PER KULJIT SINGH, PRESIDENT
1. Brief facts of the case are that complainant no.1 and 2 are husband and wife and in the month of February 2019, they planned to visit Canada to meet their son in the month of May 2019 and for said purpose, complainant no.1 has booked online two returned confirmed air tickets of Jet Airways i.e. OPs no.4 & 5 through website of OPs no.1 to 3. The complainant no.1 has booked two air tickets for himself and for his wife and complainant no.2 also paid amount of Rs.1,19,506/- through online transaction through its credit card. The complainants have been supplied information online tickets of OPs no.4 to 5 by OPs no.1 to 3 bearing tickets no.589-2990962305 & 589- 2990962306 in the names of complainants. The date of journey was 23.05.2019 and return journey was booked for 24.10.2019. The said tickets were confirmed as issued by OPs no.1 to 5 after receiving of the aforesaid payment through credit card of OP no.6. The complainant no.1 made the payment of Rs.1,19,506/- on dated 21.02.2019 through credit card to OPs no.1 to 3 online for air tickets of OPs no.4 to 5. The complainants were allotted seats vide confirmed e-tickets no.589-2990962305, 589-2990962306 as per booking reference no.9W/ODUFOM in lieu of payment of Rs.1,19,506/- which has been received by OPs no.1 to 5. The complainants were ready for their journey, but unfortunately complainants have received message on their mobile that said journey of airline of OPs no.3 to 5 have been cancelled. The complainants have suffered financial loss due to negligent act of OPs no.1 to 5. Due to urgency, complainants have booked and purchased air tickets from Rana Travels i.e. OP no.7 for their proposed journey to Canada to meet their son on 31.05.2019 as departure from India to Canada and 19.10.2019 as departure from Canada to India. Due to this reason, complainant no.1 has made additional payment of Rs.1,74,986/- to OP no.7 as cost of returned air tickets. In this way, due to negligence and unlawful conduct of OPs no.1 to 5 and under compelling circumstances, complainant no.1 has paid cost of Rs.55,480/- more than their first air tickets. The complainant have requested to OPs no.1 to 5 many times to refund the price of tickets i.e. Rs.1,19,506/- and Rs.55,480/- as detailed above under compelling circumstances due to negligence and unfair trade practice act of OPs no.1 to 5. The complainants have spent huge amount on purchasing of said returned air tickets of Jet Airways but by doing unlawful act of OPs no.1 to 5 have failed to render their services to complainants for which they are duty bound to provide the same and they have breached the terms and conditions of the said unfair trade practice. Therefore, due to above said act of OPs, complainants have filed the present complaint and prayed that OPs no.1 to 5 are directed to refund amount of Rs.1,19,506/- and to pay Rs.55,480/- as paid excess charges to purchase of fresh air tickets along with interest @ 12% till the date of realization to complainants, besides Rs.1,50,000/- as damages for mental agony and monetary loss as suffered by complainants and Rs.50,000/- as costs of litigation.
2. Notice sent to OPs no.1,3,5&7 not received back delivered or undelivered and sufficient period from service has been lapsed. As such, OPs no.1,3,5&7 are proceeded against exparte.
3. OP no.2 appeared and filed its separate written reply and contested the complaint of the complainant by averring that complainants have failed to approach before this Forum with clean hands. The complainants are not entitled to claim any equities from OPs no.1 to 3 by way of present complaint. OP no.2 provides all the travel related unblemished services and information to its customers but not limited to air ticketing, railways ticketing, bus booking, and hotel bookings at very competitive prices. All the online transactions by the user of the website or the mobile application of answering OP are governed by website and applications user agreement, applicable to person intending to purchase or inquiring for any products and/or services of OP no.2. At the time of booking of the tickets, the intended traveler duly accepted the terms and conditions of the user Agreement. At the time of booking the tickets, also duly consents and adheres to the cancellation policy of OP as well as airlines. OP no.2 has duly initiated the refund process towards complainants and same has been forwarded to concerned airlines and the concerned airlines refund or reschedule the tickets or bookings in lieu of charges duly agreed upon at the time of making the bookings. Once confirmed ticket is booked by the intended traveler and tickets of the same are shared with the intended traveler then OP discharged from its obligations qua the said bookings and same shall be forwarded to the concerned airlines for further process. The Director General of Civil Aviation (DGCA) i.e. the governing authority of all the Airlines in India vide its Civil Aviation Requirements, Section 3 Air Transport Series M, Part IV, Issue I dated 6 August, 2010 bearing file no.23-15/2016-AED, specifically vide Clause 3(c ) of the said requirements has held that in case if a passenger/traveler books a ticket through travel agent, onus of refund in case of cancellation of ticket shall lie with the Airlines and not travel agent. The said requirements have specifically held that the process of refund shall be completed within 30 days. TAAI has further informed that IATA is in contact with the resolution professional for the airline to discuss the impact of this process on IATAs remaining claims including passenger/agency refunds and airline partners dues. No stretch of imagination it can be believed that OP no.2 is liable to make the refund the amount to the complaint or has withheld the amount of the complainant with itself. The complainants themselves have admitted that OP no.2 has duly issued the confirmed tickets to the complainants for which they availed the services of OP no.2. The complainants were well aware of the cancellation of policy as the same was duly mentioned in the E-tickets issued by OP. The concerned airlines refund or reschedule the tickets or bookings in lieu of charges duly agreed upon at the time of making the bookings. The complainants have not filed any relevant documents to support his claims against the financial loss. OP no.2 denied all averments made by the complainant and prayed for dismissal of the complaint.
4. OP no.6 appeared and filed its separate written statement by taking the preliminary objections that complaint is not maintainable against OP no.6. The present complaint is bad for mis-joinder and non-joinder of necessary parties. On merits, the complainant had made expenses for a sum of Rs.1,19,506/- from his credit card issued by OP no.6 in the month of February 2019 for the purchase of air tickets. The complaint relates to OPs no.1 to 5, however the amount for purchase of air tickets was spent through credit card availed from OP no.6. Rest of the averments made by the complainant denied by OP no.6 and it prayed for dismissal of the complaint.
5. The complainant has tendered in evidence his affidavit Ex.CW-1/A and rejoinder by way of affidavit Ex.CW-1/B along with copies of documents Ex.C-1 to Ex.C-38 and closed the evidence. On the other hand, OP no.2 has tendered in evidence affidavit of Ekank Mehra Deputy Manager Legal as Ex.OP-2/A along with copies of documents Ex.RW-1 to Ex.RW-7 and closed the evidence. OP no.6 closed his evidence.
6. We have heard learned counsel for the parties and have also gone through the record of the case. We have also examined the written arguments filed by OP no.2 which is placed on the file.
7. The complainant no.1 has tendered in evidence his affidavit Ex.CW- 1/A in support of his case. He alleged that he has booked online two returned confirmed air tickets of Jet Airways i.e. OP no.4 and 5 through website of OPs no.1 to 3. He has booked two air tickets for himself and for his wife and complainant no.2 paid amount of Rs.1,19,506/- through online transaction. The complainants were allotted seats vide confirmed e-ticket no.589- 2990962305, 589-2990962306 as per booking reference no.9W/ODUFOM in lieu of payment of Rs.1,19,506/- which has been received by OPs no.1 to
5 online through credit card. The complainants have suffered financial loss due to negligent of OPs no.1 to 5. Due to urgency, complainants have booked and purchased air tickets from Rana Travels i.e. OP no.7 for their proposed journey to Canada to meet their son on 31.05.2019 as departure from India to Canada and on 19.10.2019 as departure from Canada to India. Due to this reason, complainant paid additional payment of Rs.1,74,986/- to OP no.7 as cost of the returned air tickets. The complainants requested to OPs no.1 to 5 many times to refund the price of tickets i.e. Rs.1,19,506/- and Rs.55480/-, but OPs no.1 to 5 have failed to pay any heed. Ex.C-1 is copy of aadhar card of Balwinder Kaur/complainant no.2. Ex.C-2 is copy of aadhar card of complainant no.1/Manjit Singh Bajwa. Ex.C-3 is copy of passport of Balwider Kaur. Ex.C-4 is copy of passport of Manjit Singh. Ex.C-5 is coy of flight ticket. Ex.C-6 is copy of ticket purchased by complainants from Rana Travels. Ex.C-7 to Ex.C-10 are copies of credit card duplicate statements. Ex.C-12 is copy of legal notice. Ex.C-13 to Ex.C-18 are postal receipts thereof. Ex.C-19 is copy of email. Ex.C-20 is copy of flight ticket. Ex.C-21 to Ex.C-38 are copies of emails of different dates. Ex.CW-1/B is rejoinder by way of affidavit of Manjit Singh /Complainant no.1.
8. To refute this evidence of the complainants, OP no.2 tendered in evidence affidavit of Ekank Mehra Deputy Manager Legal as Ex.OP-2/A. This witness denied any deficiency in service or unfair trade practice on its part. This witness stated that once the confirmed tickets are shared, the OPs discharged from all obligations and liabilities qua the said bookings. As per terms and conditions duly agreed upon by the complainants at the time of booking the tickets, OPs have duly initiated the refund process towards complainants and same has been forwarded to concerned airlines i.e. Jet Airways. Ex.RW-1 is copy of resolution passed by the Board of Directors of IBIBO Group Pvt. Limited. Ex.RW-2 is copy of order dated 20.06.2019 Members of National Company Law Tribunal Mumbai Bench. Ex.RW-3 is copy of letter dated 22.05.2008 regarding refund of airline tickets to passengers of Public Transport Undertakings. Ex.RW-4 is copy of update of refund. Ex.RW-5 is copy of company master data. Ex.RW-6 is copy of agreement and copy of flight ticket is Ex.RW-7 and closed the evidence.
9. It is an admitted fact that complainants were allotted seats vide confirmed e-tickets no.589-2990962305, 589-2990962306 as per booking reference no.9W/ODUFOM in lieu of payment of Rs.1,19,506/- which has been received by OPs no.1 to 5. From perusal of document Ex.C-5 it is clear that status of tickets are confirmed and two tickets bearing nos.589- 2990962305, 589-2990962306 issued in the name of complainant no.1/Manjit Singh Bajwa and in the name of complainant no.2/Balwinder Kaur. Ex.C-7 shows that the complainants purchased two tickets for an amount of Rs.1,19,506/-. Ex.C-19 indicates that booking confirmed. Ex.C-
22 is copy of email from, in which information regarding cancellation of jet airways booking given but address not found. In this document i.e. Delivery Status Notification (Failure) it is mentioned that Refund will be initiated and communicated to you as soon as we receive it from the airline. This email sent by OPs no.1 to 2 to complainants and OPs cannot wriggle out from the same document because they themselves committed for refund. OPs no.1 and 2 further mentioned in this document that this is to confirm that we have received the cancellation request of your cancelled Jet Airways flight booking. We are coordinating with the airlines to get an update on the refund status. There is currently no timeline shared by the airline however rest assured we are in constant touch with Jet to fast track the refund process. On 16 February 2019 OP nos.1 and 2 sent email to complainants that your booking is under process and you will receive a confirmation mail/e-ticket within next 30 minutes. On 23 April 2019 OPs no.1 and 2 sent further email to complainants that your flight 9W234 23 May 19 from DEL to NYZ is cancelled due to operational reasons. We regret inconvenience. For tickets booked on our website, mobile app or via our contact centre, please click bit.ly/9Wsupport to request for a refund. For tickets booked through travel agents, kindly connect with your travel agent for refunds. From perusal of copies of emails Ex.C-31 to Ex.C-38 it is clear that e-tickets of complainants cancelled due to fault of OPs not the complainants and for this discrepancy OPs are liable to refund the amount of e-tickets, which have been purchased by the complainants from OPs. The complainants were allotted seats vide confirmed e-tickets no.589-2990962305, 589-2990962306 as per booking reference no.9W/ODUFOM in lieu of payment of Rs.1,19,506/- which has been received by OPs no.1 to 5. The complainants have been supplied information online tickets of OPs no.4 to 5 by OPs no.1 to 3 bearing tickets no.589-2990932305 & 589-2990962306 in the names of complainants. The date of journey was 23.05.2019 and return journey was booked for 24.10.2019. The said tickets were confirmed as issued by OPs no.1 to 5 after receiving of the aforesaid payment through credit card of OP no.6. The complainant no.1 made the payment of Rs.1,19,506/- on dated 21.02.2019 through credit card to OPs no.1 to 3 online for air tickets of OPs no.4 to 5. Due to this reason, complainant no.1 has made additional payment of Rs.1,74,986/- to OP no.7 as cost of returned air tickets. In this way, due to negligence and unlawful conduct of OPs no.1 to 5 and under compelling circumstances, complainant no.1 has paid cost of Rs.55,480/- more than their first air tickets. The complainants paid additional payment due to negligence of OPs.
10. The learned counsel for complainant has relied upon citation titled as Delhi Express Travels Pvt. Ltd. Versus International Air Transport Association and others, reported in 2009(45)RCR (Civil) 145 of Delhi High Court, wherein C-Contract Act 1872 Section 230 Personal Liability of Agent A contract making the agent personally liable has to be presumed to exist where the principal is residing abroad and/or where the principal though disclosed cannot be sued. Further case law titled as Dr. Debasis Khadanga Versus Tarom reported in 1994(1)CPJ 62 of Orissa State Consumer Disputes Redressal Commission Cuttak wherein it has been held that that there is a dispute arising out of non-provision of return facilities by a Romanian Air Transport from London even though the tickets were purchased in advance for the return trip and direct the Yosobanta Pattnaik Proprietor Jet Tours return the cost of the unused return ticket of TAROM amounting to Rs.11,748/-. Reimburse the amount of the cost of return ticket of Rs.1000/- purchased from British Airways along with interest amounting to Rs.27,280/- and Rs.5000/- as cost. Further complainant has relied upon case titled as Aa Bee Resort and Travel Pvt. Ltd versus Om Parkash Palia reported in First Appeal No. 743 of 2012 decided on 16.01.2015 of Delhi State Consumer Disputes Redressal Commission, wherein it has been held that liability of agent booking the ticket. Agent had sold the ticket on behalf of Airlines as its booking agent. Agent cannot escape the liability. The case titled as Air India and others versus Ranjot Singh and others reported in 2010(3) CPC 447 of Chandigarh State Consumer Disputes Redrssal Commission, wherein it has been held that Singapore Airlines being the agent of OPs no.1 and 2 they cannot escape their liability. A principal cannot escape his liability for omission and commission of an act of his agent.
11. From perusal of entire record on the file and citations referred by learned counsel for the complainant, it is crystal clear that OPs no.1 to 3 are bound to refund the price of the ticket which have been purchased by the complainants from OPs no.1 to 3. First of all, OPs no.1 and 2 sent emails regarding confirmation of e-tickets of complainants and after that they sent emails regarding cancellation of tickets. For this discrepancy, OPs no.1 and
2 are liable to refund the price of the ticket, they cannot wriggle out from its liability.
12. Ex,C-7 and Ex.C-9 are the vital documents on the record. From perusal of document Ex.C-7 it is clear that complainants paid Rs.1,19,506/- paid to OPs no.1 to 3 for purchase of air tickets. From perusal of Ex.C-9, it is also clear that complainants have booked and purchased air tickets from Rana Travels i.e. OP no.7 for their proposed journey to Canada to meet their son on 31.05.2019 as departure from India to Canada and 19.10.2019 as departure from Canada to India. Due to this reason, complainant no.1 has made additional payment of Rs.1,74,986/- to OP no.7 as cost of returned air tickets. The complainants have paid this additional amount due to negligence of OPs no.1 to 3.
13. Keeping in view facts and circumstances of the case, we allow the present complaint against OPs no.1 to 3 only and OPs no.1 to 3 are directed to refund amount of Rs.1,19,506/- as cost of tickets purchased by the complainants from OPs and Rs.20,000/- as compensation for mental harassment and Rs.10,000/- as cost of litigation. The OP No.1 to 3 also directed to deposit Rs.10,000/- in Legal Aid account of this Commission.
14. The compliance of the order be made within one month from receipt of copy of this order.
15. Copies of the order be sent to the parties, free of cost, as prescribed under the rules.
16. File be indexed and consigned to record room. Dated:11.12.2020 (Kanwaljeet Singh) (Kuljit Singh) Member President