PER MR.B.S.WASEKAR, HON’BLE PRESIDENT 

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986.  According to the complainant, the complainant through its Directors’ Mr.Vikas Kapur and C.E.O. Mr.Sushil Kapur were to participate in trade fair Interpack 2011 to be held between 12^th May, 2011 to 18^th May, 2011 at Germany. The complainant booked two tickets and travel package through the O.P.No.1. The O.P.No.1 directly made the arrangement with the O.P.No.2 for the complainant’s entire package.  The O.P.No.1 confirmed travel booking and package on 5^th April, 2011 at the cost of Rs.3,37,600/-.  The complainant requested the O.P.no.1 to amend the travel package and accordingly it was amended at the cost of Rs.3,85,651/-.  The complainant paid amount of Rs.2,75,000/- to the O.P.No.1 by cheque dated 11^th April, 2011.  On 14^th April, 2011, the complainant received confirmation letter for reservation from Holiday Inn.  On 3^rd May, 2011, the complainant issued second cheque for Rs.1,10,651/- towards full and final payment to the O.P.No.1. The O.P.No.1 sent e-tickets to the complainant on 2^nd May, 2011 for Swiss Air.  On 7^th May, 2011, Mr.Vikas Kapur, Director of the complainant met with an accident and was hospitalized. The O.P.No.1 was informed about it with request to cancel all reservations and requested for refund.  There was several correspondence in between the parties. During correspondence, it was revealed that there was fraud played by the opponents on the complainant. The opponents were requested to submit e-ticket numbers and vouchers.  On enquiry with Swiss Air, it was informed that there was no booking in the name of the complainant.  On enquiry with the O.P.No.2, it was informed that booking was with Air France.  On enquiry with Air France, there was no such booking.  Thus, the opponents have played fraud on the complainant. The opponents were requested to refund the amount of Rs.3,73,491/- with compensation for mental agony.  As there was no compliance, the complainant has filed this complaint for refund of the amount of Rs.3,73,491/- with interest. The complainant has also claimed compensation of Rs.5,50,000/- towards mental torture and loss of business. The complainant also claimed amount of Rs.9,35,000/- towards deficiency in service and misguiding the complainant.

2)                The O.P.No.1 appeared and filed written statement.  It is submitted that the complainant is not the consumer as defined under section 2(d) of the Consumer Protection Act, 1986.  Therefore, the complaint is not maintainable.  The complainant insisted the O.P.No.1 to book the concern package and recommended the name of O.P.No.2.  The O.P.No.1 was not willing to book the package but as the complainant was the regular customer, the O.P.No.1 agreed.  The O.P.No.1 paid the amount to the O.P.No.2 for booking and the same was subsequently paid by the complainant to the O.P.No.1.  After receiving the payment, the O.P.No.2 sent ticket copies and hotel vouchers and the same were forwarded to the complainant.  The complainant was already informed that the package is totally non refundable.  The complainant requested to cancel the package on medical ground. On the complainant’s request, the O.P.No.1 tried for refund on medical ground.  The O.P.No.1 and the complainant were following Mr.Eric and Mr.Sambhav Rai of the O.P.No.2 for refund on medical ground.  Mr.Sambhav Rai promised to try for refund.  The O.P.No.1 tried at level best but the staff of the O.P.No.2 has misguided and not provided proper information and finally stopped responding the calls.  The O.P.No.1 received notice from the complainant. The booking was made by the O.P.No.2.  The complainant himself was responsible for it.  Therefore, the O.P.No.1 is not responsible for any refund.  The O.P.No.1 has no control over the O.P.No.2. Therefore, the complainant is not entitled for any relief against this opponent. 

3)                The O.P.No.2 appeared and filed written statement.  It is submitted that it is commercial transaction therefore the complaint is not maintainable.  There is no privity of contract.  The complainant has not paid any amount to the O.P.No.2.  Therefore, the complaint is not maintainable against the O.P.No.2. It is denied that the O.P.No.2 booked the package on the request of the complainant.  There is no communication between the complainant and Mr.Sambhav Rai. Mr.Sambhav had not taken any consent from the O.P.No.2. He had fraudulent dealings with the client of the O.P.No.2 and the complaint is pending against Mr.Sambhav in Delhi Court.  The complainant was aware that it was non refundable booking therefore the complainant is not entitled for any relief against this opponent.

4)                After hearing all the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

5) As to Point No.1:- According to the opponents, the complainant is the Company running business.  As it is commercial purpose, the complainant is not the consumer within a meaning of Section 2(d) of the Consumer Protection Act, 1986.  On the other hand, it is submitted by the learned advocate for the complainant that the services were hired for booking purpose. The complainant were going to Germany to attend trade fair Interpack 2011 to be held between 12^th May, 2011 to 18^th May, 2011.  The purpose was to gain knowledge and not to earn profit.  The learned advocate for the complainant has placed reliance on the judgment of Hon’ble Supreme Court reported in III (2009) CPJ 5 (SC) in the case of Karnataka Power Transmission Corporation & Anr. –Versus- Ashok Iron Works Private Limited, decided on 9^th February, 2009.  In this judgment, the Hon’ble Supreme Court has laid down that even though the complaint is filed by the company still if there is no intention to earn profit, the complaint is maintainable.  The learned advocate has further placed reliance on the judgment of Hon’ble National Commission reported in I (2005) CPJ 27 (NC), in the case of Harsola Motors –Versus- National Insurance Company Limited, decided on 3^rd December, 2004. In para 25 of the judgment, the Hon’ble National Commission has laid down as under :

Further, from the aforesaid discussion, it is apparent that even taking wide meaning of ‘the words for any commercial purpose’ it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit.  Profit is the main aim of commercial purpose.  But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.  

In the instant complaint before us also, the complainant were attending trade fair with intention to get knowledge.  There was no business purpose to gain profit.  Therefore, the complainant is consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986 and the complaint is maintainable.  

6) As to Point No.2 & 3 :- According to the complainant, the tickets and package was booked by the O.P.No.1 for the complainant and the amount of Rs.2,75,000/- was paid to the O.P.No.1 by cheque dated 11^th April, 2011 and the balance amount of Rs.1,10,651/- was paid by cheque dated 3^rd May, 2011 towards full and final payment.  The said booking was made by the O.P.No.1 through the O.P.No.2. The O.P.No.1 in written statement para 7 admitted the payment by the complainant to him.   According to the O.P.No.1 the complainant insisted for booking through the O.P.No.2 therefore the O.P.No.1 booked the package through the O.P.No.2. Admitted position on record is that the complainant paid the amount to the O.P.No.1 and the booking was made by the O.P.No.1 for the complainant, though it is through O.P.No.2.  In the written statement, the O.P.No.2 has not denied the booking and payment to him by the O.P.No.1. The contention of the O.P.No.2 is that no payment was made by the complainant to him.   But, there is no specific denial of payment to him by the O.P.No.1.  The correspondence on record show that the complainant paid the amount to the O.P.No.1 and the O.P.No.1 paid the amount to the O.P.No.2.  The booking was made by the O.P.No.2.  Thus, there is nexus in between the parties.  According to the O.P.No.1, booking was made through the O.P.No.2 at the instance of the complainant and therefore the complainant himself is responsible for it.  There is nothing on record to corroborate this fact.  On the other hand, evidence on record show that the O.P.No.1 booked the package though the O.P.No.2 for the complainant.  The complainant paid the amount to the O.P.No.1 and the O.P.No.1 paid it to the O.P.No.2.  Therefore, both the opponents are responsible to the complainant.

7)                According to the complainant, due to medical ground request was made to the opponents to cancel the reservations.  It is submitted by the opponents that package was non refundable and the complainant was informed about it. It is submitted by the learned advocate for the complainant that on enquiry it was revealed that there was no booking at all. The opponents could not furnish tickets numbers and bill numbers.  The booking was made by the O.P.No.2 therefore it was responsibility of the O.P.No.2 to furnish tickets numbers and bill numbers. Even before this Forum, the opponents have not furnished ticket numbers and bill numbers.  According to the complainant, the opponents failed to furnish tickets numbers and bill numbers.  It shows that there was no booking at all and the complainant was defrauded by the opponents. As discussed above, there was payment by the complainant therefore the opponents are responsible to furnish the ticket numbers and bill numbers.  As they failed, there is deficiency in service on the part of the opponents.  The opponents can not avoid their liability by shirking their responsibility.  The opponents are blaming each other.  Due to this conduct of the opponents, the complainant is the sufferer.  Therefore, he is entitled for refund of his amount.

8)                According to the opponents, the package was non refundable.  The opponents have not produced any evidence showing the booking of package including the ticket numbers and bill numbers.  If there is no booking, there is no question of non refundable package. Thus, the evidence on record show that the complainant paid the amount of Rs.3,85,651/- to the O.P.No.1 and the O.P.No.1 paid it to the O.P.No.2. The complainant has already received the amount of Rs.12,160/-. The booking was made through the O.P.No.1 therefore both the opponents are liable to refund the amount to the complainant.  In spite of several demand, the opponents failed to refund the amount thereby the complainant suffered from mental harassment.  Therefore, the complainant is entitled for compensation. The complainant has claimed compensation of Rs.5,50,000/- for mental harassment.  We think, the compensation claimed by the complainant is exorbitant.  Compensation of Rs.50,000/- will be a reasonable compensation.  Besides this, the complainant has claimed compensation of Rs.9,35,000/- for misguiding the complainant. We have already awarded compensation  of Rs.50,000/-. We do not think it necessary to award more compensation. Besides this, the complainant is entitled for the cost of this proceeding Rs.5,000/-. Therefore, we proceed to pass the following order.

ORDER

1. Complaint is allowed.
2. The opponents are directed to refund the amount of Rs.3,73,491/- (Rs.Three Lakhs Seventy Three Thousand Four Hundred and Ninety One Only) to the complainant jointly and severally with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 30^th November, 20111 till realization.
3. The opponents are also directed to pay Rs.50,000/- (Rs. Fifty Thousand Only) to the complainant jointly and severally as compensation towards mental harassment. 
4. The opponents are further directed to pay Rs.5,000/- (Rs.Five Thousand Only) to the complainant jointly and severally as cost of this proceeding.
5. The above order shall be complied with within a period one month from today.
6. Copies of this order be sent to the parties free of cost.

Pronounced on 2^nd December, 2014