A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
HYDERABAD.
FA 301/2006 against C.C. 1427/2004, Dist. Forum-III, Hyderabad.
Between:
Mohammed Raheem Khan
S/o. Mohammed Maqbool Khan
Age: 35 years, H.No. 17-6-550
Behind Police Line, Dabeerpura
Hyderabad-500 023. *** Appellant/
Complainant.
And
1. Alitalia Airlines
5th Floor, C.G. House
Prabhadevi,
Mumbai- 400 025.
2. The Customer Relations
Alitalia Airlines
Centro Direzionale
Viale A, Marchetti, 111
00148 Rome, Italy. *** Respondents/
Ops.
Counsel for the Appellant: P.I.P.
Counsel for the Resps: M/s. Bimal Bhaskar
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
SMT. M. SHREESHA, MEMBER
&
SRI K. SATYANAND, MEMBER
THURSDAY, THIS THE TWENTIETH DAY OF AUGUST TWO THOUSAND NINE
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) The appellant is unsuccessful complainant.
2) The case of the complainant in brief is that he purchased to and fro air tickets from R1 airlines for Mumbai-Milan-Mumbai on 21.10.2000 for himself and three other family members, the date of departure being 7.11.2000 and return journey being on 11.11.2000. While he travelled to Milan on the schedule date but could not use return tickets due to some unavoidable circumstances. When he had approached R2 an authorised agent for refund of the amount he was informed that it was not possible nor postpone the journey. When he sought for refund of the amount towards return journey tickets the respondents have been postponing on one pretext or the other. Alleging that this amounts to deficiency in service he issued a legal notice on 16.4.2004 and later filed the complaint claiming refund of the amount covered under the tickets besides expenses of Rs. 10,000/-, compensation of Rs. 1 lakh and Rs. 11,500/- towards legal expenses in all Rs. 2,02,500/-.
3) The respondent airlines and its agent resisted the case. While admitting that the complainant had purchased to and fro air tickets they alleged that the tickets were confirmed tickets. In fact they had availed special inaugural fares Ex-Mumbai at concessional rates, and that the tickets were non-endorsable, non-re routable, non-refundable, and only available for specified flights. The validity of the tickets was for four months. For the first time on 18.8.2003 the complainant returned the unused tickets and requested for refund of Rs. 81,000/- paid under the tickets. It was 33 months from the date of journey. He did not explain as to the expenditure incurred by him for purchase of return tickets from Milan – Mumbai nor delay in making the claim. The claim was hopelessly barred by limitation. The complainant himself admits in one of his letters that as per rules he was not entitled for refund of cost of the tickets in view of the restrictions. There was no deficiency in service on their part. Therefore, they prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A12 marked. The respondents did not file either affidavit evidence or documents.
5) The Dist. Forum after considering the evidence placed on record opined that for the tickets purchased for return journey on 11.11.2000 complaint was filed on 23.11.2004 beyond the period contemplated u/s 24-A of the Consumer Protection Act. The validity of the ticket was for four months. Computing the limitation, even after four months even then it was hopelessly barred by limitation, and therefore the complaint was dismissed however without costs.
6) Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum ought not to have dismissed the complaint solely on the ground of limitation. It ought to have seen that it was continuous cause of action. It did not appreciate that he was entitled to refund of the amount as he made the claim within time.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact and law therefore the complainant is entitled for refund of the amount?
8) It is an undisputed fact that the complainant had purchased to and fro air tickets from R1 airlines for Mumbai-Milan-Mumbai on 22.10.2000 for himself and three other family members specifically giving dates 7.11.2000 and 11.11.2000 respectively. The complainant and his family members had visited Milan. However for return journey he could not utilize the tickets, according to him due to unavoidable circumstances. He did not amplify the reasons due to which he could not take return journey on
11.11.2000. It is also not in dispute that return journey tickets were confirmed tickets. It may be mentioned herein that at clause 4 printed on the ticket it mentioned “Many special fares are issued subject to condition which may restrict or prohibit any change in booking and may limit the amount of any refund due in the event of cancellation or failure to travel.”. The validity of the tickets was four months.
9) Though the complainant stated that he informed about the postponement of the journey on 9.11.2000 by using drop box, the respondent denied having received such a letter. He alleges that he was in constant touch with the respondents for refund of the amount covered under the tickets but no acknowledgement or commitment from the respondents, that they would pay the amount was made. The complainant admittedly issued a legal notice on 16.4.2004 claiming refund of the amount covered under unused air tickets.
10) The complainant had purchased the tickets knowing full well that he was not entitled for refund in view of the specific stipulation. Even otherwise he could not prove that he sought for postponement of journey to a particular date in order to find fault with the airlines in not accommodating him. The complainant did not mention in his complaint as to when he returned to India and the amount spent by him towards purchase of those tickets. The complainant ought to have seen the terms and stipulation before purchasing the tickets, and when the airlines had made it clear that they will not refund the amount in case of postponement more so when they were confirmed tickets, the complainant cannot turned round and claim the amount stating that he was entitled to the same. He states that some other airlines accommodated him when he sought for postponement. May be other airlines have their own rules, where they could accommodate such postponement or refund of amount, that cannot be a ground for claiming the amount when there was specific stipulation that amount could not be paid in case of cancellation of journey.
11) Evidently the complainant had purchased to and fro tickets on 21.10.2000 for Mumbau-Milan-Mumbai. The scheduled return journey was 11.11.2000. When he could not travel on the said date, he did not mention the date on which he would travel. According to him, he made a claim by submitting a letter in a drop box. The respondents denied the same. The complainant could not prove by filing any evidence to that effect except his own self-serving statement. The complainant for the first time issued a legal notice on 16.4.2004 three and a half years after the date of journey claiming refund of the amount. He filed the complaint before the Dist. Forum on 23.11.2004 after three years. The Dist. Forum, as we have earlier pointed out opined that the claim was hopelessly barred by limitation. Section 24-A of the Consumer Protection Act contemplates two years period for filing a complaint from the date when the cause of action arises. In order to get over this the complainant pleads that there were three dates for reckoning cause of action. According to him on 18.8.2003 he wrote a letter to Rome Office at Italy after several visits to the offices at Hyderabad and Mumbai. Secondly he relies on a letter Dt. 7.10.2003 issued by the respondent in response to his above said letter, and finally on 16.4.2004 a legal notice got issued by him. At no time, the respondent had admitted the claim made by the complainant within the period of limitation. Relying a decision of this Commission T.S. Prabhakar Vs. A.N.L. Narasimha Rao & Another reported in CPR 1993(2) 72 the complainant contends that as for complaint before the Dist. Forum, it is residuary article that applies and complaint has to be filed within a period of six years. The said decision has no application in the light of amendment in 2003 to the Consumer Protection Act.
12) Learned counsel for the respondent air lines relying a decision of Supreme Court in State Bank of India Vs. B.S. Agriculture Industries (I) reported in (2009) 5 SCC 121 contended that the Dist. Forum is duty bound to determine whether a complaint is barred by limitation irrespective of such plea raised by the parties. Their Lordships opined that :
“Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:
"24A. Limitation period - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub- section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own 5 whether the complaint has been filed within limitation period prescribed there under. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside. “
13) Coming to the facts, the complainant admittedly did not file any application recoursing to Section 24-A of the Consumer Protection Act to condone delay in filing the complaint. The respondent airlines had taken a specific plea that the complaint was barred by limitation. Their Lordships by referring to a recent case of Gannmani Anasuya and Others v. Parvatini Amarendra Chowdhary and Others, (2007) 10 SCC 296, observed that “the Supreme Court highlighted with reference to Section 3 of the Limitation Act that it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not be even pleaded.”. We have already made clear that the respondent in fact has taken this plea to be determined in the first instance.
14) Evidently the complaint was filed beyond the period of limitation. For the claim for tickets for travel that had to be taken place on 7.11.2000 complainant had filed the complaint on 23.11.2004. It is hopelessly barred by limitation. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
15) In the result the appeal is dismissed, however without costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
3) _________________________________
MEMBER
Dt. 20. 08. 2009.
*pnr
“UP LOAD – O.K.”
