Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The   complainant has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that  Opposite Party  No.1  is an airline service having its operations all over world and as such, Opposite Party  No.1   is heading its India operations as such competent to be sued on behalf of Opposite Party  No.1. Opposite Party  No.2  is the authorised ticket  booking agent of Opposite Party  No.1   having its operations all over Punjab and Opposite Party  No.3 is the sub agent of Opposite Party  No.1   and 2 for the purpose of air ticket booking as such the Opposite Parties falls within the ambit of service provider as defined under the Consumer Protection Act. The Complainant alleges that in the month of August, 2018 he visited Moga  in connection with his some personal work and he intended to book two air travelling tickets for his wife Smt.Shikha Bansal and son  Shubham Bansal of China Southern Air line i.e. Opposite Party  No.1   on 23.08.2018 for its schedule flight dated 13.12.2018 from Delhi to Kamloops BC via Vancouver through Opposite Party  No.2  and accordingly, Opposite Party  No.2  further authorised Opposite Party  No.3 to deal on their behalf with the Complainant at Moga. Opposite Party  No.3 approached the Complainant  and inquired about the scheduled date of departure of his wife and son. On information sought by Opposite Party  No.3, the Complainant specifically instructed Opposite Party  No.3 to book refundable tickets on 13.12.2018 for the scheduled flight of Opposite Party  No.1   from Delhi to Kamloops BC via Vancouver. Accordingly as per the demand made by Opposite Party  No.3, the Complainant paid Rs.1,32,000/- and two air tickets bearing No. 7842684299873-874 and 7842684299875-876 through reservation No. 552245 were booked on 22.08.2018 and at that time, Opposite Party  No.3 told that these tickets are  refundable. In the month of November, 2018 due to some unavoidable family circumstances, the Complainant was forced to cancel the aforesaid air tickets booked by the Complainant through Opposite Party  No.3. The Complainant contacted the Opposite Parties for the refund of the ticket charges of Rs.1,32,000/-. At that time, Opposite Party  No.3 told that the cancellation charges of Rs.19,000/- for each tickets are being claimed by Opposite Party  No.1. As per the information given by Opposite Party  No.3, the Complainant requested him to do the needful and after paying the cancellation chares of Rs.38,000/-  the remaining amount be refunded back to the Complainant ,  but despite repeated requests, the Opposite Parties did not pay any heed to the request of the Complainant and in this way, the Complainant suffered mental tension and harassment.  Vide instant  complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to refund the amount of Rs.94,000/- alongwith interest @ 18% per annum and to pay  Rs.2 lakhs on account of compensation for causing mental tension, harassment and deficient service or any other relief to which this District Consumer Commission,  may deem fit be granted.

Hence, the present complaint is filed by the Complainant  for the redressal of his grievances.

2.       On notice,  none has appeared on behalf of Opposite Parties No.1 and 3 and hence, they were proceeded against exparte. Opposite Party No.2  appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that  the complainant has got no locus standi to file the present complaint;  that the complaint is absolutely false and frivolous. The true facts are that Opposite Party  No.2   is the certified IATA (International Air Transport Association) agent and having good reputation in the market and Opposite Party  No.2  is the authorized agent of China Southern Airlines and deals in sale purchase basis of the air tickets for China Southern Airline and other Airlines. It is admitted that two air tickets bearing No. 7842684299873-874 and 7842684299875-876  have been issued  in the name of Smt.Sikha Bansal wife of Raghunandan Bansal and Shubham Bansal son of Raghunandan Bansal from Delhi to Kamloops and from Kamloops to Delhi and on the asking of Opposite Party  No.3, answering Opposite Party  No.2  cancelled the above said tickets, but Opposite Party  No.3 was very much aware and having knowledge that said tickets are non refundable and even if the customer/ passenger wants or wishes to change the date of travel it can be changed, only after paying the penalty charges as per the rules and regulations of the concerned airline/ tickets.  Moreover, Opposite Party  No.2  has no power to refund the booking amount and only the concerned airline has power to refund the booking amount after deducting the cancelling charges as per the rules and regulations and the policy terms as settled at the time of booking of air tickets and hence, there is no deficiency in service on the part of Opposite Party  No.2. On merits, the Opposite Party No.2 took up the same and similar pleas as taken up by them in the preliminary objections and hence, it is prayed that the complaint of the complainant is liable to be dismissed against Opposite Party  No.2.               

3.       In order to prove his case, the complainant has tendered into evidence his  affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C15, additional affidavit Ex.C16 and original CD Ex.C17 and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, Opposite Party No.2 also tendered  into evidence affidavit of Sh.Kulwant Rai Proprietor Ex.OP2/1 alongwith copies of documents Ex.OP2/2 to Ex.Op2/7 and closed the evidence on behalf of the Opposite Party No.2. 

5.       We have heard the ld.counsel for the parties, perused the written submissions filed by Opposite Party  No.2   and also gone through the documents placed on record.

6.       Ld.counsel for the Complainant has  mainly reiterated the facts as narrated in the complaint and contended that Opposite Party  No.1  is an airline service having its operations all over world and as such, Opposite Party  No.1   is heading its India operations as such competent to be sued on behalf of Opposite Party  No.1. Opposite Party  No.2  is the authorised ticket  booking agent of Opposite Party  No.1   having its operations all over Punjab and Opposite Party  No.3 is the sub agent of Opposite Party  No.1   and 2 for the purpose of air ticket booking as such the Opposite Parties falls within the ambit of service provider as defined under the Consumer Protection Act. The Further contended that in the month of August, 2018 the Complainant visited Moga  in connection with his some personal work and he intended to book two air travelling tickets for his wife Smt.Shikha Bansal and son  Shubham Bansal of China Southern Air line i.e. Opposite Party  No.1   on 23.08.2018 for its schedule flight dated 13.12.2018 from Delhi to Kamloops BC via Vancouver through Opposite Party  No.2  and accordingly, Opposite Party  No.2  further authorised Opposite Party  No.3 to deal on their behalf with the Complainant at Moga. Opposite Party  No.3 approached the Complainant  and inquired about the scheduled date of departure of his wife and son. On information sought by Opposite Party  No.3, the Complainant specifically instructed Opposite Party  No.3 to book refundable tickets on 13.12.2018 for the scheduled flight of Opposite Party  No.1   from Delhi to Kamloops BC via Vancouver. Accordingly as per the demand made by Opposite Party  No.3, the Complainant paid Rs.1,32,000/- and two air tickets bearing No. 7842684299873-874 and 7842684299875-876 through reservation No. 552245 were booked on 22.08.2018 and at that time, Opposite Party  No.3 told that these tickets are  refundable. In the month of November, 2018 due to some unavoidable family circumstances, the Complainant was forced to cancel the aforesaid air tickets booked by the Complainant through Opposite Party  No.3. The Complainant contacted the Opposite Parties for the refund of the ticket charges of Rs.1,32,000/-. At that time, Opposite Party  No.3 told that the cancellation charges of Rs.19,000/- for each tickets are being claimed by Opposite Party  No.1. As per the information given by Opposite Party  No.3, the Complainant requested him to do the needful and after paying the cancellation chares of Rs.38,000/-  the remaining amount be refunded back to the Complainant ,  but despite repeated requests, the Opposite Parties did not pay any heed to the request of the Complainant. Ld.counsel for the Complainant has further contended that no such rule or  regulation or any terms or conditions of the airline has ever produced or supplied by the Opposite Parties and as such,  the alleged rules or regulations which were never supplied or produced are not applicable to the facts of the present case.  

7.       On the other hand, none has put in appearance on behalf of Opposite Parties No.1 and 3, whereas ld.counsel for Opposite Party  No.2  has repelled the aforesaid contention of ld.counsel for the Complainant on the ground that  Opposite Party  No.2   is the certified IATA (International Air Transport Association) agent and having good reputation in the market and Opposite Party  No.2  is the authorized agent of China Southern Airlines and deals in sale purchase basis of the air tickets for China Southern Airline and other Airlines. It is admitted that two air tickets bearing No. 7842684299873-874 and 7842684299875-876  have been issued  in the name of Smt.Sikha Bansal wife of Raghunandan Bansal and Shubham Bansal son of Raghunandan Bansal from Delhi to Kamloops and from Kamloops to Delhi and on the asking of Opposite Party  No.3, answering Opposite Party  No.2  cancelled the above said tickets, but Opposite Party  No.3 was very much aware and having knowledge that said tickets are non refundable and even if the customer/ passenger wants or wishes to change the date of travel it can be changed, only after paying the penalty charges as per the rules and regulations of the concerned airline/ tickets.  Moreover, Opposite Party  No.2  has no power to refund the booking amount and only the concerned airline has power to refund the booking amount after deducing the cancelling charges as per the rules and regulations and the policy terms as settled at the time of booking of air tickets and hence, there is no deficiency in service on the part of Opposite Party  No.2.

8.       It is the admitted case of the parties that  two air tickets bearing No. 7842684299873-874 and 7842684299875-876  have been issued  in the name of Smt.Sikha Bansal wife of Raghunandan Bansal and Shubham Bansal son of Raghunandan Bansal from Delhi to Kamloops and from Kamloops to Delhi  amounting to Rs. 1,32,000/- and on the asking of Opposite Party  No.3, answering Opposite Party  No.2  cancelled the above said tickets. The next  plea  raised by opposite Party No.2 is that as per rules and regulation  and as per the terms and conditions, the amount of tickets is not refundable and hence, the complainant is not entitled to the claim as claimed.  But the Opposite Party could not produce  any evidence to prove that rules or regulations/ policy terms as settled at the time of booking of air tickets and whenever such policy terms  were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the alleged  policy terms unless it is proved that such policy terms were  supplied to the insured. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the policy terms at the time of booking of the air ticket to the Complainant. As such, these policy terms, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

9.       Perusal of the record further shows that on the copies of air tickets produced by the Complainant on record Ex.C2 and Ex.C3, there is no such mention regarding the non refund of the amount on account of cancellation of air tickets  or the whole amount is non refundable, but however, as claimed by the Complainant himself that he is entitled to the refund after deducting the cancellation charges of Rs.38,000/- (i.e.Rs.19,000/- of each ticket).   Admittedly, the Complainant has purchased two air tickets bearing No. 7842684299873-874 and 7842684299875-876 through reservation No. 552245 from  the Opposite Parties, for his wife Smt.Shikha Bansal and son  Shubham Bansal of China Southern Air line on 23.08.2018 for its schedule flight dated 13.12.2018 from Delhi to Kamloops BC via Vancouver and paid Rs.1,32,000/- and we are of the view that after deducting the cancellation charges, the Complainant is certainly entitled  to the balance amount of Rs.94,000/-. 

10.     In view of the aforesaid facts and circumstances of the case,  the complaint of the complaint is allowed partly and the Opposite Parties are jointly or severally directed to refund the amount of Rs. 94,000/- (Ninety four thousands only) alongwith interest @ 8% per annum from the date of filing of this complaint i.e. 01.08.2019 till its realization.  The Opposite Parties are  also directed to pay lump sum compensation to the complainant amounting to Rs.10,000/- (Rupees Ten thousands only) for causing him mental tension and harassment as well as costs of litigation. The compliance of this order be made by the Opposite Parties jointly or severally,  within 45 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

11.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated:15.02.2022.