By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. Bereft of unnecessary details the facts of the case are as follows:<br /> Complainant who is employed in Al-ain, U.A.E. purchased air tickets on 14-5-03 from Mirage Travels at Al-ain for his to and fro journey from Al-ain to Kozhikkode. Opposite party issued tickets with OK Status in “V' class. Complainant travelled to Kozhikkode on 29-5-2003 by the first sector of his ticket. In August, 2003 he approached opposite party to make enquiries regarding his return journey scheduled on 28-8-03. Opposite party informed him that his return ticket was not of OK Status but in waiting list. It was also stated by opposite party that he should pay additional amount of Rs.3,000/- as upsell charges. Complainant was in dire need to return to Al-ain and join duty. So he paid the amount as demanded. Opposite party issued receipt for Rs.1,500/- which was paid by demand draft and failed to issue any receipt for the balance Rs.1,500/- paid by cash. Complainant contends that he had paid the full ticket fare to the agent at Al-ain for which ticket was issued in OK Status. That he was not liable to pay any further amount. Hence this complaint alleging deficiency in service and unfair trade practice.<br /> 2. Opposite party which is Air India has filed version disputing the territorial jurisdiction of this Forum. It is also contended that since the travel agent who issued the ticket has not been made a party, the complaint is bad for non-joinder of necessary party. Opposite party admits that the ticket was issued by authorised agent of Air India. It is submitted that the ticket for complainant's return journey was neither confirmed with OK Status nor was it reserved in 'V' class. It was actually reserved in 'L' class and was in the waiting list. The ticket reserved in 'L' class was confirmed only on 01-8-03. The fare for 'L' class is higher than 'V' class and so complainant was asked to pay Rs.1,500/- as upsell charges for the class difference from 'V' to 'L'. Complainant remitted the amount by demand draft without any protest and no amount was received in cash. That complainant travelled to Al-ain in 'L' class and therefore the collection of Rs.1,500/- is legal and proper. Further that complainant has not preferred any complaint before higher authorities of Air India and therefore his allegation is false and imaginary. The claim of compensation is baseless and the complaint is to be dismissed.<br /> 3. Evidence consists of affidavit filed by complainant and Exts.A1 to A3 marked on his behalf. Opposite party has filed affidavit and Ext.B1 marked on the side of opposite party.<br /> 4. Points that arise for consideration:-<br /> (i) Whether this Forum has jurisdiction?<br /> (ii) Whether the complaint is bad for non-joinder of necessary party?<br /> (iii) Whether opposite party has committed any deficiency in service and unfair trade practice?<br /> (iv) If so, reliefs and costs.<br /> 5. Point (i):-<br /> Opposite party disputes the jurisdiction of this Forum to try this complaint contending that the office of opposite party herein is at Thrissur. It is submitted that Air India is having only a satellite office at Malappuram which deals with reconfirmation and rebooking of tickets and that no transaction has taken place between complainant and Air India at Malappuram office. We totally disagree with this argument raised by opposite party. It is admitted that Air India has an office at Malappuram which is sufficient to confer territorial jurisdiction for this Forum to try this complaint. Further the Calicut airport from where complainant has taken his flight to Al-ain is situated at Kondotty which lies within the district limit of this Forum. For these reasons we find that this forum has jurisdiction to entertain this complaint. Point found in favour of complainant.<br /> 6. Point (ii):-<br /> The maintainability of this complaint is challenged by opposite party contending that the travel agent who issued the ticket has not been made a party and hence the complaint is bad for non-joinder of necessary parties. Admittedly the travel agent at Al-ain has issued the ticket, and opposite party also admits that this agent is their authorised agent. On sale of a ticket it is the airlines who actually receives the consideration via the travel agent. The agent receives only some commission from airlines. Therefore there exists privy of contract with airlines who has received the consideration for the ticket. As such agent is not a necessary party. We hold the complaint is not bad for non-joinder. Point found in favour of complainant.<br /> 7. Point (iii):-<br /> Complainant who was an employee at Al-ain U.A.E. purchased itenerary air tickets from Mirage Travels at Al-ain. Ext.A1 is the ticket issued by this agent on 14-5-2003. Ext.A1 is seen issued for the complainant's journey on 29-5-2003 from Al-ain to Kozhikkode by flight No. A1-902, and for his return journey on 28-8-2003 from Kozhikkode to Al-ain by flight No. A1-903. The status of the to and fro tickets are noted as OK Status and the class noted is 'V'. According to complainant he paid the full fare of the ticket to the travel agent at Al-ain who has thereafter issued the ticket. Complainant traveled from Al-ain to Kozhikkode by the first sector of his ticket and there is no cause for complain. It is his case, that when he approached opposite party in the month of August to make enquiries regarding his return journey, opposite party informed him that his return ticket is not of OK status, but only in waiting list. Opposite party demanded Rs.3,000/- stating that his booking is in 'L' class and that the ticket has to be upsold. That opposite party also stated that he would not be able to travel by the said flight unless he pays the amount. It is his further case that opposite party demanded to pay Rs.1,500/- by demand draft and to pay the balance in cash. Complainant submits that since it was highly necessary for him to travel back on the scheduled flight to joint duty he obliged to the demand of opposite party. Complainant pleads and affirms that opposite party wrote on a slip and demanded him to pay Rs.3,000/-. Ext.A2 is this slip produced by complainant. The endorsement on Ext.A2 reads as follows. “28 Aug/W-L 'H' class 3000”. Ext.A3 is the receipt issued by opposite party for Rs.1,500/-. It is stated in Ext.A3 that the amount is collected on account of upsell class difference 'V' to 'L'. Opposite party admits collecting Rs.1,500/- as per Ext.A3 but denies the payment of Rs.1,500/- by cash.<br /> 8. It is submitted by the proxy counsel who argued on behalf of opposite party that seats in an aircraft are divided into Business class and Economy class. In both these classes the seats are divided into further classes, each with different fare from origin to destination. In Air India Flight, the lowest fare is 'G' class, and the next higher is 'V' class. The various classes in their ascending order of fare are G-V-L-K-H-B and so on. If a ticket is purchased paying for 'V' class, the reservation also must be in 'V' class. It is clarified on behalf of opposite party that a travel agent may issue a ticket in 'V' class for the scheduled journey, and if no seats are available in 'V' class, then the ticket can be upsold to the next higher class by paying the difference applicable to that class. For journey to and fro Gulf, the difference works out to be Rs.750/- for each upsell to next higher class. Counsel for opposite party submitted that, in the present case, complainant had obtained reservation in 'L' class, which is two classes higher and the upsell equivalent is Rs.1,500/-. It is affirmed by opposite party in para 10 of counter affidavit that the whole issue might have arose, due to the fault of the agent who did not disclose to the passenger that the return reservation is in wait list in 'L' class and that he has to seek confirmation and pay upsell charges, if reservation is confirmed in higher class. Opposite party also relied on Ext.B1 which is the photo copy of history PNR (Passenger Navigation Report). On behalf of opposite party it is submitted that contents in Ext.B1 was sufficient to prove that the reservation of alleged return journey was in 'L' class, while the ticket issued is for travel in 'V' class, which means that complainant has paid fare for 'V' class only. Since the reservation was confirmed in 'L' class on 01-8-2003 the upsell charges of Rs.1,500/- was collected.<br /> 9. Upon these submissions made by opposite party regarding different classes, and different fare for each sub classes this Forum raised doubts to the learned counsel for opposite party as to what is the basis for dividing the Economy and Business classes to further sub classes and also the basis for charging higher fare for such sub classes. Counsel for opposite party was unable to clear our doubts or give any explanation for such division of classes. It was also submitted that payment of upsell charges is done routinely by many passengers till date and there has been no complaint so far. To common knowledge, air tickets are available in two different classes viz., Economy and Business. The sub classification of these two classes is totally an internal affair of airlines about which a common consumer/passenger does not have sufficient knowledge. Opposite party has not produced any document to prove or support such classification and the basis of doing this classification. Even in the case of online purchase of tickets the different classes available for choice to book air tickets is only Economy and Business classes. Facilities and services available to all passengers of the respective classes are the same. There is definitely no difference in services or facilities rendered to passengers of the sub classes of Economy class even though the fare paid by them is different. We are unable to find out any reasonable justification for charging additional amount with such wide fare differences when the services and facilities rendered are the same. What we are able to infer is that such sub classification of Economy and Business classes is only a device adopted by airlines as business practice to augment their profit. By this device Airlines is able to make extra profit during seasons and when there is heavy rush for tickets.<br /> 10. At this juncture, it is pertinent to note the details in Ext.B1 as affirmed by opposite party in counter affidavit. It is reproduced as under:<br /> (i) The Complainant was waitlisted in “H” Class on 14th May 2003 and the said waitlist booking was cancelled on 29th July 2003.<br /> (ii) The Complainant was waitlisted in “L” class on 29th July 2003.<br /> (1) The Complainant's booking in “L” Class was confirmed on 1st August 2003.<br /> (2) The date of the complainant's first contact with the Opposite Party's<br /> office at Thrissur on 04-08-2003.<br /> (3) The date of his next contact with the Opposite Party's office at Thrissur on <br /> 18-08-2003.<br /> (4) The remark by the Opposite Party's Office at Thrissur that the ticket is in Class.<br /> (5) Remark by Air India's office regarding upsell payment details.<br /> 11. On perusal of the above details it is seen that complainant was waitlisted in 'H' Class on 14-5-2003. As per the classification given by opposite party 'H' Class is four classes higher than 'V'. It is further seen that on 29-7-2003 this reservation is shifted to 'L” class. Such cancellation and shifting from 'H' to 'L' has happened without any intervention on the part of the passenger. It is evident that these subclasses and class differences are fully under the control of opposite party. Any catalogue or brochure by which passengers are made aware of such classification and fare change has not been produced before us. No evidence or proof either on law or any regulation has been produced to substantiate the point. This sub classification of seats, in our view, gives ample chance for opposite party to manipulate the price of tickets. Consumer has a right to know what he has to pay and for what purpose he pays. He should not be put into any unexpected situation to pay any extra amount. Complainant in this case had purchased the alleged return ticket more than three months prior to his scheduled journey. If the contention of opposite party is to be accepted then there is serious default on the part of agent who has not disclosed to the complainant that he is waitlisted in a higher class. Further on perusal of records several inconsistencies are seen in respect of the version put forward by opposite party. It is evident from Ext.A1 that the ticket was issued for confirmed seat in 'V' class. Opposite party pleads and affirms that the booking was in 'L' class. In Ext.B1 it is seen that on the date of issuance of ticket the booking is in 'H' class and not 'L' class. Opposite party contends that this reservation in 'H' class was cancelled and shifted to 'L' class on 29-7-2003. According to opposite party complainant first approached it's office at Thrissur on 04-8-03. On Ext.A2 slip the endorsement is 'H' class wait list. These inconsistencies discredit the version of opposite party that complainant did not have confirmed seat in 'V' class at the time of issuance of Ext.A1 ticket. Air ticket is the only document available to the passenger to ascertain the details of his scheduled journey. Any mistake in this ticket will result in dire consequences to the passenger. If a ticket has been issued with OK Status the passenger is not expected to seek reconfirmation. From the above discussions, we are of the view that opposite party ought not to have collected any further amount as upsell charges. When the ticket had been issued with confirmed status in 'V' Class opposite party ought to have avoided collection of upsell charges especially because there is no difference in the services or facilities rendered inside air plane to 'V' or 'L' class passengers. Undisputedly, we hold that collection of upsell charges in the present case is illegal. We find opposite party deficient in service.<br /> 12. It is the further say of complainant that opposite party collected Rs.3,000/- and issued receipt for Rs.1,500/- only. Vehemently denying this contention it is submitted on behalf of opposite party that when complainant contacted opposite party on 04-8-03 he was informed to pay the upsell charges. Thereafter the amount was paid on 18-8-03. That since complainant did not opt to prefer any complaint before higher authorities of Air India, the allegation is false and imaginary. We are unable to give any credence to this defence raised by opposite party. Complainant came down for his short leave and left for U.A.E. On 28-8-03. This complaint is filed by his father who is the power of attorney holder almost one month after the alleged incident. In our view, when there is a grievance for the consumer, it is not necessary for the consumer to exhaust all remedies before filing a complaint before the Forum. In fact, Consumer Forum is the right place for the consumer grievance as in the instant case. Complainant relies upon Ext.A2 and affirms payment of Rs.3,000/-. The endorsement in Ext.A2 supports the case of complainant and is also consistent with Ext.B1. There is nothing before us to disbelieve the sworn statement and consistent case of complainant which is corroborated by Ext.A2 and A3. We are of the opinion that at least on receiving copy of this complaint, Air India ought to have conducted some enquiry in respect of the staff/employee against whom such allegation is made. Opposite party has no case that they initiated or conducted any such enquiry. Opposite party has vaguely denied the incident as false and has slept over the matter. In such circumstances, we have no hesitation to conclude that opposite party has collected Rs.1,500/- over and above the charges collected as per Ext.A3. We find opposite party guilty of unfair trade practice.<br /> 13. Point (iv):-<br /> The liability to compensate the complainant is resisted by Air India upon the contention that the travel agent who issued the ticket has not been made a party and that Air India is not responsible for the illegal acts committed by it's agents or employees. Admittedly the travel agent who issued ticket is an authorised agent of Air India. Definitely, Air India is vicariously liable for the acts of it's agents and employees who transact directly with customers. When Air India chooses to issue tickets through it's agents it has to suffer for the acts of omission and commission or lapses on their part. However, airlines may have it's independent remedy against the agent or employee for any negligent or deliquent act of the latter. We have no doubt to conclude that opposite party is liable to compensate the complainant.<br /> 14. Coming to the quantification of compensation, the prayer of complainant is to direct opposite party to refund Rs.3,000/- with interest along with compensation of Rs.one lakh together with costs of Rs.5,000/-. On the light of discussions made in point (iii) we are of the view that the claim for refund of Rs.3,000/- is only to be allowed. The claim for compensation of one lakh, according to us, is highly exaggerated and inflated. It is stated by complainant that he has come forward with this complaint, even though the amount involved is small, only because he came to know that this was not an individual case, and he intended to put a halt to such unfair practices undertaken by employees and agents of Air India who make illegal benefits by playing cruel games upon passengers. Facts of this case do reveal exploitation of a consumer by deceptive practice. It is the responsibility of Air India to bring to the notice of the consumer the different sub classes of seats and the price variation of these seats. The consumer must not be deprived of his liberty to make the choice. If opposite party had informed, at the time of issuance of ticket that no seats are available for low fare on 28-8-03 the complainant might have opted to travel on a different date when low fare 'V' class seats are available. This right of choice has been snatched away from the complainant by the silence and deceptive practice played by agent of Air India. The more information that is provided to the consumer would help him to take reasonable and rational decisions before entering into any contract for goods or services. Such decisions are less likely to lead to unnecessary expenses or burden some litigations. We are of the view, that in cases like the present one, the compensation should be exemplary. Such compensation will not only recompense the complainant but will also serve as a message to prepetrators of unfair trade practice, not to indulge in such practices any more and will also bring qualitative improvement in the service provided by opposite party. We hold that a sum of Rs.10,000/- as compensation along with costs of Rs.1,000/- would meet the ends of justice.<br /> <br /> 15. In the result, we allow the complaint and order opposite party to repay Rs.3,000/- (Rupees three thousand only) to complainant and to pay compensation of Rs.10,000/- (Rupees Ten thousand only) along with costs of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order.<br /> <br /> Dated this 16th day of August, 2008.<br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A3<br /> Ext.A1 : Passenger ticket issued by opposite party to complainant.<br /> Ext.A2 : Copy of the slip for Rs.3,000/- by opposite party to <br /> complainant..<br /> Ext.A3 : Receipt for Rs.1,500/- from opposite party to complainant.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1<br /> Ext.B1 : Office copy of history of the passengers reservation<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br />