PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That Opposite Party No.1 is a company established under an Act of the Parliament and is also known as the National Carrier of India engaged in the business of carriers and International Airlines. Opposite Party No.2 is a Commercial Manager – Western Region of Opposite Party No.1. Opposite Party No.3 is the Travel Agent and is only a confirming party. The Complainant is the Asst. Professor & Consultant Surgeon attached to the Gastro Intestinal Service, Department of Surgical Oncology, Tata Memorial Hospital. As a Member of the Organizing Team of the Bombay Hospital Institute of Medical Sciences & Shrikhande Clinic the Complainant had organized an important Conference in Mumbai followed by a Surgery on 25th August, 06 to coincide with the 75th Birthday of his dear father Dr. V.N. Shrikhande. For the said conference he had invited amongst various specialists/surgeons, the leading Pancreatic Surgeon in the world, Dr. Prof. Marcus W. Buechler and his wife Mrs. Hedwig Breunigbuechler was also to accompany him to India.
2) The Complainant in or around mid- March, 06 contacted Opposite Party No.3 and informed about his requirement. In mid–April, 2006, the Complainant again confirmed to Opposite Party No.3 requirement of the tickets and also informed that the Dr. Prof. Buechler’s trip had been sponsored by him and the payment for his ticket would be made by him and that for Mrs. Buechler will be borne by the traveler. The Complainant informed the Opposite Party No.3 to hold bookings for Dr. & Mrs. Buechler and the final plans would be informed in due course. The Complainant made it clear to Opposite Party No.3 that Dr. & Mrs. Buechler would travel only on Lufthansa flights. It is submitted that as a travel was for the third week of August, 2006 and seats were available Opposite Party No.3 informed that they will do the final booking and ticketing only towards end July or early August, 06 since issue of tickets would involve immediate payment as per IATA norms. In or around 18th July, 06, Opposite Party No.3 informed the Complainant that he would arrange for actual bookings on the system for travel in Business Class on Air India Code Share Flight, operated by Lufthansa. The Complainant was also informed that Opposite Party No.3 had also checked with the Opposite Party No.1’s Fare Desk for the fare and they were informed to check with PTA Section for special fares prevalent. It was informed that Opposite Party No.3 had spoken to Ms. Nikita, quoting the AI booking reference, i.e. bookings had been effected on AI Code Share flights – tickets of AI, but travel and services of Lufthansa. According to the Complainant Ms. Nikita checked for the route and quoted a Gross Fare of EUR 3806 and a net fare of EUR 1780. She had checked and also reconfirmed with her Sr. colleague and confirmed to Opposite Party No.3 that the Complainant could avail of the special net fare EURO 1780 for the flights & route. This fare was much lower than what was offered by Lufthansa. It is contended that Opposite Party No.3 had always quoted the booking reference number – which had been for AI Code Share flight. On 20/07/06, Opposite Party No.3 quoted the exact amount to the Complainant and got his approval for issuance of tickets. On 20/07/06, after checking, confirming and reconfirming with AI North Mumbai Sales Office and PTA Section, the Opposite Party No.3 issued the tickets bearing the endorsement, “VALID FOR TRAVEL ON AI CODE SHARE FLIGHTS”. The Complainant has produced copy of tickets alongwith compliant at Exh.‘C-1’. As per Complainant, he requested Opposite Party No.3 to send the tickets by courier directly to Heidelberg and accordingly it was sent.
3) It is submitted that Opposite Party No.3 also made a letter dtd.20/07/06 addressed to the Sales Office, AIR India, Mumbai, clearly stating that SOTO tickets had been issued on AI Code Share Flights FRA–BOM-FRA & on special fare of EURO 1780 + Taxes. Opposite Party No.2 also confirmed by making endorsement dtd.24/07/06 on the said letter viz; “In order to clear incentive as per the net fare of EUR 1780.” The Complainant has produced copy of the said letter dtd.20/07/06 at Exh.‘C-2’.
4) It was told to the Complainant that Opposite Party No.3 received telephone call on 28/07/06 from AI – Incentive cell that the net fare was not applicable and he should speak to AI PTA Cell/Sales. Opposite Party No.3 informed the Complainant that there had been a mistake on the part of AIR India by quoting the fare and requested whether there could be any change in schedule by flying only by AIR India flights rather than Lufthansa. The Complainant suggested that only option could be Inbound on AI only if AI could ensure Upgrade to “F” Class but outbound has to be only by Lufthansa as the AI flight timings unsuitable.
5) Thereafter, the Complainant was surprised to receive a mail on 06/08/06 from Ms. Neena Gupte – AI Manager, Germany and Central Europe confirming that AI staff had quoted an incorrect fare and that she tried to convince Dr. Buechler whether he could travel by AI flights instead of Lufthansa. It was very clear from the said mail that AI having committed the mistake were trying to shift the blame on Opposite Party No.3by stating that “Disha Travels have refused to provide any assistance to AI.” Copy of the said mail is produced alongwith complaint at annexed ‘C-3’. It is alleged by the Complainant that instead of trying to resolve the issue created by AI, Ms. Asha Patil, Dy. Manager, PTA Section by her mail dtd.07/08/06 threatened to cancel the booking if additional amount not paid, as the amount paid was not sufficient for travel on Lufthansa Code Share Flights. As per the Complainant AI have consciously committed the mistake and was trying to make Opposite Party No.3 as the scapegoat. They have not verified all the documents including PNR which clearly reflects the entire transaction as well as the full fair payment already made by the Complainant.
6) The Complainant by his reply mail dtd.07/08/06 to Ms. Neena Gupte expressed his displeasure over the way in which AI handle the matter. Dr. Buechler one of the foremost Pancreas Surgeons in the world was invited for the important conference more than 6 months in advance who was to demonstrate complex operations on 25/08/06 in the early morning in Mumbai and at that stage there was no room for any kind of change in the dates or the timings of his travel. It is contended that it was unethical on the part of AI to contact Complainant’s guest directly. By making false allegation against Disha Travels, the AI was only trying to pass on the error committed by them to Disha Travels. Ms. Neena Gupte promptly sent reply apologizing for getting involved in the matter as she was not given the correct picture by her colleagues in Mumbai and once again acknowledged the error of their Mumbai Office. Copy of the e-mail dtd.08/08/06 of Ms. N. Gupte is produced at Exh.‘C-6’.
7) It is submitted that Opposite Party No.3 informed the Complainant that he had also written two letters dtd.07/08/06 and 08/08/06 to Mr. D. Kishore, Commercial Manager – Western India - AIR India reiterating that Complainant cannot be penalized for the gross error committed by AIR India at any cost especially in view of the fact that AI staff have repeatedly confirmed the net fare EURO 1780 orally as well as in writing that the Complainant’s guest Dr. Prof. Buechler can travel by Lufthansa flight. Copies of the aforesaid letters dtd.07/08/2006 and 08/08/2006 are produced alongwith annexure ‘C-7’.
8) Thereafter, the Complainant received a letter dtd.11/08/2006 from Ms. V. Balakrishnan, Sr. Manager-Resv. & Ticket Office making contradictory statement. At one place she states that it was that ‘communication error’ that the PNR given was for ‘AI Code Share Flight’ on presuming that the guest would be traveling by AI flight. Further, she admitted detection of the error and informed the agent as well as the Complainant “if that is so how did they detect the error ? According to the Complainant, Opposite Party No.1 & 2 and their staff have been negligent towards their customers and after committing the mistake inspite of repeated enquiries and confirmation in writing was not trying to blame the agent. According to the Complainant ticket had been issued for the full amount even then Ms. V. Balkrishna once again reiterated that in the event of the difference not being paid up. The Opposite Party No.1 & 2 have failed and neglected to verify the correct facts inspite of continued correspondence discussion. The Addressed letter dtd.11/08/06 to the Complainant then the Complainant wrote a letter dtd.14/08/06 to Mr. Tulsidas, Chairman & Managing Director of Opposite Party No.1 narrating the whole story and requesting him to look into the matter and resolved the issue so as to enable the guest to travel on the chosen flights and at the price consistently quoted and confirmed by Air India.
9) It is submitted by the Complainant there was no response from Opposite Party No.1 & 2 or their Chairman & Managing Director to his letters and on 21/08/06, the Complainant was informed that the Opposite Party No.1 & 2, at the last moment, had cancelled the booking under instructions from Reservation Manager and it amounts to deficiency in service and also unfair trade practice on the part of Opposite Party No.1 & 2. In aforesaid circumstances the Complainant had no other alternative but to instruct Opposite Party No.3 to issue fresh tickets on Lufthansa at the full value of EUR 3806 + Taxes. In view of aforesaid facts, it is submitted by the Complainant that he is entitled for refund of differential fare of Rs.1,08,572/- per person and for two persons it works out to Rs.2,17,144/- which he had to incur due to the utter negligence and deficiency in service committed by Opposite Party No.1 & 2.
10) The Complainant has prayed to declare Opposite Party No.1 & 2 to be guilty of deficiency in service and unfair trade practice. Further, he has requested to direct Opposite Party No.1 & 2 jointly and/or severally to refund to the Complainant sum of Rs.2,17,144/- being the excess fare paid by the Complainant on account of deficiency in service and unfair trade practice committed by Opposite Party No.1 & 2. The Complainant has claimed interest @ 15% p.a. on aforesaid amount from July, 2006. He has also prayed for compensation of Rs.5 Lacs for mental agony, physical hardship and embarrassment and Rs.50,000/- towards cost of this proceeding.
11) Opposite Party No.1 & 2 have filed their common written statement and thereby resisted claim of the Complainant contending that there is no deficiency in service on the part of Opposite Party No.1 & 2 and therefore, complaint against Opposite Party No.1 & 2 deserves to be dismissed with cost. According to the Opposite Party’s, the Complainant has suppressed material facts from this Forum. The Complainant had booked tickets for Dr.(Prof.) Buechler & Mrs. Buechler through travel agents Opposite Party No.3 and the travel agents booked the tickets of Lufthansa Flights (AI Code Share Flight). It was informed to the Complainant by the agent that the final booking and ticketing shall be done towards the end of July, 2006 or early August,06 as the travel was scheduled for third week of August,06. It is submitted that after the ticket was issued by the travel agent, it was noticed that same is done on the basis of Net Fare, which is not applicable on AI Code Share Flight and is applicable only on Air India operated Flights. As soon as the mistake was detected, Opposite Party No.1 immediately requested the Complainant to either change the booking from Lufthansa to Air India or pay the difference in fair. However, despite clear communications for the same well in advance, the Complainant failed to exercise any of the above options and therefore, the Opposite Party No.1 was constrained to cancel the bookings made by the Complainant.
12) It is submitted that the Complainant did not disclose any negligence or deficiency in service on the part of Opposite Party No.1 & 2 and the Complainant has not clearly established the loss, if any suffered by the Complainant as a direct result of action or inaction on the part of Opposite Party No.1 & 2. According to the Opposite Party No.1 & 2, the tickets were booked by the travel agent quoting wrong fare on the basis of the communication mistake for which Opposite Party No.1 & 2 cannot be held responsible.
13) It is submitted that the Complainant is not a Consumer within the meaning of Sec.2(1)(d)(ii) of the Consumer Protection Act, as there is no privity of contract between the Complainant and Opposite Party No.1. Travel agent- Opposite Party No.3 is the agent of Opposite Party No.1 and the tickets were booked by Opposite Party No.3. It is submitted that consideration for the ticket of Dr. (Prof.) Buechler was paid by the Complainant being his sponsor and the consideration for the second ticket of Mrs. Buechler is admittedly paid by Dr. (Prof.) Buechler and the Complainant was not the sponsor for her ticket. Therefore, the Complainant is estopped from claiming any compensation towards the ticket of Mrs. Buechler.
14) It is submitted that contract between the parties is void under Sec.20 of the Indian Contract Act, which provides that where both parties are under a mistake as to the matter of fact essential to an agreement, the agreement is void. In the present case, Net Fare on the basis of which tickets were booked by the travel agent was applicable on the Air India Flights only and not on the AI Code Share Flights. There was a mistake committed by Ms. Nikita with respect to the applicable fare on AI Code Share Flights while communicating the same to Opposite Party No.3 who misunderstood that there were special fares available on Code Share of Lufthansa as it was available on Air India Flights. The tickets were booked by Opposite Party No.3 quoting wrong fare. Though it is the genuine mistake of fact, which is also within the knowledge of the Complainant as evident from his e-mail dtd.07/08/06. Therefore, it cannot be said that Opposite Party No.1 & 2 are guilty of deficiency in service or of unfair trade practice as alleged by the Complainant.
15) It is submitted by Opposite Party No.1 & 2 that Air India has Code Share with Lufthansa and Air India is required to pay the entire amount to Lufthansa minus only a commission of 9% as a booking commission for all the services rendered viz; booking, documentation, etc. according to the agreement. Air India as a National Carrier cannot be asked to make the said payment for the genuine mistake, and no complaint as much as the one i.e. filed can be entertained against it for the same. According to the Opposite Parties, there was a genuine mistake of the fact by both the parties which made contract voidable under Sec.20 of the Indian Contract Act. The endorsement made in the letter dtd.20/07/06 is just to issue instructions to clear the incentives given by the Opposite Party No.1 to their agents on the basis of the tickets booked by them and nothing else. Net Fare is not applicable on AI Code Share Flights in view of IATA Norms but it is applicable only on the Air India Flights. It is contended that as soon as the mistake in the fair came to the light of Opposite Party No.1 & 2, the Opposite Party No.3 was informed of the genuine mistake. Air India’s fare are lower than the Lufthansa as Air India being a National Carrier is in competition and offers lower fares. Therefore, Opposite Party No.3 were asked to change the flights from Lufthansa to Air India.
16) It is submitted that the Complainant has committed a gross mistake in interpreting the mail dtd.06/08/06 from Ms. Neena Gupta, AI Manager, German & Central Europe. As per Opposite Party No.1 & 2 there was a communication mistake and therefore, the proper quote was not conveyed to Opposite Party No.3. The mail dtd.07/08/06 sent by Ms. Asha Patil, Dy. Manager, PTA Section, only reiterated the fact that the Complainant had not made sufficient payment for the services, hence, according to their policy, they would have to cancel the booking if the difference was not paid and this clarification has been portrayed as a threat made to the Complainant just to the create a false impression. Opposite Party No.1 through Ms. Asha Patil only gave the option to the Complainant as to either change to Air India flight or pay difference in fare. The contract was not concluded as the passengers did not travel on the said tickets and the same were cancelled.
17) According to the Opposite Party No.1 & 2, the Complainant should have appreciated the bonafide mistake committed by an innocent employee and should have agree to pay the difference in fare as any honest and sincere person would do instead of creating this kind of scenario. It is submitted that actual fare has to be paid by the party travelling and no person, however, influential he might be, can unduly gain by causing loss to the National Carrier and a mere mistake, which has been corrected much in advance, cannot amount to negligence or deficiency of services. It is contended that on 11/08/06, Ms. V. Balakrishnan, Sr. Manager, clarified that the travelling agent i.e. Opposite Party No.3 was informed all the Net fare as applicable to AI Flights under the presumption that the guest would be travelling by Air India flight only. The Complainant did not exercise the option given to him as to either change the booking from Lufthansa to Air India or to pay the difference in fare despite receiving clear communication for the same from Opposite Party No.2 well in advance. Therefore, there was no choice for AI but to cancel the booking. It is submitted that there is no cause of action against Opposite Party No.1 & 2. The Complainant has misused the provisions of the Consumer Protection Act to achieve undue gain out of the bonafide mistake of an employee and therefore, the complaint is liable to be dismissed with cost.
18) Opposite Party No.3 has filed separate written statement and thereby resisted claim of the Complainant contending interalia that complaint is misconceived and does not disclose any cause of action. Therefore, complaint against Opposite Party No.3 deserves to be dismissed. According to the Opposite Party No.3, he made the booking in the correct booking class and charged the correct fare of the ticket as confirmed by the Opposite Party No.1 & 2. All reservation and ticketing rules were adhered to as per IATA norms and therefore, there is no deficiency in service on the part of Opposite Party No.3.
19) It is alleged by the Opposite Party No.3 that Opposite Party No.1 & 2 did not follow the normal principles of natural justice nor IATA rules by cancelling the bookings without checking the agent especially when full payment of gross fare of EURO 3806 had been paid by the Agent as per IATA payments terms. It is alleged by Opposite Party No.3 that Opposite Party No.1 & 2 have committed unfair trade practice by arbitrarily canceling the booking. According to Opposite Party No.3, as per the general practice, if there was any error of the agent in terms of the fare charged or in issuance of ticket or claiming the incentive, AI would have refused credit of the amount to the agent and not cancelled the booking. Once the ticket is issued, the Airlines cannot cancel the booking especially when all the rules of the fare on the ticket are adhered to. It is further submitted that Air India made all correspondence directly with the Complainant bypassing the agent and it shows that they were at fault and were trying to cover up their mistake.
20) Opposite Party No.3 has denied allegations made against him in the complaint contending that Opposite Party No.3 is the only travel agent who has performed his part of duty strictly in accordance with the instructions of the Complainant. Opposite Party No.3 has admitted correctness of contents of para no.4(c)(d) & (e) of complaint. It is submitted that Opposite Party No.3 checked with Opposite Party No.1’s Fare Desk for the fare. He spoke to Ms. Nikita, employee of Opposite Party No.1 who checked for the route and quoted a gross fare of EUR 3806 and a Net Fare of EUR 1780. Ms. Nikita further informed that she had checked and also reconfirmed with her senior colleague and confirm that Complainant’s guests could avail of the special Net Fare of EURO 1780 for the flights and the route. It is further submitted that Mr. Simon of Opposite Party No.1 also confirmed of the special Net Fare applicable which was much lower than what was offered by Lufthansa. According to Opposite Party No.3, on 20/07/06, after checking, confirming and reconfirming with AI North Mumbai Sales Office and PTA Section, the tickets were issued bearing endorsement “Valid for travel on AI Code Share Flights”. Opposite Party No.2 also confirm by making endorsement dtd.24/07/06 on a letter viz; “In order clear incentive as per the net fare of EUR 1780.”
21) It is submitted by Opposite Party No.3 that he received telephone call on 28/07/06 from AI – Incentive cell that Net Fare was not applicable and we should speak to AI PTA Cell/Sales. On 31/07/06, AI PTA Cell informed that incentive not due. Opposite Party No.3 had made the bookings exactly as per the instructions received from the Complainant and therefore, there is no deficiency in service on the part of Opposite Party No.3. It is submitted by Opposite Party No.3 that the Complainant is not entitle for any relief against Opposite Party No.3.
22) The Complainant has filed written argument. Opposite Party has also filed their common written argument. Opposite Party No.3 has filed separate written argument. Heard Ld.Advocate Ms. Rashmi Manne for the Complainant. Ld.Advocate Neelam Jadhav i.b. Jurisconsultus for Opposite Party No.1 & 2. Opposite Party No.3 were absent at the time of argument but Opposite Party No.3 has already submitted written argument. So complaint was closed for order.
23) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party No.1 to 3 ?
Findings : The Complainant has proved deficiency in service on the part of Opposite Party No.1 & 2 only.
Point No.2 : Whether the Complainant is entitled for reliefs from Opposite Parties as prayed for ?
Findings : As per final order.
Reasons :-
Point No.1 :- Following facts are undisputed fact that the Complainant is the Complainant is the Asst. Professor & Consultant Surgeon attached to the Gastro Intestinal Service, Department of Surgical Oncology, Tata Memorial Hospital. As a Member of the Organizing Team of the Bombay Hospital Institute of Medical Sciences & Shrikhande Clinic the Complainant had organized an important Conference in Mumbai, on 25th August, 2006. For the said conference he had invited amongst various specialists/surgeons, the leading Pancreatic Surgeon in the world, Dr. Prof. M.W. Buechler. Dr. Buechler’s wife Mrs. Hedwig Breunigbuechler was also to accompany him to India. The Complainant in or around mid- March, 06 contacted Opposite Party No.3 M/s. Disha Travels and informed about his requirement of airline tickets for travel of his guest from Frankfurt to Mumbai and back. Then in the month of April, 06, the Complainant again confirmed to the Opposite Party No.3 the requirements of the tickets and also informed that the Dr. Prof. Buechler’s trip had been sponsored by him and the payment for his ticket would be made by him and that for Mrs. Buechler will be borne by the traveler. The Complainant made it clear that his aforesaid guest would travel only on Lufthansa flights. As the proposed travel was in the third week of August and seats were available. It was informed to the Complainant by Opposite Party No.3 on or about 18th July, 06 that he would arrange for actual bookings on the system of travel in Business Class on Air India Code Share Flight, operated by Lufthansa. Opposite Party No.3 had spoken to Ms. Nikita, quoting the Air India booking reference i.e. bookings had been effected on AI Code Share Flights - tickets of AI, but travel and services of Lufthansa. Ms. Nikita checked for the route and quoted a Gross Fare of EUR 3806 and Net Fare of EUR 1780. This fare was much lower than what was offered by Lufthansa. On 20/07/06, Opposite Party No.3 after checking, confirming and reconfirming with Air India North Mumbai Sales Office and PTA Section, quoted the exact amount to the Complainant and got his approval for issuance of tickets bearing endorsement, “VALID FOR TRAVEL ON AI CODE SHARE FLIGHTS”. Copies of the said tickets are produced by the Complainant alongwith complaint at Exh.‘C-1’. Opposite Party No. 3 also sent a letter dtd.20/07/07 addressed to sales office, AI, Mumbai, stating that SOTO tickets had been issued on AI Code Share Flights FRA-VOM-FRA and on special firm of EURO 1780 + taxes. On the said letter Opposite Party No.2 put endorsement dtd.24/07/07 as “in order clear incentive as per net fare of EUR 1780.”
It is undisputed fact that Opposite Party No.3 received telephone call on 28/07/06 from AI – incentive sale that Net Fare was not applicable and advice to speak to AI- PTA Cell/Sales. On 31/07/06, AI PTA Sales informed that incentive not due. Opposite Party No.3 informed Opposite Party No.1 & 2 that Opposite Party No.3 has already committed the amounts and had released the tickets. When Opposite Party No.3 contacted the Complainant, the Complainant suggested the only option would be In-bond on AI only if AI could ensure upgrade to “F” class but out bond has to only by Lufthansa as AI Flight timings were unsuitable to his guest. Accordingly, Opposite Party No.3 informed the Opposite Party No.1 & 2. According to the Complainant, on 06/08/06, he had received a mail from Ms. Neena Gupta, AI Manager, Germany & Central Europe confirming that AI staff had quoted an incorrect fare and that she tried to convince Dr. Prof. Buechler where he could travel by AI Flights instead of Lufthansa. Subsequently, Ms. Asha Patil, Dy. Manager, PTA Section by her mail dtd.04/08/06 threatened to cancel the booking if additional amount not paid, as the amount was not sufficient for travel on Lufthansa Code Share Flights. It is admitted by Opposite Party No.1 & 2 that there was a mistake committed by Ms. Nikita – employee of Air India with respect to the applicable fare on AI Code Share Flights while communicating same to Opposite Party No.3. According to Opposite Party No.1 & 2 Ms. Asha Patil, Dy. Manager had given option to the Complainant as to either change to AI Flight or pay difference in fare. Difference of fare was not paid by the Complainant not he accepted other option so Opposite Party No.1 & 2 cancelled air tickets. According to the Complainant, in such circumstances he had no other alternative but to instruct Opposite Party No.3 to issue fresh ticket at Lufthansa of the full value of EUR 3806 plus taxes.
Opposite Party No.1 & 2 in their written statement have clearly admitted that Ms. Nikita, an employee of Opposite Party No.1 committed a mistake who actually understood that there were special fares on Code Share Flights of Lufthansa as it was available for AI Flight. It is alleged that Sr. colleague of Ms. Nikita gave confirmation to her under mistake that it to be AI flight and not a Code Share Flight. The fare was thereafter informed to the travel agent. According to the Opposite Party No.1 & 2 there was genuine mistake in quoting fare in the communication. As soon as the mistake came to light, Opposite Party No.3 was immediately informed about the same much before the date of travel. In the written statement Opposite Party No.3 has stated that he told Ms. Nikita about booking of air tickets on AI Code Share Flights. Tickets of AI, but travel and services of Lufthansa, Ms. Nikita checked of the route and quoted a gross fare of EUR 3806 and Net Fare of EUR 1780. Ms. Nikita had checked and also reconfirmed that her senior about the fare and confirm that Complainant’s guest would available special Net Fare of EUR 1780 for the flights route. Accordingly, he quoted exact fare to the Complainant. Once again Mr. Simon of Opposite Party No.1 confirmed the net fare applicable which was much lower than whatever offered by Lufthansa. Subsequently on 28/07/06 from AI – incentive Sale he received telephone call that Net Fare was not applicable and incentive not due.
It appears that on 06/08/06, Ms. Neena Gupte, AI Manager, Generally and Centrally had confirmed that AI staff have quoted incorrect fare and that she tried to convinced Dr. Buechler whether he would travel by AI Flights instead of Lufthansa. The Complainant had produced e-mail received from Ms. Neena Gupte alongwith complaint at annexure ‘C-3’. According to the Complainant, instead of trying to resolve the issue Ms. Asha Patil, Dy. Manager, PTA Section of Opposite Party No.1, by e-mail dtd.04/08/06 threatened to cancel the booking if additional amount not paid, as amount paid was not sufficient for travel on Lufthansa Code Share Flights. The Complainant has produced e-mail dtd.04/08/06 received from Ms. Asha Patil, Dy. Manager, PTA Section of Opposite Party No.1 annexure ‘C’ in which she has stated “We regret to inform you that if we do not receive this additional amount, we will have to cancel the booking as the present amount paid by you is insufficient for the passenger to travel on LH Code Share Flight.” The Complainant has produced e-mail dtd.08/07/06 received form Ms. Neena Gupte, Manager, Germany and Central Europe, annexure at ‘C-6’, in which Ms. Neena Gupte tender apology, submitting that her colleague in Mumbai quoted a wrong fare by letter dtd.18/09/06. It appears that on or about 21/08/06 the Complainant was informed by Opposite Party No.1 & 2 that they had cancelled the booking and in such circumstances the Complainant had not other alternative to instruct Opposite Party No.3 to issue fresh tickets for his guest on Lufthansa at full value of EUR 3806 + Taxes. According to the Complainant due to deficiency in service and unfair trade practice on the part of Opposite Party No.1 & 2, he was required to pay huge sum for obtaining tickets for his guest on Lufthansa flights at last movement.
It appears from the averment made from the Complainant for arranging tickets for his guests the Complainant had approached Opposite Party No.3 who advised the Complainant to book tickets on AI Code Share Flights, operated by Lufthansa. It is admitted fact that on inquiry made by Opposite Party No.3 Ms. Nikita, an employee of Opposite Party No.1, checked for the route and quoted fare of EUR 3806 and Net Fare of EUR 1780. She had confirmed about the fare from her senior colleague and then told the fare to Opposite Party No.3. Opposite Party No.3 accordingly told fare to the Complainant. Subsequently concerned officer of Opposite Party No.1 & 2 realized that code share fare quoted was incorrect. This fact is clearly admitted by Opposite Party No.1 & 2 in their written statement. It appears that after Opposite Party No.1 & 2 realized that fare quoted was incorrect it was expected to contact Opposite Party No.3 agent who booked the tickets. Instead of contacting Opposite Party No.3 – Ms. Neena Gupte, Manager, Germany and Central Europe, contacted the passenger, but the passenger did not agree to travel on Air India, operated flights. It was not proper on the part of Opposite Party No.1 & 2 to directly contact the passenger instead of contacting the booking agent. It is vehemently alleged by the Opposite Party No.1 & 2 that Opposite Party No.3 was not cooperative but there is nothing on record to support the allegations made by Opposite Party No.1 & 2 against Opposite Party No.3. Further we do not find substance in the allegations made by Opposite Party No.1 & 2 that there was genuine mistake of facts by both the parties and so contract is violable under Sec.20 of the Indian Contract Act. It is clear form the evidence from record that Ms. Nikita wrongly quoted fare of AI Code Share Flight to Opposite Party No.3 and accordingly Opposite Party No.3 paid fare and tickets to code fare price were issued to the Opposite Party No.3. There is no evidence to prove that Opposite Party No.3 was aware of exact fare of code share flight. Therefore, provisions of Sec.20 of the Indian Contract Act are not applicable to the present case. It appears that Ms. Asha Patil by sending e-mail to the Complainant asked to pay due of fare by giving threats of cancellation of tickets. In the e-mail she has not demanded exact amount from the Complainant. Subsequently, Opposite Party No.1 & 2 cancelled the tickets on the ground that Complainant failed to pay dues amount. According to the Opposite Party No.3, as per general practice, if there was any error of the Agent in terms of the fare charged or in issuance of the ticket or in claiming any incentive amount (Euro 2026), Air India would have refused credit of the amount to the Agent and not cancelled the booking. Considering the facts and circumstances of the case, we hold that the Complainant has proved deficiency in service on the part of Opposite Party No.1 & 2. In the result we answer point no.1 accordingly.
Point No.2 :- The Complainant has claimed recovery of Rs.2,17,144/- from the Opposite Party No. 1 & 2 being the excess fare paid by the Complainant. Further, he has claimed interest on the aforesaid amount from July, 2006 till realization of the amount. The Complainant has claimed compensation only Rs.5 Lacs for mental agony and physical hardship, etc. and cost of proceeding Rs.50,000/- from Opposite Party No.2 & 3. The Complainant has not claimed any relief against Opposite Party No.3. In this case for booking air tickets for his guests from Frankfurt to Mumbai and back the Complainant contacted Opposite Party No.3 who is a travel agent. As per the Complainant, he told Opposite Party No.3 his requirements and further made it clear that his guests would travel only on Lufthansa Flight. However, Opposite Party No.3 instead of booking tickets from office of Lufthansa Airline approached office of Air India Code Share Flights. Amount as per booking tickets was paid by the Complainant to Opposite Party No.3. The Complainant has not directly paid any amount to Opposite Party No.1 & 2. The Complainant has not disclosed exact amount paid by him for purchase of Lufthansa flights. After cancellation of tickets by Air India Ms. Asha Patil, Dy. Manager of PTA Section, Mumbai of Opposite Party No.1 & 2 Air India vide their e-mail dtd.07/08/06 called upon the Complainant to pay additional amount making it clear that in case additional amount if not paid, they would cancel booking. After receipt of aforesaid e-mail the Complainant has not paid any amount to the Opposite Party. In this case initially Opposite Party No.3 had booked air tickets for Dr. Prof. Buechler and Mrs. Buechler from Frankfurt to Mumbai and back on in business class of AI Share Code basis for gross fare of EUR 3806 and Net Fare of EUR 1780. The Complainant has not adduced evidence to show the exact amount he paid to Opposite Party No.3 for purchase of tickets of Lufthansa flights. Further it is to be noted that in the complaint itself the Complainant has clearly averred that he had sponsored of air trip of Dr. Prof. Buechler’s and the payment for his ticket would be made by him and that for Mr.Buechler would be borne by the traveler. In such circumstances, we do not think it just to allow the Complainant’s claim for refund of sum of Rs.2,17,144/- with interest as claimed.
The Complainant has claimed Rs.5 Lacs as compensation for mental agony, physical stress and harassment suffered by the Complainant. Compensation claim of the Complainant is exorbitant. Considering facts and circumstances of the case, we think it just to direct Opposite Party No.1 & 2 to pay to the Complainant Rs.25,000/- as compensation for mental agony, physical hardship and embarrassment suffered by the Complainant. Further, we think it just to direct Opposite Party No.1 & 2 to pay to the Complainant Rs.5,000/- as cost of this proceeding. Hence, we answer point no.2 accordingly.
For the reasons discussed above, compliant is partly allowed against Opposite Party No.1 & 2 and complaint is dismissed against Opposite Party No.3 with no order as to cost. Hence we pass the following order -
O R D E R
i.Complaint No.09/2007 is partly allowed.
ii.Opposite Party No.1 & 2 jointly and/or severally shall pay an amount of Rs.25,000 (Rs. Twenty Five Thousand
Only) as compensation to the Complainant within 1 month from the date of receipt of this order. In case of
failure to pay compensation of Rs.25,000/- within period of 1 month as stated above, the Opposite Party No.1
& 2 shall be liable top ay interest @ 9% p.a. on aforesaid compensation amount from the date of this order
iii.Opposite Party No.1 & 2 jointly and/or severally shall pay an amount of Rs.5,000/- (Rs. Five Thousand Only)
towards cost of this proceeding to the Complainant.
iv.Complaint against Opposite Party No.3 is dismissed with not order as to costs.
v.Opposite Party No. 1 & 2 jointly and/or severally shall comply with the aforesaid order within one month from
the date of receipt of this order.
vi. Certified copies of this order be furnished to the parties.
