In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 195 / 2007 1) Sri Tarun Kumar Bose, 1/1, Ram Mohan Roy Road, Kokkata-700009. ---------- Complainant ---Verses--- 1) AIR DECAN, 35/2, Cunningham Road, Bangalore-560052. 2) COX & KING (INDIA) PVT. LTD., 6, Little Russel Street, Kolkata-71. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattachatya, Member. Order No. 2 2 Dated 1 0 / 1 1 / 2 0 0 9 . Complainant Tarun Kr. Bose by filing a petition of complaint u/s 12 of the C.P. Act on 19.6.07 has prayed for issuing direction upon the o.ps. to pay Rs.1040/- along with interest @ 10% p.a. and awarding compensation of Rs.50,000/- and litigation cost of Rs.5000/- to the complainant. It is case of the petitioner that his son and grandson are residing at Geneva and due their busy schedule of work they are supposed to travel Geneva to Mumbai to Kolkata and back to Geneva via Mumbai. Accordingly, petitioner booked two tickets from o.p. no.2 Cox and Kings (India) Pvt. Ltd. the authorized booking agent of o.p. no.1 Airdecan and tickets were booked in the name of Aninda Bose and Rabi Bose for journey from Mumbai to Kolkata on 18.12.06. Another ticket was purchased in the same name for journey from Kolkata to Mumbai on 23.12.06 and accordingly the petitioner paid Rs.13293/- by an account payee cheque dt.10.10.06. Aninda Bose and Rabi Bose arrived at Mumbai and decided to come to Kolkata and they reached and accordingly they reached Mumbai Airport on 18.12.06 for journey to Kolkata by Air Decan flight having their valid and confirmed tickets purchased by the petitioner, but on their arrival at Mumbai Airport they came to learn that the Air Decan flight was cancelled for Kolkata due to shortage of aircraft. But it was not communicated either to the petitioner or Aninda Bose or Rabi Bose and as such, they could not come to Kolkata and ultimately, they decided to reside at Mumbai and returned back to Geneva on the fixed date of journey. It was communicated to the petitioner by Aninda Bose and Rabi Bose and the petitioner was highly shocked and depressed to know about it. Thereafter, on 5.1.07 the petitioner sent a letter to o.p. no.1 for refund of air fare of Rs.13,293/- for their journey from Mumbai to Kolkata and vise versa. O.ps refunded only Rs.12,253.80 out of Rs.13,293/- but they ought to have refunded the full amount of Rs.13,293/- because the flight was cancelled due to the fault of the o.ps. and the o.ps. did not explain for short refund of money to the extent of Rs.1040/-. Accordingly, the petitioner has filed this case with the aforesaid prayer. O.p. no.1 filed w/v on 5.11.07 alleging therein that the complainant by filing this petition of complaint has attempted to misuse the process of law and his allegations are baseless and unfounded. There is no deficiency of service nor there is any unfair trade practice on their part. They have also denied all the material allegations against them. Complainant has suppressed the material fact to the effect that due to some operational reasons the flight was cancelled and all the passengers of flight no. DN 682 were accommodated in flight DN 642. At the time of booking of tickets complainant gave his land line telephone no.21157493 and call centre employee of o.p. no.1 called on his contact number in the evening at about 7-45 p.a. on 16.12.07 and also on 17.12.07 at 5-25 p.a., but there was no response and the complain ant has deliberately suppressed this fact. So the allegation of the complainant that he was not informed earlier about the cancellation of the flight is not at all true. Their further case is that complainant purchased the ticket through o.p. no.2, according to the terms of ticket, if the ticket is purchased through the travel agent and the booking amount has been received by the airlines through travel agent, it (airlines) refunds the booking amount in the account of the travel agent only and the passenger has to collect the refund from the same place wherefrom he got his booking the tickets were purchased from o.p. no.2 against payment of Rs.13,293/- and the flight DN 682 was cancelled for the said flight full amount has been refunded where as the return flight was on time but the passengers did not report to check in counter for boarding and the cancellation of the return ticket has been done according to the cancellation policy. As return tickets were not utilized and asked for cancellation, the cancellation has been processed as per the cancellation policy and refundable amount has been refunded in the account of travel agent, o.p. no.2. As per the terms and conditions of the contract between the Air Decan and its passengers, Air Decan has the right to delay or cancel the flight without notice and such delay or cancellation may be caused due to meteorological conditions, mechanical failure, act of nature, force major, strikes, riots etc. In view of this position, the petition of complaint is liable to be dismissed. Decision with reasons : It appears on perusal of the record that o.p. no.1 filed its w/v on 5.11.07, but o.p. no.2 although it appeared and filed BNA, did not file w/v. It further appears on perusal of the record vide order no.10 dt.23.4.08 that ld. Counsel for o.p. no.2 appeared and undertook to file power, but no w/v was filed. But o.p. no.1 has filed w/v and evidence. Petitioner on 23.4.08 filed the affidavit of examination in chief. It is the specific case of the complainant that his son and grand son are residing at Geneva and in order to meet their relation they were supposed to travel Geneva to Mumbai to Kolkata and back to Geneva via Mumbai. And accordingly, petitioner booked two tickets from o.p. no.2 who is the authorized booking agent of o.p. no.1 on 10.10.06 and the tickets were booked in the name of Aninda Bose and Rabi Bose for journey from Mumbai to Kolkata on 18.12.06 vide PNR no. DA 07064669. Another ticket was purchased in their names for the return journey from Kolkata to Mumbai on 23.12.06 on payment of Rs.13293/-. Aninda Bose and Rabi Bose had been Mumbai on 18.12.06 for journey to Kolkata by flight of o.p. no.1 having their valid and confirmed tickets, but surprisingly they came to learn that the Air Decan flight was cancelled for Kolkata due to shortage of air craft, but it was not communicated to them earlier and accordingly, they could not come to Kolkata and decided to reside at Mumbai and return back to Geneva. Petitioner was highly shocked and suffered mental agony and on 5.1.07 he sent letter to o.p. no.2 for refund of air fare of Rs.13,293/-, but o.p. no.2 refunded Rs.12,253.80 out of Rs.13,293/- and did not pay the compensation. And accordingly, he has prayed for getting back Rs.1040/- as the difference money (Rs.13293 – Rs.12253) and compensation of Rs.50,000/-. Admittedly, two tickets were purchased for the aforesaid journey, annex-A and the cheque was received in favour of o.p. no.1 and Aninda Bose and Rabi Bose for their journey, annex-B. It appears from annex-C, on the subject of flight cancellation that in case of circumstances beyond control, the career may without notice cancel a flight and full refund of ticket to passengers and the passengers will be required to collect the refund from the point of purchase. Here the point of purchase is Cox and Kings (India) Pvt. Ltd., o.p. no.2. Complainant wrote letter to Cox and Kings (India) Pvt. Ltd. for refund of air fare from Air Decan and compensation of Rs.10,000/- per head for cancellation of such flight, annex-D. We have also pointed out that o.p. no.2 even in spite of giving assurance to the forum that they will file the w/v, they have not done so. In the w/v o.p. no.1 has categorically stated that not they but the booking agent viz o.p. no.2 is liable to pay the refund money because they have already given the fare to the booking agent for cancellation of the journey. The contents of evidence on affidavit of o.p. no.1are in tune with their averments of their w/v except the terms and conditions of cancellation of flight which they have corroborated in their evidence. The claim of the petitioner is only the difference money amounting to Rs.1040/- and compensation of Rs.50,000/- as claimed in the petition of complaint. We have also perused the evidence of the petitioner. In the answer to the questionnaire filed by o.p. no.1. Complainant has categorically said that the o.p. no.1 did not disclose and explain the terms and conditions of the tickets to him and he has not signed on any tickets containing terms and conditions and he also furnished his telephone number both to o.p. nos.1 and 2 and o.p. no.2 did not intimate him about the cancellation of the flight no. DN 682. In their BNA, o.p. no.2 has stated that no person other than the complainant has made any attempt or to justify the statement of the complainant and their claim is nothing, but after thought and there is no deficiency of service on their part and accordingly, the case is liable to be dismissed. It is not understood that when they have asserted emphatically that there is no deficiency of service on their part what debarred them to file their w/v to establish their own case and the BNA is not the pleading. Case of either of the party is to be proved on the basis of pleading supported by corroborative evidence and this provision is highly lacking on the part of the o.p. no.2. Having due regard to the facts circumstances, evidence on record both orally and documentarily, we are of the opinion that the complainant is entitled to get the relief as prayed for. Hence, Ordered, That the case is allowed on contest against o.p. no.1 and ex parte against o.p. no.2. O.p. no.2 is directed to pay Rs.1040/- (Rupees one thousand forty) only to the complainant positively within thirty days from the date of communication of this order and o.p. nos.1 and 2 both are directed to pay compensation of Rs.10,000/- (Rupees ten thousand) only and litigation cost of Rs.1000/- (Rupees one thousand) only positively within thirty days from the date of communication of this order, failing which it will carry interest @ 10% p.a. on the grand total of Rs.12,040/- (Rupees twelve thousand forty) only till full realization. Fees paid are correct. Supply copy of this order to the parties on payment of prescribed fees. _____Sd-_______ _____Sd-_______ MEMBER PRESIDENT | 
