BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.467 of 2016

Date of Instt. 24.11.2016

Date of Decision: 30.04.2019

1. Hari Parshad Handa aged about 76 years son of Sh. Shiv Dayal Handa,

2. Mrs. Parveen Handa aged about 69 years wife of Sh. Hari Parshad both resident of 335, Shaheed Udham Singh Nagar, Jalandhar.

..........Complainant

Versus

1. Nerva Holidays, Mahajan Building, Near Bhagat Singh Chowk, Jalandhar, through its Prop./Manager.

2. Travel Boutique Online, 728, Udyog Vihar, Phase V, Gurgaon- 122016 (Haryana), through its Managing Director.

3. Air Canada, 111, 1st Floor, Ansal Bhawan, 16, Kastruba Gandhi Marg, New Delhi-110001, through its Manager/Sales Co- Ordinator.

4. China Southern Airlines, 27, Building-118, New Delhi House, 1st Floor, Barakhamba Road, Delhi-110001.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Sh. V. K. Singla, Adv Counsel for the Complainant.

Sh. M. S. Sachdev, Adv Counsel for the OP No.1.

None for the OP No.2.

OPs No.3 & 4 exparte.

Order

Karnail Singh (President)

1. The instant complaint has been filed by the complainants, wherein alleged that the OPs are engaged in the business of air travel services. The OPs No.1 and 2 are travel agents working in liaison with each other and the OPs No.3 and 4 are running the airlines. The complainants through the OP No.1 purchased two return air tickets vide No.784-2254818452-53 and 784-2254818454-55 for themselves for journey Delhi-Guangzhou- Vancouver-Toronto- Vancouver- Guangzhou-Delhi for consideration of Rs.3,57,500/- paid in advance by cheque to the OP No.1. It is pertinent to mention here that in the said itinerary, the journey from Delhi to Vancouver and Vancouver to Delhi via Guangzhou was to be carried out by the OP No.4 airline on 02.06.2016 and 10.07.2016 respectively and the return journey from Vancouver to Toronto and back was to be carried out by the OP No.3 airlines, by flight No.AC-1162 scheduled on 28.06.2016 for departure at 10.45 hrs from Vancouver, Canada/Vancouver International YVR Terminal M to Toronto and back by flight No.AC-115 scheduled on 04.07.2016 for departure at 17:15 hrs from Toronto Canada/Lester B. Pearson International YVZ Terminal 1 to Vancouver and the OPs issued the said tickets by telling that the same were refundable and the OP No.1 had assured that the OPs provide very good and efficient services. The complainant having paid the consideration as mentioned above, is consumer of the OPs within the provisions of the Consumer Protection Act.

2. That the complainants booked return ticket Vancouver to Toronto and back to be undertaken by the OP No.3 airline in the said itinerary, to attend religious Congregation to be presided over by Revered Baba Hardev Singh Ji Maharaj during the said period. However, due to sudden demise of his Holiness Baba Hardev Singh Ji Maharaj in a car accident at Montreal on 13.05.2016, the complainants who are already suffering from ailments like diabetes, blood pressure and heart problem, came under mental stress and their whole purpose of visit to Toronto was also forfeited. Thus, due to unavoidable circumstances occurring in the above situation, the complainants having left with no purpose of their visit, informed well in advance on 25.05.2016 and 26.05.2016 by email of their daughter in law Shaveta Handa to the OP No.1 to avoid any loss to them, with the request that due to the said mishap, they cannot take out their said journey and requested for cancellation of the said return tickets from Vancouver to Toronto and Toronto to Vancouver which were refundable as assured by the OP No.1 and the OP No.1 assured that the needful would be done for refund of the said tickets. As informed by the OP No.1, the OP No.1 took up the matter about refund of the tickets with the other OPs and the OP No.1 also informed that the matter of the complainants is being taken up by Mohit Sharma of the OP No.2 with the concerned Airlines for refund of the said tickets to the complainants. As told by OP No.1, the OPs have been taking up the matter interse for refund and on 31.05.2016, the OP No.1 by email forwarded a message from one Mohit Sharma Regional Manager of OP No.2, wherein mentioned about some reply from Airlines mentioning, if it is FIT Ticket, published fare rules will be applicable. However, the OPs failed to do anything for refund of the said air tickets, though the complainants have been requesting the OPs through their executives, but they have been putting off the mater and they have been harassing the complainants in one way or the other and have been directing to contact the other OPs. However, on June 21, 2016 the OP No.1 sent an email to the complainants therein giving details of fare per person and forwarded an email wherein reference was of the OP No.4 to the effect that one way used taxes be deducted and rest will be refunded. Thereafter, there was an email from the OP No.2 to the OP No.4, wherein OP No.2 had sought advice as to how they will be able to claim the unused taxes as it is through ticket. The OPs failed to take the required steps for refund of the said air tickets and to the astonishment of the complainants, the OP No.3 said that the ticket is non-refundable whereas the OP No.4 admitted that the tickets were refundable and started saying that the complainants may claim unused taxes, whereas the OPs never appraised of the complainants that the ticket are non-refundable, rather the OP No.1 had told the complainants that the said tickets are refundable and the complainants had taken the tickets of the OPs with the belief that the tickets are refundable.

3. That the complainant had informed the OPs for cancellation of the tickets well in advance more than one month before the scheduled date for journey and the complainants have not availed the said Vancouver-Toronto-Vancouver journey and has availed the other itinerary only, as such, the OPs were bound to cancel the said tickets and to refund the amount to the complainants, but the OPs have failed to do the needful and the OPs have acted illegally and arbitrarily and have not refunded the amount of the said air tickets and the OPs are trying to take undue benefit of the situation. The complainants had been contacting the OPs by emails and have been visiting the office of the OP No.1 for refund of said tickets and the complainants as stated above, but the OP No.1 had been putting off the matter on one pretext or the other and they did not pay any heed to the request of the complainants and the OPs have failed to redress the grievances of the complainants and they have not refunded the same to the complainants. The OPs No.1 and 2 are working as Travel Agents and issued tickets for the Airlines and they issued the tickets in question for travel by the OPs No.3 and 4 Airlines for consideration and the OPs have nexus with each other, as such the OPs are jointly and severally liable and responsible for their acts and conduct. The OPs have not refunded the amount and have kept the same illegally and arbitrarily and they by adopting malpractice and failing to discharge their duty are harassing the complainants, for their undue gain by putting the complainants to undue loss. The OPs have been negligent and deficient in providing the required services and resultantly the complainants have suffered great mental agony, harassment and a lot of inconvenience at the hands of the OPs in the circumstances as stated above and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of fair for the unavailed/cancelled itinerary/air travel and to pay the amount of Rs.5,00,000/- as damages for the mental agony and harassment suffered by the complainant and OPs be also directed to pay interest @ 18% per annum from 26.05.2016 till full payment and be also directed to pay litigation expenses of Rs.35,000/-.

4. Notice of the complaint was given to the OPs, but despite service OPs No.3 and 4 failed to appear and as such, both were proceeded against exparte, whereas OP No.1 duly served and appeared through its counsel and filed reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the OP No.1 because admittedly, the OP No.1 had only got the booking effected and the money was paid to OPs No.3 and 4. So, in this score, this complaint is liable to be dismissed. It is further submitted that no ground is made out for filing the present complaint against the answering OP No.1. It is further averred that the complainant had already used tickets and now has filed the present complaint with an idea to harass the OP and even there is no deficiency in service attributable to OP No.1 as the terms and conditions of the sale of tickets were duly communicated to the complainant and as per contract, the complainant is bound by the conditions of purchase of tickets. So, on this score, this complaint is liable to be dismissed and further alleged that there is no unfair trade practice on the part of the OP No.1 and further it is admitted that the OP purchased tow tickets from Delhi-Guangzhou-Vancouver-Toronto-Vancouver-Guangzhou-Delhi and further admitted that the said tickets were booked by the answering OP with the help of OP No.2 and amount which was received by answering OP was duly forwarded to OP No.2 and further services were to be provided by Airlines i.e. OPs No.3 and 4 and further alleged that the complainant wanted to cancel the Vancouver-Toronto tour and fro travel, which was not possible as either the cancellation should have been for the whole and part cancellation was not permitted and further submitted that when the complainant approached OP No.1 and sent an email and thereafter, OP No.1 sent an email to OP No.2 and it was informed by OP No.2 to the OP No.1 that part segment of the tickets could not be cancelled. This fact was duly informed to the complainant within time and after knowing the same, they had travelled and used the said tickets. On merits, the purchase of the tickets is not denied rather the other allegations as made by the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

5. OP No.2 filed its separate reply and took numerous preliminary objections as well as submitted a brief facts, wherein admitted that the complainants approached OP No.1 for booking two tickets from Delhi-Guangzhou-Vancouver-Toronto-Vancouver- Guangzhou-Delhi. The said tickets were duly booked by the OP No.1 as per the requirement of the complainant. As the OP No.2 offers good commission on China Southern Airline, so the PNR was created by OP No.1 on the request and requirement of complainant and the same was sent to the OP No.2 for issuance on the carrier China Southern. The amount, which was received by OP No.1 was duly forwarded to the answering OP No.2 after deducting the commission payable to OP No.1 and further submitted that the services are to be provided by Airlines as per contract and it is the duty of the OPs No.3 and 4 to provide the said services. The OP No.1 has only to book the tickets and provide soft copy, which was duly supplied to the complainants and thereafter, the privity of contract between OP No.1 and the complainant finishe and it is the duty of the complainant to deal with OPs No.3 and 4. The OP No.2 is totally ignorant about the ground dealings between OP No.1 and complainant. As the tickets is booked as a whole, but the complainant is seeking refund for the partial sectors, which is not allowed under the airline rules. It is to be mentioned here that the complainant wanted to cancel the Vancouver-Toronto to and fro travel, which was not possible as either the cancellation should have been for the whole and part cancellation was not permitted and these facts were duly brought to the notice of the complainant within time and after knowing the same, they had traveled and used the said tickets. On merits, it is admitted that the complainant purchased the tickets from answering OP through OP No.1, but the other allegations as made by the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits of the complainant Ex.CA and Ex.CB along with some documents Ex.C-1 to Ex.C-6 and closed the evidence.

7. Similarly, counsel for the OP No.1 tendered into evidence affidavits Ex.OP1/A and Ex.OP1/1 alongwith some documents Ex.OP-1/2 to Ex.OP1/4 and closed the evidence.

8. Similarly, counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A and one document Ex.OP2/1 i.e. Letter of Authorization and then closed the evidence.

9. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

10. There is no dispute that the complainants purchased two return air tickets having No.784-2254818452-53 and 784-2254818454-55 for their journey from Delhi-Guangzhou-Vancouver-Toronto-Vancouver-Guangzhou-Delhi for consideration of Rs.3,57,500/-, which was paid in advance by cheque to OP No.1, but thereafter the complainant wanted to get cancel the tickets from Vancouver to Toronto and back there from, due to untimely demised of Baba Hardev Singh Ji Maharaj, the complainants cancelled their program to visit Vancouver to Toronto and accordingly, the complainants informed the OP No.1 well within time i.e. much prior to the day of journey that their tickets from Vancouver to Toronto and back there from be cancelled, but despite that request, the OPs who are having a nexus with each other, internationally did not refund the part amount of the said cancel air ticket and accordingly, the instant complaint filed.

11. The plea taken by OPs No.1 and 2 is almost same, wherein alleged that the complainant wanted to cancel the Vancouver-Toronto to and fro travel, which was not possible as either the cancellation should have been for the whole and part cancellation was not permitted and similarly, OP No.2 gave information to OP No.1 that part segment of the tickets could not be cancelled and further, OP No.2 also took a plea in the brief facts of the written statement that the tickets were booked as a whole, but the complainant was seeking a refund for the partial segment, which is not allowed under the airline rules and in support of their version, both the OPs brought on the file affidavit as well as some documents in the shape of emails, whereby the complainant was informed that the tickets could not be cancelled.

12. We have gone through the documents placed on the file by the OPs and find that the OP No.1 placed on the file email message sent by the daughter in law of the complainants namely Shaveta Handa, copy of the same is available on the file Ex.OP1/1 dated 26.05.2016, whereby make a request to the OP No.1 that Mr. H. P. Handa and his wife Mrs. Parveen Handa wanted to cancel their tickets in view of the reason mentioned in the email that Baba Hardev Singh Ji Maharaj has died, the same email has been also brought on the file by the complainant, which is Ex.C-2 and again complainant gave reminder dated 31.05.2016 Ex.C-3. The OP No.1 informed the complainant through email Ex.OP1/2, wherein described as under:- "Please note that below ticket is combined ticket with CZ and AC- Airline as per AC-its Non-Refundable and as per CZ its refundable. We need to charge the most restricted penalty when we have combined fare basis on any CZ Ticket. Request passenger to claim un-used taxes only" and further informed as mentioned on the last page that ticket is non-refundable. Further, OP No.1 brought on the file email message dated 21.06.2016 Ex.OP1/3, whereby informed the complainant as under:- "You need to process the entire un-used ticket for refund. "Out of Sequence" ticket will not be entertained for refund, deduct the one way used taxes and rest will be refunded". Similar wording has been incorporated in an other email Ex.OP1/4. As per email Ex.OP1/3 and Ex.OP1/4, it is decided by OP that after deducting the use taxes, the rest will be refunded. So, it means at one time, the OP ready to refund the un-utilized air fare of the complainants, but later on they took an other plea that the said tickets are non-refundable and on the other hand, took a plea that the part segment of the ticket cannot be refunded, the cancellation should have been for the whole. Now, we see that the OPs themselves sinking in two boats, one time say that tickets are non-refundable and on other side stated in their written statements that the cancellation should have to for the whole and not for partly. First of all, we like to make it clear that the OPs never informed the complainants that the tickets whatsoever they purchased are non-refundable, if so, then the complainants are not bound by the statements of the OP, which are changed time to time. It is admitted by the OP No.2 in its reply in Para No.6 of the Preliminary Objections that the complainants had already used entire tickets except Vancouver to Toronto Sector. So, one thing is not in dispute or denied by the OPs that the complainant never utilized the tickets for Vancouver to Toronto and fro there from. Now, question remains whether as alleged by OP No.2 that the partly sector of Air Ticket is not allowed under the airlines rules, we find that simply referring that there are some airlines rules is not sufficient, if there are virtually some rules in regard to refund of the un-utilized air tickets amount, then the OP has to bring on the file said airline rules to screen the same by this Forum, but the OP has not bring on the file any such rule, which assume that the contesting OPs are simply referring the airline rule just to save their skin from the liability as claimed by the complainant in the present complaint.

13. Further, we have to consider the plea taken by the OP that the tickets purchased by the complainant is as a whole and there from the complainant seeking refund for partial sector. To analyze this aspect of the OP, we have to go through the ticket, photostat copy of the same brought on the file by the complainant, which is Ex.C-1. From the analysis of this document Ex.C-1, we find that one ticket of the complainant is from Delhi to Guangzhou and Vancouver for departure on 2, June 2016 and its return ticket from Vancouver to Delhi on 10 July, 2016, it is a return ticket and out of that one way air ticket can be got cancelled and there is no restriction if ticket is refundable, but in this case, the OP has not alleged in the written reply or brought on the file any document that the tickets so purchased by the complainants were not refundable.

14. Further, the segment which the OPs are not making a separate i.e. the flight of the complainant from Vancouver to Toronto and return there from, regarding that the date is entirely different from the date of other tickets, it is not connected i.e. not on the same day or second day. The flight of the complainant from Vancouver to Toronto by Air Canada was on 28.06.2016 and returned there from on 4 July, 2016, means this ticket cannot be said to be a segment of the other tickets because through this ticket, the complainants want to travel within the country i.e. Canada. So, the plea taken by the OP is absolutely not within the preview of law rather the said plea has been propounded by the OP just to deprive the complainant from eating the fruits of the order, which may be passed by this Forum.

15. From the above detailed discussion, we find that the OPs are working jointly as a team and as such, whatsoever act did by each of the party, who having nexus with each other for that act all the OPs are liable and accordingly, we came to the conclusion that the complainant is entitled for the relief claimed and all the OPs who are jointly and severally liable. So, accordingly OPs are directed to refund the amount of the fare unavailed/cancelled air travel tickets from Vancouver to Canada and back there from with interest @ 12% per annum from the date of filing complaint i.e. 24.11.2016, till realization and further OPs are directed to pay compensation to the complainant for causing mental tension and harassment, to the tune of Rs.25,000/- and litigation expenses of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

16. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Karnail Singh

30.04.2019 Member President