KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 1038/2001

JUDGMENT DATED:  28-11-2009

PRESENT:

SHRI. M.V. VISWANATHAN                            : JUDICIAL  MEMBER

SHRI. M.K. ABDULLA SONA                  :  MEMBER

APPELLANT

Mr. K.G. Antony,

Kannikal House, 42/1367,

Market Road, North End, Kombara,

Cochin 682 014.

Represented by Mr. K.G. Stanley,

Power of Attorney Holder.

(Rep. by Adv. Sri. M.G.K. Menon)

                        Vs

RESPONDENTS

1.      M/s Jet Airways (India) Ltd.,

            41/42 Maker Chambers III, Nariman Point, Mumbai – 400 021.

2.         M/s Jet Airways,

            Bab Chambers, Atlantis Jn., Ravipuram, M.G. Road, Cochin-16.

3.         M/s Pierce Leslie (India) Ltd.,

            Travel Division, Ravipuram, M.G. Road, Cochin-16.

4.         Mr. P.R. Sebastian,

            Pierce Leslie (India) Ltd.,

            Travel Division, Ravipuram, M.G. Road, Cochin-16.

5.         M/s Olympus Travels Pvt. Ltd.,

            Safa Complex, Ravipuram, M.G. Road, Cochin-16.

                        (R3 rep. by Adv. Sri. Antony Dominic and others)

                        (R4 rep. by Adv. N.S. Mohamed Usman)

                        (R5 rep. by Adv. Sri. M. Anilkumar)

JUDGMENT

SHRI. M.V. VISWANATHAN         : JUDICIAL  MEMBER

                    Appellant herein was the complainant and the respondents were the opposite parties in OP 977/1998 on the file of the CDRF, Ernakulam.  The complaint therein was filed for getting refund of the excess amount of Rs. 9,188/- which was collected from the complainant by the opposite parties 1 and 2 and also for compensation of Rs. 3,000/- with costs.  The complainant has also claimed interest at the rate of 18% per annum on the aforesaid amount of Rs. 9,188/-.  The opposite parties 1 to 4 entered appearance and filed written versions in the said OP 977/98.  The 5^th respondent remained absent.  The opposite parties 1 and 2 filed joint written version denying the alleged deficiency in service on their part.  They contended that the complainant booked seats of flight No. 9W 443 and paid only lesser charges and also the opposite parties 1 and 2 collected the balance amount of Rs. 9,188/-.  Thus, the opposite parties 1 and 2 prayed for dismissal of the complaint filed against them.  The 3^rd opposite party filed written version contending that it has no connection with the booking of the flight tickets for the complainant for his journey from Bombay to Mangalore and further contended that they are unnecessary party to the proceedings.  The 4^th opposite party contended that he was an employee of the 3^rd opposite party M/s Pierce Leslie (India) Ltd, Travel Division and that the 3^rd opposite party has no connection in the booking of the flight tickets for the complainant; that the 4^th opposite party was approached by the complainant’s brother, Stanley and he rendered free service to the said Stanley because of the friendship between the complainant and the said Stanley; that the flight tickets for the complainant and family were booked through the 5^th opposite party M/s Olympus Travels Pvt. Ltd. and the said tickets were given to the complainant’s brother Stanley.  Thus, the 4^th opposite party denied the alleged deficiency in service and requested for dismissal of the complaint.  The 5^th opposite party did not file any objection to the complaint in OP 977/98 and they remained absent in the proceedings.

2.          Before the Forum below, the complainant’s brother Stanley was examined as PW1 and Exts. A1 to A4 documents were marked on the side of the complainant. No evidence was adduced from the side of the opposite parties.  On an appreciation of the evidence on record and the facts and circumstance of the case, the Forum below passed the impugned order dated 18-07-2001 dismissing the complaint in OP 977/98.  Hence the present appeal.

3.          When this appeal was taken up for final hearing, there was no representation for respondents 1 to 3 and 5.  We heard the learned Counsel for the appellant/complainant and the 4^th respondent/4^th opposite party.  The learned Counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal and argued for the position that the complainant had booked air tickets for the journey of the complainant and his family in the direct flight from Bombay to Mangalore; but the complainant and his family were permitted to travel on the flight from Bombay to Mangalore via Bangalore and the opposite parties 1 and 2 (respondents 1 and 2) collected excess amount of Rs. 9,188/- from the complainant.  Therefore, the complainant is entitled to get refund of the aforesaid amount with compensation and costs.  On the other hand, the learned Counsel for the 4^th respondent (4^th opposite party) supported the impugned order passed by the Forum below and requested for dismissal of the present appeal.

4.          The points that arise for consideration are:

1.                Whether the appellant/complainant succeeded in establishing the alleged deficiency in service on the part of the respondents/opposite parties?

2.                Is there any sustainable ground to interfere with the impugned order dated 18-07-2001 passed by the CDRF, Ernakulam in OP No. 977/98?

5.          Point Nos. 1 & 2:  Admittedly, the complainant booked 4 air tickets for his journey along with his family members from Bombay to Mangalore and the said air tickets were booked through his brother, Stanley.  The complainant’s brother, Stanley has been examined as PW1 before the Forum below.  PW1 is also the Power of Attorney Holder of the complainant.  The only documents produced from the side of the complainant are A1 to A4.  A1 is the Special Power of Attorney executed by the complainant in favour of PW1, Stanley.  A2 is copy of the two air tickets with serial Nos. 878178 and 878179.  It is to be noted that the counterfoil of the original air tickets have not been produced from the side of the complainant.  A3 is copy of the letter issued to the opposite parties 1 to 5.  A4 is copy of the lawyer notice issued by the complainant to the opposite parties.

6.          PW1 admitted that he entrusted the booking of air tickets with the 4^th opposite party, P.R. Sebastian and entrusted a sum of Rs. 11,000/- for booking 4 air tickets.  He also admitted that the 4^th opposite party Sebastian is working in the 3^rd opposite party, Travel Agency and that PW1 had no occasion to approach the 3^rd opposite party for booking the air tickets.  The definite case of the 4^th opposite party is that the 3^rd opposite party Travel Agency had no connection in the booking of the air tickets for the complainant.  The evidence of PW1 would make it clear that the 3^rd opposite party had no role to play in booking of the air tickets for the complainant Mr. K.G. Antony.  The complainant could not produced any document to connect the 3^rd opposite party M/s Pierce Leslie (India) Ltd, Travel Division in the aforesaid matter.  Thus, the Forum below has rightly held that the 3^rd opposite party is unnecessary party in the proceedings and that the 3^rd opposite party had no role to play.  Thus, the Forum below has rightly absolved the 3^rd opposite party from the liability to pay compensation.

7.          The evidence of PW1 would show that he entrusted the booking of the air tickets for the complainant with the 4^th opposite party Mr. Sebastian.  The evidence of PW1 would show that Sebastian was his friend and that the 4^th opposite party Sebastian rendered free service to PW1 for booking the air tickets for the complainant and his family.  The evidence of PW1 would make it more clear that the service of the 4^th opposite party was not availed for consideration.  If that be so, the 4^th opposite party cannot be treated as a service provider for consideration.  It can very safely be concluded that the 4^th opposite party had only assisted PW1 in booking the air tickets for PW1’s brother and the aforesaid assistance was rendered free of charge.   The Forum below is perfectly justified in absolving the 4^th opposite party from the liability to pay compensation. The Forum below is also justified in holding that there was no deficiency of service on the part of the 4^th opposite party.

8.          Admittedly, the air tickets were booked through the 5^th opposite party M/s Olympus Travels Pvt. Ltd. and that the 5^th opposite party Travel Agent booked the air tickets for the complainant in the flight of M/s Jet Airways (India) Ltd.  The air tickets were issued by the 5^th opposite party for the flight No. 9W 443.  It is the definite case of the opposite parties 1 and 2 that the said flight No. 9W 443 is the flight from Bombay to Mangalore via Bangalore.  PW1 has not disputed the fact that the air tickets were that of the flight No. 9W 443.  He has also not disputed the fact that the said flight No. 9W 443 was from Bombay to Mangalore via Bangalore.  But the flight charges for the 4 tickets were collected at a lower rate.  It is the definite case of the opposite parties 1 and 2 that the charge for the flight from Bombay to Mangalore via Bangalore was higher than the charge for the direct flight from Bombay to Mangalore.  It is also the case of the opposite parties 1 and 2 that the 5^th opposite party travel agent collected the lower charge of Rs. 10,902/- which was meant for the direct flight from Bombay to Mangalore.  But at the same time, the tickets were issued for the flight No. 9W 443 which was from Bombay to Mangalore Via Bangalore.  In effect the complainant and his family had the tickets confirmed for the flight No. 9W 443 which was indirect flight from Bombay to Mangalore via Bangalore.  So, the opposite parties 1 and 2 are justified in collecting the deficit amount of Rs. 9,188/- for the 4 tickets.  Admittedly, the complainant and his family travelled from Bombay to Mangalore by making payment of the additional amount of Rs. 9,188/-.  The complainant has no case that he did not book the air tickets for flight No. 9W 443.  If that be so, there was no deficiency in service on the part of the opposite parties 1 and 2 in collecting the additional amount of Rs. 9,188/- by way of the deficit charge for the flight from Bombay to Mangalore Via Bangalore because the complainant and his family had the tickets only for the flight No. 9W 443.  So, the Forum below has rightly held that there was no deficiency in service on the part of opposite parties 1 and 2 in collecting the additional amount of Rs. 9,188/- being the deficit charge.

9.          The 5^th opposite party Travel Agency issued the air tickets for flight No. 9W 443 but had collected only a lesser charge which was meant for the direct flight from Bombay to Mangalore.  The 5^th opposite party Travel Agent issued the confirmed tickets for the complainant and his family in flight No. 9W 443.  There is no dispute that the flight No. 9W 443 was the flight from Bombay to Mangalore via Bangalore.  It is the case of the 4^th opposite party that PW1 approached him for getting 4 air tickets and thereby he approached the 5^th opposite party.  It is also the case of the 4^th opposite party that he got the 4 air tickets and the same were handed over to the complainant’s brother, Stanley (PW1).  It was the duty of the complainant’s brother (PW1) to get it ascertained as to whether the aforesaid flight No. 9W 443 is the direct flight or an indirect flight.  The 4^th opposite party was also bound to enquire about the route of the aforesaid flight No. 9W 443.  But both PW1 and the 4^th opposite party failed to get it ascertained about the route of the flight No. 9W 443.  The 5^th opposite party Travel Agent cannot be found fault with.  At any rate, there cannot be any deficiency in service on the part of the 5^th opposite party who booked the 4 air tickets for the flight No. 9W 443.  The mere fact that the 5^th opposite party collected only a lesser amount cannot be treated as deficiency in service.  No harm has been caused to the complainant because of the collection of lesser charge by the 5^th opposite party.  The complainant was only asked to pay the deficit charge at the Bombay Air Port and that the complainant paid the deficit charge of Rs. 9,188/- and thereby he travelled by the very same flight No. 9W 443 for which the complainant had booked the 4 air tickets for himself and his family members.  The Forum below has rightly absolved the 5^th opposite party from the liability to pay compensation.  The impugned order passed by the Forum below does not warrant any interference.  The present appeal deserves dismissal.  These points are answered accordingly.

          In the result, the appeal is dismissed.  The impugned order passed by the Forum below is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

                                                 M.V. VISWANATHAN   :  JUDICIAL MEMBER

                                       M.K. ABDULLA SONA :    MEMBER

Sr.