BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 26.08.2014

Date of order : 04.03.2017

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No. 634/2014

Between

And

O R D E R

Sheen Jose, Member

1) The case of the complainant is as follows:

The complainant is doctor by profession and he is now working as Pediatrician in Well Care Hospital, Vytilla. In order to participate in the International Congress of Pediatrics 2013, to be held in Melbourne from 24^th to 29^th August 2013, the complainant contacted the 1^st opposite party during January 2013 to book his flight ticket to Melbourne. As per the advice from the 1^st opposite party, the complainant decided to travel in 'Air Asia' and accordingly remitted an amount of Rs. 56,100/- on 29.01.2013 in order to purchase ‘to and fro’ air tickets in the said flight. The scheduled journey of the complainant was on 22.08.2013 from Kochi to Melbourne (Australia) and the return journey was scheduled on 31.08.2013 from Sidney (Australia) to Kochi in Air Asia Flight. But immediately after booking the tickets, the complainant came to understand that he would not be in a position to travel to Melbourne on 22.08.2013 to participate in the International Congress of Pediatrics, as he had some important and unavoidable official assignments in Kochi during the month of August 2013. Hence the complainant decided to cancel the air tickets and contacted the 1^st opposite party during the 2^nd week of February with a request to cancel the air tickets purchased on 29.01.2013 and also requested to much in advance refund the ticket fare after cancelling the tickets. The 1^st opposite party assured that the air tickets will be cancelled and that refund will be provided to the complainant after deducting the cancellation charges, as soon as the same is received from the 2^nd opposite party. In spite of the assurance of the 1^st opposite party regarding the refund, the complainant was not paid any amount towards refund. On making repeated requests, it was informed by the 1^st opposite party that the request for refund has been turned down by the 2^nd opposite party on the ground that the tickets once issued are non refundable. The 1^st opposite party promised to keep up their efforts to get the refund especially when the tickets for the month of August was cancelled as early as in February. One week prior to the proposed journey, it was informed by the 1^st opposite party that the complainant is still eligible to get refund for his cancelled ticket as ‘Air Asia’ has introduced a new refund policy, with effect from 09.08.213. It was further intimated that based on the said policy, the 1^st opposite party has again sought for refund of the ticket charges. In the meantime, the complainant requested the 1^st opposite party to get the date of journey postponed, if the 2^nd opposite party was not amenable to refund the price of the tickets. In the circumstance, the complainant was expecting the refund of the ticket charges or in the alternative postponement of the date of journey. Much to the shock of the complainant, the opposite parties have neither refunded  the amount paid by the complainant towards ticket charges, nor have they postponed the date of journey as requested by the complainant. It was never ever conveyed to the complainant by the 1^st opposite party that the amount once paid is non refundable in the event of cancellation of journey. So, the said acts of the opposite parties in not refunding to the complainants the amount collected from him towards ticket charges, following cancellation of journey, and in not acceding to the request of the complainant to postpone the date of journey, are illegal and amounted to unfair trade practice and gross deficiency of service. Further more, it is pertinent to note that the opposite parties have not sustained any loss due to the withdrawal of the complainant from the said journey, as the complainant had intimated his decision to withdraw from the journey immediately after booking the tickets and there was nearly 6 months before the scheduled date of journey. In the said circumstance, the opposite parties had ample time to admit other people in the vacancy of the complainant. The repeated requests and follow ups were done by the complainant, but the opposite parties did not do anything neither to refund the price of the ticket charges nor to postpone the date of journey as requested by the complainant. Thus, the complainant is before us seeking direction to the opposite parties to refund an amount of Rs. 56,100/- towards the costs of the tickets collected from the complainant together with 12% interest and to pay Rs.25,000/- towards damages and compensation for the metal agony suffered by the complainant. He also prayed for the payment of the costs of the proceedings.

2) Version filed by the 1^st opposite party is as follows:

The complaint is not maintainable either in law or on the facts of the case. There is no unfair trade practice and deficiency in service on the part of the 1^st opposite party at any point of time. The 1^st opposite party had given all services to the complainant as their reputed client. The 3^rd opposite party started its operations a few years back in Kerala is also a non refundable carrier. This fact was known to the complainant as he is a frequent traveller in different airlines throughout India abroad on several occasions. The one Dr. Abraham Paul, who had made an enquiry about the availability of cheaper air tickets to Australia mainly to Melbourne for the purpose of participating in the International Congress of Pediatrics 2013. He further informed that the group will be of about 32 to 35 persons and asked this opposite party to make maximum concession to the air tickets. The 1^st opposite party immediately contacted with the 2^nd opposite party herein to enquire about the availability of the tickets with cheaper rate. Accordingly, the 1^st opposite party informed that during the said period the Air Asia had introduced a scheme with low fare if tickets were booked and issued on or before 20.01.2013. Immediately, this message was conveyed to Dr. Abraham Paul. As per the instruction of the Dr. Abraham Paul, the 1^st opposite party contacted one of his friends Dr.Narayanan, who was also travelling to Australia to attend the conference. Dr. Narayanan had contacted to the 1^st opposite party and had spelled out the name of each passenger, which were 32 in numbers and also directed this opposite party to get the tickets within the scheme on the same date itself. In view of the fact that the scheme is being closed on that date itself ie, on 21.02.2013. During this time, the 1^st opposite party had also informed that if any of the passengers wanted tickets on that flight other than the 32 names spelled they would have to pay higher fare. It was also intimated that tickets once issued are non refundable and that since 20.01.2013 was a Sunday the 1^st opposite party had personally contacted the office of the 2^nd opposite party and requested them to provide the tickets to 32 individuals as instructed by Dr. Narayanan and the tickets were issued on 20.01.2013. Immediately this fact was informed to Dr. Narayanan through e-mail on 21.01.2013 re-confirming the booking of the tickets including the name of the individuals proposed to make travel to Australia on 22.08.2013. As stated above all the 32 tickets were issued by the Air Asia and the same were received by the 1^st opposite party and communication were immediately sent to all the proposed passengers. Thereafter, the passengers had remitted the ticket fare separately in the office of the 1^st opposite party. The complainant, Dr.S.Sachidananda Kamath has remitted the price of the ticket on 29.01.2013 by way of cheque No. 191402 dated 29.01.2013 for an amount of Rs.56100/- drawn on ING Vysa Bank, Cochin to the office of the 1^st opposite party and his ticket was also confirmed. Even during the said time there was no proposal from his side to change the date of journey or to cancel the proposed journey. It is submitted that as stated above, the tickets of low cost carriers are non refundable except in case where tickets issued under certain fare basis options or schemes comes with conditions to it like totally non refundable, with date change penalty, date change penalty plus difference in fare, etc. Hence if the complainant wanted to cancel the ticket and to make good his loss, the only option available is to contact the 1^st opposite party, the 2^nd opposite party or the Air Asia for postponement of journey by informing them the new date of travel and to pay the additional charges, if any, during the said time along with the penalty charges. In the present case, the complainant has never contacted these opposite parties at any point of time for the said purpose. In the end of 2013 the complainant had contacted the 1^st opposite party and informed that he want to get refund of the ticket amount. The 1^st opposite party informed that first of all, the time for change or postponement of the journey had expired by 20.01.2014 and hence he is not entitled to get said benefit. Moreover, it was also clarified that his ticket was booked for a particular date, as a group on a promotional Air fare. Hence the passengers were not entitled to get the price of the air ticket.

3) The present complaint is filed only as an afterthought to unnecessarily harass the 1^st opposite party. Moreover, the 1^st opposite party is only a travel agent providing maximum facilities to the clients. The averments in the complaint that the opposite party had given assurance to get the ticket fare refund and that the opposite party had informed that the complainant is entitled to get the refund as Air Asia had introduced a new refund policy with effect from 09.08.2013 etc are incorrect and the complainant has never contacted this opposite party during the said time. The further averment that the opposite parties had ample time to admit other people in the vacancy of the complainant and that being so the opposite parties have not sustained any loss whatsoever due to the cancellation of tickets etc are also unsustainable because the same can be done only by the Air Asia or the 2^nd opposite party if their policy permits to do so. Hence the complainant filed by the complaint lacks merit and the complainant is not entitled to any relief sought for in the complaint. The Hon’ble Forum may be pleased to dismiss the complaint with cost to the opposite party.

4) Version filed by the 2^nd opposite party is as follows:

The complaint is not maintainable for non-joinder of necessary parties. The 2^nd opposite party has no say or control over the fare regulation and pricing policy of the 3^rd opposite party Air Asia India Pvt. Ltd. The price of air tickets are fixed and updated consistently by the 3^rd opposite party and the 2^nd opposite party had no control over the fixation of tickets rates and fare rules. For better understanding of the issue the Flight fare of Air Asia is categorized into different types such as Low fare, Premium flex and Business class. The tickets are fully non refundable and the terms and conditions are specified in the Air Asia Website. The purchasers of the tickets are always notified before purchase about the terms and conditions the ticket they purchase carries. The 1^st opposite party is an agent who purchases tickets of the 3^rd opposite party through the 2^nd opposite party. Therefore the 1^st opposite party was well aware of the nature of the cancellation policy before issuance of the ticket to the complainant. As per the 3^rd opposite party policy, no refund is permitted on tickets issuance of ticket on any international sectors. The pricing policy is well explained in the Air Asia Website and the 1^st opposite party had placed the orders referring to this. The 2^nd opposite party is not aware of the offer made by the 1^st opposite party to the complainant. It is also pertinent to note that the 2^nd opposite party does not have any privity with the complainant, nor has undertaken or communicated directly with the complainant before or after the issuance of the tickets. The 2^nd opposite party does not negotiate to collect the ticket fare from the passenger. Therefore the 2^nd opposite party cannot be made liable for any of the acts or offers promised by the agent. There is no deficiency in service and the 2^nd opposite party is not liable to pay any compensation as prayed for. It is submitted that above complaint is only an abuse of the process of law and the same is liable to be dismissed with costs.

5) Despite the service of notice from this Forum, the 3^rd opposite party opted not to contest the matter for their own reasons. No oral evidence has adduced by both complainant and opposite parties. Exbt. A1 to A3 were marked on the side of the complainant. Exbt. B1 was marked on the side of the opposite parties.

6) Issues came up for considerations are as follows:

1.      Whether the complainant is entitled to get refund of the cost of the Air ticket from the opposite parties?

2.      Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

7) Issue No. (i)

Admittedly, the complainant has remitted the price of the disputed Air ticket on 29.01.2013 by way of cheque No. 191402 dated 29.01.2013 for an amount of Rs. 56,100/- drawn on ING Vysa Bank to the office of the 1^st opposite party. His ‘to and fro’ Flight ticket was confirmed and air travel is to participate in the International Congress of Pediatrics 2013 to be held in Melbourne from 24^th to 29^th August 2013. According to the complainant, he came to understand that he would not be in a position to travel to Melbourne as scheduled, immediately he approached the 1^st opposite party for cancellation of Air ticket and requested to refund the cost of the Air ticket. The 1^st opposite party assured that they intimated the same to the 3^rd opposite party very soon and assured that refund will be provided to the complainant after deducting the cancellation charges. Unfortunately the 1^st opposite party did not honour their promise. Again, the complainant contacted the 1^st opposite party and requested to get the date of journey postponed, if the 2^nd opposite party is not amenable to refund of the price of the tickets. After the complainant informed to the 1^st opposite party that as per the policy of the 3^rd opposite party, they have neither refunded the amount paid by the complainant towards the ticket charges nor postponed the date of journey as requested by the complainant.

8) Exbt. A1- invoice dated 24.01.2013 goes to show that the 1^st opposite party issued a receipt for an amount of Rs. 56100/- towards (ticket No. AK A6 SWS-29) Flight ticket charges to the complainant. Exbt. A2 receipt dated 29.01.2013 goes to show that 1^st opposite party received an amount of Rs. 56100/- from the complainant via cheque no. 191402 dated 29.01.2013 drawn on ING Vysa Bank, Cochin. Exbt. A3 e-mail communication goes to show that the complainant had sent mail to the 1^st opposite party requesting for refund the cost of air ticket. The 1^st opposite party replied to the email communication stating that “there is no such cancellation policy for ticket once issued, as tickets on air Asia are non- refundable”. The mail communication with the 1^st and 2^nd opposite parties dated 20.08.2013 goes to show that Air Asia has introduced refund policy effect from 09.08.2013 and the complainant was required after canceling the PNR to request for the refund of the cost of the ticket charges of the complainant. Exbt. B1 e-mail communication between the opposite parties states that as per the policy of the 3^rd opposite party tickets once issued are non refundable. Therefore, the opposite party denied all the refund requests of the complainant.

9) In this case, the complainant had informed to the opposite party that he decided to cancel the entire trip and air ticket due an unavoidable official assignment in Cochin during the travelling time. He also had requested to refund the ticket fare after cancelling the ticket. It is not in dispute that the opposite party had ample time to fill other passengers in the vacancy of the complainant. The opposite party vehemently contended that the cancellation policy of the 3^rd opposite party is that ‘the tickets once issued are non-refundable’ and the complainant were fully aware of the fact of the cancellation policy of the 3^rd opposite party. In all respects, except for the averments made, the opposite parties failed to prove or produce any evidence before this Forum that the cancellation policy was communicated to the complainant at the time of purchasing the air ticket. Even if, the cancellation policy of the 1^st opposite party that tickets once issued is non-refundable, is unethical and in violation of natural justice principles. The above said policy of the 3^rd opposite party is also an unfair trade practice and the complainant has all right to get refund of the price of the air ticket.

10) Issue No. (ii)

The evidence on records goes to show that the complainant had been running from pillar to post to get his grievances redressed. The requests of the complainant were declined for reasons not stated or explained. Finally the complainant had to knock at the door of the Forum to get his grievances redressed by spending his valuable time and hard earned money which calls for compensation and costs of the proceedings. We think that a compensation of Rs. 10,000/- and cost of Rs. 5,000/- are enough to subside the agony of the complainant.

11) In the result, we partly allow the complaint and direct as follows;

1) The 1^st, 2^nd and 3^rd opposite parties are found jointly and severally liable and shall refund an amount of Rs. 56,100/- being the cost of the flight ticket charges (as per the Exbt. A1) to the complainant.

2. The 1^st and 3^rd opposite parties shall pay Rs.10,000/- to the complainant towards compensation and Rs.5,000/- towards costs of the proceedings.

12) The above orders shall be complied with, within a period of 30 days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 4^th day of March 2017.

Sd/- Sheen Jose, Member.

Sd/- Cherian K. Kuriakose, President Sd/-Beena Kumari, V.K., Member

1. 1. 1. 1. 1. Forwarded/By Order,

Senior Superintendent.

APPENDIX

Complainant's Exhibits

Opposite party's Exhibits.

Deposition ::

PW1 :: K.A. Krishnan

Date of Despatch of this Order ::

By Post ::

By Hand ::

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