This case is registered before this bench U/S 17 of CP Act 1986 by one Roshan Kumar Gupta on 22/06/2018 against 1. Air Asia Airlines, 2. Mahavir Travels, 3. Urban Nature, 4. Fly Smart, and 5. Turas India Travels.
Subsequently OP NO. 3 while contended that one IATA agent name “ Take Travels Pvt. Ltd.” popularly known as travel boutique on line was necessary party and the complainant then impleaded Tek Travels Pvt. Ltd. in this case as OP No. 6.
The complainants case is nut shell is that sometime in November, 2017 on completion of 25 years of his marriage, the Complainant along with his wife, son and other relatives made a plan to celebrate the occasion by visiting Malaysia and Singapore and accordingly the Complainant discussed the matter with the Opposite Party No.3. Thereafter a travel plan of 20 persons from 19.12.2017 to 27.12.2017 and accordingly the Opposite Party No.3 arranged to purchase the Air Tickets of 20 persons including the Complainant and his family. The Opposite Party No.4 had booked the hotels, transfers and sightseeing of all the persons. The travel Visas was made by the Opposite Party No.5. That it is further alleged by the Complainant that prior to the bookings of the Air tickets, hotels, cruise and etc., the Complainant and his other relatives had provided the Opposite Parties with the Xerox copies of the Passport of all the persons. That thereafter the Opposite Party No. 2 to 5 provided the air tickets, visas for travelling to Kuala Lampur and Singapore.
That thereafter the Complainant and his other relatives went to Kolkata by Spice Jet dated 19.12.2017 for their onward boarding in flight No. AK 62 of Air Asia supposed to be flied at 12.50 am of 20.12.2017. It is stated by the Complainant that the representatives of the Opposite Party No.1 at the said Kolkata Airport issued the boarding pass to the Complainant and his relatives from Kolkata to Kuala Lampur except the boarding pass of the Complainant's minor son Krishna Gupta on the ground that the passport issued in the name of Krishna Gupta was/is not valid for at least 06 months from the date of his proposed travel on 20.12.2017. The passport of Krishna Gupta was valid up to 16.06.2018, that is a period of 03 days less in completion of the alleged 06 months validity period.
The Complainant and his other relatives requested the Opposite Party No.1 for boarding the flight of the Opposite Party No.1 along with the minor son of the Complainant but the representatives of Opposite Party No.1 did not pay any heed to the requests of the Complainant rather misbehaved with them. Since the minor son of the Complainant was not allowed to board the flight of the Opposite Party No.1, the Complainant along with his wife had to cancel their tour and return back to Siliguri.
That such an act on the part of the Opposite parties above named were/are found deficient and negligent without having any fault on the part of the complainant above named or his son or other relatives. And due to such negligence and deficient act of the Opposite parties above named, the complainant above named had/ has suffered the huge monetary losses and damages to the tune of Rs. 4,00,000/ at least [ which the complainant above named has expended for his said proposed journey from 19th December, 2017 to 27th December, 2017 as well as the journey of his wife and minor son, on account of his Air Tickets, Cruise Tickets, Visa, Hotel & Transfer etc.] in addition to their physical harassment and also the negligence and deficiency in services of the Opposite parties above named. It is stated that the complainant above named is unable to measure his such losses and damages in terms of money, but for damages sake, he has assessed the same to the tune of Rs. 15,00,000/-on account of their physical harassment and negligence and deficiency in services of the Opposite parties above named and also to the tune of Rs.3,00,000/= on account of their sufferance from mental pain and agony and that the complainant above named is entitled to recover the said amount from the Opposite parties above named in as much as the Opposite parties above named had/have taken the benefit and advantage from the said transaction.
The Opposite Party No.3 marked his appearance in the instant case and filed the written version. The main contents of the Written Version in a gist is that the complainant while planning the tour did not entrust the responsibility of conducting the tour upon a single person, rather he designed the same himself using the help of various persons to do various work. The Opposite Party No.3 was only granted the responsibility of booking the offshore air tickets and cruises as the rates provided by the Opposite Party No.3 was the most reasonable. The duty of Opposite Party No.3 as a service provider was to forward the details of the customers towards the booking of the tickets with all available data. It is pertinent to mention here that to book an international ticket a non-IATA agent uses the services of an IATA (International Air Transport Association) agent due to certain business advantages. Being a Non-IATA agent the Opposite Party No.3 as a service provider had forwarded the entire details of the passengers to an IATA agent named "Tek Travels Pvt. Ltd" popularly known as Travel Boutique online who forwarded the same to the Airlines Company and booked the tickets. That there was no default or negligence on the part of the Opposite Party No.3 to deliver their services. Had there been any mistake on their part to render the same then they would have been liable for the same and neither did Opposite Party No.3 try to take any benefit or advantage from the said transaction as it has given prompt services for which it has taken the just consideration from the Complainant. At the time of booking of the Air tickets and other requisites the concerned airlines company had knowledge of the fact and were very well aware that the passport of the said minor Krishna Gupta will expire on 16.06.2018 as such the Opposite Party No.3 during the time of conforming the group booking had provided them with an excel file mentioning all the details of the passengers and their passport details also specifying that the passport expiry dates which invariably included the details of the minor son of the Complainant. The Opposite Party No.3 after detection of the problem had immediately written to the IATA Agent who on turn enquired with the airlines company and demanded a detailed reply as to why this error happened in the first place and also requested for a full refund for all sectors of all the three passengers. However, the airlines company has replied that it is the prerogative of the passenger to check out the policy of the airlines company before boarding the flight.
In the instant case this is the most important point to be looked at. The Opposite Party No.3 had a duty to provide and forward all the details of the passengers of the proposed to the airlines company and it was the duty of the airlines company to verify all details and thereafter issue tickets. The opposite party No.3 not being an IATA agent forwarded the same to one IATA agent "Tek Travels Pvt. Ltd" popularly known as Travel Boutique online who had forwarded all the details to the airlines company. It is once again reiterated that the duty of the travel agent was to forward all the details provided by the customers to the airlines company and the issuance of the tickets is totally the prerogative of the airlines company and it may kindly be noted that the Opposite Party No.3 had forwarded all the details of the passports to be provided to the airlines authorities so that they may issue the tickets accordingly.
It is noteworthy to mention here that it is allegedly the policy of the airlines company who do not entertain any traveler travelling outside India whose passport did not have a prospective period of clear six months from the date of travelling to the date of expiry of the passport. The Opposite Party No.3 had provided all the details of all the travelers including the details of the passport along with the date of expiry of those passports. The airlines company, since it is their policy, should have checked the validity before issuing the tickets. The Opposite Party No.3 could have assisted the complainant to rectify the mistake if the airlines company had not issued the tickets. At the time of booking the tickets the basic responsibility of an agent is to provide the required information about the passengers along with passport numbers to the airlines company. This part of the responsibility was very well carried out by the Opposite Party No.3 and there were no latches on that part.. In case the airlines authority (Air Asia) would have brought this fact to the notice of the Opposite Party No.3 before the date of travelling, the Opposite Party No.3 could have still gone beyond the peripheries of his responsibility to render assistance to the complainant for the remedial measures of the problem but the Opposite Party No.3 was not given any such opportunity to act in his assistance since the later part of the process was handled by other vendors and the complainant did not contact with the Opposite Party No.3 after booking the tickets. As such the Opposite Party No.3 cannot be made liable in any sense whatsoever. It is indeed an unfortunate incident that has taken place with the complainant, but the Opposite Party No.3 is in no way can be made liable or responsible for the said unfortunate incident that has happened. Last but not the least this instant complaint has been filed to derive unlawful monetary gain.
The OP No. 5 also contested the case by filing WV and contended that the Opposite Party No.5 upon request of the Complainant duly contacted with the authorized vendors/agencies/organizations for the said task of getting visa in the name of Complainant and other persons, and the Opposite Party No.5 undertook the task pro bono. The reason for working in such capacity was a long business and personal relationship between the Complainant and the Opposite Party No.5. That as such the Complainant has neither supported nor can support the fact with any evidence in lieu thereof of availing non-gratuitous service from the Opposite Party No.5.
Accordingly, the Opposite Party No.5 contacted with VFS Global Services Pvt. Ltd. and Jetsave India Tours Pvt. Ltd. (authorized by Malaysia and Singapore Embassy] for obtaining the Visa in the name of Complainant and per incumbents.
Thereafter, in accordance the Opposite Party No.5 after collecting necessary documents assisted the Complainant with the application procedure and submitting the necessary expenses and incidentals with VFS Global Services Pvt. Ltd. and Jetsave India Tours Pvt. Ltd. and thereupon receipt of the same handed over the visa documents to the Complainant.
That it is very pertinent to mention here that the opposite Party No.5 acted and assisted the Complainant pro Bono hence, such assistance cannot be framed as service as defined under the Consumer Protection Act, 1986. So any inference to fame the Opposite Party No.5 as a service provider and thus, claiming relief an à Consumer from Opposite Party No.5, who is actually not a necessary party and startlingly the necessary/indispensable parties 1. Global Services Pvt. Ltd. OF and Jetsave India Toura Pvt. Ltd. authorized by Malaysia and Singapore Embassy] has rot been joined and impleaded as necessary parties, thus, puta the entire claim of the Complainant in predicament and quandary. Hence, the case is not maintainable on the ground of non-joincer of necessary party and moreover, the Complainant requires adducing proper and substantive evidence that the Complainant is a consumer who has availed professional and non-gratuitous service from Opposite Party No.5.
Moreover, the entire case is built on multiple questions of law, since; the visa was issued by Malaysian and Singapore Embassy. Hence, law and procedure of the concerned countries and their embassies come into question, and laws relating to aviation, visa and also the reason why such vise was ultimately issued by the concerned governments of the respective countries. Moreover, Immigration Laws varies around the world, as well as according to the social and political climate of the times. Countries around the globe frequently maintain laws which regulate both the rights of entry and exit as well as internal rights, vis, the duration of stay etc. Hence, it is a complex question of conflict of International law and policies of Ministry of External Affairs of respective counties and question of procedural, secretarial and logistic lapses on the part of embassies and their authorized agencies/vendors, of which this Hon'ble Commission cannot redress upon, hence, this, Hon'ble Commission does not have jurisdiction to redress the alleged grievance of the Complainant.
That the statements made in Paragraph No.5, 7, 8, 9, 10, 11 12 of the complaint are matter of record and the opposite Parties denies all save and except what will appear from the record.
In furtherance, the question regarding the validity of passport in adherence to immigration law in consonance to respective embassies and the law of our land was well known to e Complainant. Hence, the question of not knowing the law and Procedure in recitation to immigration, visa and passport is ignorantia juris non excusat or ignorantia legis neminem excusat.
Other Ops did not contest the case inspite of receiving notice in due course.
In this case the complainant himself examined as PW 1 by affidavit on oath and OP No. 3 cross examined by interrogatories which was duly replied by the complainant.
One Brizkishore has also adduced evidences as PW-2 by affidavit and process of cross examination through interrogatories and reply was exhausted.
OP No. 3 also adduced evidences as OPW -1 in this case and process of cross examination through questionnaires and reply was completed.
The complainant has furnished all the documents which are relied upon on his part and marked exnt documents.
OP No. 5 and 6 though recorded their presence in this case, neither they adduced any evidence nor any WNA. The complainant and OP No. 3 submitted WNA. Ld. Advocate S. Mirtuka participated in hearing and argument on behalf of complainant while Ld. Advocate M. Paul has conducted hearing on behalf of OP No. 3.
The following points are fixed on the basis of pleadings of both sides.
Points
- Is the complainant a consumer?
- Has the complainant any cause of action?
- Is the consumer complaint is barred by limitation ?
- Whether the Ops are liable for deficiency of service and unfair trade practice on their part?
- Is the complainant entitled to get relieves as prayed for?
Decision with reasons
Point no. 1 to 3:- After hearing the Ld. Advocate of both sides and on going through the pleading it appears that in order to travel abroad, the complainant had transactions with all OPs in the lien of money and intended to avail the good services from them. Unfortunately his proposed travel could not be materialized inspite of making a good payment well ahead for such travelling purpose.
So, according to the term “consumer” in CP Act 1986, the complainant comes into the domain as consumer under the 1986 Act, and he has filed the instant consumer complaint within statutory period of two years and he has the right cause of action to register this consumer complaint.
Thus , all these three points are answered in favour of the complainant.
Points no. 4 and 5:- Admittedly the complainant purchased the Air Tickets of Air Asia Airlines from the opposite party No. 3 [who is admittedly the sub agent of op No. 6] for their said proposed journey in between 19th December, 2017 to 27th December, 2017 and also admittedly that the complainant provided all the requisite documents. including the Pass Port of the said Minor Krishna Gupta, which required for purchasing the said air tickets and other tickets to the op No. 3 for purchasing the Air Ticket of the Air Asia Flight. Admittedly the op No. 5 was also aware about the Pass Port of the Complainant, his wife, son and other relatives for getting their Visa. Admittedly the complainant's son Minor Krishna Gupta was denied to travel from Kolkata to Kuala Lumpur. And as such the complainant and his wife were also compelled to stay at Kolkata due to denial of travel to their son Minor Krishna Gupta.
Ld. Advocate of the complainant during the course of hearing contended that the op No. 1 was/is negligent in denying the travel from Kolkata to Malaysia particularly, when the op No. 1 issued the air tickets to the said Minor Krishna Gupta, for his proposed journey on 20th December, 2017 knowing fully that his Pass Port is valid till 16.06.2018 only, [only 3 days short in clear 6 months periods from the date of proposed travel], in as much as the op No. 1 had/has issued the said air tickets knowing fully the Passport of the said Minor Krishna Gupta is valid till 16.06.2018. Secondly, the Opposite Party No. 3 and 6 must not have purchased the air tickets of the said Minor Krishna Gupta for his proposed journey from Kolkata to Malaysia on 20th December, 2017 in as much as they had/have admittedly the details of the Pass Port of the said Minor Krishna Gupta. Thirdly the OP No. 5 also must not have obtained the Visa of the Minor Krishna Gupta by submitting the application in as much as the OP NO. 5 was/is also aware that the Pass Port of the said Minor Krishna Gupta is valid till 16.06.2018 [03 days short in clear 6 months periods form the date of proposed travel.]. Had the complainant known that the op No. 1 would not allow his son Minor Krishna Gupta to travel from Kolkata to Malaysia, he would have arrange to get the extension of the validity period of the said Pass Port by taking necessary steps prior to purchasing the Air Tickets and prior to obtaining the Visa for travelling from Kolkata to Malaysia and Singapore.
It is stated that the papers and documents as submitted by the complainant, the reply to legal notice sent by op No.3, evidences which adduced by the complainant and his witness together with the questionnaires and replies thereto and also the evidences of the op No. 3 are sufficient to hold that the all the opposite parties [excepting the opposite party No. 2 were/are negligent and deficient and they worked for their commercial gain only. As a result of which the complainant, his wife and said son Minor Krishna Gupta could not visit Malaysia and Singapore to celebrate their Silver Jubilee Marriage Celebration.
The complainant issued the legal notices to all the opposite parties, giving 15 days time to redress his grievances, but the op No. 3 had/has given the reply of the said notice. Other opposite parties failed to give any reply thereof in any way. Non reply of the said legal notices were/are also the deficiency in services and negligence on the part of the said opposite parties.
The complainant, his wife and son could not go to Malaysia and Singapore to celebrate their Silver Jubilee Marriage Ceremony only due to negligence and deficiency in services and unfair trade practices of the opposite parties and as such entitled to get the costs which they incurred to the tune of Rs.4,00,000/= towards their air tickets, cruise tickets, hotel bookings, transfer etc., sight seeing etc., etc., and that they had/have also suffered physically and mentally due to such negligence and deficiency in services of the opposite parties. And as such the complainant is entitled receive the said amount from the opposite parties and each of the opposite parties [excepting the op No. 2 1 were/are liable to make the payment of the said amount to the complainant.
Secondly, the complainant's son was denied to travel in the flight of Air Asia and as such the complainant and his wife along with their said minor son had/has to stay at Kolkata. And as the they all had/have physically suffered at Kolkata Air Port and had/have been compelled to stay at Kolkata. They had/have lost their opportunity to celebrate their Silver Jubilee Marriage Ceremony in association with their relatives and also suffered the mental pain and agony due to want of such travel to Malaysia and Singapore particularly on such occasion. The compensation as claimed by the complainant is at lower side to the tune of Rs.19,00,000/- and as such entitled to receive from the opposite parties.
Ld. Advocate of Op No. 3 argued to the Points that
The Opposite Party No.3 was entrusted with the work of booking the offshore air tickets as the rates provided by them were the most reasonable. The duty of the Opposite Party No.3 was to collect relevant data from its customers i.e. the Complainant and his other relatives and forward the same to an IATA (International Air Transport Association) agent. Being a Non-IATA agent the Opposite Party No.3 as a service provider had forwarded the entire details of the passengers to an IATA agent named "Tek Travels Pvt. Ltd" popularly known as Travel Boutique online who forwarded the same to the Airlines Company and booked the tickets. There has been no negligence on the part of the Opposite Party No.3.
The Opposite Party No.3 right from the inception of the alleged dispute that has arisen herein and is contesting the case before this Hon'ble Commission and has filed their Written Version and Evidence. No other party has been contesting the case since the inception; but the Opposite Party No.3 has been consistently assisting this Hon'ble Commission in the pursuit of justice.
The instant case may be dismissed as against the Opposite Party No.3 since the Opposite Party No.3 although the transaction had assisted the Complainant and executed its responsibilities to all extents and there is absolutely no deficiency in service on the part of the Opposite Party No.3 nor is there any unfair trade practice.
After going through the pleading and necessary documents very carefully it is established beyond any doubt that to make the abroad journey of the complainant and his family members smooth, the OP No. 3 was entrusted to purchase the Air tickets of Air Asia.
OP No. 3 in order to procure such tickets took help and service of one IATA agents (OP No. 6) as OP No. 3 was not IATA holder.
That tour programme was drawn by OP no. 2. OP no. 5 was entrusted to obtain visa of such tour. OP no. 4 was entrusted to hotel booking, sight seeing etc.
All of them has performed and discharge their obligations after taking requisite money and expenditure from the complainant.
The Air ticket was purchased from Air Asia on the basis of documents furnished before OP No. 3. OP NO. 3 also supplied the said documents furnished by the complainants including passport and visa of the son of the complainant named Krishna Gupta. According to the said passport which was valid for the six months up to 16/06/2018.
The proposed air journey schedule on 20/12/2017 and staying Malesia till 27/12/2017. So there was only three to four days short in clear six months period from the date of proposed air journey.
On seeing all such documents, the Malesia and Singapore external affairs authority issued the required visa for such journey in the matter of Krishna Gupta.
The OP No. 1 Air Asia also on the basis of such passport and visa issued the Air ticket of Krishna Gupta. Even, the E-boarding pass also was issued.
But on the date of journey(20/12/2017) the Air Asia authority denied the issuance of boarding pass of Krishna Gupta and did not allow him to broad in the schedule Air flight.
As a result the complainant and his family( wife and son) had to cancelled the trip in broken heart. They had to endure a serious mental pain and agony for their postpone of travel inspite of already incurred huge expenses.
The Other Ops who was involved in the proposed journey of the complainant and his family also has taken an honest attempt for such journey but due to stubborn attitude on the part of field officers of Air Asia in the airport, the complainant had to cancel the journey though on the basis of same documents, the ticket was issued for the journey of Krishna Gupta.
So entire liability for such financial loss mental pain, harassment of the complainant should be duly compensated by one and only OP no. 1 Air Asia and other opposites parties in the case had no fault, negligence and deficiency of service on their part.
So the complainant should be duly compensated for the sufferance, he and his family endured.
So a lumpsum amount Rs. 5,00,000/- should be awarded in favour of the complainant for his unutilized financial expenses, sufferance , mental agony, harassment and litigation cost of Rs. 25,000/-. All the awarded money must be paid by OP No. 1 ( Air Asia Co.).
Thus all these points are settled in favour of the complainant.
Hence, it is ordered
That the instant consumer complaint U/S 17 of CP Act, 1986 filed by Roshan K Gupta is allowed ex parte against OP No. 1 ( Air Asia) with cost and dismissed on contest against OP No. 3, 5 and 6. without cost. Instant consumer complaint also dismissed exparte against OP No. 2 and 4.
The OP NO. 1( Air Asia Company ) is asked to pay compensation Rs. 5,00,000 (Five Lakhs) to the complainant for financial loss, mental sufferance, and harassment and Rs. 25,000/- as litigation cost within two month failing which 8% per Anum as interest will be carried on.
Let the copy of the judgment be supplied to the complainant free of cost and same to be sent to the office of OP no. 1 through post.
