PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainants have prayed that it be declared that there is deficiency on the part of the Opposite Parties in not allowing the Complainants to board the flight which amounted causing the harassment to them. The Complainants have also prayed an amount of Rs.15,43,210/- with interest @ 18% p.a. and cost of the complaint.

2)        According to the Complainants, they are consumers as defined under the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  It is alleged that the Opposite Party No.2 had booked the air tickets for the Complainants of Opposite Party No.1.  The Complainants traveled by the flight of Opposite Party No.1 for which the tickets were booked for the tour which was arranged by the Opposite Party No.2.  It is submitted that the Opposite Party No.2 worked as Agent for several airlines (IATA) for booking the tickets.  It is alleged that the Complainants booked package tour for Europe known as Grand Europe Tour for the Complainants and the minor child of Complainant No.1 & 2.  The said tour was organized by Opposite Party No.2 to and fro such as, booking of air tickets, boarding and lodging for the Complainants.  The tickets were booked for traveling through Opposite Party No.1 Airlines.  Departure tickets of Complainants were of the date 08/05/2006 and Return tickets were booked and arranged of the date 31/05/2006. 

3)        It is submitted that as per the said package tour, if anyone wanted to extend his stay for further days the return ticket was given and booked for the said passenger for the said extended date and handed over to him.  According to the Complainants, they extended their tour program upto 31/05/06 and accordingly they were given OK reserved tickets.  The copies of the said air tickets issued to the Complainants and minor Nirmity by the Opposite Party No.2 which were booked for the flight dtd.31/05/06 of Opposite Party No.1 are the copies which are marked Exh.‘A’.  It is submitted that on 31/05/06 when the Complainants alongwith minor Nirmity reached Airport for boarding the flight, the authorities of Opposite Party No.1 did not permit the Complainants to board the flight for the reason that the Complainants were not having booking for the said flight of Opposite Party No.1 in spite of OK tickets issued and being shown to the employee of the Opposite Party No.1. The employee of the Opposite Party No.1 refused to give boarding permission or pass for the said flight.  According to the Complainants, on repeated requests made by them to the officer of the Opposite Party No.1 present at the airport that the Complainants were having OK tickets, he informed the Complainants that no sits are available in the said fight.  It is submitted that the Complainant immediately talked to the officer of the Opposite Party No.2 Mr. Datta Sawant and then he again talked to the authorities of Opposite Party No.1 who were attending them on Heathrow Airport London.  The employee of the Opposite Party No.1 then responded to the Complainant by saying that if they pay the additional charges of 432 Pounds, the Complainants will be permitted to board the same flight.  The Complainants against talked to Mr. Datta Sawant of Opposite Party No.2 on phone and he asked the Complainants to pay the said amount and assured them that the said amount will be refunded to the Complainants when the Complainants would reach at Bombay.  It is submitted that accordingly, the Complainants made payment.  The copy of the receipt is marked as Exh.‘B’.  It is alleged that the Complainants had obtained OK tickets for the said package tour from Opposite Party No.2 for themselves of Opposite Party No.1.  However, in spite of the same the Complainants were not allowed to board the flight for which they were having OK/confirmed tickets of Opposite Party No.1. 

4)        According to the Complainants when they entered the flight after paying the additional charges of 432 Pounds they noticed that about 12 seats were unoccupied and the flight was not full.  It is alleged that in spite the Complainants having OK tickets for the same flight and as the flight was not fully occupied the Complainants were harassed by the Opposite Party No.1 and its officer on duty by not allowing to board the flight as well as making false statement that the flight was full and thereafter allowing to board the same flight by obtaining additional payment of 432 Pounds.  It is alleged that the Complainants brother is carrying on business of tours and travels in the name and style of Wings Travels & Tours.  It is alleged that the Complainant had talked to his brother and who also checked from the computer and informed the Complainant that there were 12 vacancies available in the said flight on 31/05/06.  It is alleged that in spite of having OK tickets for the Complainants, the Opposite Party No.2 who was tour organizer and entered into contract with Opposite Party No.1 had not given proper service which amounts to deficiency of service on the part of Opposite Party No.1 & 2. 

5)        According to the Complainants they had purchased goods worth 535.40 EUR from SDWAROUSKI  a Crystal factory outlet.  Copy of the bill is marked as Exh.‘C’.  It is submitted that as per the terms and conditions the Complainants were entitled to refund of 73 EUR while boarding the flight for the said refund of 73 EUR separate voucher was also issued in the name of Complainant No.2. The copy of which is marked as Exh.‘D’.  It is the case of the Complainants that they were intimated to board the flight at 8.15 p.m.  The time of the flight was 8.30 p.m.  The Complainants therefore, could not collect the said amount.  The copy of the refund voucher is marked as Exh.‘E’.

6)        It is alleged that after returning to Bombay the Complainant wrote a letter to Gulf Airways i.e. Opposite Party No.1.  It replied to the Complainant No.1 by letter dtd.12/06/2006.  The copy of the said letter is marked as Exh.‘F’.  According to the Complainant, the Opposite Party No.1 by its letter dtd.15/06/2006 intimated the Complainant No.1 that they are looking to the mater.  The Opposite Party No.1 again by its letter dtd.10/08/06 confirmed that it was a mistake on the part of their staff and also confirmed that the booking could not located by their staff and therefore, they have not allowed the Complainant No.1 & Nirmiti to board the flight.  It is alleged that from the aforesaid letter it is abundantly clear that the tickets were booked by the Complainant through the Opposite Party No.1.  The mistake was on the part of the Opposite Party No.2.  It is alleged that therefore, the Opposite Parties No.1 & 2 are liable for their deficiencies. The copy of the letter dtd.10/08/06 written by the Opposite Party No.1 is marked at Exh.‘G’. 

7)        It is alleged that the Opposite Party No.2 by its letter dtd.14/08/06 regretted the inconvenience caused to the Complainants.  The Opposite Party No.2 also confirmed that the tickets were OK and the mistake was on the part of Opposite Party No.1.  The Opposite Party No.2 also confirmed that the flight was not fully occupied.  The copy of the said letter is marked as Exh.‘E’. 

8)        It is submitted that the entire tour program was arranged by Opposite Party No.2 and by committing the mistake by the Opposite Parties No.1 & 2 the hardships were caused to the Complainants which amounts to deficiency in service on the part of Opposite Parties.  The situation was such that if the Complainants could have missed the flight the Complainant No.1 would have lost his job.  The Complainants therefore, suffered mental harassment.  The Complainant No.1 borrowed the money from his friend and paid to the Opposite Party No.1.  It is therefore, submitted that both the parties are liable to compensate the Complainants. 

9)        The Complainants submits that they are entitled to refund 434 Pounds which works out to Indian Rs.34,720/-.  The Complainants also claimed that they are entitled to 73 EUR for non refund as per Exh.‘D’ which works out to Indian Rs.5,475/-.  The Complainants have claimed total amount of Rs.40,195/- with interest @ 18% p.a. from the date of payment i.e. 31/05/06.  The Complainants also claimed Rs.15 Lacs as compensation towards mental harassment caused to them.

10)      The Opposite Party No.1 filed reply and contested the complaint.  It is contended that the airline booking was made by the Opposite Party No.2 on the Opposite Party No.1’s airline.  The Opposite Party No.1 was no way involved in the booking of the air tickets of the Complainants.  It is contended that the Opposite Party No.2 was an accredited IATA Agent.  It is submitted that when an agent makes booking of any airlines for his client he is expected to make it on the computer in the airline reservation system and having done so, the booking has to be ticketed by the agent within a specified time limit.  The agent would then issue an OK status ticket to the passenger.  If the agent fails to ticket the booking on the system within the prescribed time limit, the booking automatically stand cancelled and the seat would be allotted to another passenger either by the concerned airline or by some other airlines.  In the Complainants instance, Opposite Party No.2 had made confirmed booking for the Complainants only from Bombay to Paris on the out bound sector. The Complainants were to commence their return flight to Bombay at the end of the tour from London via Muscat to Bombay.  It is contended that the Opposite Party No.2 had issued OK status tickets to the Complainants for he sectors London/Muscat/Bombay but the Opposite Party No.2 had not entered the said booking on the reservation system of Opposite Party No.1 at all.  It is submitted that as a result despite the Complainants holding OK status ticket for the London/Muscat/Bombay sectors, the Complainants had no booking in their name at all on the reservation system of Opposite Party No.1.  Consequently when the Complainants went to check in for their return flight at London Airport the staff of the Opposite Party No.1 at the checking counter could not give them a boarding pass as they had no booking and there were no seats available in V Class for which they ostensibly held their seats. 

11)      According to the Opposite Party No.1, as the Complainants insisted for being accommodated on that vary flight they had to be upgraded from V Class to M Class and one of them namely Mr. Nishit Jhaveri had to purchase a Muscat/Bombay ticket in business class as there were no other seats available in M Class for the Muscat/Bombay Sector.  It is contended that the said up-gradation involved payment of extra airfare as M Class is more expensive than V Class and Business Class is even much more expensive than M Class.  It is contended that at the last minute just before departure the quota of tickets in V Class having been exhausted, the Complainants have to be given M Class tickets which was a higher airfare than V Class and therefore they have to pay the difference.  It is denied that the Complainants were made to pay higher fair although there were 12 vacant/unoccupied seats in the plane.  It is contended that the return journey of the Complainants was consisted of two sectors, London/Muscat and Muscat/Bombay and the passenger had to change aircraft at Muscat. It is contended that M Class ticket were available on London/Muscat sector, but the entire economy class (whether V class or M class) on the Muscat/Bombay Sector was totally full.  It was not possible for the checking staff at Heathrow Airport to estimate how many passengers will not turn up at Muscat Airport and how many vacancies may thus be created at Muscat.  Therefore, only 3 of the Complainants could be accommodated in the Economy M Class/Muscat/Bombay and one Complainant Mr. Nishit Jhaveri, had to purchase a Business Class ticket for Muscat/Bombay as he wanted to take that very flight.  It is contended that on London/Muscat Sector Mr. Nishit Jhaveri traveled Economy Class and the Opposite Party No.1 did not even charged him the differential fare between V Class and M Class and only 3 Complainants had to pay the differential amount for both the sectors and Mr. Nishit Jhaveri had to purchase the Business Class ticket for Muscat/Bombay Sector only.

12)      According to the Opposite Party No.1 it has been their experience that booking made by the Opposite Party No.2 for many of their clients were very often, like in the case of Complainants, made irresponsibly and with all kinds of irregularity, to the detriment of the passenger concerned and the harassment of the airline and its staff.  The various types of irregularity and faulty bookings frequently made by the Opposite Party No2 such as, OK status are issued but no valid reservation was made on the airline reservation system (on the computer).  It is contended that this would result in the passenger being denied boarding, if the flight is already completely booked. The Opposite Party No.1 has also given some instances on the part of Opposite Party No.1 of not booking the tickets properly and making of faulty bookings. 

13)       The Opposite Party No.1 relied the documents at Exh.1 to 4 that is printout from the Opposite Party No.1’s computer reservation system and denied that there was any deficiency of service on the part of Opposite Party No.1.  It is contended that the service rendered by the Opposite Party No.2 to the Complainants was grossly deficient as no proper and valid bookings were made by Opposite Party No.2 which resulted in the troubles and problems faced by the Complainants.  It is contended that whatever communicated in the letters of Opposite Party No.1 to the Complainants was properly communicated and it was pointed out that the mistake was on the part of Opposite Party No.2  It is contended that there was no deficiency of service on the part of Opposite Party No.1 and it was only as a result of the Opposite Party No.2 whose negligence, default and deficiency of service that the Complainants found themselves in the plight that they were in. It is therefore, denied that the Opposite Party No.1 is liable to pay any amounts to the Complainants and therefore, it is prayed that the complaint against Opposite Party No.1 be dismissed with cost.

 14)      The Opposite Party No.2 by the written statement contested the claim made in the complaint.  It is contended that the Complainants have not approached to this Forum with clean hands and therefore, they are not entitled for any reliefs.  It is alleged that the Opposite Party No.2 is authorized IATA Agent and the leading International Tour Operators of India for more than 30 years.  It is contended that the Complainants requested the Opposite Party No.2 to separate them from the group at the end of the tour on 29/05/2006 and requested to extend their return journey ticket from 29/05/06 to 31/05/06 as the Complainants were to stay back in London.  It is submitted that as per the request of the Complainants the Opposite Party No.2 issued confirmed tickets for to and fro travel ticket from London to Mumbai and back as per reservation system.  It is contended that all the tickets issued by the Opposite Party No.2 to the Complainants were duly confirmed tickets having OK status as per the system PNR of the Opposite Party No.1.  The tickets are issued as per confirmation on the airlines system which is fully computerized.  It is denied that the employee of Opposite Party No.2 Datta Gaikwad promised the Complainants that the amount paid by them to the Opposite Party No.1 would be refunded by the Opposite Party No.2.  It is contended that the Complainant ought to have reached airport to claim vat refund from Global Refund Counter at Heathrow Airport and any grievances in respect of the same are unwarranted and the Opposite Party cannot be held responsible for the same.  

 15)      It is denied there exists any master servant relationship between Opposite Party No.1 & 2. It is denied that the Opposite Party No.2 is vicariously liable for the wrongful act of the Opposite Party No.1. The Opposite Party No.2 cannot be held responsible for acts or omission of the Opposite Party No.1 or for any alleged harassment or inconvenience caused to the Complainants.  It is submitted that once the Opposite Party No.2 issued confirmed ticket of the airlines everything was under control of respective airlines.  It is contended that it is universal practice in the world that all international airlines make over bookings, assuming certain amount of cancellation as it is not affordable to them to fly with vacant seats.  Hence, often the passengers holding the confirm tickets are not accommodated on the flight.  It is contended that the claim for compensation is absolutely imaginary, baseless and unjustified.  The claim of the Complainants is exorbitant.  The Opposite Party No.2 is not liable to pay the same or any part thereof.  The Complainants have claimed huge compensation of Rs.15 Lacs but they have miserably failed to justify the claim by any documentary poof.  It is submitted that the complaint deserves to be dismissed with compensatory cost to the Opposite Party No.2.

16)      The Complainants have filed affidavit of Complainant No.1 in support of the claim.  The Opposite Party No.1 filed affidavit of Raju Nambiar, General Manager, India.  The Opposite Party No.2 filed affidavit of Bhalchandra Shelke.  The Complainants have filed written arguments and both the parties have filed their written arguments.  We heard the oral argument of Complainant No.1 in person and Shri. S.E. Bharucha, Advocate for M/s. Wadia Gandhi Associates on behalf of Opposite Party No.1.  The Opposite Party No.2 and its advocate remained absent in spite of notice of oral argument to them.       

17)      While considering the claim made by the Complainants in this complaint it is undisputed that the Complainants have booked a trip to Europe for themselves and their minor daughter through Opposite Party No.2. The Complainants were to commence their return journey from London to Bombay via Muscat on 31/05/2006.  It is undisputed that the Opposite Party No.2 was the authorized agent of Opposite Party No.1.  It is also undisputed that the Opposite Party No.2 had issued OK status ticket for all sectors to the Complainants of the Opposite Party No.1.  It is also undisputed that the Complainants were required to pay higher charges while returning from London to Bombay as the Opposite Party No.1 did not permit the Complainants to board the flight for the reason that the Complainants were not having their booking for the said flight of Opposite Party No.1 in spite they were having OK tickets of the Opposite Party No.1.  The Opposite Party No.1 directed to pay additional charges of Rs.432 Pounds to the Complainants for allowing to board on the flight for which they were having the OK tickets.  It is a fact that in spite of convincing by the Complainants to the staff of the Opposite Party No.1 only on payment of additional charges of Rs.432 the Complainants were allowed to board on the same flight by the Opposite Party No.1.  Both the Opposite Parties by their written statements denied their liability to pay compensation as claimed by the Complainants.  Both the Opposite Parties contended that for the inconvenience caused to the Complainants the other Opposite Party is liable.  The Ld.Advocate for the Opposite Party No.1 by pointing out the provisions of ticketing handbook published by IATA and the documents filed alongwith the written statements of Opposite Party No.1 made submission that the Opposite Party No.1 is not liable to pay any compensation to the Complainants but at the most Opposite Party No.2 can be held liable to pay compensation to the Complainants. Upon going thorough the pleadings in the complaint and pleadings in the written statements of both the parties in our view the defence raised by the Opposite Parties is unjustified as it is undisputed that the Complainants were possessing confirmed (OK) tickets and the Opposite Party No.1 initially denied the Complainants to board on the said flight for the reason that they were not having their booking on the Opposite Party No.1’s system.  The advocate for the Opposite Party No.1 in his oral argument also raised the same contention and submitted that the Complainants have purchased the ticket from agent, the airline i.e. Opposite Party No.1 therefore, could not be saddled with the liability.  He also tried to rely upon the documents of Opposite Party No.1 showing the status of the tickets of the Complainants and submitted that the Opposite Party No.1 is not at all liable to pay compensation to the Complainants.  In our view the said submission made by him cannot be accepted in view of the decision of the National Consumer Disputes Redressal Commission in the case of Air India V/s. Harprit Singh, III (2003) CPJ 123 (NC).  In this decision, contention that Air India was not liable for fault of agent was rejected.  From the said decision it is clear that even where the ticket has been issued by the agent of the airlines, the principal is liable for the act of the agent.  In other case decided by the Hon’bel Delhi State Consumer Disputes Redressal Commission i.e. Indian Airlines V/s. Renu Gupta & Ors., II (2006) CPJ 443 it has been observed that even if the tickets are purchased from the agent, the principal is required to inform the passenger about the change in the time of flight and plea that it was conveyed to the agent for onward communication, is not discharged of the obligation.  In the case of the Manager, Air India Ltd. V/s. A. Moiddin Kutty, I (2003) CPJ 65 (NC) where the Complainant was prevented seat in the aircraft despite confirmed ticket from Bombay to Riyad, the Airlines was rightly held guilty of deficiency in service though if attributed deficiency to the computer.  In the present case undoubtedly the passengers were not accommodated in the flight on their original confirmed tickets and they were directed to pay additional charges and that to in foreign currency at the foreign airport by the Opposite Party No.1 and only on making the payment of additional charges they were allowed to travel by the flight which the Complainants having their confirmed tickets. In our view the airlines cannot brush aside or shirk from their liability by merely attributing it to some mistake or confusion.  Even if it is assumed that the mistake occurred at the end of the agent, the airlines being vicariously liable is under obligation to pay the compensation.  In support of the view taken by us the observations in the case of Jet Airways (India) Ltd. V/s. Amit Nimade, reported in III (2009) CPJ 99 of the Hon’ble Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal are relied by us.

18)      In our view considering the embarrassment as alleged in the complaint suffered by the Complainants the Opposite Party No.1 & 2 are equally liable to pay the amount of additional charges of 432 Pounds to the Complainants which is alleged works out to Indian Rupees of Rs.34,720/-.  The case made out by the Complainants that they are entitled for 73 EUR as they could not receive refund as per Exh.‘D’ to the complaint due to the embarrassment made by the Opposite Party No.1 by not allowing the Complainants to board the flight though they were having OK tickets and their time was wasted for the required compliance directed to be made by the staff of the Opposite Party No.1 is justifiable.  We therefore, hold that the Opposite Party No.1 is liable to refund or pay the amount of 73 EUR which works out to Indian Rs.5,475/-.  As we held that both the parties are equally liable to refund the payment of additional charges recovered from the Complainants in our view the Opposite Party No.1 & 2 each are therefore, necessary to be directed to pay Rs.17,360/- to the Complainants alongwith interest @ 9% p.a. from 31/05/2006 till realization of the said amount to the Complainants.  The Opposite Party No.1 in addition to the above amount is liable to pay Rs.5,475/- to the Complainants as observed above with interest @ 9% p.a. from 31/05/2006 till its realization.  In our view each Opposite Party No.1 is also liable to pay compensation for the mental harassment and embarrassment caused to the Complainants to the tune of Rs.30,000/- and cost of Rs.5,000/- by each of the Opposite Party.  In the result we pass the following order –

O R D E R 

          i.                    Complaint No.175/2007 is partly allowed against the Opposite Parties.                                                              ii.                 The Opposite Party No.1 is directed to pay an amount of Rs.22,835/-(Rs. Twenty Two Thousand Eight Hundred Thirty Five Only) to the Complainants alongwith interest @ 9% p.a. from 31/05/2006 till its actual payment and Rs.30,000/- (Rs. Thirty Thousand Only) as compensation to them for the mental harassment caused to them and cost of Rs.5,000/- (Rs. Five Thousand only).  

                      iii.                     The Opposite Party No.2 is directed to pay an amount of Rs.17,360/- (Rs. Seventeen Thousand Three  Hundred Sixty Only) to the Complainants alongwith interest @ 9% p.a. from 31/05/2006 till its actual payment and Rs.30,000/- (Rs. Thirty Thousand Only) as compensation to them for the mental harassment caused to them and             cost of Rs.5,000/- (Rs. Five Thousand only).

         iv.               The Opposite Party No.1 & 2 are directed to comply the aforesaid order within one month from the date of  receipt of this order.

         v.                  Certified copies of this order be furnished to the parties.