DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH =============== Complaint Case No | : | 375 OF 2010 | Date of Institution | : | 08.06.2010 | Date of Decision | : | 26.07.2012 |
Vikas Jain s/o Sh. Adarsh Kumar Jain, r/o H.No. 87, Shivalik Enclave, NAC, Manimajra, Chandigarh. ---Complainant Vs [1] M/s Kingfisher Airlines Limited, Kingfisher House, Western Highway, Ville Parle (East), Mumbai – 400 057. [2] M/s Kingfisher Airlines Limited through its Manager, having its Branch Office Connaught Place, New Delhi – 110001. [3] M/s Clear Trip Limited, through its Managing Director, having its office at Unit No. 001, Ground Floor, DTC Building, Sita Ram Mall Compound, N.M Joshi Marg, Delisle Road, Lower Parel (East), Mumbai – 400011. ---- Opposite Parties BEFORE: SH.LAKSHMAN SHARMA PRESIDENTMRS.MADHU MUTNEJA MEMBER Argued By: Sh. Ankur Bali, Counsel for Complainant. None for Opposite Parties No.1 and 2. Sh. Plabon M Borua, Counsel for Opposite Party No.3. PER MADHU MUTNEJA, MEMBER 1. The instant complaint is for non-refund of amount allegedly paid by the Complainant for booking air tickets of M/s Deccan Aviation Pvt. Ltd., through M/s Clear Trip Limited. As per, the Complainant he had booked tickets of Deccan Aviation through Opposite Party No.3 online as per internet confirmation receipt Annexure C/1. On seeing the print out, the Complainant realized that he had booked the ticket for a wrong date i.e. 11 June, 2008, he therefore booked new tickets from the same Airline through Opposite Party No.3 on the same date for travel on March 11, 2008. As per the averments of the Complainant, the wrong tickets were cancelled 2-3 days prior to 11.06.2008 on the helpline of the Opposite Party No.3. However, the request for cancellation if made is not on record. The Complainant has stated that the amount spent on the wrongly booked tickets has not yet been refunded to him. The Complainant has also stated in the Complaint that as M/s Deccan Aviation had been taken over by M/s Kingfisher Airlines Limited along with its assets and liabilities; thus, for all intents and purposes, M/s Kingfisher Airlines Ltd. is liable for deficiency in service and refund of tickets, which was booked through M/s Deccan Aviation Pvt. Limited. An amended title to this effect has also been filed by the Complainant. As per the Complainant the payment was debited from his credit card account. The credit card statement through which payment has been made has been placed at Annexure C-5. The Complainant has therefore filed the present complaint with a prayer with the Opposite Parties be directed to return the amount paid for the cancelled tickets, along with interest and compensation, besides cost of litigation. 2. After admission of the complaint, notice was sent to the Opposite Parties. 3. Opposite Parties No.1 & 2 in reply have taken the preliminary objection that the Complainant has not filed any document showing payment against any of the two bookings to the Opposite Parties. The copy of the credit card statement supplied by the Complainant belongs to one Sh.Atul Kumar Jain (Annexure RW/1), who is not a party to the complaint. Further, as per the Opposite Parties although the Complainant has alleged to have made two separate bookings for travel on 11.03.2008 and 11.06.2008, the credit card detail shows only one transaction of debit of Rs.9573/- towards payment for the tickets. Opposite Party has hence denied receipt of two payments from the Complainant. Furthermore, the Opposite Parties No.1 and 2 have stated that their address is given as New Delhi and Mumbai. Hence, there is no document to support the Complainant’s case for the purpose of territorial jurisdiction to file the present complaint before this Forum. Annexure C/3 placed on record by the Complainant is an e-mail dated 26.5.2010 sent to the mail id “refunds@airdeccan.net”. OPs have submitted that after merger of Kingfisher Airlines and Deccan Aviation, all “airdeccan.net” e-mail ids were changed to “flykingfisher.com” with effect from 17 Sept., 2008 and all e-mail ids with “airdeccan.net” were completely disabled effective from 20:00 hrs. on 17 Sept., 2008. Hence, as per the Opposite Parties, the document at Annexure C/3 is obviously a fabricated document. Opposite Parties No.1 and 2 have also submitted that the tickets booked for 11.6.2008 as per the document at Annexure C/2 were in the name of Namrata Jain, Manish Jain, Shreya Jain and Kunal Jain. Payment was made by credit card of Atul Kumar Jain. As such, the Complainant has neither paid any consideration nor was he a beneficiary and as such, is in no way concerned with either the booking of the payment. Hence, there exists no cause of action in favour of the Complainant against the Opposite Parties as there is no relationship of consumer and service provider between the Complainant and themselves. Opposite Parties No.1 and 2 have also stated that the alleged date of booking of tickets is 10.3.2008, while the complaint has been filed on or after 08.06.2010, which is 02 years 04 months and 11 days after the date of booking and hence, beyond the statutory limitation, prescribed by the provisions of the Consumer Protection Act, 1986, for filing a complaint. On merits, in the para-wise reply Opposite Parties No.1 and 2 have taken similar submissions as in the preliminary objections. They have also added that they are not part of the correspondence exchanged between the Complainant and Deccan Aviation, and Kingfisher Airlines has not received any request for refund of any amount from the Complainant. Hence, claiming that there is no deficiency in service or unfair trade practice by the Opposite Parties No.1 and 2, they have prayed for dismissal of the Complainant. Additionally, and without prejudice to the above submissions, Opposite Parties No.1 and 2 have also submitted that a detailed investigation was made with the concerned department on the details available in the complaint. However, no ticket numbers or alleged cancellation number were found in the system of the answering Opposite Parties. Even the documents placed on record by the Complainant himself show only one transaction for the booked tickets made from the credit card of one Sh. Atul Kumar Jain and not two transactions, as alleged by the Complainant. The Complainant has himself admitted utilization of the tickets booked for 11.03.2008, against which payment have been made. Hence, reiterating that there is no deficiency in service and that the Complainant is not entitled to any relief, Opposite Parties No.1 and 2 prayed for dismissal of the complaint. 4. Opposite Party No.3 in reply have taken the preliminary objection that this Forum has no jurisdiction to entertain the present complaint, as the Complainant had entered into an online agreement with the Opposite Party. As per this agreement, all disputes between the parties were subject to jurisdiction of Mumbai. Further Opposite Party No.3 has submitted that they are only a Travel Service Company which facilitates booking of air tickets and they have no responsibility or power to make decision regarding cancellation of tickets or giving refunds. This is the sole and exclusive responsibility and prerogative of the Airline alone. It has been mentioned on the ticket itself as well as the website that tickets can be cancelled only through the airline directly. If the Complainant had wrongly booked tickets, which were later cancelled, the Opposite Party No. 3 was not responsible for making any refund. On merits, Opposite Party No.3 has admitted booking of tickets on 11.3.2008. They have further reiterated that refund of amount is at the discretion of the Airlines and they have no role to play. Hence, denying all other allegations of the Complainant, Opposite Party No.3 has prayed for the dismissal of the complaint. 5. Parties led evidence in support of their contentions. 6. We have heard the learned counsels for the Complainant and Opposite Party No.3 and have perused the record, along with the written arguments filed by Opposite Party No.3. As the Opposite Parties No.1 and 2 failed to appear on the last date of hearing i.e. 23.07.2012, only the arguments of the learned counsels for the Complainant and OP No.3 were heard. The complaint was thus, proceeded to be disposed of on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date), vide order dated 23.07.2012. 7. The grievance of the Complainant is that the Opposite Parties are not refunding the amount paid by him for wrongly booked tickets of M/s Deccan Aviation Pvt. Ltd. on 11.3.2008. The Opposite Parties No.1 and 2 have taken very valid objections to prove that the case of the Complainant is not maintainable in any way. A discussion of the Complainant’s case and the objections made by the Opposite Parties bring out the following factual position: - [a] The Complainant has booked tickets online through a credit card which is not in his name. [b] The Opposite Parties are all situated at New Delhi or Mumbai. The complaint is not maintainable as Section 11(2) of the Consumer Protection Act, 1986 provides that a complaint shall be instituted in a District Forum in whose jurisdiction the Opposite Party or Opposite Parties reside or where the cause of action, wholly or in part, arise. The Opposite Parties are not situated at Chandigarh and the ticket has been booked for travel from New Delhi to Mumbai. In this situation, we feel that the Complainant has no case on the point of jurisdiction alone. [c] The Complainant has placed on record print outs showing two sets of booked tickets for travel on 11.3.2008 and 11.6.2008. However, the credit card entry shows only one payment made to M/s Cleartrip Travel Services Pvt. Ltd., Mumbai. The passengers have travelled on the booked ticket for 11.3.2008. Hence, no cause of action against the Opposite Parties has arisen since there is no proof of two payments made to M/s Cleartrip Travel Services Pvt. Ltd., through whom the tickets were booked. It needs to be reiterated here that the credit card from which the payment is made is not in the name of the Complainant, but in the name of one Sh. Atul Kumar Jain, who is not a party to the dispute. [d] The Complainant is not one of the travelers as per the booked tickets. He cannot be a consumer as per the definition of consumer u/s 2(d) of the Consumer Protection Act, 1986, because he has neither paid any money to the Opposite Parties, nor is he a beneficiary of the services paid for. [e] The date of booking and date of travel have been shown as 11.3.2008. The allegedly wrongly booked tickets for which payment has not been refunded are for 11.6.2008. The tickets were booked on 11.3.2008. The instant complaint has been filed on 8.6.2010. The details of request for refund are not on record. The Complainant has been filed beyond the statutory period of 2 years prescribed under Section 24A of the Consumer Protection Act, 1986. There is also no application for condonation of delay under Section 24A filed by the Complainant. Hence, in our opinion, the complaint being filed beyond the statutory limitation period is not maintainable and is liable to be dismissed on this ground also. 8. Looking at the entirety of the situation on the points discussed above, it is evident that the Complainant has no cause of action against any of the Opposite Parties in the instant complaint. He has not made payment to the Opposite Parties; he is not a beneficiary of the tickets booked; further, this court does not have the competent jurisdiction to try this complaint. 9. In view of the above, we dismiss the complaint. No costs. 10. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 26th July, 2012. Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
