IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 19th day of July, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 101/2020 (filed on 05-08-2020)
Petitioner : Anilkumar G,
Puthiyamadom,
Puzhavathu,
Changanacherry – 686101.
(Adv. Anitha V.R)
Vs.
Opposite Party : M/s. Malaya Tours and Travels,
Near KSRTC, Kottayam.
(Adv. Rajeev P. Nair)
O R D E R
Smt. Bindhu R. Member
Complaint is filed under Section 35 of Consumer Protection Act, 2019.
The complainant’s case is that he had booked an air ticket of Ethihad Airways through the opposite party on 25th July 2019 for her daughter to travel to Canada. The proposed date of travel was on 29.8.2019 and the complainant had paid RS.1, 07,000/- towards this. A friend of the complainant’s daughter also had booked the same on the same date. The visa for the complainant’s daughter did not arrive till the date of her proposed travel. Hence she could not board any flight on 29.08.2019. Her friend was able to travel on that date. The opposite party assured the complainant and his daughter that they would look maximum to postpone the ticket for another date as it could not be cancelled. After a couple of days the complainant’s daughter got visa and he asked the opposite party to book a ticket for a date on or before 9.9.2019.
On the late evening of 5.9.2019 the opposite party informed the petitioner that a ticket was available on 6.9.2019 for the early morning flight from Calicut. The complainant in turn asked to book a ticket for 7.9.2019 from Kochi or Trivandrum. As the opposite party insisted for the booking from Calicut by paying an additional amount of Rs.89, 000/-. The complainant arranged a ticket from Trivandrum on 7.9.2019 evening flight through another agency by paying Rs.1, 30,000/-
Hence the said act of the opposite party amounts to unfair trade practice and hence the complaint is filed for refund of money and compensation.
The opposite party upon receipt of notice appeared and filed version.
The opposite party’s contention is that the complaint is bad for non-joinder of necessary party since the airline which issued the ticket is also a necessary party to the proceedings whom the complainant has not made a party. Admittedly the daughter of the complainant and her friend booked tickets for travelling to Canada on 29.8.2019. The cost of the ticket was Rs.1, 07,000/- and the said tickets were two among the group tickets for the students which were pre purchased. The said rate was so as the tickets were pre purchased. On the said date the rate of the tickets were much higher. It was because of the inability of the daughter of the complainant that she could not travel on the said date. The complainant purchased the tickets with the knowledge that the same was not refundable. Upon the request of the complainant’s daughter to postpone the ticket for another date and that too for a rate below Rs.1,00,000/- the opposite party tried its level best but could only to arrange a ticket from Calicut in the said rate as the airline do not permit for a postponement or cancellation of the said ticket.
The opposite party has acted only upon the direction of the complainant.
The non-travel of the complainant’s daughter on 29.8.2019 was solely due to the inability of the complainant’s daughter. The opposite party was looking for a rate below Rs.1, 00,000/- and that could be arranged only from Calicut. There is no deficiency of service on the part of the opposite party. Hence the complaint is liable to be dismissed with cost to the opposite party. The complainant filed proof affidavit along with Exhibits A1 to A3 and the opposite party also filed proof affidavit along with Exhibit B1.
On a detailed perusal of the pleadings and evidence we would like to frame two issues as
1. Whether the opposite party has committed unfair trade practice?
2. Whether the complainant is entitled for compensation?
Point no 1 and 2
The complainant’s case is that his daughter had booked an air ticket with the opposite party to travel to Canada on 29.8.19 but as she did not receive her visa till that date she requested the opposite party to postpone the ticket but the opposite party arranged a ticket from Calicut on payment of additional Rs.89,000/- instead of arranging a ticket from Kochi or Trivandrum as requested by the complainant. Thereafter the complainant booked another ticket from Trivandrum through another agency on the same date. This is alleged as the unfair trade practice done by the opposite party.
On the other hand the opposite party’s contention is that it was due to the inability of the complainant to travel on the proposed date and not because of any unfair practice of the opposite party. As per the request of the complainant’s daughter to arrange air ticket below Rs.1 Lakh the opposite party.
Upon a careful evaluation of the complaint itself the complainant has stated that his daughter though booked a flight ticket to Canada with the opposite party on 29.08.2019, could not travel because on that day her visa was not received. The said ticket was not cancelled within the prescribed time. The opposite party came to know about the cancellation of journey only on the date of journey. Thereafter the opposite party tried to arrange another ticket from Calicut. On that day also the complainant had inconvenience to travel. Though the opposite party alleges that the complainant’s daughter requested for a ticket of amount less than 1 Lakh rupees, no evidence produced herein. The statement of the opposite party that the airlines would not allow for a postponement of the ticket after the date of journey seems admissible. The airline is not made a party to the complaint also.
The opposite party has stated that they had no provision to postpone the ticket as and when the passenger requires. It was feasible if the complainant had given intimation to the opposite party that his daughter was not able to travel on the fixed date within 15 days prior to the date of journey and so that ticket might be substituted with another one for another date. Here the opposite party was waiting for the complainant’s daughter to travel on the proposed date in the proposed flight. So they could not sell the seat to someone else. Moreover, in Ext.B1, it is clearly stated that “For rebooking, it would need to be within 15 days of departure date. No Show fee USD 100+K3+cancellation Fee USD 100+K3+Fare difference/taxes (if any will depend on the ate) will apply”. Admittedly, the opposite party has tried for alternate arrangement for the journey but that also was lapsed due to the complainant’s inconvenience. No evidence is produced before us to show that the complainant’s daughter travelled with a ticket arranged by another agent or what was the ticket rate.
In Nandkishore Lalbhai Mehta Vs. New Era Fabrics P Ltd. And Others, Hon’ble Supreme Court held that,
“The inability or impossibility on the part of a party to perform his part of contract and opined the principle that man shall not be permitted to take advantage of his own wrong, which he himself brought about.”
Hon’ble Supreme Court in Garware Wall Ropers Ltd. vs. Coastal Marine
Constructions, 2019 also has reiterated.
Hence in the light of above discussions, we are of the view that there is no
deficiency of service on the part of the opposite party and hence we dismiss the complaint.
Pronounced in the Open Commission on this the 19th day of July, 2022
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Lawyers notice dtd.28-11-19
A2 – Postal receipt
A3 – Reply notice dtd.09-12-19 (lawyers notice)
Exhibits marked from the side of opposite party
B1 – Copy of e-mail
By Order
j/3cs Assistant Registrar
