DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 30^th day of November, 2023                                                                                                

                          Filed on: 01/06/2016

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member

Smt.Sreevidhia.T.N                                                                 Member                                                        

CC NO. 307/2016

Between

COMPLAINANT

Joshy N.S., Nellippilly House, Edavoor 683544. Ernakulam District

(Rep. by Adv. Poulose Vallooran, Chakalayil Building, Amulya Street, Ernakulam, Banerji Road)

VS

OPPOSITE PARTY

1. Shine Jose, Managing Director, M/s. Skyline Air Travels Angamaly Rod, Kalady 683574, Ernakulam District.

(Rep. by Adv. George Cherian Karippaparambil, HB 42, Panampilly Nagar, Kochi 682036)

2. M/s. Jet Airways (India) Ltd., Corporate Office, Siroya Centre, Sahar Airport Road, Andheri (East), Mumbai 400099, Maharashtra. Rep. by its Managing Director.
3. The General Manager, Jet Airways (India) Ltd., BAB Chambers, Ground Floor, Opp. to Kochin Shipyard, Atlantins Junction, Ravipuram, Ernakulam 682015.

(OP No. 2& 3 Rep. by Adv. Shyam Padman)

4. M/s. Creative Tours and Travels (I) Pvt. Ltd., Kapadia Chambers, Office No. 3, Near Metro Cinema, Dhobitalao, Mumbai 400020. Rep. by its Managing Director
5. 5. M/s. Creative Tours and Travels (I) Pvt. Ltd., Prabha Building, North Nada, Kodungallur 680664. Rep. by its Branch Manager.

FINAL ORDER

Sreevidhia T.N., Member:

1. A brief statement of facts of this complaint is as stated below:

The complainant is a business man. On 22/01/2016, for going tour with his family, the complainant went to the office of the 1^st opposite party at Kalady and requested 4 airline tickets for his family to travel to and fro Kochi and Bagdogra during the summer vacation of his children. Immediately after his request the 1^st opposite party booked and purchased 4 airline tickets for the flight owned and operated by 2^nd and 3^rd opposite parties. The Airline tickets purchased by the 1^st opposite party are in the name of complainant, his wife Mrs. Smitha, his son Master. Anirudh and his daughter Kumari. Anjanapriya bearing e-ticket numbers 5899649889146, 5899649889147, 5899649889148, 5899649889149 respectively. return travelling ticket dated 23/05/2016 for Rs.26,136/- for 4 tickets from Calcutta to Kochi by Indigo Airlines was also booked by the 1^st opposite party. Immediately after getting the Performa Invoice of itinerary details of 4 airline tickets for Rs.27,891/- of Jet Airlines operated by 1^st and 2^nd opposite parties and return 4 airline tickets for Rs.26,136/- of Indigo Airline, the complainant paid an amount of Rs.10,000/- to the 1^st opposite party out of total sum of Rs.54,027/-. The above said Performa invoices issued by the 1^st opposite party for the purpose of travelling by Jet Airways of 1^st and 2^nd opposite party are with details of its agency as IATA bearing No. 99999992 and the 1^st opposite party seemed to be the agency of 2^nd and 3^rd opposite parties. When the complainant verified those performa invoices which are issued by the 1^st opposite party, the place of destination mentioned in those performa invoices was wrongly entered as Kochi to Vadodara instead of Kochi to Bagdogra. Immediately the matter was brought to the attention of the 1^st opposite party about the wrong destination mentioned in those performa invoices. Then 1^st opposite party informed the complainant that all those 4 air tickets booked and purchased in wrong destination has been cancelled. But the Rs.27,891/- received by 1^st opposite party for booking of the above 4 air tickets has not been paid back to the complainant nor issued new air tickets to the correct destination. Whereas the 1^st opposite party had offered the complainant that the full amount of Rs.27,891/- charged for booking will be made available to the complainant after 15 days of its cancellation. Subsequently the 1^st opposite party demanded the complainant to pay the balance outstanding amount of Rs.42,750/- within 2 days. Believing upon the words of 1^st opposite party the complainant had paid balance outstanding amount of Rs.42,750/- by way of cheque bearing No. 066058 dated 25/01/2016 of SBT Kalady. Later on the same date, the complainant booked 4 airline tickets from Kochi to Bagdogra by paying full amount through another agency, Vivekananda Travels (P) Ltd, Ernakulam. The complainant along with his family travelled from Kochi to New Delhi by Indigo Airlines and New Delhi to Bagdogra by Spice Jet Airlines on 17/05/2016.

The booking to the wrong destination made by the 1^st opposite party was admitted before the complainant. The complainant approached the 1^st opposite party with utmost trust and belief expecting expertise in travel industry. But 1^st opposite party has done it carelessly in an inefficient manner. There is no doubt that deficiency in service has occurred from the part of 1^st opposite party. It is the legal responsibility of the 1^st opposite party to pay back the above amount of Rs.27,891/- along with interest and compensation to the complainant as it is the mistake committed by 1^st opposite party. It is crystal clear that it is a deficiency of service provided by the 1^st opposite party to the complainant. Moreover 1^st opposite party provided a paid service to the complainant after receiving the consideration. The 1^st opposite party was neither willing to issue not ticket to the correct destination nor pay back the amount booked. On 09/03/2016 the complainant caused issuance of lawyer notice demanding to settle the issue by paying an amount of Rs.27,891/- along with interest and compensation. The issuance of lawyer notice has been acknowledged by the 1^st, 2^nd and 3^rd opposite parties. But no amount has been paid to the complainant so far. A reply to lawyer notice dated 16/03/2016 sent by the 1^st opposite party has been served to the counsel of the complainant on 18/03/2016. In the above circumstances the complainant left with no remedy to resolve the dispute other than to file this complaint. Hence this complaint.

2. Notice :

Notice was issued to the opposite parties. Upon notice opposite parties No. 1 to 3 appeared and filed their version

3. Version of 1^st opposite party

This consumer complaint is not maintainable either in law or on facts of the case against the first opposite party. 1^st opposite party is the sub agent of M/s. Creative Tours and Travels (P) Ltd., Kodungalloor, the averment regarding booking of tickets on 22/01/2016 is correct. Whereas complainant has instructed the 1^st opposite party to book the airline tickets to Vadodara and not Bagdogra. The airline offer was a special offer, at concessional rate, with a very low rate having only Rs.4,650/- for journey from Kochi to Vadodara Via Mumbair. Thus the ticket booked through M/s. Creative Tours and Travels (P) Ltd., Kodungalloor is nonrefundable tickets to Vadodara for complainant and his family. It is fully understanding and agreeing to the same that tickets are booked by the complainant under the special offer. Complainant has spent 3 hours in the 1^st opposite party office and the booking was also done in the presence of the complainant. Everything was personally been verified and upon being satisfied complainant paid a part payment of Rs.10,000/- and took the tickets. The balance ticket price Rs.42,750/- was paid after 3 days on 25/01/2016. It is respectfully submitted that the complainant specifically instructed the 1^st opposite party to book air tickets to Vadodara and it was only when some other person pointed it out to the complainant that he could realize that the destination is Bagdogra and not Vadodara. The mistake happened solely due to the fact that complainant never knew that Vadodara and Bagdogra are two different places ad destinations. It is submitted that there is no direct flight to Bagdogra and the flight fare to Bagdogra would also have been much higher. If complainant had specifically stated Bagdogra the mistake would never have happened. There is no negligence, deficiency in service or carelessness on the part of the 1^st opposite party. Upon realizing the mistake committed by the complainant, complainant instructed the 1^st opposite party to cancel the 4 tickets to Vadodara. Accordingly the 4 airline tickets booked as per the specific instruction by the complainant were cancelled by the 1^st opposite party. Since the tickets booked were special offer tickets, with concessional rate, which are nonrefundable, there is no scope for getting refund from the airline. On cancellation of the tickets, only the taxes will be refundable as per the fare rules of the 2^nd opposite party. Accordingly an amount of Rs.474/- against ticket numbers 589 9649889146,  Rs.449/- against ticket numbers 589 9649889147, 589 9649889148 and 589 9649889149. Accordingly 1^st opposite party offered refund of this amount to the complainant, which was refused by the complainant. Thus the allegations in the consumer complaint that 1^st opposite party made the booking carelessly and inefficiently is false and hence denied. The mistake in destination has occurred only due to the ignorance of the complainant. Thus 1^st opposite party has no responsibility to pay back the ticket fare Rs.27,891/- or any other sum to the complainant. The 1^st opposite party on receipt of the lawyer notice dated 09/03/2016 has caused the issuance of reply lawyer notice dated 16/03/2016 clearly narrating the true facts and cautioned the complainant that in spite of the reply lawyer notice if complainant venture upon any experimental litigation the same will be legally resisted and complainant alone will be responsible for all the costs and consequences thereof.

4. Version filed on behalf of 2^nd and 3^rd opposite parties

The complainant is not a consumer as contemplated under the Consumer Protection Act. There is no consumer dispute contemplated under the Act warranting adjudication by this Hon’ble Forum as far as these opposite parties are concerned. There is no negligence, deficiency in service or unfair trade practice on the part of these opposite parties even going by the allegations and claims contained in the complaint or otherwise. The complainant has not approached this Hon’ble Forum with clean hands. He has suppressed the true, correct and material facts and has set out incorrect, unsustainable and misleading allegations and claims, which as well disentitles him from claiming or getting any relief from this Hon’ble Forum. The attempt appears to be to make unjust enrichment at the expense of the opposite parties, that too by making false, baseless and frivolous allegations.

The above complaint is bad for non-joinder of parties. The 2^nd and 3^rd opposite parties are unnecessary parties, and are unnecessarily impleaded with malafide and ulterior motives of causing inconvenience, loss, injury and hardship to them, and as an arm twisting and pressurizing tactics. As indicated above, there is no allegation either in the lawyer notice issued or in the complaint as against these opposite parties. Still they have been unnecessarily impleaded and a mischievous prayer added for a direction against these opposite parties as well to pay an amount of Rs.15,000/- for the institution and conduct of the complaint. The same is not maintainable under law. The tickets mentioned in the complaint were booked through M/s. Creative Tours and Travels Pvt. Ltd., Cochin and not by the 1^st opposite party which is not an authorized agent of these opposite parties. The tickets issued were special offer tickets, at a concessional fare, which were non-refundable. M/s. Creative Tours and Travels Pvt. Ltd., Cochin had later cancelled the said tickets, claimed and obtained the applicable refund of taxes allowable and permissible as per the fare rules through IATA BSP (International Air Transport Association, Billing Settlement Plan). M/s. Creative Tours and Travels Pvt. Ltd., Cochin is a proper and necessary party for an effective adjudication of the above matter.

          This opposite party is India’s premier airline in the private sector committed inter alia, to establish, maintain and to provide safe, efficient coordinated air transport for the carriage of passengers, baggage and freight. This opposite party has largely achieved what it set out to do-build a world class airline delivering a world class service and in the process, set new stands in the Indian Aviation Sector, for its competitors to emulate. The 2^nd opposite party is one of the most preferred airline despite still competition and has the distinction of being repeatedly adjudged India’s best domestic airline, as it has been meticulously adhering to all the rules and practices for running its airline service. The standards established by the 2^nd opposite party are comparable to the best anywhere in the world.

It is true that tickets as mentioned in the complaint were booked for travel from Kochi to Vadodara by M/s. Creative Tours and Travels Pvt. Ltd., Cochin. The said tickets were special offer tickets at concessional rates, and which were non-refundable as per the fare rules applicable to the said tickets. As the said tickets were booked online, the details are entered into by the ticketing agent as per the instructions of the customer, and the booking done after confirming the entries made. These opposite parties does not have any role in the same. Tickets once booked in the special offer are non-refundable and upon cancellation only taxes will be refunded as per the fare rules. It is fully understanding and agreeing to the same that tickets are booked under the special offer. It is submitted that the complainant’s ticket bearing numbers 5899649889146, 5899649889146, 5899649889147, 5899649889148 and 5899649889149 were non-refundable tickets (in case of the cancellation of the tickets) and only taxes will be refundable as per the fate rules. The complainant’s averments pertaining to 1^st opposite party ie. M/s. Skyline Air Travels are denied for want of knowledge. The complainant’s averments that the 3^rd opposite party is the branch office of the 2^nd opposite party is not proper, correct or sustainable.

In reference to paragraph No. 3 of the complaint, the complainant’s allegations that 4 performa invoices issued by the 1^st opposite party for the purpose of traveling by Jet Airways and the 1^st opposite party seemed to be the agency of opposite party No. 2 and 3 are3 totally untrue, incorrect, false, hence denied. It is submitted that the records indicates that the complainant’s tickets were issued by Creative Tours and Travels Pvt. Ltd., Cochin and not by the 1^st opposite party. It appears that the 1^st opposite party procured the complainant’s tickets facsimile copies of these tickets and the same are submitted herewith. There is no truth or bonafides on the part of the complainant in filing the above complaint. The complainant is not entitled to pay nor the opposite parties are liable or responsible for payment of any of the reliefs seen claimed in the complaint. The complaint is false and frivolous seen indulged in as an experimental and speculative venture with malafide avaricious and other ulterior motives and the same is liable to be dismissed with compensatory cost of these opposite parties.

On 28/09/2016, the complainant has filed I.A.633/2016 to implead 4^th and 5^th opposite party as additional opposite parties. Notice was issued to 4^th and 5^th opposite parties on 21/10/2016 4^th and 5^th opposite parties has not filed their version and the case posted for evidence of the complainant.

5. Evidence:

Evidence in this complaint consists of the documentary evidence filed by the complainant which were marked as Exbt A1 to A7. Complainant is cross examined by 2^nd and 3^rd opposite parties’ counsel and his depositions are recorded as PW1. No other evidence from the side of the complainant.

1^st opposite party filed proof affidavit Exbt. B1 to B5 marked from the side of 1^st opposite party. Case posted for hearing to 11/10/2018 and then adjourned so many times and finally posted for orders.

6. Issues:

1. Whether any deficiency in service or unfair trade practice is proved from the side of opposite parties towards the complainant?
2. If so, reliefs and compensation?

For the sake of convenience we have considered issue No. (a), and (b) together. Exbt. A1 are the airline tickets purchased by the complainant from the 1^st opposite party for the complainant and his family bearing e-ticket numbers 5899649889146, 147, 148 and 149. The tickets were booked on 22/01/2016 for the journey on 17/05/2016 in Jet Airways Flight from Kochi (9.05 am) to Mumbai (11.10am). Exbt. A2 is the copy of itinerary invoice of 4 e-tickets of Indigo Airlines to travel on 17/05/2016 from Kochi to new Delhi. Exbt. A3 is the copy of itinerary invoice of 4 e-tickets of Spicejet Airways to travel on 17/05/2016 from New Delhi to Bagdogra. Exbt. A4 is the copy of itinerary invoice of four e-tickets (return) of Indigo Airways issued by 1^st opposite party to travel on 23/05/2016 from Calcutta to Cochin. Exbt. A5 is the copy of legal notice issued to the opposite parties dated 09/03/2016. Exbt. A6 is the copy of acknowledgement card signed by opposite parties. Exbt. A7 is the copy of reply to the legal notice sent by the 1^st opposite party dated 16/03/2016.

We have thoroughly analyzed the facts of the case, version filed by the opposite parties and the documents and evidence filed from both sides.

Exbt. B1 is the an authorization letter issued by Jet Airways to Mr. Padmakumar, Exbt. B2 is reply dated 02/06/2016 to the legal notice dated 09/03/2016 issued by the complainant. Exbt. B2 and B3 are the refund details. Exbt. B4 is the copy of tickets.

The case of the complainant is that he had requested 4 airline tickets for his family to travel to and fro Kochi and Bagdogra. The complainant alleges that he had specifically told to the 1^st opposite party that the destination where his family wants to travel is to Bagdogra Airport which is near Darjeeling in West Bengal. But the 1^st opposite party booked four airline tickets to travel on 17/05/2016 from Kochi to Vadodara instead of Kochi to Bagdogra. Immediately complainant had cancelled the four airline tickets issued by the 1^st opposite party. But the payment of Rs.27,981/- received by 1^st opposite party has not been returned to the complainant. Later the complainant booked 4 air tickets to Kochi to Bagdogra on the same date by paying full amount.

The allegation of the complainant herein that booking of 4 airline tickets of wrong destination has admitted by the 1^st opposite party. The complainant also alleges that it is a mistake from the side 1^st opposite party and hence the 1^st opposite party is duty bound to pay back Rs.27,891/-.

It was contented on behalf of opposite parties that the tickets mentioned in the complaint were booked for travel from Kochi to Vadodara are special offer tickets at concessional rate and which were non-refundable as per the fare rules applicable to the said tickets. As the said tickets were booked online, the details are entered into by the ticketing agent as per the instructions of the customer and the booking done after confirming the entries made. Tickets are booked in the special offer are non-refundable and upon cancellation only taxes will be refunded as per the fare rules. Opposite party also produced a copy of fare rule as Exbt. B2.

Though the complainant had produced Exbt. A1 to A7 documents none of the documents produced by the complainant had proved that the complainant had requested the 1^st opposite party to book tickets for his journey from Kochi to Bagdogra. Complainant has not produced a single piece of evidence to prove that he had specifically told to the 1^st opposite party that the destination where his family wants to travel is to Bagdogra. The fundamental document required to prove this case has not been produced by the complainant.

The initial onus to prove the deficiency of service is upon the complainant who alleges it. The Hon’ble Supreme Court in its judgement In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:

“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it.”                                                                                                                                                       

In the absence of any material to show that the complainant had requested the 1^st opposite party to book tickets for his family to travel from Kochi to Bagdogra Airport (which is near Darjeeling in West Bengal). Hence we find that the case of the complaint cannot survive. We find that the issues therefore against the complainant. Having found that the complainant had failed to establish the case of deficiency of service against the opposite parties. We find that the complainant is liable to be dismissed and is accordingly dismissed.

Pronounced in the Open Commission this the 30^th day of November,2023.

Sreevidhia.T.N, Member

D.B.Binu, President

Forwarded/by Order

Assistant Registrar

Appendix

Complainant’s evidence

Exhibit A1: Airline tickets purchased by the complainant from the 1^st opposite party

Exhibit A2: Copy of  itinerary invoice of 4 e-ticket

Exhibit A3: Copy of itinerary invoice of 4 e-ticket

Exhibit A4: Copy of itinerary invoice of 4 e-ticket

Exhibit A5: Copy of legal notice issued to the opposite parties

Exhibit A6: Copy of acknowledgement card

Exhibit A7: Copy of reply to the legal notice sent by the 1^st opposite party

Opposite party’s evidence

Exhibit B1: Authorization letter issued by Jet Airways

Exhibit B2: Copy of reply dated 02/06/2016 to the legal notice

Exhibit B3: Refund details

Exhibit B4: Refund details

Exhibit B5: Copy of Fare rules

Despatch date:

By hand:     By post                                                  

kp/

CC No. 307/2016

Order Date: 30/11/2023