Punjab

Sangrur

CC/381/2014

SANJEEV KUMAR - Complainant(s)

Versus

PROP./PARTENER, SHIVAM TRAVELLING - Opp.Party(s)

NEM KUMAR

11 Feb 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

 

                                                               

                                                Complaint No.    376

                                                Instituted on:      09.07.2014

                                                Decided on:       11.02.2015

Sandeep Kumar S/o Shri Darshan Kumar C/o Joly Steel Almirahs, Opposite Civil Hospital, Dhuri, Tehsil Dhuri and District Sangrur.

                                                                ..Complainant

                                Versus

1.     Shivam Travelling Point through its Proprietor/Partner/Manager, 35/14-A, Shivpuri, Dhuri, Tehsil Dhuri and Distt. Sangrur;

2.     Arzoo.com (India) Private Ltd. through its M.D./Manager/Authorised Signatory, 5^th Floor, Samruddhi Venture Park, MIDC Central Road, Andheri East, Mumbai-400 093.

                                                        …Opposite parties

 

For the complainant    :       Shri Nem Kumar, Advocate.

For OP No.1              :       Shri Yashvir Gupta, Advocate.

For OP No.2              :       Shri B.S.Dhaliwal, Advocate.

 

 

Quorum:    Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

Order by : Sukhpal Singh Gill, President.

 

1.             Shri Sandeep Kumar, complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that OP number 2 is proprietor of website, namely www.arzoo.com for providing travelling related services and OP number 1 manages websites www.flyatshivam.com and biz.flyatshivam.com under arrangement with OP number 2.  The case of the complainant is that during the first week of August, 2012 the complainant approached OP number 1 for availing travelling services, as such, the complainant got booked five air tickets for air journey from Chandigarh to Chennai for 25.12.2012 for self, his relatives and friends by paying the requisite amount of Rs.23,125/- in cash to OP number 1 at Dhuri.  The said booking was confirmed vide PNR.OIUOLW and on 18.8.2012 the complainant had been confirmed e-tickets bearing number 0902452082069 to 73 for flight number 183 of Kingfisher Red Airline for departure from Chandigarh as on 25.12.2012 at 15:35 hrs. and for arrival at Chennai on 25.12.2012 at 20.30 hrs. It has been further averred in the complaint that OP number 1 also stated that the complainant may got cancelled the said booking at any time even two hours prior to the time of departure of flight. Thus, the complainant requested for cancellation of the said tickets on 25.10.2012 through OP number 1, who stated the confirmation of lodging of cancellation request and assured for refund of the amount of Rs.23,125/-. The grievance of the complainant is that the Ops did not refund the amount of Rs.23,125/- despite repeated visits and even serving of legal notice. As such, alleging deficiency in service on the part of the Ops, the complainant has prayed that the OPs be directed to refund to the complainant an amount of Rs.23,125/- along with interest @ 18% per annum from 18.8.2012 and further to pay compensation and litigation expenses.

 

2.             In reply filed by OP number 1, legal objections are taken up on the grounds that the complaint is bad for non joinder of the necessary party as the air tickets were issued by King Fisher Air Lines and that the complainant has dragged the Ops into unwanted litigation.  On merits, it is admitted that the complainant purchased the air tickets in question from OP number 1.  It is also admitted that it was told to the complainant that the booking of the air tickets can be cancelled at any time even before two hours of the time of departure. It is however stated that the cancellation is subject to deduction of nominal charges and as per rules of the company. It is also admitted that the complainant requested the Op for cancellation of the tickets on 25.10.2012 and the OP immediately forwarded the request of the complainant to the company on 25.10.2012, but the same was rejected by the company. It is stated that the OP has discharged its duty in well manner, as such OP is not liable for any compensation/claim. However, it is stated that the services of the King Fisher Airlines had been stopped from 1^st October, 2012 and the license of King Fisher Airlines had been cancelled from 20^th October, 2012. However, any deficiency in service on the part of the OP is denied.

 

3.             In reply filed by OP number 2, legal objections are taken up on the grounds that the complaint is not maintainable, that the complainant has not come to the Forum with clean hands and that the complainant is not a consumer of the OPs. On merits, the allegations of the complainant have been denied in the reply. It is stated that the liability, if any is of Kingfisher Company being the owner of Kingfisher Red Airline.   As such, any deficiency in service on the part of the OP number 2 has been denied.

 

4.             The learned counsel for the complainant has produced Ex.C-1 affidavit, Ex.C-2 copy of legal notice, Ex.C-3 to Ex.C-4 postal receipts, Ex.C-5 e ticket, Ex.C-6 cancellation request, Ex.C-7 e ticket, Ex.C-8 details, Ex.C-9 affidavit and closed evidence. On the other hand, the learned counsel for OP number 1 has produced Ex.OP1/1 copy of computer generated log book, Ex.OP1/2 copy of news paper clipping, Ex.OP1/3 copy of e ticket and Ex.OP1/4 affidavit, Ex.OP1/5 copy of computer generated newspaper dated 15.7.2012 and closed evidence. The learned counsel for OP number 2 has produced Ex.OP2/1 affidavit, Ex.OP2/2 copy of accounts statement, Ex.Op2/3 copy of payment voucher, Ex.OP2/4 copy of certificate, Ex.OP2/5 copy of newspaper and closed evidence.

 

5.             We have carefully perused the complaint, version of the opposite parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits dismissal, for these reasons.

 

6.             The learned counsel for the complainant has contended vehemently that through OP number 1 he got booked five air tickets for air journey from Chandigarh to Chennai for 25.12.2012 by spending an amount of Rs.23,125/- and the journey was to be performed through flight number 183 of Kingfisher Red Airline.  But, the complainant applied for cancellation of the said tickets on 25.10.2012 through OP number 1 and confirmation for refund of Rs.23,125/- was made and further told that the same will be received within a few days.  But, the grievance of the complainant is that the refund of Rs.23,125/- was not issued by the Ops despite repeated visits of the complainant to the Ops. 

 

7.             On the other hand, the learned counsel for the OPs has admitted that the complainant purchased the tickets in question through them for journey from Chandigarh to Chennai through the Kingfisher Red Airlines and the amount of Rs.23,125/- was sent to the air lines for purchase of the air tickets. The learned counsel for the Ops has contended vehemently that the complainant has intentionally not arrayed the Kingfisher Red Airlines as a party, which was a very necessary party, who had to refund the amount to the complainant, as such the OP number 2 has contended that the complaint should be dismissed only on this score.  There is no explanation from the side of the complainant that why he did not array Kingfisher Red Airlines as a party. As such, we find that since the amount of Rs.23,125/- was with the Kingfisher Red Airlines, who had to refund the amount to the complainant, the complaint of the complainant is not maintainable without arraying it as a party.

 

8.             Further a bare perusal of the file clearly reveals that the complainant has not produced any documentary evidence as to how he is a consumer of OP number 1 and what kind of consideration was paid to OP number 1. As such, we feel that the complainant is not a consumer of OP number 1 and the complaint is not maintainable against OP number 1.

 

9.             The learned counsel for the complainant has vehemently contended that in another case Mohan Lal etc. (as per document Ex.C-7) also got cancelled their tickets on 14.08.2012 and the refund of the same was made by the OPs.  We have very carefully perused the document Ex.C-7 and found that the cancellation was got done on 14.08.2012 as is evident from the backside of the document as produced by OP number 1. We may mention here that the complainant has withheld the backside of the document i.e. Ex.C-7 intentionally.  It is worth mentioning here that in the present case, the complainant applied for cancellation of the air tickets only on 25.10.2012, whereas the license of the Kingfisher Airlines was cancelled by the authorities on 20.10.2012, as is evident from the copy of newspaper clipping, which is on record as   Ex.OP1/2.    As such, we    find that this document is not at all helpful to the case of the complainant. But,   in    the     present    case, the complainant applied for cancellation of the   air    tickets      only   on 25.10.2012, when the license of the Kingfisher Airlines was already cancelled on 20.12.2012 and the complainant withheld this material information and filed the present complaint. As such, we find that a person who conceals material information is not entitled to get any relief. 

 

10.            The learned counsel for the OPs has further contended that the OPs had forwarded the request of the complainant immediately on 25.10.2012 to Kingfisher Air Lines for cancellation of the tickets in question, but the same was rejected by the company on 25.10.2012 at 20:08:41 hours and this fact is very much evident from the document of request regarding detail of cancellation.  Since the request for cancellation of the air tickets was rejected by Kingfisher Airlines, the Ops number 1 and 2 cannot be held to be deficient in rendering service towards the complainant for non refund of the amount, more so when, the OPs number 1 and 2 are acting as an agent for cancellation of the tickets in the present case. The learned counsel for the OPs has further cited section 230 of the Indian Contract Act, 1872, “which clearly shows that ‘agent cannot personally enforce, nor be bound by, contracts on behalf of principal. In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.”  In the circumstances of the case, we feel that the Ops number 1 and 2 cannot be made responsible for refund of the amount of cancelled tickets, whereas the amount of tickets was with the Kingfisher Airlines and the refund status is shown as ‘pending’, as is evident from the copy of e-ticket, Ex.C-5.  Further the complainant has not arrayed Kingfisher Airlines as a party despite objection of the OPs number 1 and 2 in their written reply.  As such, we find no deficiency in service on the part of the Ops number 1 and 2.

 

11.            In view of our above discussion, we dismiss the complaint of the complainant. However, the parties are left to bear their own costs. A copy of this order be issued to the parties free of cost. File be consigned to records.

                Pronounced.

                February 11, 2015.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                              (Sarita Garg)

                                                                   Member