BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 164/2004 Filed on 12.04.2004<br /> Dated : 30.06.2008<br /> <br /> Complainant:<br /> K.S. Ibrahim, (Rawther Ibrahim), Advocate, Kadavukarayil, Narakampuzha, Koottickal P.O. <br /> <br /> (By adv. K.R. Krishna Pillai)<br /> Opposite parties:<br /> 1.Akbar Travels of India Pvt. Ltd., 1st Floor, Our Towers, Vellayambalam, Thiruvananthapuram – 10.<br /> <br /> (By advs. A. Abdul Kharim & P.S. Shereef) <br /> 2.The Manager, Sri Lankan Air Lines, Spencer Buildings, Spencer Junction, Thiruvananthapuram – 1. <br /> <br /> (By adv. Nair Ajay Krishnan)<br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 21.08.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 12.05.2008, the Forum on 30.06.2008 delivered the following:<br /> ORDER<br /> <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> <br /> The fact leading to the filing of the complaint is that complainant had obtained four Air tickets for journey from Thiruvananthapuram to Calgary (Canada) and four return tickets from Calgary to Thiruvananthapuram from the 1st opposite party issued by the 2nd opposite party. Complainant surrendered three return tickets to 1st opposite party within time and obtained ticket acknowledgement note dated 13.01.2004. But inspite of repeated requests opposite parties did not refund the amount of Rs. 100000/- to the complainant. So complainant sent notice-dated 19.03.2004 to both opposite parties demanding the refund amount of Rs. 100000/- within 15 days of the receipt of notice. The 2nd opposite party did not give any reply, but 1st opposite party however caused to send a reply on 24.03.2004. In the said reply the 1st opposite party admitted the receipt of the three return tickets for refund. It was submitted that the 2nd opposite party would process the refund of the said tickets at the earliest. There was undue deliberate and unjust delay in the refund of the tickets. Hence deficiency in service on the part of opposite parties. Hence this complaint claiming refund of Rs. 100000/- with interest at the rate of 12% p.a from 13.01.2004 and cost of the complaint. <br /> 1st opposite party entered appearance and filed version contending that complainant had purchased 4 Air tickets from the 1st opposite party for to and fro travel of 4 passengers (two adults and two children) on the sector Thiruvananthapuram - Calgary – Thiruvananthapuram on the 2nd opposite party’s flight. It is admitted that 1st opposite party had received Rs. 59450/- per ticket as adult fare and Rs. 40725/- per ticket as children fare for the to and fro journey. Accordingly 1st opposite party received a total sum of Rs. 200350/- for the said four tickets and the said amount was paid to the 2nd opposite party. The ticket fare for one-way ticket from Thiruvananthapuram to Calgary for an adult was Rs. 33700/- and for a child was Rs. 25390/-. Since three of the passengers (one adult and two children) had not used the ticket for their return journey the complainant surrendered the unused part of the ticket for refund. The 1st opposite party accepted the same and after deducting the one-way adult fare of Rs. 33700/- and one way child fare of Rs. 25390/- from the respective to and fro fare i.e; (59450-33700= 20230 and 45695-25390= 15625) the opposite party was ready to reimburse the total sum of Rs. 50500/- as cost of unused Air ticket fare for one adult and two children’s ticket. But the complainant unreasonably rejected the said amount and insisted to get Rs. 100000/- i.e one half of the ticket fare paid by the complainant. Further submission by the 1st opposite party is that the Airlines operating international sectors are charging the to and fro ticket charges and one-way ticket on different footings. One way ticket fare will be higher than the to and fro tickets, that means one way ticket rate will be in higher side due to the possibility of the flight’s return trip without sufficient number of passengers. 1st opposite party was ready and willing to pay whatever the amount received as refund from the Airlines after deducting Rs. 350/- per ticket as refund service charge. But the complainant rejected the said amount. There is no deficiency in service on the part of 1st opposite party in refunding the unused ticket fare. 1st opposite party also admitted the issuance of acknowledgement note to the complainant. Further submission is that 1st opposite party will deposit the ticket fare with the 2nd opposite party and it is the 2nd opposite party has to refund the fare for the unused ticket. 1st opposite party received an advocate notice and it was duly replied by the 1st opposite party. The refusal of the refund amount of Rs. 50500/- by the complainant is unreasonable and hence the complainant is not entitled to get any interest. 1st opposite party being only an agent is protected in law under Sec. 230 of the Indian Contract Act. It is the complainant who is responsible for his loss. 2nd opposite party entered appearance and filed version contending that complaint is not maintainable either in law or on facts. It is admitted that complainant had purchased four tickets from the 1st opposite party for travel from Thiruvananthapuram to Calgary. It is submitted that the tickets in question has not been submitted to the 2nd opposite party for refund at any point of time. The tickets issued to the complainant were non-refundable. Moreover, the aforesaid ticket is a special fare ticket i.e; ticket which was issued after giving much commission or discount to the complainant. For a partly used ticket refund will be calculated only the total amount paid minus IATA published and one-way fare and other charges. Further submission is that complainant purchased tickets from 1st opposite party and if at all any refund is due to the complainant, the complainant has to collect the money from the 1st opposite party since the 1st opposite party has already collected or adjusted the amount from the 2nd opposite party. As per the IATA Regulations, the airlines can refund the money only to the agent since the tickets had been issued by the agent. 2nd opposite party already adjusted the amount to the agent. 2nd opposite party has not committed any deficiency in service to the complainant. Complainant is not a consumer as defined in Consumer Protection Act. Complainant is not entitled to get any of the reliefs as prayed for. Hence 2nd opposite party prayed for dismissal of the complaint. <br /> <br /> The points that would arise for consideration are:-<br /> (i)Whether there has been deficiency in service on the part of opposite parties?<br /> (ii)Whether the complainant is entitled for refund of Rs. 100000/- from opposite parties?<br /> (iii)Other reliefs and costs.<br /> <br /> To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 and Exts. P1 to P5 were marked. On behalf of 1st opposite party, P.K.Lal, the manager of the 1st opposite party has filed a proof affidavit. No proof affidavit filed by 2nd opposite party.<br /> <br /> Points (i) to (iii):- First point requiring consideration is whether there has been deficiency in service on the part of opposite parties. The case of the complainant is that the complainant had purchased four Air tickets to travel from Thiruvananthapuram to Calgary (Canada) and from return tickets from Calgary (Canada) to Thiruvananthapuram from the 1st opposite party in 2nd opposite party's flight. The fare amount is not seen mentioned in the complaint. Opposite parties admitted the said purchase of Air tickets by the complainant. Main thrust of argument advanced by the counsel appearing for the complainant is that complainant surrendered three return tickets to 1st opposite party within time and obtained ticket acknowledgement note, but till date opposite parties did not refund the money. Ext. P1 is the ticket acknowledgement note bearing No. IR 13651 dated 13.01.2004 issued by the 1st opposite party. A perusal of Ext. P1 would disclose the terms and conditions to the effect that payment subject to receipt of credit from the Airlines- and refund amount will be confirmed only after getting from the Airline and ticket submitted for refund will not be returned to party in any case. Submission by the complainant is that despite repeated requests, opposite parties did not refund the money. So on 19.03.2004 complainant sent notice to opposite parties demanding the refund of unused tickets fare. Ext. P2 is the copy of the notice dated 19.03.2004. In Ext. P2 notice, complainant claimed a refund amount of Rs. 100000/- from opposite parties. Further it has been contended in Ext. P2 notice that all acts done by the agent is binding on the principal, the second party. Ext. P3 is the postal receipt of sending Ext. P2 notice. Ext. P5 is the reply notice dated 24.03.2004 to Ext. P2, issued by the 1st opposite party to the complainant. As per Ext. P5 reply notice 1st opposite party had admitted the surrender of three unused tickets for refund by the complainant and issuance of ticket acknowledgement note to the complainant. It has been stated in Ext. P5 that 1st opposite party had sent the three tickets to 2nd opposite party claiming refund of the same after completing the necessary procedural formalities on 21.01.2004. Further contention is that 1st opposite party laising with 2nd opposite party in the matter and 1st opposite party got information from the 2nd opposite party that 2nd opposite party would process the refund of the said ticket at the earliest and 1st opposite party would inform the same to the complainant. 1st opposite party in his version and proof affidavit submitted that 1st opposite party was ready to reimburse the total sum of Rs. 50500/- as cost of the unused part of Air tickets fare subject to the concurrence of the Airline but the complainant rejected the said amount. It is pertinent to point out that 1st opposite party did not produce any scrap of paper to show that 1st opposite party had offered the said amount to the complainant, though 1st opposite party had in his reply notice (Ext. P5) mentioned that he would inform the same to the complainant. Even no whisper is seen made in Ext. P5 regarding the said amount to be reimbursed. 2nd opposite party in its version stated that the complainant has to collect the money from the 1st opposite party since 1st opposite party has already collected or adjusted the amount from the 2nd opposite party, but neither affidavit by way of evidence, nor any material on record is seen filed by the 2nd opposite party corroborate the same. Complainant in his affidavit strongly denied the statement in the version/affidavit of the 1st opposite party that 1st opposite party had offered any refund amount to the complainant. Submission by the counsel of the complainant is that the story of offering the refund amount by the 1st opposite party is utter falsehood. No material on record, produced by opposite parties, to prove otherwise. We are of the considered opinion that opposite parties have failed to satisfy us that they have offered any amount towards refund of unused tickets fare to the complainant. Delay in refund of unused ticket fare would definitely amount to deficiency in service. Deficiency in service is proved. <br /> <br /> The next point to be considered is whether complainant is entitled for Rs. 100000/- from the opposite parties. At the outset it should be mentioned that complainant has never mentioned in the complaint the cost of four tickets purchased from the 1st opposite party, but complainant claimed refund amount of Rs. 100000/- towards the cost of three unused Air tickets. Submission by 1st opposite party was that complainant had purchased four Air tickets (two adults and two children) from the 1st opposite party for travel from Thiruvananthapuram to Calgary (Canada) and back in the 2nd opposite party's flight and 1st opposite party had received Rs. 59450/- per ticket as adult fare and Rs. 40725/- per ticket as children's fare for to and for journey. Thus 1st opposite party had received a total amount of Rs. 200350/- from the complainant and paid the said amount to the 2nd opposite party. It has been contended by the 1st opposite party that the ticket fare for the one way ticket (from Thiruvananthapuram to Calgary sector) for an adult was Rs. 33700/- and for child was Rs. 25390/-. Since the three of the passengers(one adult and two children) had not used the ticket for their return journey, the complainant surrendered the unused part of the Air ticket for refund. Submission by the 1st opposite party is that 1st opposite party accepted the same and after deducting the one way adult fare of Rs. 33700/- and one way child fare of Rs. 25390/- from the respective to and fro fare (59450-33700= 20230 and 45695-25390= 15625), the 1st opposite party expressed readiness to reimburse the total sum of Rs. 50500/- as cost of the unused part of Air ticket fare for one adult and two children's ticket. Further submission is that the Airlines operating the international sectors are charging the 'to and fro' ticket charges and one way ticket charge on different footings. One way ticket rate will be in higher side due to the possibility of the flight's return trip without sufficient number of passengers. It is pertinent to note that opposite parties never produced any material to show the said ticket fare. Complainant's submission is that complainant paid Rs. 211000/- to the 1st opposite party and not Rs. 200350/- as averred in the version. Further no evidence is seen adduced by the opposite parties to substantiate the statement that the Airlines operating in the international sectors are charging the to and fro ticket and one way ticket on different footings. Any way 1st opposite party admitted that 1st opposite party had received a total sum of Rs. 200350/-. By deducting the to and fro fare of one used adult ticket of Rs. 59450/- from the admitted amount of Rs. 200350/-, the remaining would be Rs. 140900/-. On going through the complaint, version, Exts. P1 to P5 and hearing we are of the considered opinion that it is just and fair to direct opposite parties to return half of Rs. 140900/- less service charges of Rs. 1050/- towards cost of unused return Air tickets already surrendered by the complainant. In the light of the above facts, complainant is entitled for refund of Rs. 70450/- minus service charge of Rs. 1050/-, i.e; 70450-1050= Rs. 69400/- from the opposite parties. As per Ext. P1 Air tickets 1st opposite party had received three unused return Air tickets from the complainant on 13.01.2004, but opposite parties have not paid the amount (the purchase price of the three unused tickets) to the complainant so far. Therefore opposite parties are liable to pay interest to the complainant at the rate of 9% per annum on the sum of Rs. 69400/- from 13.01.2004 till realisation.<br /> <br /> In the result, complaint is allowed. Opposite parties shall jointly and severally pay the complainant a sum of Rs. 69400/- with interest at 12% per annum from 13.01.2004 till realisation. The opposite parties shall also pay the complainant Rs. 2000/- as cost of the complaint. No order as to compensation. The said amounts shall be paid within two months from the date of this order. <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th June 2008.<br /> <br /> <br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O.P.No. 164/2004<br /> APPENDIX<br /> <br /> I COMPLAINANT'S WITNESS : <br /> <br /> NIL<br /> <br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Ticket acknowledgement note No. IR 13651 dated 13.01.2004 issued by the 1st opposite party.<br /> P2 - True copy of notice dated 19.03.2004.<br /> P3 - Postal receipts dated 19.03.2004.<br /> P4 - Copy of postal receipts dated 19.03.2004.<br /> P5 - Reply notice dated 24.03.2004 issued by the 1st opposite party to the complainant. <br /> <br /> III OPPOSITE PARTIES' WITNESS :<br /> <br /> NIL<br /> <br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> <br /> NIL <br /> <br /> PRESIDENT<br />