Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The   complainant has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that  on 07.03.2019 he purchased a return tickets bearing No.874-3430025212 and 784-3430025212 from PayTM Flights-Opposite Party for his tour to Australia from New Delhi to Melbourne & Melbourne to New Delhi and paid Rs.42,329/- through PayTM and in this regard, the Opposite Party  sent email for the confirmation of payment on the same day i.e. 07.03.2019.  Thereafter, the Opposite Party  sent e-ticket to the Complainant as per following travelling summary:-

The Complainant further alleges that due to some domestic problems, the schedule of travelling of the Complainant changed which has been informed by the Complainant to the Opposite Party  on their Helpline Service No.0120-4880880 and the officers of Opposite Party  assured that they will reschedule the tickets of the Complainant. After that when the Complainant approached the Opposite Party  and requested their officers to reschedule the tickets of Complainant, then the se4rvice providers of Opposite Party  told that they can not exchange  the departure ticket, but assured that the Complainant can use the return ticket which was booked by the Opposite Party. After that the Complainant purchased a ticket worth Rs.38,076/- from New Delhi to Melbourne from his own pocket and on 29.07.20198 when the Complainant reached  at Melbourne Airport, he was surprised to know that the return ticket from Melbourne to New Delhi was not confirmed by the Opposite Party  due to which the Complainant was very harassed and he again purchased a return ticket immediately worth Rs.45,000/-. After that the Complainant again contacted with the service providers of the Opposite Party  and  told the above said facts, then the service provider of Opposite Party  assured the Complainant to return his money, but the Opposite Party  returned only Rs.7917/- to the Complainant instead of 42,329/-. Further alleges that due to the negligence and deficiency on the part of the Opposite Party, the  Complainant suffered a huge loss of Rs.5 lakhs on account of mental tension, harassment as well as physical and financial loss. The Complainant also spent Rs.83,076/- approximately for the abovesaid trip as mentioned above.  Vide instant  complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to refund the amount of Rs.34,412/- as well as to pay an amount of Rs.83,076/- which has been incurred by the Complainant from his own pocket alongwith interest @ 18% per annum from the date of purchase of above said ticket till its realization and to pay  Rs.2 lakhs on account of compensation for causing mental tension, harassment and deficient service besides Rs.21,000/- as costs of litigation or any other relief to which this District Consumer Commission,  may deem fit be granted.

Hence, the present complaint is filed by the Complainant  for the redressal of her grievances.

2.       On notice,  Opposite Party  appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that  the complainant has got no locus standi to file the present complaint;  that the complaint is absolutely false and frivolous.  The Complainant has not complied with the terms and conditions of the agreement between the parties.  The Complainant alleges that he booked flight tickets by using the online platform of the Opposite Party  from New Delhi to Melbourne (onward journey) and Melbourne to New Delhi (Return Journey) on 7^th March, 2019 having PNR No.NZJJQE vide booking id no.7566630525 and for the said tickets, the Complainant paid Rs.42,329/-. The Complainant approached the Opposite Party  with a request to reschedule the onward journey dates however, due to the some reasons, he decided to cancel his onward ticket from New Delhi to Melbourne. In fact, the Complainant on 29.04.2019 first approached the Opposite Party  and enquired  for rescheduling the onward journey dated 02.05.2019 and the Opposite Party  shared the charges for rescheduling the flights tickets. Again on 01.05.2019 the Complainant approached the Opposite Party  with a request for cancellation of his  onward journey to which Opposite Party  informed the Complainant that the tickets are non refundable rather the Complainant can claim non show refund against the tickets. The Complainant approached the Opposite Party  for cancellation and then on learning about the non refundable tickets, he chose to claim under no show refund and resultantly, his return journey on 29.07.2019 was  also considered  and the Opposite Party  initiated the refund of Rs. 7917/- as per the airline policy. However, as a goodwill gesture and to amicably resolve the grievance of the Complainant, requested the Complainant to share his bank details, so that a refund of Rs.43,005/-  (i.e. the value of return ticket fare charge of 895 AUD as on 29.07.2019) through NEFT can be initiated which is the only grievance of the Complainant in the present complaint.  However, despite several follow ups with the Complainant to share the correct invoice and the bank details, the Complainant chose to remain silent and did not respond to the communications made by the Opposite Party.  Hence, it can not be said that there has been any deficiency in service on the part of the Opposite Party. In nutshell, on merits, the Opposite Party took up the same and similar pleas as taken up by them in the preliminary objections and hence, it is prayed that the complaint of the complainant is liable to be dismissed.               

3.       In order to prove his case, the complainant has tendered into evidence his  affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C6 and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, Opposite Party also tendered  into evidence affidavit of Sh.Sharadindu Mukherjee Ex.OPW1 and Ex.OPW2 alongwith copies of documents Ex.OLP1 to Ex.OP9 and closed the evidence on behalf of the Opposite Party. 

5.       We have heard the ld.counsel for the parties and also gone through the documents placed on record.

6.       Ld.counsel for the Complainant has  mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version  filed on behalf of the Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. Further contended that at the time of issuance of the said policy  to the complainant, no term and conditions were ever explained or supplied by Opposite Parties to the complainant. It is the case of the Complainant that  on 07.03.2019 he purchased a return tickets bearing No.874-3430025212 and 784-3430025212 from PayTM Flights-Opposite Party for his tour to Australia from New Delhi to Melbourne & Melbourne to New Delhi and paid Rs.42,329/- through PayTM and in this regard, the Opposite Party  sent email for the confirmation of payment on the same day i.e. 07.03.2019.  Thereafter, the Opposite Party  sent e-ticket to the Complainant as per following travelling summary:-

Ld.counsel for the Complainant further contended that  due to some domestic problems, the schedule of travelling of the Complainant changed which has been informed by the Complainant to the Opposite Party  on their Helpline Service No.0120-4880880 and the officers of Opposite Party  assured that they will reschedule the tickets of the Complainant. After that when the Complainant approached the Opposite Party  and requested their officers to reschedule the tickets of Complainant, then the se4rvice providers of Opposite Party  told that they can not exchange  the departure ticket, but assured that the Complainant can use the return ticket which was booked by the Opposite Party. After that the Complainant purchased a ticket worth Rs.38,076/- from New Delhi to Melbourne from his own pocket and on 29.07.20198 when the Complainant reached  at Melbourne Airport, he was surprised to know that the return ticket from Melbourne to New Delhi was not confirmed by the Opposite Party  due to which the Complainant was very harassed and he again purchased a return ticket immediately worth Rs.45,000/-. After that the Complainant again contacted with the service providers of the Opposite Party  and  told the above said facts, then the service provider of Opposite Party  assured the Complainant to return his money, but the Opposite Party  returned only Rs.7917/- to the Complainant instead of 42,329/- and hence, the deficiency in service is writ large on the part of the Opposite Party.

7.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the complainant and contended that it is not disputed that the Complainant booked flight tickets by using the online platform of the Opposite Party  from New Delhi to Melbourne (onward journey) and Melbourne to New Delhi (Return Journey) on 7^th March, 2019 having PNR No.NZJJQE vide booking id no.7566630525 and for the said tickets, the Complainant paid Rs.42,329/-. The Complainant approached the Opposite Party  with a request to reschedule the onward journey dates however, due to the some reasons, he decided to cancel his onward ticket from New Delhi to Melbourne. In fact, the Complainant on 29.04.2019 first approached the Opposite Party  and enquired  for rescheduling the onward journey dated 02.05.2019 and the Opposite Party  shared the charges for rescheduling the flights tickets. Again on 01.05.2019 the Complainant approached the Opposite Party  with a request for cancellation of his  onward journey to which Opposite Party  informed the Complainant that the tickets are non refundable rather the Complainant can claim non show refund against the tickets. The Complainant approached the Opposite Party  for cancellation and then on learning about the non refundable tickets, he chose to claim under no show refund and resultantly, his return journey on 29.07.2019 was  also considered  and the Opposite Party  initiated the refund of Rs. 7917/- as per the airline policy. However, as a goodwill gesture and to amicably resolve the grievance of the Complainant, requested the Complainant to share his bank details, so that a refund of Rs.43,005/-  (i.e. the value of return ticket fare charge of 895 AUD as on 29.07.2019) through NEFT can be initiated which is the only grievance of the Complainant in the present complaint.  However, despite several follow ups with the Complainant to share the correct invoice and the bank details, the Complainant chose to remain silent and did not respond to the communications made by the Opposite Party and in this way, it can not be said that there has been any deficiency in service on the part of the Opposite Party.

8.       Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

9.       For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next  plea  raised by Opposite Party  is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed.  But the Opposite Party could not produce  any evidence to prove that terms and conditions of the policy were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

10.     It is not denial of the case that due to some domestic problems, the schedule of travelling of the Complainant changed which has been informed by the Complainant to the Opposite Party  on their Helpline Service No.0120-4880880 and  after  that when the Complainant approached the Opposite Party  and requested their officers to reschedule the tickets of Complainant, then the service providers of Opposite Party  told that they can not exchange  the departure ticket, but assured that the Complainant can use the return ticket which was booked by the Opposite Party. After that the Complainant purchased a ticket worth Rs.38,076/- from New Delhi to Melbourne from his own pocket and on 29.07.20198 when the Complainant reached  at Melbourne Airport, he was surprised to know that the return ticket from Melbourne to New Delhi was not confirmed by the Opposite Party  due to which the Complainant was very harassed and he again purchased a return ticket immediately worth Rs.45,000/-. After that the Complainant again contacted with the service providers of the Opposite Party  and  told the above said facts, then the service provider of Opposite Party  assured the Complainant to return his money, but the Opposite Party  returned only Rs.7917/- to the Complainant instead of 42,329/-.

11.     In this way, the only claim as per the aforesaid averment of the Complainant is that out of Rs.42,329/-, the Opposite Party  only returned Rs.7917/- and in this way, the Opposite Party  has to refund Rs. 34,412/- and second claim of the Complainant is itself admitted by the Opposite Party  in the aforesaid contention vide which the Opposite Party  has specifically admitted in written statement as well as in para No.7 of the duly sworn affidavit of Sh.Sharadindu Mukherjeet, Authorised Representative of One 97, Communications Limited ( i.e. Opposite Party) Ex.OPW2  that  as a goodwill gesture and to amicably resolve the grievance of the Complainant, requested the Complainant to share his bank details, so that a refund of Rs.43,005/-  (i.e. the value of return ticket fare charge of 895 AUD as on 29.07.2019) through NEFT can be initiated which is the only grievance of the Complainant in the present complaint.  However, despite several follow ups with the Complainant to share the correct invoice and the bank details, the Complainant chose to remain silent and did not respond to the communications made by the Opposite Party. The only contention of the Opposite Party is that since the Complainant has not furnished the bank detail and due to this reason, the  amount of Rs.43,005/- could not be disbursed to him, but we do not agree with this contention of the Opposite Party  because, the  Opposite Party  has already refunded and remitted the part amount of  Rs.7917/- to the Complainant in the bank account of the Complainant out of his first claim of refund of Rs.42,329/-. 

12.     Now come to the quantum of compensation.  The Complainant in complaint has  claimed the amount of Rs.34,412/- i.e. balance of his first claim (42,329/- minus Rs.7917/-)  as well as an amount of Rs.83,076/- which has been incurred by the Complainant from his own pocket alongwith interest @ 18% per annum from the date of purchase of above said tickets till its realization and to pay  Rs.2 lakhs on account of compensation for causing mental tension, harassment and deficient service besides Rs.21,000/- as costs of litigation. But with regard to claim of Rs.83,076/-, the Complainant could not convince and explain to  this Commission on what account, he has claimed such amount of Rs.83,076/- and  hence, with regard to this second claim of Rs.83,076/-, we allow the same in part as  admitted by the Opposite Party  itself amounting to Rs.43,005/-.   

13.     In view of the aforesaid facts and circumstances of the case,  the complaint of the complaint is allowed partly and the Opposite Party  is directed to refund the amount of Rs.77,417/- (Rupees seventy seven thousands four hundred and seventeen only) (i.e. Rs.34,412/- on account of less refund + Rs.43,005/- which is admitted by the Opposite Party  themselves) alongwith interest @ 8% per annum from the date of filing of this complaint i.e. 23.09.2019 till its realization.  The Opposite Party is also directed to pay lump sum compensation to the complainant amounting to Rs.10,000/- (Rupees Ten thousands only) for causing him mental tension and harassment as well as costs of litigation. The compliance of this order be made by the Opposite Party   within 45 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

14.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated:08.02.2022.