MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the OP No.2 i.e. Air Canada against order dated 19.11.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passing in complaint case No. 648 of 2009.

2.        Briefly stated the facts of the case are that the complainant and her husband contacted M/s Grand Travel Planners (P) Ltd (OP No.1) for booking tickets for their visit to Canada and UK in June, 2008 along with their two children.  It was submitted by the complainant that at the time of enquiry, the younger son of the complainant was infant i.e. less than 2 years of age but before coming back the younger child would have become child after completing 2 years of age. This fact was duly informed to OP No.1 upon which they were told that the child would be considered as infant for return journey as the journey was to commence earlier before he attain the age of two years. The complainant purchased 4 air tickets for Rs.1,73,450/-for their journey Delhi – London – Toronto commencing on 6.6.2008 as well as return tickets  for the journey commencing on 17.7.2008.  It was further submitted by the complainant that on their return journey from Toronto to London, the officials of OP No.2 (Air Canada) told them that they could not take their younger child i.e. Jaideep Singh alongwith them as infant, because he has completed two years of age and had become child on 17.6.2008. She was forced to buy a new ticket for her son by paying 1265.86 Canadian $ but even the cost of ticket already bought was not adjusted against the new ticket.  After return from journey, the complainant and her husband met the officials of OP No.1 and sought reimbursement of the amount of 1265.86 Canadian $ but to no avail. As the above said act of OPs amount to deficiency in service and unfair trade practice. Hence, the complaint was filed.

3.        Reply was filed by OP No.1 (M/s Grand Travel Planners) and pleaded that OP No.2 had refused to honour the ticket issued by its partner at the last moment and therefore the OP No.1 could not be held responsible.  It was also pleaded that due to harassment suffered by the complainant and her family, the OP No.1 took up the matter with OP No.2 and helped the complainant in all manners but OP No.2 did not refund the excess amount charged by them. It was further pleaded that if any deficiency in service was caused that is by OP No.2 and prayed for dismissal of the complaint against it.

4.        Reply was filed by OP No.2 and it pleaded that OP No.1 is not their agent and OP No.1 had no authority to make any statement on their behalf.  It was submitted that on return journey Jaideep Singh, (Child) had attained the age of two years and therefore as per Air Canada’s Fare Rules & Canadian Legislation, Jaideep Singh could travel only on payment of child fare.  It was submitted by OP No.2 that the complainant preferred to travel on an underpaid ticket and she was well aware of this fact that her child would attain the age of two years and would, therefore, have the risk of paying the full child fare. All the material allegations leveled by the complainant in the complaint were denied and it was pleaded that there was no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 

5.     OP No.3 did not appear, despite due notice and therefore, OP No.3 was proceeded against ex-parte.

6.     The parties led their evidence in support of their contentions.

7.     The learned District Forum allowed the complaint and directed  OP No.2 to refund the amount equivalent to 632.98 CAD to the complainant for over charging and also to refund the proportionate amount of the charges spent on purchasing the ticket Annexure C-4 along with Rs.5,000/- as compensation for harassment.  OP No.3 was directed to pay Rs. 10,000/- to the complainant for issuing a ticket which their partner i.e OP No.2 had not to honour thereby causing her mental and physical harassment at the airport and the complaint against OP No.1 was dismissed. The costs of litigation quantified at Rs.2,000/- shall be paid to the complainant. This order was directed to be complied by OPs No.2 and 3 within 30 days from the date of receipt of the copy of this order, failing which interest @ 12% p.a. on the entire amount would be charged since the filing of the present complaint i.e. 7.5.2009 till the amount is paid.

8.        Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by OP No.2. Sh.Atul V.Sood, Advocate appeared on behalf of appellant and Sh.Vikram Tandon, Advocate has appeared on behalf of respondent No.1/complainant. Respondents No.2 and 3 were proceeded against exparte vide order dated 3.2.2010.

9.     In appeal, it is averred that the learned District Forum has erred in completely ignoring the pleading of the parties. It has been submitted by the appellant that the present complaint is liable to be rejected on the grounds of lack of territorial jurisdiction. It is pertinent to mention here that the appellant at present has suspended all their operations in India and at present has an office at New Delhi only. Thus any action against appellant should have been brought only in Delhi Courts or Courts in Toronto and not in any other place. The learned District Forum has also erred in ignoring the fact that the complainant was well aware of this fact that Jaideep Singh was completing the age of two years before return journey i.e. 17.7.2008 and he would not fall under the category of an infant. Since the ticket was purchased from M/s Grand Travel Planners and issued by Virgin Atlantic, therefore, the issue of Air Canada giving any assurance or committing any mistake did not arise. The learned District Forum has totally ignored that M/s Grand Travel Planners (P) Ltd. is not an authorized agent of the appellant. The learned District Forum has totally erred in going through the evidence. That the Toronto London ticket was issued to the complainant for travel on 17.7.2008 and London Toronto ticket was for travel on 28.3.2009 on his own request and even this journey has been undertaken by the complainant’s son. The learned District Forum has completely ignored the date of 28.3.2009 and has assumed that the said ticket was for the prior journey and based on this mistake has passed an order for refund of CAD 632.98. The learned District Forum has also erred while passing order based on its own assumptions that the appellant had not adjusted the amount already paid on behalf of minor. It is submitted that the ticket was non-refundable. The ticket was issued by OP No.3 i.e. Virgin Atlantic and therefore only they could have made the refund and not Air Canada. The appellant has acted in terms of the Canadian Law and was therefore right in not allowing the minor to travel on an infant ticket. The learned District Forum has also erred in not understanding the mala fide intention of the complainant and the allegations made by the respondent are simply based on surmises and hypothetical eventualities for which the appellant cannot be held liable. The learned District Forum has also completely ignored the fact that the ticket was issued by respondent No.3 i.e. Virgin Atlantic and that any refund order should have been directed against only respondent No.3. The learned District Forum has also passed an order against Air Canada, which is unjustified. No order against respondent No.2 has been passed who has been at fault or even against Virgin Atlantic who has issued the wrong ticket. The learned District Forum has also awarded the cost of litigation against appellant to be paid jointly and severally. The issue of payment of litigation cost does not arise as the appellant is neither at fault nor it has been held to be guilty of deficiency in service or unfair trade practice.

10.   After the perusal of the file and hearing the arguments put forth by the learned counsel for both the parties, it has been observed by us that the learned District Forum has the territorial jurisdiction to decide the case as the tickets were bought from OP No.1, the authorized agent of OP No.3 (the partner of OP No.2), who has the office in Chandigarh and all the four tickets were purchased from OP No.1. Otherwise, the onus is on OP No.2 to prove that they have no relation with OP No.3 i.e. Virgin Atlantic Airways Ltd. We are of the view that the OP No.2 was at fault by issuing a infant ticket for return journey from Toronto to London dated 17.7.2008 for Master Jaideep Singh instead of issuing a child fare ticket. It is very clear from the passport of Master Jaideep Singh that he attained the age of two years on 17.6.2008, much prior to the date 17.7.2008 for which his return ticket was booked. Not only this, the officials of the OP No.2 bothered and harassed the complainant along with her family members by stopping them from boarding the plane while on their return journey from Toronto to London on 17.7.2008 because as per Canadian Rules Master Jaideep Singh could not travel on infant ticket as he has already attain the age of two years. While at the Toronto Airport, when the complainant came to know regarding the reason why she is being stopped from boarding the plane. She there and then requested the officials of OP No.2 to convert the infant ticket into a child fare ticket for which she is ready to pay the difference of amount, but the officials of OP No.2 put no heed to her request. This act and conduct of OP No.2 forced her to buy a new ticket for Master Jaideep Singh. Hence, a complaint was filed, the learned District Forum allowed the complaint and it has been observed by the learned District Forum in para No. 8 of the impugned order that OP No.2 however committed a mistake firstly by issuing a return ticket (Annexure C-11) from Toronto to London and London to Toronto, though the minor was performing the journey only from Toronto to London. Needless to mention that when the minor performed the journey from London to Toronto, he was an infant and had already paid the charges vide Annexure C-4. No ticket as a child should have been issued to him for the journey, which he had already performed as an infant. The second fault committed by OP No.2 was that the amount of fare already paid by minor vide Annexure C-4 should have been adjusted while issuing the ticket Annexure C-11. The OP No.2 however did not adjust the said amount and directed the OP No.2 to refund the amount equivalent to 632.98 CAD to the complainant for overcharging.

11.   As regards to the first observation and direction given by the learned District Forum, the point for consideration before us is whether the learned District Forum has rightly directed the OP No.2 to refund the amount equivalent to 632.98 CAD to the complainant.

12.   In our opinion, regarding this observation given by learned District Forum that the OP No.2 has committed a mistake by issuing a return ticket i.e. Annexure C-11 from Toronto to London and from London to Toronto is wrong and not sustainable because in appeal which is supported by an affidavit, the OP No.2 has vehemently stated that the OP No.2 has issued the return ticket on 17.7.2008 on the request of the complainant and which has been availed by the son of complainant on the same date i.e. 17.7.2008 for the journey from Toronto to London and there is no dispute regarding this return ticket from London to Toronto as the same was also availed by the complainant on 28.3.2009. This is evident from PNR placed on record. It is further averred by OP No.2 that the learned District Forum has erred in directing the OP No.2 to refund the amount equivalent 632.98 CAD for journey from London to Toronto because this ticket dated 28.3.2009 was for future journey and not for the prior journey. It has been strongly averred by OP No.2 that the question did not arise to refund the amount as the ticket has already been availed by the complainant.

13.   After going through the facts brought before us by way of complaint and appeal and particularly in the absence of any document which otherwise proves that the complainant had not availed the said ticket. We have come to the conclusion that the return ticket issued on 17.7.2008 by OP No.2 for 28.3.2009 was for future journey and was also issued on the request of the complainant. Therefore, the learned District Forum has wrongly directed the OP No.2 to refund the amount equivalent to 632.98 CAD to the complainant.

14.   As regards second observation given by the learned District Forum that the amount of fare already paid for the infant ticket vide Annexure C-4 should have been adjusted while issuing the ticket on 17.7.2008 Annexure C-11, however the OP No.2 had not adjusted the said amount.   Therefore the learned District Forum has directed the OP No.2 to refund the amount of infant ticket already purchased by the complainant along with Rs.5,000/- as compensation for harassment. In our view, the learned District Forum is justified in directing the OP No.2 to refund of the amount of the return ticket along with compensation and litigation expenses.

15.   In this view of the matter, we have come to the conclusion that there is a deficiency in service on the part of OP No.2 but at the same time we set aside the order passed by the learned District Forum to the extent to refund the amount equivalent to 632.98 CAD, rest of the order is upheld. Therefore, with this modification, we partly allow the appeal without any order as to costs.

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