BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 469/2002 Filed on 08.11.2002 Dated : 15.01.2010 Complainant:
Dr. A. Saadi, working in Department of Biochemistry, School of Biological Sciences, Madurai Kamraj University, Madurai and residing at “Smiles”, Thengappura Road, Pettah P.O, Thiruvananthapuram.
(By adv. S. Pradeep Kumar Thampi) Opposite parties:
S.B. Mathiazhakan, Proprietor, Parvimal Tours and Travels, E-47, 49, Corporation Shopping Complex, T.P.K Road, Madurai-1. Area Manager, Kuwait Airways, B 119 NO5, Temple Towers, 476, Annasalai, Nandanam, Chennai – 600 035. County Manager, 15/47, Diamond Hill, Vellayambalam, Thiruvananthapuram.
(By adv. A. Abdul Kharim)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 20.01.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.11.2009, the Forum on 15.01.2010 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that the complainant was selected for a post doctoral training at Max Planck Institute in Germany and for that purpose complainant approached the 1st opposite party on first week of May 2002 and booked a ticket bearing No. 3585956201 of the 2nd and 3rd opposite parties, Kuwait Airways, that the said ticket was both for forward and return journey from Thiruvananthapuram to Frankfurt and back, that the cost of the said ticket was Rs. 46,500/- which was paid to 1st opposite party on 07.05.2002 and that both the forward and return journey was confirmed by the 1st opposite party. When complainant approached the office of the 2nd and 3rd opposite party in Frankfurt for return journey he was informed that his return ticket was not OK and confirmed and that he had no chance of getting a confirmed ticket on that flight. It is submitted by the complainant that complainant's visa was to expire on 28.08.2002. 2nd and 3rd opposite party's office in Frankfurt advised the complainant to take rerouted ticket but that was also not available. Complainant got a ticket from Air India on 28.08.2002 on payment of Rs. 35,000/-. Complainant who did not get a seat in the 2nd and 3rd opposite party's flight till the last moment had to travel to India by Air India flight. Hence this complaint to direct opposite parties to pay Rs. 35,000/- with 18% interest from 28.08.2002 and Rs. 15,000/- towards compensation. 3rd opposite party filed version contending that the complainant was a passenger of 3rd opposite party flight from Thiruvananthapuram to Frankfurt via Kuwait on 26.05.2002, that complainant purchased his tickets from the agent, 1st opposite party, for his travel on the sectors Thiruvananthapuram-Kuwait-Frankfurt-Kuwait- Thiruvananthapuram and return, that the 1st opposite party had reserved seat for onward journey of the complainant on 26.05.2002 and for his return journey on 28.08.2002, that the seat for the onward journey on 26.05.2002 only was confirmed by the 3rd opposite party in view of the availability of the seat, that the return journey was wait-listed from the very beginning, that 1st opposite party did not get seat confirmation for the complainant's return journey till his departure from Thiruvananthapuram to Frankfurt. Without disclosing the fact regarding non OK status of the return journey, the 1st opposite party wrongly and unauthorisedly issued ticket for both sectors as if confirmed seats with OK status. This was done by the 1st opposite party without the knowledge or information of the 3rd opposite party. Complainant had not rechecked his seat confirmation with the 3rd opposite party prior to his departure to Frankfurt, that as a rule and as well as a practice, long route passengers had to reconfirm the ticket booking directly with the Airline prior to the journey. It was due to the peak season and full capacity booking, the seat could not be confirmed though complainant was only wait listed. 3rd opposite party honoured the ticket so far as confirmed ticket is concerned and accordingly permitted carriage of the complainant without any room for deficiency in service. Mere purchase of a flight ticket will not get the passenger any privilege or right for confirmation of a seat as it could be confirmed depending on its availability. 3rd opposite party is not responsible for any ticketing fraud committed by the 1st opposite party. Hence complainant is not entitled for any compensation from the 3rd opposite party. Hence 3rd opposite party prayed for dismissal of the complaint. The points that would arise for consideration are:- Whether there is deficiency in service on the part of opposite parties? Whether the complainant is entitled for refund of Rs. 35,000/- with interest thereon from the opposite parties? Whether the complainant is entitled to get compensation? If so, at what amount?
In support of the claim complainant's Power of Attorney Holder has filed affidavit and Exts. P1 to P5 were marked. In rebuttal 3rd opposite party has filed proof affidavit and Exts. D1 and D2 were marked. Points (i) to (iii):- Admittedly, complainant was a passenger of 3rd opposite party's flight from Thiruvananthapuram to Frankfurt via Kuwait on 26.05.2002 and complainant had purchased his ticket from agent M/s Parvimal Tours and Travels, Madurai for his to and fro travel on the sectors Thiruvananthapuram-Kuwait-Frankfurt-Kuwait- Thiruvananthapuram. It is not in dispute that the seat for onward journey on 26.05.2002 was confirmed by opposite parties. The specific case of the complainant is that both the forward and return journey was OK as per the ticket confirmed by the 1st opposite party. It is argued by 3rd opposite party that 1st opposite party did not get seat confirmation for the complainant's return journey till his departure from Thiruvananthapuram to Frankfurt, that without disclosing the fact regarding non OK status of the return journey the 1st opposite party wrongly and unauthorizedly issued ticket for both sectors as if confirmed with OK status. Ext. P1 consists of 2 flight coupons and one passenger coupon issued by Kuwait Airways. 1st opposite party's name is mentioned in the said ticket, thereby it is crystal clear that 1st opposite party is the agent of opposite parties 2 & 3. In Ext. P1 the passage is mentioned as Thiruvananthapuram-Kuwait – Frankfurt – Kuwait - Thiruvananthapuram. From Thiruvananthapuram to Frankfurt date of journey was 26.05.2002 and from Frankfurt to Thiruvananthapuram date of journey mentioned is 28.08.2002. Ext. P2 is the copy of the passenger ticket and baggage check issued by Air India. The date of issue is 26 August 2002. The travel is from Frankfurt ot Mumbai. Ext. P3 is the copy of receipt for Rs. 46,500/- issued by the 1st opposite party in the name of the complainant towards payment for Thiruvananthapuram-Frankfurt- Thiruvananthapuram. The date of receipt is 07.05.2002. Ext. P4 is the copy of advocate notice addressed to opposite parties demanding to pay Rs. 35,000/- , the cost of ticket from Frankfurt to Thiruvananthapuram charged by Air India together with Rs. 15,000/- towards compensation. Ext. P5 is the acknowledgement cards by 2nd and 3rd opposite parties. Ext. D1 is the copy of itinerary history data. Ext. D2 is the copy of telex message sent by 1st opposite party to 3rd opposite party. It is in dispute regarding the confirmation of tickets to travel by the aircraft of opposite parties. It is not in dispute that complainant has paid Rs. 46,500/- towards the cost of ticket for forward and return journey from Thiruvananthapuram to Frankfurt and from Frankfurt to Thiruvananthapuram. Admittedly complainant did not get accommodation in the opposite party's flight for return journey from Frankfurt to Thiruvananthapuram. Evidently by Ext. P3 1st opposite party has received Rs. 46,500/- from the complainant for onward journey and for return journey. In Ext. P3 it is seen mentioned balance Nil, thereby the presumption is that Rs. 46,500/- is towards payment for tickets from Thiruvananthapuram to Frankfurt and return journey from Frankfurt to Thiruvananthapuram. There is no material to show that complainant has paid Rs. 35,000/- for return journey to Air India. Ext. P2 is the copy of the ticket issued by Air India to the complainant from Frankfurt to Mumbai. There is no case on the part of the opposite parties that complainant never remitted Rs. 35,000/- to Air India for his return journey from Frankfurt to Mumbai. Opposite parties have no case that they have given back the cost of ticket for return journey to the complainant. 1st and 2nd opposite parties did not file version or affidavit detailing their stands against the complainant. Opposite parties cited the decision of the Hon'ble National Commission in Rajinder Pal Jaura Vs. Secretary, Union of India reported in I (2003) CPJ 24 (NC). In the said case complainant with confirmed ticket was not accommodated in flight, shelter was taken behind international practice of over booking. The Hon'ble National Commission held that no amount of compensation till date has been awarded to the complainant. There was no justification for Air India to withhold the payment of DBC even if the complainant had not asked for it. Since it is the practice, unless agreed to otherwise, to give DBC, Air India should have offered US $ 300 on 30.08.1997 itself. But then while denying to board the ticket holder on the aircraft Air India takes shelter behind the international practice of over booking. It should also follow the international practice of paying DBC. Complainant has also relied on the decision of the National Commission in Manager, Air India Vs. Moideenkutty & others reported in I (2003) CPJ 65 (NC). In the said case complainant's ticket had not actually been confirmed and for want of seat he could not be provided with a seat in that flight. It was averred by the opposite parties therein that it was not due to any negligence on the part of Air India, but due of bonafide mistake caused due to failure of computer system, for reasons beyond the control of Air India, that the complainant was advised that his seat had been confirmed for the flight on 21st September 1992. Complainant also could not be provided with a seat on 23rd September because the flight was over booked and though his name had been included in the wait list no seat was available because of the lack of cancellation and fall outs. The Hon'ble National Commission held that we do not think any more thing is required to hold that there is extreme deficiency in service on the part of Air India and it is rightly so held by the State Commission. The action of Air India had not only caused the complainant to lose his job but also made him to suffer a great deal of shock and mental agony. The ratio of the above said decisions is squarely applicable to this case also. Since opposite parties have never denied the return journey of the complainant by another flight of Air India on payment of Rs. 35,000/-, we think that complainant was forced to pay such amount only because of the actions on the part of the opposite parties. Opposite parties never paid the cost of return journey to the complainant nor did opposite parties challenge the cost of ticket incurred by the complainant for his return journey from Frankfurt to Mumbai by Air India flight. Taking into consideration of the totality of circumstances we are of the view that justice will be well met if complainant is given Rs. 35,000/- towards the cost of return journey. In the result, complaint is allowed. Opposite parties shall pay the complainant an amount of Rs. 35,000/- along with a compensation of Rs. 5,000/-. The said amount will carry interest at the rate of 18% if not paid within two months from the date of receipt of this order. Both parties shall bear and suffer their costs. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of January 2010.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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O.P. No. 469/2002 APPENDIX
I COMPLAINANT'S WITNESS : NIL II COMPLAINANT'S DOCUMENTS : P1 - Photocopies of flight coupons. P2 - Photocopy of the passenger ticket and baggage check. P3 - Photocopy of receipt No. 5580 dated 07.05.2002 for Rs. 46,500/-. P4 - Photocopy of advocate notice addressed to opposite parties P5 - Acknowledgement cards.
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : D1 - Photocopy of itinerary history data. D2 - Copy of telex message.
PRESIDENT
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