DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 27th day of October, 2022
Filed on: 13/08/2018
PRESENT
Shri.D.B.Binu President
Shri. V. Ramachandran Member
Smt.Sreevidhia.T.N Member
CC.No.337/2018
Between
COMPLAINANT
1. Desouza David Francis Vincent, S/o. Martin Desouza, Maytin House, 42, Citizen Road, Ayyappankavu, Ernakulam, Kochi – 18
2. Desouza Jacqueline Isabel Mary, W/o. Desouza David Francis Vincent, Maytin House, 42, Citizen Road, Ayyappankavu, Ernakulam, Kochi – 18
3. Desouza Anthony Francis Sebastain, S/o. Desouza David Francis Vincent, Maytin House, 42, Citizen Road, Ayyappankavu, Ernakulam, Kochi – 18
4. Karrot Xavier Renjith Anthony, S/o. Xavier Anthony, Karrot House, Kumbalanghi, Pazhanghad P.O., Kochi 682007. Rep. by POA Holder Desouza David Francis Vincent
5. Rodrigues Linda, W/o. Karrot Xavier Renjith Anthony, Karrot House, Kumbalanghi, Pazhanghad P.O., Kochi 682007. Rep. by POA Holder Desouza David Francis Vincent
6. Loretta Edwina Nevis, W/o. late Caxton Nevis, “Ann”, 1/43A, Vypeen,Azheekal P.O., Kochi 682508. Rep. by POA Holder Cassandra Lourdes Nevis
7. Cassandra Lourdes Nevis, D/o. late Caxton Nevis, “Ann”, 1/43A, Vypeen,Azheekal P.O., Kochi 682508
VS
OPPOSITE PARTIES
- M/s. Greenchannel Holidays (India) Pvt. Ltd., No. 27/1167, Kizhavana Road, Panampilly Nagar, Ernakulam, Kochi 682036. Rep. by its Managing Director
- Anil Jose Simon Vilayil, Managing Director, M/s. Greenchannel Holidays (India) Pvt. Ltd., 650, Green Villa Plot No. 572, 27, Ernakulam, Kochi 682036.
- Aniamma, Director, M/s. Greenchannel Holidays (India) Pvt. Ltd., 572, Green Villa Plot No. 572, 27, Ernakulam, Kochi 682036.
- M/s. Etihad Airways, having its India Office at 1st Floor, Sunder Mahal 141, Marine Drive, Churchgate, Mumbai 400020 with its head office at Head Office, New Airport Road, Khalifa City, PO Box 35566, Abu Dhabi, UAE. Rep. by its authorized representative.
FINAL ORDER
D.B Binu , President
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 12 of the Consumer Protection Act, 1986. The complainant No.1 is a businessman by profession whilst Complainant No.2 is an Office Manager and the complainant No.3 is a director. The complainant No.1, 2 and 3 are immediate family members, being husband, wife, and son respectively. 2 The Complainant No.4 and Complainant No.5 are husband and wife who are engaged in missionary services, currently on a mission in Arunachal Pradesh; represented by Complainant No.1, who is their duly constituted attorney. The complainant No.6 is a homemaker and a widow whilst Complainant No.7 is an Advocate by profession practicing in the High Court of Kerala. The relationship between Complainant No.6 and Complainant No.7 is that of mother and daughter, Complainant No.6, is represented by Complainant No.7, who is her duly constituted attorney authorized to file the present complaint.
The Opposite Party No.1 is a company registered under the Companies Act 1956, engaged in the business of providing Domestic and International ticket booking, holiday packages and related services to customers. That Opposite Party No.2 is the Managing Director of Opposite Party No.1, whilst Opposite Party No.3 is the Whole time Director of Opposite Party No. 1. That both Opposite Parties Nos. 2 and 3 are actively involved in the day-to-day functioning and decision making of Opposite Party No.1 and hence are personally responsible and liable for the affairs of Opposite Party No. 1.The Opposite Party No.4, is a company registered under the Companies Act, engaged in the business of Air Transport, providing transportation services to customers. The Complainants state that sometime in January 2018, the Complainants along with their friends and relatives decided to go on a pilgrimage to Rome and Spain which was scheduled in May 2018. In order to proceed with the bookings, the Complainants relied on the representation made by Opposite Party Nos. 1 to 3, further that during the meeting scheduled with Opposite Party No.2, in the month of January 2018 the Opposite Party Nos. 1 to 3 promised to obtain airfares at the most competitive rates and also convinced the Complainant that they have been in the business for many years and that the entire air travel bookings will be taken care off in a professional manner.
That in accordance with the instructions of Opposite Party Nos. 1 to 3, in relation to the payment of the airfare charges, Complainant Nos. 1, 2 & 3 made a part payment of INR 46,629.00 on 22.01.2018, for which the Opposite Party Nos. 1 to 3, issued a receipt bearing no. 5178 dated 22.01.2018. The Complainants further state that the balance payment of INR 94,671.00 was made on 14.02.2018, for which the Opposite Party Nos. 1 to 3 issued a receipt bearing no. 5207 dated 14.02.2018; A copy of the receipt-bearing no. 5207 dated 14.02.2018, issued by Opposite Party Nos. 1 to 3 to Complainant No.1, for an amount of INR 94,671.00 is attached herewith along with the list of documents filed by the complainant. Therefore Complainant Nos. 1, 2 & 3 paid a total amounting to INR 1,41,300.00 toward 3 air tickets, which comes to INR 47,100.00 per Complainant. It is further stated that Complainant Nos. 4, 5, 6 & 7, each paid Opposite Party Nos. 1 to 3 an amount of INR 47,100.00 for which Receipt Vouchers were provided by the Opposite Party Nos. 1 to 3, all dated 19.02.2018, bearing nos. 52, 51, 53 & 54 respectively. A copy of the receipt voucher bearing no. 52 dated 19.02.2018, issued by Opposite Party Nos. 1 to 3 to Complainant No. 4 for an amount of INR 47,100.00 is attached herewith along with the list of documents filed by the complainant. The Complainants state that once the full airfare from Cochin to Rome and return from Madrid, Spain to Cochin, for an amount of INR 47,100.00 per person was paid to the Opposite Party Nos. 1 to 3. The Complainants were under the belief that the air tickets of the Opposite Party No.4 were booked. That when the Complainants and other members made inquiries about the air tickets with the Opposite Party Nos. 1 to 3, Opposite Party Nos. 1 to 3 insisted that only a copy of the air tickets would be submitted during the time of the visa application and that the final printout with the seat numbers and other details would be provided only a few days before the travel date. The Complainants trusted the Opposite Party Nos. 1 to 3 completely and hence based on the appointment booking made by the Opposite Party Nos. 1 to 3 as well as relying on the compilation of application papers by the Opposite Party Nos. 1 to 3, which also included a copy of the air ticket to be submitted for visa processing. The Complainants proceeded on the basis of the advice and instructions of Opposite Party Nos. 1 to 3 in this regard. The Complainants state that they were never provided with any copies of their application and supporting documents such as the air ticket that was compiled by the Opposite Party Nos. 1 to 3. That the Opposite Party Nos. 1 to 3 further convinced the Complainants that retaining copies of the same was not necessary thereby misusing their position and knowledge to mislead the Complainants. The Complainants state that on 20th April 2018, out of the 27 visa applications submitted through Opposite Party No.1, all the Complainant’s visa applications were refused, and the refusal letter and the passports were received by the respective complainants on 23rd April 2018; In effect, this meant that the Complainants were unable to proceed for their trip to Rome and Spain, despite the fact that the Complainants were ready and willing to go on the trip scheduled in May 2018. It is further pertinent to note that the Complainant’s intention in proceeding with the trip was clear from their applications for Schengen visa and that they had also made other reservations and bookings for their internal journey in Rome and Spain, however, this very unfortunate incident came as a rude shock to the Complainants, as all the Complainants has acted and proceeded on the advice given by the Opposite Party Nos. 1 to 3 in relation to the submission of their respective applications. The Complainants state that on receiving intimation of refusal of their respective visa; they passed on the information to Opposite Party Nos. 1 to 3 and also enquired about the refund of their air ticket fare, as they would not be traveling due to the visa refusal. The Opposite Party Nos. 1 to 3 informed the Complainant that they cannot provide a refund, raising untenable contentions. In order to get some clarity on the issue, the Complainants requested a meeting with the Opposite Party Nos. 1 to 3 at their office premises on 28th April 2018; wherein Opposite Party Nos. 1 to 3 informed the Complainants that the amount of INR 47,100.00 which was received from each of the Complainants towards air tickets was transferred to Opposite Party No.4, but that the air tickets were not actually booked/ reserved with Opposite Party No.4, and hence cancellation or refund was not possible. The Complainants were totally confused and at a loss of words because they could not grasp why their air tickets were not booked and issued by the Opposite Party Nos. 1 to 3 when full payment of INR 47,100.00 per person was made way back in February 2018, for which the Complainants hold receipts. The Complainants demanded an explanation from Opposite Party Nos. 1 to 3 for not booking the air tickets and for the reason of not being able to obtain a return of their full airfare since their tickets were never booked. The earnest and repeated requests of the Complainants addressed to the Opposite Parties fell on deaf ears and were not responded to or denied. The Complainants through their advocates issued a legal notice dated 05.06.2018 addressed to Opposite Party Nos. 1, 2, 3 & 4. The legal notice was duly received by all the parties. The Complainant further states that they did not receive any reply from Opposite Party Nos. 1, 2, and 3; However, the Complainants on 15.06.2018 received an email reply from Opposite Party No.4 stating that they were presently unable to locate or generate any information or date with regard to the Complainants travel reservations and further that since Opposite Party No.1 was independently managed, the Complainants should address their queries to them directly.
The Complainants state that they have paid an amount of INR 3,29,700.00 to Opposite Party Nos. 1 to 3 toward the airfare of 7 tickets and have procured the service of Opposite Party Nos. 1 to 3 to book their air tickets with Opposite Party No.4. The Complainants state that it is the claim of Opposite Party Nos. 1 to 3 that they have forwarded the Complainants' air fare amount to Opposite Party No.4. The Complainants state that since Opposite Party Nos. 1 to 3 received the amounts from the Complainants to book the air tickets, but did not in fact book the same, Opposite Party Nos. 1, 2 and 3 are liable to return the entire amount of INR 3,29,700.00 paid by the Complainants. It further submitted that no loss has occasioned to Opposite Party Nos. 1 to 4, on account of the Complainant's not traveling on the said flights. It is alleged by the complainant that they are liable to return Rs.39,564.00/-, paying Rs.14,00,000.00 as compensation for the deficiency of service and cost of the proceedings.
2) Notice
Notices were issued from the Commission to the opposite parties and the opposite parties received the notices but did not file their version. Hence the opposite parties set ex-parte.
3) Evidence :
The complainant has filed the Proof Affidavit and 10 documents which are marked as Exbt.A-1 to A-10. The complainant examined as PW-1
Exbt.A-1: copy of the receipt-bearing no. 5207 dated 14.02.2018, issued by Opposite Party No.1 to 3, to Complainant No. 1, for an amount of INR 94,671.00
Exbt.A-2: copy of the receipt-bearing no. 5178 dated 22.01.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 1, for an amount of INR 46,629.00
Exbt.A-3: copy of the receipt voucher bearing no. 52 dated 19.02.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 4 for an amount of INR 47,100.00.
Exbt.A-4: copy of the receipt voucher bearing no. 51 dated 19.02.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 5 for an amount of INR 47,100.00.
Exbt.A-5: copy of the receipt voucher bearing no. 53 dated 19.02.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 6 for an amount of INR 47,100.00.
Exbt.A-6: copy of the receipt voucher bearing no. 54 dated 19.02.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 7 for an amount of INR 47,100.00.
Exbt.A-7: copy of the legal notice bearing no. of CL/1166/2018/David/Greenchannel dated 05.06.2018 addressed to Opposite Party Nos. 1, 2, 3 & 4 with copies of the duly received acknowledgment cards.
Exbt.A-8: copy of the Power of Attorney by the Complainant No.4 in favour of Complainant No.1
Exbt.A-9: copy of the Power of Attorney by the Complainant No.5 in favour of Complainant No.1
Exbt.A-10: copy of the Power of Attorney by the Complainant No.6 in favour of Complainant No.7
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
The issues mentioned above are considered together and are answered as follows:
The Complainants fall under the ambit of the definition of a 'consumer' as defined in the Consumer Protection Act, 1986. As per Section 2 (d) a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. Further as per Section 2 (b) (iv) "complainant" means - one or more consumers, where there are numerous consumers having the same interest; In the present case in hand, the Complainants had availed the services of Opposite Party Nos. 1 to 3 for booking their air tickets. Moreover, the Complainants’ transactions would not fall within the purview of Commercial Purpose as the Complainants are the end users of the service and the services were for their personal enjoyment.
Hence, the complaint is maintainable as per the Consumer Protection Act, 1986. (Point No. I).
The Complainants submit that the services undertaken by Opposite Party Nos. 1 to 3 were not provided as per the requisites of the Complainants nor as promised. The laches on the part of Opposite Party Nos. 1 to 4 in failing to book the air tickets of the Complainants even after receiving payments for the same constitutes a deficiency in service. It is further submitted that the standard of the services offered by Opposite Party Nos. 1 to 3 in dealing with the queries and concerns of the Complainants was highly inefficient and ineffective, quite contrary to the company's claims.
It is also submitted that the very act of failing to provide the warranted services and inadequacies in services falls within the scope of 'deficiencies in services' and 'unfair trade practice' due to false and misleading representation of services, as defined under the Consumer Protection Act, 1986.
The Complainants further submit that the Opposite Parties have indulged in unfair trade practices by making false and misleading statements to the Complainants not only in relation to the services but that Opposite Party Nos. 1 to 3 were also deceptive in their dealings with the Complainants as they failed to be transparent about their practice of not booking or reserving the air tickets with Opposite Party No.4; further, the Opposite Parties have failed in letting the Complainants know what has been done with their monies and have deceived them by passing the buck from one to the other. The Opposite Party Nos. 1 to 3 has further used their expertise and experience in the industry to falsely represent to the Complainants that their services were necessary to get the best airfares from Opposite Party No.4 when they clearly had no intention of booking the air tickets on behalf of the Complainants.
The Opposite Party Nos. 1 to 3 also used deceptive means thereby clearly coming within the purview of Section 2 (1) (r) "unfair trade practice" more specifically under sub section (1) & (iv) of the Consumer Protection Act, 1986.
We have also noticed that Notices were issued from the Commission to the opposite parties and the opposite parties received the notices but did not file their version. Hence the opposite parties set ex-parte. The complainant has filed the Proof Affidavit and 10 documents which are marked as Exbt.A-1 to A-10. All in support of their case. But the opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex parte order passed against it.
The opposite parties’ conscious failure to file their written versions in spite of their having received the Commission’s notice to that effect amounts to an admission of the allegations leveled against them. The Hon’ble NC held a similar stance in its order cited 2017(4) CPR page 590 (NC).
The Opposite Party Nos. 1 to 3 has inadequately performed the service as contracted with the complainants and hence there is a deficiency in service, negligence, and failure on the part of Opposite Party Nos. 1 to 3 in failing to provide the Complainants desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainants.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainants for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainants had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainants.
Hence the prayer is partly allowed as follows:
i. The Opposite Parties No. 1 to 3 shall refund the amount of Rs.3,29,700/- (Rupees three lakh twenty nine thousand seven hundred only) along with interest within 30 days of the receipt of the copy of the order.
ii. The Opposite Parties No. 1 to 3 shall pay the complainants Rs.3,50,000/- (Rupees three lakh fifty thousand only) [Rs.50,000/- each to 7 complainants] each as compensation for loss caused to the complainants due to the deficiency in service and unfair trade practice of the opposite parties.
iii. The Opposite Parties shall also pay the complainant Rs.2,500/- (Rupees two thousand five hundred only) towards the cost of the proceedings.
All the above amount shall be paid by the opposite parties jointly and severally. The above-mentioned directions shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order, failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission
this 27th day of October 2022 Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exbt.A-1: copy of the receipt-bearing no. 5207 dated 14.02.2018, issued by Opposite Party No.1 to 3, to Complainant No. 1, for an amount of INR 94,671.00
Exbt.A-2: Copy of the receipt-bearing no. 5178 dated 22.01.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 1, for an amount of INR 46,629.00
Exbt.A-3: Copy of the receipt voucher bearing no. 52 dated 19.02.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 4 for an amount of INR 47,100.00.
Exbt.A-4: Copy of the receipt voucher bearing no. 51 dated 19.02.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 5 for an amount of INR 47,100.00.
Exbt.A-5: Copy of the receipt voucher bearing no. 53 dated 19.02.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 6 for an amount of INR 47,100.00.
Exbt.A-6: Copy of the receipt voucher bearing no. 54 dated 19.02.2018, issued by Opposite Party No. 1 to 3, to Complainant No. 7 for an amount of INR 47,100.00.
Exbt.A-7: Copy of the legal notice bearing no. of CL/1166/2018/David/Greenchannel dated 05.06.2018 addressed to Opposite Party Nos. 1, 2, 3 & 4 with copies of the duly received acknowledgment cards.
Exbt.A-8: Copy of the Power of Attorney by the Complainant No.4 in favour of Complainant No.1
Exbt.A-9: Copy of the Power of Attorney by the Complainant No.5 in favour of Complainant No.1
Exbt.A-10: Copy of the Power of Attorney by the Complainant No.6 in favour of Complainant No.7
Despatch date:
By hand: By post
kp/
CC No. 337/2018
Order Date: 27/10/2022
