STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

R.K.Gupta, Retd. DGP Punjab, r/o H.No.285, Sector 11-A, Chandigarh.

…..Appellant/Complainant

                                V E R S U S

1.     Chairman-cum-Managing Director, Air India Building, 13th floor, Nariman Point, Mumbai-400021.

2.     General Manager, Frequent Flyer Member Services, Air India, Premier House, 5th floor, Plot – 38, Central – MIDC, Andheri – East, Mumbai – 400093.

3.     General Manager, Customer Services, Air India Building, 13th floor, Nariman Point, Mumbai – 400021.

4.     Manager, Air India, SCO No.162-164, Sector 34-A, Chandigarh.

.…..Respondents/Opposite Parties 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                MRS. NEENA SANDHU,                    MEMBER

Argued by:  

Sh.Karan Nehra, Advocate for the appellant.

                Sh.S.R.Chaudhari, Advocate for the respondents.

MRS. NEENA SANDHU, MEMBER

                This appeal is directed against the order dated 03.05.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint filed by the complainant.

2.                    In brief, the facts of the case are that the complainant joined the “Joint Frequent Flyer Programme” named as “Flying Returns” of the Opposite Parties, whereby the points were to be awarded as per the travel made through the Opposite Parties-Airline and the same could be redeemed for getting free airline tickets or to adjust as part payment for future traveling. It was stated that the complainant filled the requisite Membership form (Ann.C-1) and became the Member of said Programme w.e.f. 31.1.1998 (Ann.C-2).  Thereafter, the complainant kept on traveling through the airlines of the Opposite Parties and accumulated 175573 frequent flyer points till 15.8.2002 (Ann.C-3). It was further stated that the complainant wanted to travel from Delhi to New York, in February, 2003, and he requested the Opposite Parties to book a return ticket but they responded vide letter dated 20.12.2002 (Ann.C-4) that he had a total point limit of 187930 and for traveling, he required 188000 mileage points. Therefore, he should make the payment of balance of Rs.70/- within a period of 45 days, but due to some personal reasons, he never traveled. It was further stated that the complainant had informed the Opposite Parties about his change of address vide Ann.C-5.  It was further stated that, as per the statement dated 15.5.2004 (ann.C-6), the Opposite Parties had redeemed all his points. The complainant contacted the Opposite Parties for crediting the points back to his account, but despite request vide letter dated 7.1.2008 (Ann.C-7), they did not do so. It was further stated that the complainant again wrote a letter dated 6.2.2009 (Ann.C-8), whereby he explained that he had never utilized the mileage points and further requested to issue fresh mileage points.  Thereafter, the Opposite Parties contacted the complainant on 1.4.2009 and informed him that he had utilized the mileage points for his travel from Delhi to New York in August, 2003, but he (complainant) submitted that he had never traveled as was clear from copy of the passport Ann.C-9. The complainant while explaining all the circumstances, wrote a letter dated 6.2.2009 on 29.5.2009 (Ann.C-10). The complainant also sent reminders dated 21.7.2009 and 19.8.2009 (Ann.C-11 & C-12) to the Opposite Parties and they vide letter dated 11.9.2009 (Ann.C-13) had communicated that since the points were required to be utilized prior to June, 2007, therefore, the same could not be credited to his account. It was further stated that thereafter the complainant wrote a detailed letter dated 11.12.2009 (Ann.C-14) to Opposite Party No.1, thereby clarifying the complete set of events and demanded an inquiry into the matter, whereupon Opposite Party No.1 vide letter dated 28.1.2010 (Ann.C-15) clarified that the mileage points stood exhausted not, on account of the use or issuance of ticket to the complainant, but on account of non-utilization during the relevant period. The Opposite Parties never restored the points wrongly redeemed by them, to the account of the complainant. It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In its written reply, it (Air India) stated that the mileage points earned in Flying Returns and add on mileage points transferred to Flying Return upto 31st December 2003 were valid for redemption or utilization upto 31.12.2006. However, in order to enable the members to redeem these points, the validity period was extended upto 30.6.2007.  It was further stated that the complainant was issued Award Authority on 5.11.2002 and the tickets had to be issued within 45 days from the date of the authority. It was further stated that in July, 2003, he applied for a fresh authority, which was issued on 1.8.2003, subject to payment of Rs.1908/- (route being different needed more points) and the tickets within 45 days from the date of the authority, but he never used this authority even in August, 2003 and in terms of the Rules of Business governing the scheme, the points earned upto 31.12.2003 could be redeemed/utilized upto 31.12.2006. However, the period was extended· upto June, 2007 to enable the members to redeem the points standing to their credit. It was further stated that the complainant, however, reverted on 14.11.2008 and sought re-credit/restoration of the points as he had not been able to utilize the same earlier and it was not possible being inconsistent with the norms governing the Flying Returns Programme (Ann.D-1 & D-2). It was further stated that, Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice. The remaining averments were denied, being false.

4.                    The Parties led evidence, in support of their case.

5.                    After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint, as stated above. 

6.                    Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

7.                    We have heard the Counsel for the parties and, have gone through the evidence and record of the case, carefully. 

8.                    The Counsel for the appellant/complainant submitted that the complainant wanted to travel from Delhi to New York in February, 2003 and he requested the Opposite Parties to book a return ticket but they responded vide letter dated 20.12.2002 (Ann.C-4) that he had a total point limit of 187930 and for traveling, he required 188000 mileage points. Therefore, he should make the payment of balance of Rs.70/- within a period of 45 days but due to some personal reasons, he never traveled. He further submitted that as per the statement dated 15.5.2004 (ann.C-6), the Opposite Parties had redeemed all his points. The complainant contacted the Opposite Parties, for crediting the points back to his account, but despite repeated requests vide letter dated 7.1.2008 (ann.C-7), they did not do so. He further submitted that the complainant again wrote a letter dated 6.2.2009 (Ann.C-8), whereby he explained that he had never utilized the mileage points and further requested to issue fresh statement.  He further submitted that thereafter, the Opposite Parties contacted the complainant on 1.4.2009 and informed him that he had utilized the mileage points for his travel from Delhi to New York in August, 2003, but the complainant submitted that he had never traveled as was clear from copy of the passport Ann.C-9. The complainant while explaining all circumstances wrote letter dated 6.2.2009 on 29.5.2009 (Ann.C-10). He further submitted that the complainant also sent reminders dated 21.7.2009 and 19.8.2009 (Ann.C-11 & C-12) to the Opposite Parties and they vide letter dated 11.9.2009 (Ann.C-13) had communicated that since the points were required to be utilized prior to June, 2007, therefore the same could not be credited to his account. He further submitted that then the complainant wrote a detailed letter dated 11.12.2009 (Ann.C-14) to Opposite Party No.1 thereby clarifying the complete set of events and demanded an inquiry into the matter, whereupon, Opposite Party No.1 vide letter dated 28.1.2010 (Ann.C-15) clarified that the mileage points stood exhausted not on account of the use or issuance of ticket to the complainant but on account of non- utilization during the relevant period. He further submitted that the Opposite Parties never restored the points wrongly redeemed by them to the account of the complainant. He further submitted that the order of the District Forum, being illegal, is liable to be set aide.

9.                    On the other hand, the Counsel for the respondents/Opposite Parties submitted that the mileage points earned in Flying Returns and add on mileage points transferred to Flying Return upto 31st December 2003 were valid for redemption or utilization upto 31.12.2006. However, in order to enable the members to redeem these points, the validity period was extended upto 30.6.2007.  He further submitted that the complainant was issued Award Authority on 5.11.2002, and the tickets had to be issued within 45 days from the date of the authority. He further submitted that in July, 2003, he applied for a fresh authority, which was issued on 1.8.2003 subject to payment of Rs.1908/- (route being different needed more points) and the tickets were to be obtained within 45 days from the date of the authority but he never used this authority even in August, 2003 and in terms of the Rules of Business governing the scheme, the points earned upto 31.12.2003 could be redeemed/utilized upto 31.12.2006. However, the period was extended· upto June, 2007 to enable the members to redeem the points. He further submitted that the complainant, however, reverted on 14.11.2008 and sought re-credit/restoration of the points as he had not been able to utilize the same earlier and it was not possible being inconsistent with the norms governing the Flying Returns Programme (Ann.D-1 & D-2). He further submitted that the order of the District Forum being legal, is liable to be upheld.

10.                 In order to avail of the mileage points accrued to the complainant in November, 2002, the complainant requested the Opposite Parties for booking of a return ticket of Delhi-New York-Delhi and the same was accepted by them, but he could not avail of the same and vide letter dated 14.11.2008, Annexure C-7 requested to restore the mileage points which were shown to be redeemed.  Thereafter, the complainant wrote many letters/reminders dated 06.02.2009, 21.07.2009, 19.08.2009, Annexure C-10 to C-12 to the Opposite Parties in this regard.  The Opposite Parties vide  letter dated 11.09.2009, Annexure C-13 informed the complainant that as per the business Rules of the Flying Returns Programme, the mileage points earned and AOMPs transferred to the Programme in a particular calendar year were valid during that year and subsequent three calendar years of redemption and the points lapsed after this period.  Vide this letter, the Opposite Parties informed the complainant that the mileage points earned in Flying Returns and Add-on mileage points (AOMPs) transferred to Flying Returns upto 2003 were valid till 31.12.2006 and in order to facilitate the members to redeem these points, the validity of these points had been extended upto 30th June, 2007. Since the complainant could not avail of this facility within the prescribed period, the same had lapsed. Even vide letter (Annexure D-1) the Opposite Parties showed their inability to re-credit the mileage points  as the same had already lapsed in the interim period on account of non-utilization.

11.                 Furthermore, the Opposite Parties issued General Advisory to Members (Annexure D-2),  wherein, it was clarified that award tickets issued against redemption for such mileage points would have a maximum validity till 30th September, 2007 and all journeys had to be completed on or before this date and the validity of the award ticket coupons was non-extendable.  It will not be out of place to mention here that the complainant was well aware of the validity of unused mileage points till 30.09.2007 and the same is also evident from the letter dated 14.11.2008, Annexure C-7 at Page 33 of the District Forum file written by the complainant to the Opposite Parties.  Even the fact that the complainant could not avail of the mileage points  has been admitted by him in his letter dated 06.02.2009, Annexure C-8. From the sequence of events and the documents relied upon by the complainant, it is thus apparent that the complainant himself failed to avail of the unused mileage points well before the redemption date i.e. 30.09.2007 and, as such, he was not entitled to any benefit under the terms and conditions of the Flying Returns Programme and the Opposite Parties rightly denied his request for condoning the delay, in not availing of the points accrued to him as per their policy. The District Forum was, thus,  right in holding so.

12.                 However, the Opposite Parties wrongly informed the complainant that the mileage points had been utilized for the ticket Del-Lon-Jfk-Del in August, 2003, whereas, the perusal of the passport of the complainant(Annexure C-9), shows that he never utilized/redeemed  the same. However, to clarify the stand that the complainant never utilized the mileage points against the said ticket, he sent many letters/reminders to the Opposite Parties in this regard, which certainly caused him a lot of inconvenience and discomfort.  Had the Opposite Parties given the correct information to the complainant then there would have been no need for him to undertake this futile exercise.  Thus, the complainant is certainly entitled to compensation for mental agony and physical harassment, on this count, which is quantified at Rs.25,000/- besides costs of litigation of Rs.5000/-. This fact has not been fairly appreciated by the District Forum while dismissing the complaint. The order of the District Forum is, thus,  liable to be modified.

13.                 For the reasons recorded above, the appeal is partly accepted, and the order of the District Forum is modified as indicated above. We direct the Opposite Parties to pay:-

i)     Rs.25,000/- on account of mental agony and physical harassment, caused to complainant.

ii)    Rs.5000/- as costs of litigation.

14.                 The aforesaid amount of Rs.25,000/- shall be paid, by the Opposite Parties, to the complainant, within 45 days from the date of receipt of a certified copy of the order, failing which, the aforesaid amount shall carry interest @ 9% p.a. from the date of order, till its realization, besides litigation costs.

15.                 Certified Copies of this order be sent to the parties, free of charge.

16.                 The file be consigned to Record Room, after compliance.

Pronounced.                                                                                                  Sd/-    

  06.11.2012                             [JUSTICE SHAM SUNDER[RETD.]

                                                                                 PRESIDENT         

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                                                                                                            sd/-                                   [NEENA SANDHU]

                                                                                                MEMBER

APPEAL No.  235   of  2012

Argued by:  

Sh.Karan Nehra, Advocate for the applicant/appellant.

                Sh.S.R.Chaudhari, Advocate for the respondents.

                                                ---

                Alongwith the appeal, an application for condonation of delay of 39 days, in filing the same, has been moved by the Counsel for the applicant/appellant, on the ground, that the complainant was out of station and therefore, he could not contact his Counsel for the purpose of filing the appeal. It was stated that when the complainant came back on 20.06.2012 he tried to contact his lawyer but came to know that he (lawyer) had gone out of station due to summer vacation in the Hon’ble High Court.  It was further stated that the delay, in filing the appeal, is neither intentional nor willful.

2.                    In reply to the application, it was stated that each and every’s day delay in filing the appeal should be explained.   It was further stated that no ground was made out in the application to condone the delay. It was further stated that that the delay, in filing the appeal, is willful and intentional and the same cannot be condoned.

3.                    After hearing the Counsel for the parties and, on going through the record, we are of the considered opinion that the application for condonation of delay deserves to be allowed, for the reasons to be recorded hereinafter.  No doubt, there is a delay of 39 days, in filing the appeal.  However, it is settled principle of law, that normally every lis should be decided, on merits, than by resorting to hyper technicalities. When the substantial justice, and hyper-technicalities are pitted against each other, then the former shall prevail over the latter.    Keeping in view the factum that every lis should normally be decided, on merits, than by resorting to hyper-technicalities and finding sufficient cause, the application, which is supported by an affidavit, is allowed and the delay aforesaid, in filing the appeal, is condoned.

4.                    Admitted.  It be registered.

5.                    Arguments in the appeal already heard.

6.                    Vide our detailed order of the even date recorded separately, the appeal is partly accepted with costs and the order to the District Forum is modified, as per directions contained therein.             

                                        Sd/-                  sd/- 

06.11.2012               (MEMBER)                (PRESIDENT)  

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