This case is coming for final hearing on 19-12-2014 in the presence of M/s.D.Ramesh & S.S.Vasu, Advocates for Complainant and Sri M.R.K.Gandhi, Advocate for Opposite parties and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per the Honourable Member Sri V.V.L.Narasimha Rao on behalf of the Bench)

1. The Complainant filed the present Complaint on 8.10.2012 against the Opposite Parties 1 & 2 under Sec.12 of C.P.Act and requested the Forum to direct the Opposite Parties (1) to pay a sum of Rs.50,000/- as compensation for causing mental agony suffered by the complainant (2) to pay Rs.14,187/- towards refund of ticket amount (3) to pay Rs.10,000/- towards costs for legal expenses (4) (2) to pay interest on amount of Rs.14,187/- from 06.04.2012 @ 24% p.a. till date of payment (5) to pass any order or orders as this deems fit and proper as per the circumstances of the case.

2. The brief facts are as follows:- The Complainant is a Senior Advocate practicing in Visakhapatnam District Court and also working as Vice Chairman of Bar Counsel of Andhra Pradesh for a period of 5 years. By virtue of his status, he used to travel regularly by air travels. In the similar scenario, he booked a ticket for himself and two others in the airlines run by the Opposite Parties from Delhi to Visakhapatnam on 25.04.2012 in Flight No.6E dAT385. The said ticket was booked on 6.4.2012 by paying an amount of Rs.14,187/- after receiving the amount, the Opposite Parties issued confirmed ticket bearing No.HEJ8BF and towards conclusive proof the complainant has filed the air-ticket for perusal of the Forum. As the Complainant could not travel on 25.04.2012. Due to unavoidable circumstances he had to postpone the journey from 25.04.2012 to 26.04.2012. As such he has cancelled the ticket HEJ8BF on 16.04.2012 and intimated the Opposite Parties for refund of the amount to him. As per the terms and conditions on the over leaf of the ticket with regarding to the cancellation of the ticket the terms are as follows:

   “changes/cancellations permitted more than two (2) hours prior to scheduled departure (four (4) hours for international sectors) with payment of change/cancellation fee and difference in fare if applicable”.

3. In the similar way the refund of the fair on cancellation of the ticket is permitted all other airlines including Air India. The Opposite Parties inspite of refunding the amount forfeited the said amount and not refunded the same. On 17.07.2012 Complainant got issued Legal Notice to the Opposite Parties and the Opposite Parties did not respond for the same. Because of the attitude of the Opposite Parties for not refunding the same and also as the Opposite Parties is following unfair methods, the complainant has filed the present complaint seeking for the reliefs as sought for.

4. Notices were served to Opposite parties. On behalf of Opposite Parties Sri M.R.K.Gandhi, Advocate filed Vakalatnama and filed Counter. The complainant is falsely alleging that the Opposite Parties did not refund the balance amount after cancellation of the ticket. The Opposite Parties does not know about the status and whereabouts of the Complainants and the said details/averments are immaterial for determination of the issues in the present complaint as per the procedure. The Opposite Party pleads that every passenger who travels by our Airlines, whether a casual traveler or a regular traveler, the same services will be provided to all the customers to their utmost satisfaction. The averments made by the Complainant are not correct and not admitted. Actually one Mr.Anup has called the Call Centre on 16.04.2012 on behalf of the passengers and sought for cancellation of the Air Ticket for 5 passengers on scheduled date i.e. on 25.04.2012. Except asking about the cancellation of the ticket, he has not provided the details to facilitate the cancellation. In compliance with the request of the Mr.Anup the three tickets i.e. booked for 25.04.2012 were cancelled and even after cancellation also on 31.05.2012 Mr.Anup called on the Call Centre and failed to provide proper authorization for taking Ticket cancellation amount. Neither the Complainant nor the other two passengers has not called the Opposite Party office with regarding to the refund of the amount. As nobody has contacted with regarding to the refund of cancellation of amount, the said amount  was kept to the credit of the passengers. With regarding to the refund of the cancellation of the ticket amount of Rs.11,337/- is liable to the credit of the passengers after deducting Rs.2,850/- from Ticket fare Rs.14,187/-. If the passengers did not took the refund amount from the Airlines after cancelling the ticket the voucher will be issued for the value of the said amount which will be valid for one year and the same can be utilized for journey to any destination. In such circumstances the said Ticket cancellation amount of Rs.11,337/- is lying with the Opposite Parties. When there is fault on the part of the Opposite Parties, the complaint is liable to be dismissed.

5. The 2^nd Opposite Party filed adoption memo treating the Counter filed by the 1^st Opposite Party as Counter on their behalf.

6. On 4.4.2013, the Opposite Parties filed Memo stating that “Rs.12,301/- vide D.D. drawn on President, District Consumers Forum-I is being paid towards the refund of the cancellation of the ticket amount to the complainant and the complainant can withdraw the said amount from the District Forum without any objection”. For the said memo, the complainant received the notice and on 12.06.2013, the complainant filed the Part Satisfaction Memo stating that “the complainant has received Demand draft No.182034, dt.22.04.2013 for Rs.12,301/- and the P.S. Memo was filed without prejudice to the right of the complainant to claim the other claims in the main C.C.”

7. As seen from the Memo dt. 4.4.2013 filed by the Opposite Parties and the Part Satisfaction Memo dt.12.06.2013 filed by the Complainant referred as above vide para No.6 supra and observing the relief portion of the complaint, for 4 reliefs it seems the relief for refund of Rs.14,187/- is complied by the Opposite Party’s as the complainant has received Rs.12,301/- from the Opposite Parties and the balance 3 reliefs for claiming compensation and legal expenditure is pending as per the Memo dt. 12.06.2013 filed by the Complainant.

8. Observing the pleadings of the both sides, the Forum framed the following points for consideration:                                           a) Whether there is any deficiency on part of the Opposite Parties                   b) To what relief.

9. The Complainant filed his Evidence Affidavit reiterating the averments mentioned in the complaint along with payment received by the Opposite Party i.e. Rs.12,301/- (vide para No.13). On behalf of the complainant Exs.A1 to A4 were marked. The Opposite Party filed Evidence Affidavit narrating the entire facts of the counter and mentioning about the payment of the Rs.12,301/- i.e. Ticket cancellation amount of Rs.11,366/- + interest @ 9% p.a. (which was lying with the District Consumers Forum) along with Evidence Affidavit on behalf of Opposite Party, two documents which were marked as Exs.B1 & B2.

10. On behalf of 2^nd Opposite Party Sri R.S.R.K.V.Prasad who is working as Incharge of Air Port Business Counter of 1^st Opposite Party filed 3^rd Party Evidence Affidavit and stated as follows: “In Airport Counter we sell tickets against cash and credit cards and arrange refund of cash to passengers who cancel their tickets at the counter and while cancelling we adjust the cancellation charges as applicable depending upon the time of cancellation. On 16.04.2012 no person had personally called on the counter for cancellation of their ticket(s) for their Journey from Delhi to Visakhapatnam with 25.04.2012 as schedule date of journey. As already submitted this airport counter at Visakhapatnam is manned by very limited number of people and as In-charge matters are always within my knowledge. No person or his authorized representative who has called the Counter of Visakhapatnam Airport for cancellation of such ticket. As such he is denying the Complainant averments with regarding to the cancellation of the ticket. He also submits that after 16.04.2012 also nobody approached the counter for refund of the cancellation of the ticket fare”

11. The complainant submitted Written Arguments and also a detailed oral arguments. On behalf of the Opposite Parties they filed Written Arguments as well as Additional Written arguments. At the time of the arguments, the counter for Opposite Party vehemently argued on their stand and in support of their defense the Opposite Parties has filed 9 case laws (1) II (2014) CPJ 705 (NC) (2) IV 2013 CPJ 506 (NC), (3) I (2007) CPJ 379 (4) 2006 (3) ALT 66 (5) II (2013) CPJ 396 (NC) (6) II (2013) CPJ 565 (NC)(7) IV (2008) CPJ 128 (NC) (8) 2006 SAR (Civil) 836 (9) II (2009) PJ 40 (SC) which are related to the issues of Locus standi, Authorization dispute regarding and consumer under definition of Sec.2(1)(d) of C.P.Act.

12. Point Nos.1 & 2: The present Complaint is filed by the Complainant for refund of the cancellation of ticket amount which was cancelled on 16.04.2012 as the complainant could not travel on 25.04.2012. The Opposite Parties denied the allegations of the Complainant and stated that on 16.04.2012 one Mr.Anup called the Call Centre for cancellation of the Tickets and as the tickets were cancelled and that too there was no authorization to Mr.Anup, the Opposite  Parties kept the amount of Rs.11,337/- after deducting Rs.2,850/- from Rs.14,187/- i.e. fare amount. As nobody called personally or appear before the Opposite Parties for refund of the amount, the said amount is lying with the Opposite Parties. As seen from the Memo dt. 1.4.2013 filed by the Opposite Parties and Part Satisfaction memo dt.12.06.2013 filed by the Complainant, it seems the Opposite Parties has refunded the amount of Rs.11,366/- @ 9% p.a. which amounts to Rs.12,301/- and the same was given to the Complainant through their counsel vide D.D.No.182034, dt. 22.4.2013 and thereby the Complainant has filed P.S.Memo on 12.06.2013 and requested the Forum to submit the contest the complaint and continue to demand for other reliefs as sought for in the complaint. Even the said fact of payment of the Opposite Party was also admitted by the Opposite Parties in Para No.23 of the Affidavit.

13. Ex.A1 is the Airticket, dt 25.4.2012 which was booked on 6.4.2012. In that said Ex.A1 Airticket, the fare of Rs.14,187/- is mentioned and address of the Complainant and the name of the complainant is mentioned. On the reverse of Ex.A1, the terms and conditions were mentioned. Ex.A2 is the Legal Notice dt. 17.7.2012 served to the Opposite Parties 1 & 2 for refund of the cancellation of the ticket amount of Rs.14,187/- along with costs for legal notice. The 2 postal receipts dt. 18.7.2012 for serving Ex.A2 are marked as Ex.A3. The Departments of Post Office Receipt i.e. printed receipt is marked as Ex.A4. The terms of the Opposite Party services are mentioned as Ex.B1 and the transactions done by Mr.Anup on 16.4.2012 at 14.50 pm is marked as Ex.B2. In Ex.B2, the transaction done by Mr.Anup is mentioned as “anoop cald for xxl/dpa done/policy advised/same done/…………581………..priyankakumari”.

14. As seen from the Memo dt.4.4.2013 of Opposite Parties and Part Satisfaction memo filed by the Complainant on 12.06.2013 it seems the issue regarding the refund of the amount is cleared and the only issue with regarding to the granting of the compensation and costs is pending in this Forum.

15. Observing the contention of the complainant for refund of the amount in the E.A. and the version of the Opposite Parties in their counter along with Ex.B2, dt.16.4.2012 it seems as the complainant is not in a position to travel on 25.4.2012 from Delhi to Visakhapatnam, he has cancelled his ticket along with other two persons tickets on 16.04.2012 through Agent Mr.Anoop. The Opposite Parties are also stating that the complainant has not directly contacted the Opposite Parties for cancellation of the ticket and it was contacted through the Agent Mr.Anoop that too observing Ex.A1 ticket, it reveals that only complainant’s name is mentioned in the address portion of the Ex.A2 and in the passengers list 3 persons name is mentioned as Mr.Narasinga Rao.P., Mr.T.Krishnam Raju & Mr.D.Ramesh (i.e. the Advocate who has got issued the Ex.A2, Legal Notice to the Opposite Parties).

16. On observing the averments of both sides and pleadings of the both sides and 9 case laws filed by the Opposite Parties. Before deciding the issue of the deficiency of service, the two questions to be examined are (1) whether the Complainant is having locus standi to file complaint for refund of the amount for 3 persons Ticket amount (as reflected in Ex.A1 dt.6.4.2012) (2) whether complainant is a Consumer within the definition of the Sec.2(1)(d) of C.P.Act as the Opposite Party has raised objection in the Counter and at the time of the arguments.

17. Firstly the question related to “Locus standi” is as follows: The legal maxim ub jus ibi redemium is whether there is a right there is a remedy. The legal maxim droit ne poet pas moria means right cannot die. The legal maxim locus standi means the right to be heard in the Court. As per Regulation 16(7) of C.P. Regulations, 2005 the Consumer Forum may permit the authorized agent to appear before it. But authorized agent shall not be one, who has used this as a provision. As per regulation 16(3) the power of attorney holder shall be entitled to engage a counsel if authorized to do so. As per case law 2009, 83 AIC 312 Kerala an aggrieved person or protection officer or any other person on behalf of aggrieved person is entitled to file a petition.

18. Here in this matter, observing Ex.A1, Air Ticket dt. 6.4.2012 for travelling on 25.04.2012 from Delhi to Visakhapatnam for 3 persons (1) Mr.P.Narasinga Rao (Complainant) (2) Mr.Krishnam Raju.T. (3) Mr.Ramesh.D (the Advocate who got issued Ex.A2, Legal Notice to the Opposite Parties). Observing the cause title and the Exs.A1 to A4 filed by the Complainant, it seems the complainant being one of the passenger in the Ex.A1, Ticket is claiming relief for refund of entire ticket amount of Rs.14,187/- along with interest from 6.4.2012. At the time of arguments, the counsel for the Opposite Party raised objection that as there are 3 persons in the ticket the Complainant alone cannot file the complaint as he has not brought the authorization letter from the other 3 persons for filing complaint for refund of cancelled ticket amount vide Ex.A1.

19. As per case law 2007, CPJ 379 between Girja Nand & Ors Vs H.P.State Co-operative Marketing and Consumers Federation Ltd., HIMFED & ors, the Hon’ble Himachal Pradesh State Commission, Shimla held that (vide para No.5) “reason being that there is nothing stated in the complaint praying for permitting the appellants to file a joint complaint as required under law, therefore, the submission of Mr.Chandel is without foundation and merits rejection”. As per para No.7 it was stated that in view of the afore-mentioned discussions, there is no merit in the appeal and accordingly the appeal is dismissed, leaving the parties to bear their own costs. As per case law II 2013 CPJ 396 (NC) between Ram Niwas Soni Vs. Vaish Model Sr. Sec. School & ors. decided on 18.3.2013, the Hon’ble National Commission held that the complaint filed on behalf of the major son without any authorization is not maintainable and observing the facts and circumstances of the case. In the case of II (2013) CPJ 505 (NC) i.e. R.PNo.3188 of 2010, Amita Sharma V. M/s.B.H.E.L. & Ors, decided on 1.3.2013, it was held that wife cannot file complaint on behalf of her husband without authorization, the R.P. is dismissed. The Hon’ble National Commission also held (vide para No.11) that “there is nothing on record to show that Lt.Col.(Retd.) H.S.Sharma ever authorized his wife-Ms.Amita Sharma to file any complaint on his behalf, before the District Forum. Thereafter observing sec.2(1)(b) definition of Complainant, Sec.2(1)(c) definition of the Complaint and principles of Sec.24(a)(1) read with 9(2) it was held that, as the petitioner had not been authorized by her husband to file complaint on his behalf, complainant is not a consumer within the definition of Sec.2(1)(d) of C.P.Act.

20. Hence, observing the Ex.A1 (Air ticket), Ex.B2 cancelled of ticket through Mr.Anoop dt.16.4.2012 along with the principle of locus standi and the regulation 16 clause (7) & (3), 3 case laws, I 2007 CPJ 279, II 2013 CPJ 396 NC, II 2013 CPJ 505 NC, we are of conclusive opinion that the Complainant has filed the present complaint for refund of the cancellation of ticket amount of Rs.14,187/- (which was booked for 3 persons) without the authorization from the other 2 passengers. Thereby the Complainant is not having locus standi to file the complaint without having an authorization letter from others two passengers.

    Accordingly Question No.1 is answered against Complainant.

21. The 2^nd question related to the issue that whether the complainant comes under definition of Consumer under Consumer Protection Act as follows: Observing Ex.A1 Ticket, it seems the complainant has booked Air ticket for 3 persons (1) Mr.P.Narasinga Rao (Complainant) (2) Mr.Krishnam Raju.T. (3) Mr.Ramesh.D. As per the admission in para No.(d), page No.2 of the complaint that due to unavoidable circumstances, he has to postpone the journey from 25.04.2012 to 26.04.2012 and he cancelled the ticket bearing No. HEJ8BF taken from the Opposite Parties on 16.4.2012. With regarding to this point the Opposite Party stated that the ticket was not cancelled by the Complainant and it was cancelled by one Mr.Anoop on behalf of complainant, which was reflected clearly in Ex.A2, dt. 16.4.2012. Pertaining to that issue, the Opposite Parties council filed case law II 2014 CPJ 705 (NC) between Meerut Development Authority V. Manju Gupta, in R.P.No.2779/2012, dt. 9.5.2014 which is related to a cancellation of allotment of the plot. Wherein in that case the Respondent (Manju Gupta) booked a plot and thereby she has cancelled the plot and asked for refund of the amount. Observing the version of the Respondent, the Hon’ble National Commission held that “once the Respondent Manju Gupta claimed refund of the amount then she ceased to be a consumer within the definition of 2(1)(d) of C.P.Act”. As per para 12 of the Judgement, it reveals that “it is manifestly clear from the record that respondent herself had applied for the refund of the amount. Once respondent had claimed the refund amount, then it ceased to be a ‘consumer’ vide para No.13, it reveals that “it is well settled that any litigant who approaches any Judicial Forum with unclean hands and conceal the material facts is not entitled to any relief in equity. Observing the facts and circumstances of the case the R.P. was allowed with a direction that the respondent (Manju Gupta) is directed to deposit the costs in Consumer Legal Aid Account within four weeks or else if the costs was not paid within the prescribed period, she is liable to pay interest @ 9% p.a. till realization.

22. As per case law IV 2013 CPJ 506 (NC) between Vijay Kumar Das V. Indian Railway Catering and Tourism Corporation Ltd. & Ors vide R.P.No.1855/2012 decided on 13.09.2013 it was held that while deciding the point of who is the Consumer (in para No.6) it was stated that in this case the real consumers are Mr.Mandal and his family members on whosename the ticket was booked. They have neither come forward to file a complaint nor filed any affidavit in this regard. Therefore, we do not hold Mr.Vijay Das as a Consumer. He would have filed such complainant jointly with the Mr.Mandal as a necessary party. Hence Complainant herein stands in position of an Agent only”.

23. In this particular case in hand in the complaint itself, the complainant admitted that he has booked ticket to travel on 25.04.2012 from Delhi to Vizag along with two others persons and thereby due to unavoidable circumstances he could not travel on 25.04.2012 and the said ticket was cancelled. Viewing Ex.B2 itself the ticket was cancelled by Mr.Anoop. The Opposite Parties is strongly relying upon this version and stating that the complainant cannot cancel the ticket as there are 3 persons in Ex.A1 Air Ticket as he has not brought any authorization or any letter from the other 3 persons.

24. Hence viewing the version of the Complainant for cancelling the ticket from Delhi to Visakhapatnam on 16.04.2012 along with case laws II 2014 CPJ 705 NC, IV 2013 CPJ 506 NC, along with Ex.A1 (Air ticket), Ex.A2 (Legal Notice) and Ex.A3, A4 documents we are of opinion that as the Complainant has claimed for refund of the cancellation amount for Rs.14,187/- (which is for 3 persons) along with interest without having any authentic authorized document from other 3 passengers, the Complainant is not a consumer within the definition of Sec.2(1)(d) of C.P. Act.

    Accordingly Question No.2 is answered against the Complainant.

25. As seen from above paragraphs (17 to 24 supra) we already came to a conclusion that the Complainant is not having a Locus standi to file a complaint and also he is not a consumer within the definition of Sec.2(1)(d) but, observing the Memo dt.04.04.2013 filed by Opposite Party and 12.06.2013 filed by the Complainant it is necessary to decide about the issue of deficiency of service on part of Opposite Parties.

26. Though the Opposite Parties has stated that the Complainant is not having locus standi and is not a consumer, they admitted in Para No.12 of the Counter that as the agent Mr.Anoop has cancelled the ticket and as he is not having authorization to take the cancellation the amount of Rs.11,366/- is lying in the credit of the 3 passengers and the Opposite Party is ready to pay the same with 9% interest on 11,366/- to the 3 passengers.As seen from the Memo dt.12.06.2013 which was admitted by the Complainant it reveals they have received Rs.12,301/- from the Opposite parties. It shows that the Opposite Parties has stood upon their promise and has returned the cancelled ticket amount of Rs.12,301/- to the Complainant. Hence, we conclude that there is no deficiency of service on part of Opposite Parties and complaint is liable to be dismissed without costs.

27. Viewing the principles of locus standi Definition of the Sec.2(1)(d) of C.P. Act, Reg.16(7)(3) of CP Regulations and case laws, Exs.A1, Memo dt.12.06.2013, the complaint is dismissed without costs.

28. In the result the Complaint is dismissed without costs.

    Dictated to the Stenographer, transcribed by him, corrected by me and pronounced  by us in the open Forum on this the 21^st  day of January, 2015.

                                

     

          Sd/-                                                                        Sd/-

    President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                                  Visakhapatnam

    APPENDIX OF EVIDENCE

     

     

    Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

        Sd/-                                                                     Sd/-

President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                              Visakhapatnam