SMT. RAVI SUSHA  : PRESIDENT

        This complaint has been filed  under sec.12 of the Consumer Protection Act 1986,for getting an order directing  opposite parties  to  pay Rs.21,466/- the excess amount collected from the complainant and his wife, to pay Rs.1,00,000/- towards mental agony  and hardships caused to the  complainant  due to  deficiency of service on the part of OPs and cost of  the complaint.

   Brief facts of the complaint are that the  complainant is a retired  employee from  Indian postal department.  His son- in law  is also  working  in the same department,  that he informed the complainant that a tour programme is arranged  by the postal employees of the  Kannur Division to Andaman Nicobar Islands  and the 1^st OP facilitating the  tour programme . The complainant and his  wife have decided to visit the place  and thereupon he contacted the 1^st OP.  on  8/3/2016, a representative of the 1^st OP came to Kannur and collected an amount of Rs.38,000/- per head from the complainant coming a  total amount of Rs.76,000/-.  At the time of  handing over the  money, the 1^st OP informed that    they would  arrange the air ticket through the 2^nd OP and the total cost of flight charge up and down journey would come  to Rs.26,733/- per head.  The tour programme was scheduled from 7/5/2016 to 13/5/2016.  All the arrangements made by OPs 1&2 during  the visit and all the participants expressed their  satisfaction in the journey.  But on 20/5/2019, the complainant has come to know from his son-in-law that the department has initiated departmental action against him for furnishing bogus travelling ticket in the tour programme.  It is learnt that the amount shown in the  travel ticket is an exalted figure and the actual   flight charge up and down journey on the scheduled date would  come only Rs.16,000/- per head. It is  also learnt that the postal department has initiated disciplinary actions against the department employees.   1^st OP has handed over the air ticket   for the  each and  every passenger representing that the said ticket  is an  original one and  all passengers were boarded on the  flight under a bonafide impression  that the tickets issued to them are genuine. It amounts to unfair  trade practice warranting stringent legal action.  Hence the complainant is  entitled to get compensation from the OPs.

   1^st OP filed written version.  2^nd OP’s notice returned with endorsement left without instruction.  Hence the complaint is proceeded against 2^nd OP .  OPs 3&4 entered  appearance  through their counsel and filed written version .

   1^st OP contended that the complaint  is barred by limitation  because the alleged cause of action  of the journey was on 12/5/2016,  After that  2 years were lapsed on 11/5/2018.  Filing of the complaint  after the expiry of the limitation cannot be entertained. It is submitted that   1^st Op has no connection with the complainant in the above said alleged travel facility.  It is stated that  1^st OP  was employed in the  postal service and had a connection with his son in law and he asked  and requested him to  contact with a tour , the 1^st OP has mentioned the name of  2^nd OP Prayan Travels  who is a well known  tour operator of  Malabar  area.  1^st OP never received  Rs.76,000/- towards  travelling charges for  2 persons and never issued  any receipts.  The  transaction might  be complainant’s son in law and 2^nd OP only.  Temporary air tickets were issued by Chennai holidays through 2^nd OP on 21/4/2016 and e-mail message of tickets were also issued   confirming  the tickets on 4/5/2019.   The 1^st OP never involved  in the above mentioned transactions.  The complainant is not at all a consumer of this  1^st OP and there is no deficiency of service , hence prayed for the dismissal of the complaint.

   OPs 3&4 jointly stated that the 2^nd OP is not  an authorized agent of  these OPs.  Since the tickets  issued  to the complainant was in the year 2016, these  OPs are not in a position to retrieve the details of the said tickets from its system.  These OPs have only  received the actual  ticket fare and has  in no manner  whatsoever issued  any  bogus  tickets to  any person, as alleged in the  complaint .  If at all, any ticket has been fabricated, it has been done by the Ops 1&2 and any act of  fraud /forgery on their part, cannot be attributed  to  OPs 3&4.  All allegations pertaining to  the fabrication  of the ticket issued by  OPs 3&4 ought to be  answered by the  OPs 1&2.  The complainant is not entitled to any of the  reliefs claimed from Ops 3&4.  There is no deficiency  in service .  Hence prayed for the dismissal of the complaint.

    While pendency of the complaint, the original complainant expired on 25/7/2023.  So the legal heirs of the complainant were impleaded as additional  complainant 2 to 4 as per IA NO. 226/2023.

   1^st complainant was examined as PW1, marked Exts.A1 to A6. Cross examined by OPs 1,3&4.  On the side of OPs, 1^st OP filed his chief affidavit. Examined as DW1.  DW1 was cross-examined by OPs 3&4 and complainant.  After that the learned  counsels of the complainant and  contesting parties(OPs 1,3&4) made argument.

    The point that arises for determination  are(1) whether the present complaint is barred by limitation? (2) whether there has been any deficiency in service on the part of  any of the OPs and to what relief, if any, is the  complainant entitled.

Point No.1:  The first and  main point raised by the learned counsel of 1^st OP  is that the present complaint is not maintainable as it is barred by limitation.  1^st OP argued that the cause of action as alleged by the complainant  has been arised on 12/5/2016 and after  2 years only on 11/5/2018, this complaint  has been filed.  On the other hand the learned counsel appearing for  the complainant submitted that, though the  programme of travel was scheduled from 7/5/2016 to 13/5/2016 and they visited the arranged places as per the tour programme, only on  20/5/2019, the complainant came to know from his son-in-law who has been working   in postal department, that the department has  initiated departmental action against him for  furnishing  bogus  travelling ticket in the tour programme.  Complainant himself  admitted that all the arrangements made by the  OPs 1&2 during the visit and  all the participants including complainants expressed their satisfaction in the journey.  After adducing evidence also it is seen that  the complainant has tendered evidence like  that.  Hence we are of the view that this complainant was filed within the  limitation period of two years ie, from the date of  getting  knowledge to the complainant about the  unfair trade practice  of OPs as alleged in the complaint.  So the present case is not barred by limitation.  The 1^st point is thus found in support of complainant. 

Other points:  Complainant’s  allegation is that the tour programme was facilitated by 1^st OP who was an employee of Indian Postal department on  8/3/2016, a representative of the 1^st OP came to Kannur and collected an amount of Rs.38,000/- per head from the complainant coming a  total amount of Rs.76,000/-.  At the time of  handing over the  money, the 1^st OP informed that    they would  arrange the air ticket through the 2^nd OP and the total cost of flight charge up and down journey would come  to Rs.26,733/- per head.  The tour programme was scheduled from 7/5/2016 to 13/5/2016.  All the arrangements made by OPs 1&2 during  the visit and all the participants expressed their  satisfaction in the journey.  But on 20/5/2019, the complainant has come to know from his son-in-law that the department has initiated departmental action against him for furnishing bogus travelling ticket in the tour programme.  It is learnt that the amount shown in the  travel ticket is an exalted figure and the actual   flight charge up and down journey on the scheduled date would  come only Rs.16,000/- per head. It is  also learnt that the postal department has initiated disciplinary actions against the department employees.   1^st OP has handed over the air ticket   for the  each and  every passenger representing that the said ticket  is an  original one and  all passengers were boarded on the  flight under a bonafide impression  that the tickets issued to them are genuine.

   1^st OP totally denied the allegations of the complainant.  It is submitted that he has no connection with the complainant in the alleged travel facility, he is not a tour facilitator and he never received Rs.76,000/- or any amount from the complainant towards ticket fair and did not issue receipts for  that amount.  According to him, as he was employed in the postal service, had a connection with the son-in –law of the complainant and as per his request, 1^st OP has mentioned the name of the 2^nd OP, Prayan travels, who is a well known tour operator of Malabar area.  1^st OP contended that the transaction in connection with the tour programme might be between complainant’s son-in-law and Prayan travels only(2^nd OP). 

   From these two rival contention, the point to be found, is whether complainant is a consumer of 1^st OP.  As per Sec.2 (1)(d) of Consumer Protection Act 1986, a person become “consumer”.

1. buys any goods or avails any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.”

    A consumer can only file complaint against the trader.  Here Exts.A1&A2 clearly shows that OPs 3&4 charged Rs.30564/- each from the complainant as total ticket fair charge.  Complainant alleged that he had paid Rs.38,000/- for each traveler to the representative of 1^st OP.  Complainant himself has no case that the amount was given directly to the 1^st OP.  While tendering evidence also, he deposed that “^t OP.1 ഈ കേസ്സുമായി ബന്ധപ്പെട്ട് നിങ്ങളെ സമീപിച്ചിട്ടില്ല? ഇല്ല. പണം കൈപറ്റിയതും ടൂർ കാര്യങ്ങൾ ചെയ്തതും OP-2 ആണ്? അതെ.”

     Further complainants failed to substantiate any piece of material evidence connecting with 1^st OP in  this alleged travel programme.  Hence as per Sec.2(1)(d)  of Consumer Protection Act , the complainants, cannot be considered as a consumer of 1^st OP.  Exts.A1&A2 also clearly  evident that  complainant had given the ticket fare to OPs 3&4 through 2^nd OP travel agency.  Hence from the available evidence, our opinion is that 1^st OP did not have any connection with the receival of consideration from the complainant.  So we cannot  attribute deficiency in service on the part of 1^st OP and thus 1^st OP is exonerated from the liability.

     With regard to OPs 3&4, they are not  associated with OPs 1&2 in  any manner.  It is submitted that 2^nd OP is not an authorized agent of OPs 3&4.  Further these OPs have received only the actual ticket fare and has  not issued bogus ticket to any person as alleged in the complaint.  Here complainants also failed to prove that OPs 3&4 received excess amount from them on account of ticket fare.  Hence we are unable to find any deficiency in service on the part of  OPs 3&4 and thus  OPs 3&4 are also exonerated from the liability .

    Here 2^nd OP has not contested the allegations raised against him.  He remained absent  during the evidence time also.  Complainant alleged that 2^nd OP is the tour operator.  Ext.A3 also reveal that the flight ticket were sent to the complainant by 2^nd OP Prayan travels.  It is the duty of 2^nd OP to prove  that he has collected only the actual ticket fare from the complainant and not issued bogus flight tickets.  Since 2^nd OP remains absent, and did not contest the  alleged fare, we are constraint  to believe the allegations of the complainant raised against 2^nd OP .  Considering the entire evidence, we are able to find, deficiency in service on the part of 2^nd OP alone.  Complainant herein failed to prove the departmental action  etc taken by  postal department.

      In the result complaint is allowed in part.   2^nd opposite party is directed to pay Rs.21466/-  the excess amount collected from the complainant and his  wife to the complainants.   2^nd opposite party is also directed to pay Rs.10,000/- towards compensation and Rs.5000/- towards cost of the proceedings  of this case to the complainants, within one month from the date of receipt of this  order.  Failing which Rs.21466+ Rs.10,000-/- will carry interest @9% per annum from the date of order till realization.  Complainants can execute the order as per provision in Consumer Protection Act 2019.

Exts:

A1&A2-Copy of air tickets

A3- copy of e mail message

A4&A5- Boarding pass of complainant and his wife

A6- return  boarding pass.

PW1- V.P.Balakrishnan- complainant

DW1-. K.Sethumadhavan-1^st OP

Sd/                                                                      Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                         MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR