D.O.F. 09.07.2010

                                        D.O.O.15.11.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

       Present:   Sri. K.Gopalan                 :    President

             Smt. K.P.Preethakumari  :     Member

             Smt. M.D.Jessy                :     Member

Dated this the  15^th   day of  November   2011.

C.C.No.177/2010

Vadakkedath Govindan,

Vadakkedth House,

Kandoth,

P.O.Kandoth                                                Complainant

(Rep.by Adv.K.Gopakumar)

1.  M/s.Morning Star Travel Agency,

     Perumba, Payyannur.

     (Rep. by Adv.B.P.Saseendran)

2.  The Akbar Travels of India,

     Nr.Muneeswaran Kovil,

     Opp.Petrole Pump, Kannur.                          Opposite Parties

     (Rep. by Adv.Ranjith Kumar T.C)

3.  The Manger,

     Air India, Eroth Centre, 5/2521,

     Bank Road, Calicut 673001

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay an amount of   `39,200 as the monetary loss suffered by the complainant and to pay a sum of `2, 00,000 as the compensation for the mental agony with the cost of this proceedings.

          The case of the complainant in brief is as follows: The complainant approached 1^st opposite party for flight ticket for Dammam for his grand daughter Bibhina Puthiyaveetil, whose passport No. is H.4699429 dt.15.4.2009 issued at Kozhikode. 1^st opposite party had issued a ticket to Dammam, Saudi Arabia in an Air India 917 flight on 2.4.2010 to be departed at 4.10 A.M from Karipur Airport. She boarded from Karipur Airport to Dammam on  2.4.2010 at 4.40 A.M. Though the flight was landed at Dammam Bibhina was not allowed to go outside the Airport premises on the ground that her visa period is expired. She was not even allowed to see her parents who were waiting outside the airport to receive her. Further, she was sent back to Trivandrum Airport in a Jet Airways flight. Parents waiting out side became frightened and contacted the complainant. Complainant became panic and tried to contact the Airport authorities at Karipur, but they were not responded. When the child arrived at Trivandrum she contacted the complainant over phone. She was in a totally desperate and disappointed stage. The whole mishap was occurred due to the negligence and carelessness of opposite parties 1 & 3. The visa is expired one month before the issuance of ticket. For such an expired visa opposite party ought not to have issued ticket for the journey on 2.4.2010. This negligence on the part of opposite parties 1 and 3 cause the child, parents and complainant much suffering beyond words. Opposite parties 1 and 3 collected a sum of `14,700 as ticket fare. A sum of `3500 was paid as taxi charge from Payyannur to Karipur.  `20,000 was paid on taxi charge and other ancillary expenses for the journey from Payyannur to Trivandrum and back to bring the girl. Since she was undergone treatment for mental tension   there occurred an expense of `1000. Lawyer notice was sent but 1^st opposite party did not responded and 3^rd opposite party replied stating that the ticket is issued to  2^nd opposite party and 2^nd opposite party is not liable for damages. Hence this complaint.

          Pursuant to the notice opposite parties 1 and 2 filed version separately. 3^rd opposite party received the notice and acknowledgment returned but remained absent. Since 3^rd opposite party was well served, 3^rd opposite party was subsequently called absent and set exparte.

          1^st opposite party filed version separately contending as follows: The complainant approached 1^st opposite party for flight ticket for his grand daughter Bibhina, holding  passport No.H.4699429 dated 15.4.09 issued at Kozhikode and issued a ticket to Dammam on  2.4.10 while issuing  flight ticket the 1^st opposite party has no duty to look at the visa and its expiry date etc. This opposite party purchases a ticket as ordered by the complainant from the  2^nd opposite party who is the agent of 3^rd opposite party. It is complainant’s duty to check visa and this opposite party is purchasing ticket under the belief that the person approaches them only if there is visa. This opposite party is not expected to check visa. The complainant did not show the visa to the opposite party also. The complainant has to submit a declaration of parents to 3^rd  opposite party while departing from Airport. He has to declare about the status of visa in this declaration form. An opportunity to take out visa from the pocket of accompanying person comes only at that point in the Airport. This opposite party has no opportunity to check the visa. Since it is the duty of the complainant to check visa, he cannot blame others for his wrongs. So there is no deficiency in service on the part of 1^st opposite party. The complainant did not face any damage. They could realize their mistakes of taking ticket for an expired visa immediately when the flight reaches at destination and the authorities had managed to meet the parents and arranged a return trip in the presents of father by giving food and all other arrangements. So no complaint was reported by the father at the Airport during that occasion. Complaint is not entitled to get any relief. Hence to dismiss the complaint.

                    2^nd opposite party filed version denying the allegations and contending as follows:  The complainant has no locus standi to file this complaint. There is no authorization to complainant to conduct the case. The complainant is a stranger to him and there is no privity of contract with the complainant and this opposite party. This opposite party is an unnecessary party. 1^st opposite party is not an agent of 2^nd opposite party. 1^st opposite party is just a client or customer. When a travel agency like 1^st opposite party demands for an air ticket, this opposite party issues ticket after taking the name and passport number of the customer. This opposite party will not get an opportunity to see the passport or visa. If visa was an invalid one, then under no circumstances, the emigration department at the Airport will allow the passenger to board the flight. The passenger is allowed to travel only after verification of the visa at the airport. If the incident has occurred the other opposite parties are liable for the same and this opposite party has no role in it. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Parties?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of PW1, DW1 and documentary evidence Exts.A1 to A3.

Issue Nos.1 to 3

          Admittedly  1^st opposite party had issued Bibhina a ticket to Demam, Saudi Arabia in Air India 917 Flight on 2.4.10. Bibhina arrive at Damam airport. She was not allowed to go out on the ground that her visa period was expired. She was then sent back to Trivandrum Airport in a jet Airways flight. complainant’s case is that  the child  and the parents suffered much only due to the negligence and carelessness on the part of opposite parties 1 and 3. The opposite party ought not to have issued ticket for an expired visa. 1^st opposite party, though admitted the incident, contended that 1^st opposite party has purchased the ticket from 2^nd opposite party agent of 3^rd opposite party as ordered by the complainant. So it is the complainant’s duty to check visa. This opposite party purchase ticket under the belief that the person approached them possesses visa. This opposite party is not expected to check the visa. The complainant did not show the visa to  1^st opposite party. He has to declare about he status of visa in the declaration Form. 1^st opposite party has no opportunity to check the visa and they are not obliged to look into also.2^nd opposite party contended that 1^st opposite party is not an agent of 2^nd opposite party. 1^st opposite party is only a customer when a travel agency like 1^st  opposite party  demands for  Air ticket in their personal capacity, this opposite party issue ticket after taking the name and passport number of the traveler. 2^nd opposite party will not get an opportunity to see the passport or visa.

          Complainant adduced evidence by way of chief affidavit in accordance with his pleadings. In cross examination complainant deposed tht “Emigration department s\Xnsc ]cm-Xn-bp­v. hnk sN¡v sN¿msX hn«-Xn-\mWv ]cm-Xn.. Emigration department\p Ip«nsb tF¸n¡p-t¼mÄ  IqsS c£n-Xm-¡Ä CÃm¯ Ip«n-bm-b-Xp-sIm­v Hcp form fills up sNbvXp-sIm-Sp-¯n-cp¶p. So the main case of the complainant is against emigration department since they allowed the child to go without checking the visa. Complainant pleaded that since their daughter was not allowed to go outside the arrival launch, her parents who were waiting out side the airport to receive their daughter became frightened. They contacted the complainant over phone to enquire about heir daughter. Then only this complainant came to know about the incident. But in the cross examination what the complainant deposed is entirely  different from the above statement. He has deposed that “Ip«n¡v Ahn-sS-C-d-§m³ ]än-bnà F¶ Imc-yT 3\p AÀ²-cm-{Xn-bnemWv  And-ªXp. Airport authorities Ip«nsb receivesN¿m³ ]d-ª-t¸m-gmWv Andn-bp-¶Xp”. When he asked the specific question whether it is correct to say that the complainant came to  know the incident first when his son was contacted him? The answer of the complainant is  “BZ-yT airport authority bmWv hnfn-¨-Xp. ]n¶oSv aI-\pT hnfn-¨p-]-d-ªn-cp¶p‘. What is deposed by complainant in cross examination makes it clear beyond doubt that the incident had been communicated to complainant by none other than air port authority. So the pleading of the complainant that he came to know about the incident when the parents contacted him is a plane lie.  What he has stated in affidavit evidence is that

 “ aI-sf-bpT Im¯v FbÀt]mÀv«n BIm-T-£-tbmsS Im¯n-cn-¡p¶ AÑ-\½amÀ

 aIÄ ^vssfän \n¶pT Cd-§p-¶Xp ImWm-¯-Xn-\m `b¶p hnd¨v Ft¶mSv Im

c-yT- -Xn-c¡m³ t^mWn _Ô-s¸«p. At¸mÄ am-{X-amWv C§-s\-sbm-c-\p-`-h-T- k-T-`-hn¨Xp-Rm-\-dn-bp-¶Xp Xs¶”. There is no truth in this  evidence. It is the Airport authorities who contacted complainant at first.

          Any how it has been admitted that he had filled up a form and handed over to authorities. No doubt that is the declaration form; declaration form is one wherein declaration about the status of visa had to be made. 1^st opposite party has specifically pleaded that complainant has to declare about the status of visa in the declaration form. Anyhow complainant has no case that he has not given declaration form. That means declaration form had given. If he has given the filled up form that was nothing but declaration form. The pleading of the first opposite party that complainant has to declare about he status of visa in the declaration form, has not been denied by the complainant. If that be so, complainant is expected to know the details of visa.

          The facts and circumstances of the case reveals that the complainant and the father of the child  who sent visa negligently handled the document and the absence of necessary diligence, on their part primarily stood responsible for the root  cause of entire problems. The duration of visa etc. are made known to concerned parties complainant and parents first of all. It is them, whom with the documents kept. It is their document. Under such circumstances if they are unaware of the duration of the visa, it is difficult to find fault with others, for the consequences developed upon that. 1^st  opposite party taken the contention that an opportunity to take out visa from the pocket of accompanying person comes only at that point time at the air port. So he had no opportunity to check the visa. There is no evidence contrary to that. Complainant did not prove that 1^st opposite party had the opportunity to verify the visa nor he was legally bound to verify the same. It cannot be ignored that the primary duty lies with the complainant to check the visa. The 2^nd opposite party contended that complainant is a stranger to him. 2^nd opposite party issues ticket after taking the name and passport number of the customer. He wouldn’t get opportunity to see passport and visa. Without clear evidence against these contentions opposite parties 1 and 2 cannot be made liable on mere presumption. Complainant did not even deny these contentions.

          However it can be seen that the immigration department made clearance whereby the   girl was boarded from Karipur Airport to Damam. 3^rd opposite party remained absent through out. It is the negligence on the part of 3^rd opposite party the girl was happened to be boarded from Karipur to Damam. They did not verify the documents of the passenger properly. If the visa was verified it could be found visa was expired. This negligence had taken place out of non performance of legal duty casted upon 3^rd opposite party. Whether 3^rd opposite party had discharged the legal obligation casted upon them is relevant question to be answered so as to determine the deficiency in service. If the legal duty casted upon 3^rd opposite party had been discharged properly the girl would not have happened to be boarded to Damam. What is the justification on the part of 3^rd opposite party for allowing the passenger girl, whose visa was expired, to be boarded to abroad? There lies the point. Whatever may be the negligence happened to be occurred on the part of others, 3^rd opposite party would not be free from discharging the legal obligation and at any rate, be justified in undoing of proper verification of visa. The very reason of hiding themselves from conducting the case is nothing but their hands are empty which they can defend their case. Hence keeping away from the Forum is a purposeful deed. The negligence on the art of opposite party is quite evident and the same amounts to deficiency in service, causing all miseries.

          It is true that there is deficiency in service on the part of 3^rd opposite party. But on a probe in to the facts of the case reveals that it was not a purposeful omission but a mistake. That does not mean there is no liability. The available evidence shows that there was genuine attempt on the part of opposite party to minimize the damages and other consequences. It has come in evidence that they have very soon communicated the incident to complainant. It can also be seen that all the arrangements has been done to  send the child passenger to homeland  informing the complainant. Once a mistake happened the only possible way out is, somehow or other, manage to solve the consequences thereafter, with immediate effect. The  3^rd opposite party herein, on realizing the mistake, no doubt, acted  vigilantly and actively without delay to do what all practically possible without fail. In this account 3^rd opposite party deserves appreciation. Under such circumstances complainant can claim damages only on strict proof of damges. As per the pleading of the complainant opposite parties 1 and 3 had collected `14,700 as ticket fare. A sum of `3500 was paid a taxi fare from Payyannur to Karipur.  `20,000 was paid on taxi charge and other ancillary expenses for the journey from Payyannur to Trivandrum and back to bring the girl. A sum of `1000 was spent for the treatment of the girl. Complainant also claims a sum of `2, 00,000 as compensation for the mental agony suffered by the child and the family.

          The close scrutiny of the facts and available evidence bring forth that the element of negligence accelerated at the crucial point of time when the documents of passenger child, was subjected to verification.  suppose the verification had been done properly the journey should have been prevented and complainant could have refund the ticket fare. Hence it is justifiable to say that 3rd opposite party is liable to pay the expense spent by the complainant for the ticket `14,700. The second claim included in the damage is taxi fare.Ext.A1 and A2 are the taxi receipt produced by complainant. Ext.A1 is the Taxi fare for the journey from Payyannur to Calicut. As per the available evidence the actual opportunity to verify the visa occurred on 2.4.2010 from Karipur Airport at the eve of departure. Up to that point of time the negligence on the part of complainant swimming at full strength. So he is not entitled to claim for any sort expense before the verification of the document on 2.4.2010. The case of the ticket is different because there is facility to surrender and refund the amount. The complainant has not disclosed the actual ticket fare. He has only stated that opposite parties 1 and 3 collected a sum of  `14,700.Any how there is only a possibility of extra expenses of a small amount and reduction on surrender etc.  Ext.A2 is another taxi receipt for an amount of `14,300 from 4.4.2010 to 7.4.2010 i.e. Payyanur to Thiruvananthapuram and back. The complainant came to know the incident on 2.4.2010 as per evidence. The father of the girl contacted complainant immediately after the arrival of the flight. Evidence shows that officials of Air India contacted the complainant before father of the child contacted him. So it is to be inferred  that the journey from Payyanur to Thiruvananthapuram did not start immediately after getting the information. He starts journey only on 4.4.2010 at 10 PM. The flight of the girl from Karipur to Damam was on 2.4.2010 at 4.40 A.M He has not started journey on 2.4.2010 night or 3.4.2010 but only on 4.4.2010 at 10 PM. This much of delay shows that the emergency to start the journey has not been taken as a considerable aspect by the complainant. Moreover,  in ordinary course taking into consideration the specialty he could have return on  5<sup>th</sup> or 6<sup>th</sup>. He started his return journey only on 7<sup>th</sup> night. It shows that the necessity of use of car do not stand proved. This is a rout where there are train facility is also available. Hence we feel that complainant is not entitled to claim for the taxi charge but only a reasonable traveling expense at any rate not exceeding `5000.  Third point arose with respect to mental pain. The entire pain and suffering could have been avoided if the complainant and other parents were a little bit deligent in respect of journey documents. The father of the girl is working abroad. He has enough experience in traveling. He should have shown more vigilance since the girl is only a student of elementary school. The first thing one should take serious is the problem of visa. Visa particulars are so important, in all aspects. It is wonderful to see why the complainant and the father of the child are quite ignorant of visa particulars of the girl. Since they are responsible to a certain extent to this incident we re not inclined to award compensation for mental agony.

          Taking into account the facts and circumstances together with the available evidences we are of opinion that including the cost of litigation an amount of `20,000 will meet the end of justice. 3^rd opposite party is liable to pay this amount. Hence the issues 1 to 3 are partly decided in favour of complainant.    

In the result, the complaint is partly allowed directing the 3^rd opposite arty to pay an amount of `20,000 (Rupees Twenty thousand only) as compensation to the complainant within 30 days from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act.

                     Sd/-                      Sd/-                     Sd/-

                President                 Member                Member

APPENDIX

Exhibits for the Complainant

A1& A2.  Tourist taxi receipt

A3. Copy of the passport of Bibhina

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.K.Khaleel

                                                 / forwarded by order/

                                                                                                                                           Senior Superintendent

Consumer Disputes Redressal Forum, Kannur