegality and infirmity by passing the impugned order and the same is liable to be set aside.
8. On the other hand, the complainant appeared in person and submitted that he and his wife purchased the air tickets by using credit card of HDFC Bank and they had paid ₹94,000/- for to and fro air tickets to New York (USA). However, the said Airlines failed to provide return journey because it had cancelled its flight on the said date, which resulted into purchase of new tickets at an extra price besides sufferance of mental tension and harassment by the complainant and his wife. No justification has been given by the opposite party why the entire amount of at least both the return tickets was not paid. Only paltry amount of ₹26,000/- was returned in-spite of the fact that the tickets had been supplied by the opposite party to the complainant. The District Forum has passed a well reasoned order after duly considering the averments of both the sides and the evidence in support of those averments. There is no illegality or infirmity in the impugned order passed by the District Forum and the same is liable to be upheld.
Consideration of Contentions:
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for the opposite party and the complainant in person.
First Appeal No.107 of 2017 8
10. It is an admitted fact that the complainant had paid ₹94,000/- through the Credit Card of HDFC Bank, Sitto Gunno to the opposite party for the purchase of air tickets for undergoing journey from New Delhi to New York (USA) and from New York (USA) to New Delhi for himself and his wife. The air fare for one way journey for one person was ₹23,500/-. There is no dispute regarding the fact that the complainant and his wife had availed the services of the Airlines from New Delhi to New York (USA) on 9.10.2015. However, the problem arose only when the flight was cancelled by the UN- Transaero Airlines on behalf of whom the opposite party had given the air tickets for return journey to the complainant and his wife for 4.2.2016. It is also an admitted fact that this fact had come to the notice of the complainant on internet and he informed the opposite party about the same, which assured him that it will manage the return journey on the same date through some other Air Company with the same route. In-spite of the assurance that alternative arrangement will be made, the opposite party did not act nor any communication was sent to the complainant. The complainant and his wife returned by purchasing fresh tickets for ₹60,267/- by spending ₹13,250/- in excess for no fault of theirs. Besides this, the complainant and his wife also suffered mental agony and harassment. However, the opposite party refunded only ₹26,000/- against ₹47,000/- for return journey and also did not refund the amount of ₹13,250/-, which the complainant had spent in excess.
11. Admittedly the price of two return air tickets from New York (USA) to New Delhi was ₹47,000/-, which the complainant had paid First Appeal No.107 of 2017 9 to the opposite party. It is also an admitted fact that the said tickets were supplied to the complainant by the opposite party through its agency i.e. Yatra Online Private Limited. It is also admitted fact that the payment was made to the opposite party through credit card of HDFC Bank, Sitto Gunno, which has not been disputed. Rather this fact is admitted that the opposite party had refunded the part of the amount i.e. ₹26,000/-. Now, the only dispute remains with regard to the payment of remaining amount out of ₹47,000/- plus the extra amount of ₹13,250/-, which the complainant had to spend for purchasing fresh return tickets from New York (USA) to New Delhi. Once the complainant had not availed the services and the tickets had been purchased by the complainant from the opposite party, certainly the complainant is entitled to the refund of the price of both the air tickets paid by him to the opposite party i.e. ₹47,000/-. However, only ₹26,000/- has been returned by the opposite party to the complainant. Remaining amount of ₹21,000/- remain to be paid by the opposite party for the said two tickets. Certainly the complainant is entitled to the refund of the full price of both the tickets, which he had paid to the opposite party for the return journey. As such, the opposite party has intentionally withheld the amount of ₹21,000/- out of the full price of both the tickets leaving aside other expenses. It is also an admitted fact that for return journey the complainant had to spend ₹60,267/- for purchasing two tickets from New York (USA) to New Delhi of some other Airlines meaning thereby that he had to spend ₹13,250/- extra than the tickets already purchased by him. Once these facts are proved on First Appeal No.107 of 2017 10 the record, the opposite party is certainly bound to pay the said amount also to the complainant. We do not find justification to differ with the conclusion arrived at by the District Forum.
12. Now, coming to clause 5.3 of the Master User Agreement, reproduced above. The terms and conditions mentioned on the air tickets make it clear that if the flight get cancelled or they cancel the ticket directly with the Airlines, then the complainant was required to inform the opposite party to initiate the refund proceedings. The e- ticket Ex.C-5 was purchased through Yatra.com i.e. the opposite party. It is the admitted fact that the said Airlines had cancelled the flight on 4.2.2016 from New York (USA) to New Delhi and the intimation with regard to the same was also sent by the complainant to the opposite party. The said clause itself says that in case of cancellation or otherwise subject to the receipt of such refund, it is the duty of the Yatra.com i.e. the service provider to pay the amount to the complainant. Otherwise also the opposite party has failed to prove on record that these terms and conditions mentioned in Master User Agreement Acceptance of Terms, Ex.OP-2, were ever got confirmed from the complainant or brought to his knowledge or got the same signed from him. The real contract of the complainant was with the opposite party only, which had provided e-tickets and certainly it is liable and answerable to the complainant. Once the intimation was sent by the complainant to the opposite party that the said Airlines had cancelled its flight on 4.2.2016 from New York (USA) to New Delhi and once it was assured by the opposite party that it would make some alternative arrangement, it was the duty of First Appeal No.107 of 2017 11 the opposite party to inform the complainant about the same and to make some alternative arrangement for their return journey. However, the opposite party failed to do so. Certainly this amounts to deficiency in service on the part of the opposite party. In view of this, we are of the view that the finding recorded by the District Forum does not call for any interference.
13. In view of our above discussion, we do not find any merit in the present appeal and the same is hereby dismissed. However, in the peculiar facts and circumstances of this case the opposite party is given a liberty to claim its rights from the concerned Airlines i.e. UN- Transaero Airlines, if it so desires.
14. The appellant/opposite party had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER September 29, 2017 Bansal First Appeal No.107 of 2017 12