Per Mr.Justice S.B.Mhase, Hon’ble President

1.       This matter is argued at length.  Ld.counsel for the appellant ultimately submitted that he desires to take instructions from the Legal cell of appellant company. As case is being argued at length, we showed our willingness to grant time on imposition of cost of `5,000/- to be paid to respondent and granted time for 4 days.  Accordingly, we passed order. After grant of adjournment on reconsideration of his own strategy, Ld.counsel submitted that the appeal may be disposed of on merits.  We clarify that cost for adjournment is valued by us looking to the facts that the respondent’s father, who is representing respondent, is a Finance Controller in Forbes Marshall, Pune, a company dealing in Energy conservation/Environment/Process efficiency and, therefore, taking into consideration his traveling expenses, per day income and the loss of work which the company has suffered and that the appellant is a air passenger service provider.  However, since Ld.counsel desires that the appeal be decided at the admission stage and he does not desire to take time in the present appeal, we are proceeding to consider the appeal for admission on merits.

2.       Undisputed facts in the present case are as follows:-

Respondent –Mrs.Pooja Ruchir Shah is a daughter of Mr.Shailesh Shah.  Mr.Shailesh Shah is representing the respondent being her father.  Even though in the complaint Pooja is complainant.  Mr.Shailesh Shah -father of respondent represented Pooja before the District Consumer Disputes Redressal Forum.  Pooja is residing at Ahmedabad, that is a place of her in laws. She was having a small child at the relevant time.  Along with the child she planned to come to Pune and, therefore, her father Mr.Shailesh Shah had booked an air tickets with the appellant from Ahmedabad to Pune and from Pune to Ahmedabad.  Said tickets were booked by Mr.Shailesh Shah on 01/04/2009 and they were the confirmed tickets on both sides for scheduled journey on 18/05/2009 and 14/06/2009.  However, it appears that sometime prior to 06/05/2009 appellant placed on Website information that the said flight, which is scheduled on 18/05/2009 from Ahmedabad to Pune and Pune to Ahmedabad on 14/06/2009 are rescheduled.  He found on Website on 06/05/2009 that the rescheduled flight shows a journey from Ahmedabad to Delhi and Delhi to Pune and so far as return flight is concerned, it was simply cancelled.  The flight which was scheduled on 18/05/2009 was to take off at 5.00 p.m. and was expected to reach Pune by 6.20 p.m. When it was realized that rescheduled flight via Delhi is scheduled on 18/05/2009 at 6.00 a.m. and in order to attend the said flight at 6.00 a.m. respondent will have to get up at 4 o’clock in the morning with a small child and travel and report to the Airport, it was found that the said flight is inconvenient.  Therefore he made a request for the flight from Ahmedabad to Pune.  It was denied to him and it was suggested that he can take back the money. Therefore, on 17/5/2009, he had cancelled those tickets and he got the refund.  Before getting refund also he made several requests to the appellant that they shall arrange the flight with Indigo from Ahmedabad to Pune.  However, that service was also not provided. 

3.       It is further to be noted that at one point of time the appellant showed willingness to provide service through Indigo airline but demanded `5000/- more.  Under these circumstances, refund amount was accepted by the complainant.  However, complainant travelled by Indigo airline independently contacting them for which the complainant was required to pay `1960.40ps  extra than the air fare of the appellant.  This also shows that while providing service through Indigo, airline appellants were trying to mint money by taking disadvantage of circumstances in which the complainant/consumer is placed by the appellant.  Under these circumstances, complaint was filed by the complainant claiming relief for the extra payment which was paid by complainant, mental agonies which were suffered by the complainant.  Considering all these aspects, the District Consumer Disputes Redressal Forum had passed an order directing the appellant to pay `26,960.40 to the complainant within two months from the date of receipt of copy of the order.  This order of District Consumer Disputes Redressal Forum  is challenged by filing this appeal.

4.       There is a delay of 51 days in filing this appeal.  Impugned order was passed on 10/02/2010 and it was dispatched by the District Consumer Disputes Redressal Forum on 25/02/2010 to the Pune office of the appellant.  It is a branch office of the appellant and the tickets were purchased by the father of the complainant on internet at Pune.  The Bombay office was out of picture so far as complainant is concerned.  Therefore, in normal course within few days, since delivery was within Pune, said Pune office must have received free certified copy.  Endorsement on the copy shows that the said copy was received by the Legal department at Bombay on 22/03/2010 and, thereafter, the appeal has been filed on 18/06/2010. 

5.       What is important to be taken into consideration is that the demand draft in the present matter was prepared by the appellant on 26/04/2010.  That shows by that time every decision in respect of filing of appeal was taken.  Therefore, appellant has drawn a demand draft and that is a normal practice, because without taking any decision in filing of appeal, no corporate sector will draw a demand draft to be deposited under section 15 proviso of the Consumer Protection Act, 1986.  Appellant has made statement to that effect in delay condonation application.  However, thereafter, necessary instructions were given to the advocate at Mumbai for preparation of appeal memo who has prepared the same and filed on 18/06/2010 and we are given to understand that there is delay of 51 days in filing the appeal.  Now even assuming this statement that the decision was taken by the appellant on or about 26/04/2010 and the case was handed over to the advocate for drafting and filing, how much time advocate shall take for filing appeal?  It is not explained as why such inordinate time was taken by advocate to prepare and file appeal. 

6.       It is further interesting to note that the above referred information or statement appears in the affidavit filed by one Mr.Abdul Hamid Suleman Khan, Deputy General Manager (Legal).  However, this explanation is not sufficient, especially, in view of the fact that this does not disclose as to when the appeal memo was prepared by advocate.  What is important to be noted that this affidavit is contrary to the statements made in the application for condonation of delay.  Because in application for condonation of delay it is stated that after receipt of order, the draft of appeal was prepared by the advocate and the same was approved by the Legal department of the appellant. Thereafter, necessary original documents duly notarized on 07/05/2010 and were forwarded to the advocate so that same can be filed.  Thus, further statements are not appearing in the affidavit and the affidavit is conspicuously silent.

7.       Apart from this, there is one more ground of delay condonation which is reflected in the application, that is, the advocate of appellant was going out of station and, therefore, he entrusted the file of appeal along with the documents to his colleague Mr.Datta Mane and Advocate Datta Mane could not file appeal because father of Mr.Datta Mane was suffering from cancer and, therefore, Advocate Mane had to rush to his native place at Sangli and that he had no sufficient time to hand over the brief to any one and, therefore, appeal could not be filed.  His father expired and he returned in first week of June 2010 and, thereafter, appeal was filed. What is important to be noted is that that the appellants have handed over the appeal to Mr.Kunal Cheema and it was his responsibility to file an appeal.  While discharging his obligation to file an appeal, he should not have left Mumbai and gone out of station. Date on which he left and went out of Mumbai is not mentioned in the application.  It is further interesting to note that when Mr.Mane left for Sangli has not also been disclosed.  What is the date on which death of father of Mr.Mane took place is not disclosed, death extract has not been placed on record.  After that on what date Mr.Mane resumed his regular duties in Mumbai is not disclosed and above all the affidavit either of Mr.Mane-Advocate and/or of Mr.Kunal Cheema –Advocate and/or of any of the officers of the appellants has not been filed on record.  It appears that Mr.Abdul Hamid Suleman Khan, who has filed affidavit must not be satisfied with the ground stated in para 6 namely his advocate Cheema has gone out of station. He handed over brief to Mr.Mane and Mr.Mane left to Sangli because his father was suffering from cancer and subsequently died and, therefore, he did not subscribe to the ground in the affidavit which is filed on behalf of the company.  Under these circumstances, Mr.Mane advocate and Mr.Kunal Cheema advocate were under legal obligation to file their affidavits. However, for the best reasons known to them they have not filed the said affidavit.  No doubt we have to consider such ground sympathetically because it is a ground concerning the officers of the court.  But it is being opposed by the respondent.  Therefore, they are under obligation to establish said ground by placing appropriate material on record.  Especially it becomes necessary to find out after 07/05/2010 when Mr.Mane-Advocate left for Sangli and as to on what date his father expired.  Because if after Mr.Cheema had handed over brief if there was sufficient time for Mr.Mane to file appeal, as Mr.Cheema had handed over ready matter to file Mr.Mane,  Mr.Mane could have immediately filed the appeal but for the best reasons known to the parties, all the material particulars which reflect upon the conduct of the party so as to condone the delay have been suppressed while drafting an application.  Application is as vague as possible and has been drafted in order to obtain sympathies of the Commission.  However, these are judicial proceedings and they are required to be scrutinized in accordance with the law. Unless and until we are satisfied that there is sufficient cause to condone the delay, the delay cannot be condoned for asking sake on a scanty application.  Therefore, what we find that the delay in the present matter has not been properly explained and we are not in favour of condoning the delay of 51 days.

8.       However, because of this we are not restraining ourselves from considering case on merit.  We have stated the facts above, under what circumstances complaint has been filed.  It is interesting to note that the complainant has booked the tickets much in advance on 01/04/2009. It is a known fact that if one books a ticket 45 days earlier to the destination journey, one gets subsidized tickets.  Therefore, it was a planned journey which was planned 45 days earlier.  However, it is to be noted that said journey was scheduled  in the month of summer.  This is a period of vacation of schools, several offices, courts, etc.  This is a period when because of the holidays and hot season, people travel to the cool places like Kulu-Manali, Kashmir and other places.  This is a season for tourists in India.  Therefore, advance booking was carried out to get subsidized ticket.  Complainant was to travel from Ahmedabad to Pune so as to see her parents, but the appellants did not carry on those scheduled flights.  Instead appellants rescheduled the flights as stated earlier and shown the rescheduled flight from Ahmedabad to Delhi and Delhi to Pune, which was unwarranted journey for the complainant.  When the complainant asked for another ticket of Indigo airline through the intervention of the appellant hoping that since Indigo and the appellants are the private concerns operating in the same field they may have good relations and with the same ticket probably complainant may get seat in Indigo.  But she was offered service by appellants claiming an extra charge of `5000/-.  That also shows that in rendering such types of services, appellant is trying to make out money.  On the contrary, appellant thereafter tried to get ticket of Indigo airline.  Complainant got said ticket on extra payment of `1960/- instead of `5000/-. That means in such type of transaction also, appellant company was interested in making profit instead of rendering service to a customer, who has been put to inconvenience because of rescheduled flight of the appellant.  We have made a reference to the season because flights were rescheduled sometimes prior to 06/05/2009 and the scheduled flight of the complainant was to take off on 18/05/2009.  Therefore, it was not a sudden mishap or a sudden problem which developed suddenly with appellant so that appellant could not carry scheduled flight but they wanted to arrange their business in tourist season and, therefore, looking to the availability of the customers in different sectors at the relevant time, they had cancelled particular flight and rescheduled it.  That shows that instead of coming from Ahmedabad to Pune they scheduled it to Delhi and from Delhi they wanted to come to Pune.  This was done by appellants only to get more customers and to make profit in season.  The flight was cancelled and rescheduled to the disadvantage and inconvenience of consumer. Under these circumstances, instead of co-operating with the consumer to provide a proper service, appellant company tried to make out money as stated earlier. No doubt there may be cases that the situation may be out of control, wherein flights may required to be cancelled but in the present matter nothing has been placed on record by the appellant to demonstrate as to what was the difficulty of the appellant 15-20 days earlier to reschedule the flight and especially to cancel the flight and, therefore, with an ulterior motive to make a profit, service provider cannot put the consumer to the disadvantageous position. Same is the view expressed by the District Consumer Disputes Redressal Forum and the compensation has been awarded.  Prima facie considering from any point, there is no case for appellant.

9.       At this stage Mr.Mane invited our attention to the fact that appellant has already deposited 50% of the amount at the time of filing an appeal and he submitted that the said amount be paid to the respondent/complainant.

Hence the order:-

                                                ORDER

Misc.application for condonation of delay is rejected.

Appeal is rejected in limine.

Amount deposited by the appellant in this State Commission be paid to the respondent/original complainant.  Respondent may recover rest of the amount by approaching District Consumer Disputes Redressal Forum, Pune.

Copies of the order be furnished to the parties.