State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present : Justice P.N. Sinha, President
Shri Bimal Behari Chakravarty, Member
Appeal No. 1 of 2009
The Station Manager, Indian Airlines, Port Blair
& One other ………………..Appellant
-Vs-
Shri Alex Varghese, Assistant Engineer, APWD, Port Blair
S/o Shri Chacko Varghese, R/o Link Road …………… Respondent
&
Another’s
JUDGEMENT
DATED: 25.11.09
This appeal under Section 15 of the Consumer Protection Act (hereinafter called the Act) has been filed by the appellant challenging the judgement and order dated 06.02.09 passed by the District Consumer Disputes Redressal Forum, Andaman, in C.D.Case No.50 of 2006.
Facts of the case, in brief, are that on 17.12.05, the complainant respondent had purchased to and fro air tickets from the office of the appellant at Port Blair for his onward journey to Chennai on 18.12.2005 and return journey to Port Blair from Chennai on 29.12.2005 vide ticket No.0582269505137. The respondent accordingly, made his journey to Chennai from Port Blair on 18.12.2005 and during his return journey he approached the Indian Airlines office at Chennai for confirming his return journey as his return ticket was in the waiting list. At that time at Chennai it was detected that his ticket jacket did not contain the return flight coupon. Negotiation was made with the Port Blair Airport office and authority of appellant from Port Blair intimated the Indian Airlines authority at Chennai to allow the complainant to make the return journey, but the staff of Indian Airlines at Chennai refused the respondent to make return journey on such ticket. Subsequently, the respondent returned to Port Blair by purchasing the tickets of Jet Airways. The respondent also purchased fresh air tickets from the office of appellant at Chennai but, it was also in the waiting list and amount of that fresh ticket was refunded to him. After return to Port Blair he made a claim for refund of money for the unused portion of journey but, the appellant did not take any step to dispose of his claim and accordingly, the complaint was filed claiming refund of the fare along with the interest and the respondent also claimed compensation to the tune of Rs.1,00,000/-.
The appellant as opposite party contested the complaint by filing written objection wherein he denied the material averments of the complaint, and inter-alia contented that, the complaint was not maintainable since the appellant being a body corporate, the Indian Airlines Ltd. now changed to Indian, was not made party in the instant matter. It is true that the respondent had purchased air tickets for the sector Port Blair/Chennai of 18.12.2005 and Chennai/Port Blair of 29.12.2005. The respondent was negligent as he could not produce the return flight coupon at the counter at Chennai. It was obligatory on the part of the respondent to check and verify his ticket. The rule is clear that there would be no refund against lost of ticket. In order to make claim for compensation under provisions of the Act there must be proof of negligence of opposite party. Section 14(1) (d) of the Act is not attracted in this case as in this matter the respondent himself was negligent who failed to produce the return flight coupon.
The District Forum after hearing both the parties and on consideration of evidence and materials on record allowed the complaint and directed the appellant and other to pay a sum of Rs.20,613/- as compensation to the respondent. Being dissatisfied with the order of the District Forum the appellant moved this Commission in this appeal.
Mr.M.Lall, the Ld.Advocate for the appellant drew our attention to the provisions of Section 14(1) (d) of the Act and contended that in order to claim compensation the consumer has to establish that he suffered loss or injury due to the negligence of the opposite party. In this matter there was no negligence on the part of the appellant and it was respondent who was negligent as he failed to produce return flight coupon for making his journey from Chennai to Port Blair. He also referred to paragraph 4 of the complaint where it was mentioned by the respondent that he was not aware as to how the return flight coupon was missing from the ticket. Mr.M.Lall further submitted that the respondent was negligent as after purchasing the ticket he did not verify the ticket and at the time of making onward journey to Chennai from Port Blair also did not verify the ticket to ascertain whether the return coupon was inside the ticket jacket or not. The District Forum passed the order on the basis of surmise and conjecture and did not go through the evidence properly. The order of the District Forum was baseless and it was nothing but, an order on the basis of non-application of mind and it should be set aside.
Mr.Arul Prasanth, the Ld.Advocate for the respondent submitted that in para 14 of the complaint it was specifically mentioned that due to sheer negligence on the part of the opposite parties the flight coupon was found missing from the original ticket of the complainant. The respondent as complainant examined himself before the District Forum as PW-I and also produced his air ticket before the forum. There is no ground to disbelieve the evidence of PW-I when the appellant as one of the opposite parties did not examine any witness before the District Forum and also did not produce any paper or document to establish their case. As there was no evidence from the side of the appellant the District Forum made no mistake by passing the order relaying on the oral and documentary evidence produced by the respondent. Moreover, it is clear from exhibit A, the ticket, and evidence of PW-I that the appellant had realized Rs.16,290/- from the respondent for his journey from Port Blair to Chennai and return journey from Chennai to Port Blair. Due to the refusal by staff of Indian Airlines the respondent had to travel to Port Blair by Jet Airways flight and in spite of making the claim the appellant did not refund Rs.8,145/- to the respondent. There is no merit in the appeal and it should be dismissed.
We have considered the submissions made by the Ld.Advocates for both the parties and we have also carefully perused the evidence and materials on record. It is admitted that the respondent had purchased to and fro air tickets from the appellant on 17.12.2005 for his journey from Port Blair to Chennai and Chennai to Port Blair. From exhibit A i.e. the ticket it is well established that the Indian Airlines had realized Rs.16,290/- from the respondent for his journey to Chennai on 18.12.2005 and return journey from Chennai to Port Blair on 29.12.2005. It is also admitted from evidence and materials on record that the return flight coupon of respondent dated 29.10.2005 was found missing when he went to Chennai Airport for making confirmation of his journey as he was in the waiting list during his return journey. It is also admitted that he had to travel to Port Blair by Jet Airways flight, and thereafter, he made a claim before the appellant for refund of Rs.8145/- which was the fare of the unused portion of his journey from Chennai to Port Blair and the appellant did not make refund till now.
The only interesting point for consideration in this appeal is whether the appellant was negligent for the loss or injury suffered by the respondent being unable to make his return journey from Chennai to Port Blair in the flight of Indian Airlines and also for not making refund of Rs.8145/- to respondent for the said unused portion of the journey. Section 14(1) (d) of the Act lays down that the District Forum on being satisfied can pass the order directing opposite party to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
According to rules printed on the ticket no refund is permissible against loss of ticket. The appellant’s contention is that it is a case of lost ticket as the respondent failed to produce the return flight coupon. It is true that the respondent was to some extent careless as he did not verify after obtaining boarding pass during onward journey to Chennai whether return coupon was inside the ticket book or not. Exhibit ‘A’ proves that the appellant ealizat Rs.16,290/- from respondent which indicates that fare for each sector journey was Rs.8145/-. It is undisputed that respondent made onward journey from Port Blair to Chennai on 18.12.2005 and could not make return journey on 29.12.2005 as he was not allowed to board the flight for the missing of return coupon. The consumer forums cannot enter into the details of evidence like civil or criminal court to decide a complicated and disputed fact as to it was whose fault which resulted into missing of the return coupon.
It requires consideration by us that such careless conduct or inadvertence of the respondent was so grave so as to deny his claim for refund of the amount for unused portion of the journey which amount stands at Rs.8145/-. In this case before us the entire original ticket was not lost and the respondent had produced the original ticket jacket (Exhibit A) before the District Forum. The ticket jacket also contains the passenger coupon where it has been specifically printed that respondent purchased to & fro ticket from Port Blair to Chennai and Chennai to Port Blair and passenger coupon is lying inside the ticket jacket. It is not a case where the entire original ticket was lost for which the respondent was not entitled to any refund. Over the ticket it has been printed that no refund is permissible against lost of ticket. In Accounts Officer, Indian Airlines Ltd-Vs-N.L.Lakhnpal reported in 2001 NCJ465, the National Commission held that there was no deficiency on the part of Indian Airline Ltd., when it rejected the prayer of complainant for refund. In that reported case there was theft of tickets and the complainant could not produce the original tickets and for the said reason no refund was allowed. This principle is not applicable in the present case as facts of the present case are different. In this matter the original ticket was not lost and it was produced before the Indian Airlines authority at Chennai as well as at Port Blair when after return from Chennai the respondent made the claim for refund of Rs.8145/- as the fare for the unused portion of the journey from Chennai to Port Blair. Respondent was definitely a consumer when he purchased air ticket paying Rs.16,290/- to Indian Airlines.
The appellant and staff of Indian Airlines acted too technically and pedantically in considering the claim of respondent. If the original ticket and passenger coupon were considered properly by the appellant considering the plight of the consumer and applying principal of natural justice and treating the respondent’s case sympathetically and liberally he could have found that in the passenger coupon it was clearly printed that it was to and fro air ticket from Port Blair to Chennai on 18.12.2005 and from Chennai to Port Blair for 29.12.2005. We have indicated that initially the respondent was to some extent negligent as he did not verify his tickets after obtaining boarding pass during onward journey but, it was appellant who was more negligent by not properly applying mind into the matter and not verifying the original ticket. If he verified the passengers list dated 18.12.2005 and ticket number and other particulars including P.N.R number etc. it could have been detected that it was original ticket and respondent travelled to Chennai from Port Blair on 18.12.2005 and unauthorized third party or an imposter did not produce the original ticket at Chennai and Port Blair. The appellant had the scope to set the matter to right direction, but instead of it, contributed to the negligence more which resulted into loss or injury of respondent.
The evidence of PW-I revealed that when he reported the matter at Chennai main city office there was correspondence with the appellant’s office at Port Blair and Port Blair office intimated the Chennai airport to allow the respondent to travel which was not considered. The appellant did not produce any witness before the District Forum to contradict this evidence of PW-I. We intend to refer a case viz., H.S.Wadhwa-VS-The M.D., Indian Airlines & Others reported in 1986-1996, Consumer (Part-II) at page 3138. In the reported case the appellant was allowed to make his journey by Indian Airlines flight on the ticket issued by M/s Vayudoot from Delhi to Calcutta and when he wanted to make return journey the Indian Airlines staff at Calcutta Airport refused to honour the ticket issued by M/s Vayudoot. In that matter the State Commission had granted the appellant some relief and the appellant being not satisfied with such relief moved the National Commission for further relief. The National Commission held that in the state of evidence available of record no further relief can be granted to the appellant when the State Commission had granted him some relief. The facts of the instant case is not exactly identical but, the principle laid down therein is applicable here on consideration of evidence and materials on record when we find that the manner of performance of service by the Indian Airlines staff and appellant was inadequate and insufficient. Here the appellant did not honour the ticket issued by them to respondent at the time of return journey from Chennai to Port Blair on a mere plea of missing of return coupon though the original ticket was produced by the respondent which contained the passenger coupon also and the said coupon revealed payment of Rs.16,290/- and also revealed that the ticket was for journey to and fro from Port Blair to Chennai and Chennai to Port Blair.
Deficiency according to Section 2(g) of the Act means “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been under-taken to be performed by a person in pursuance or a contract or otherwise in relation to any service”. We also lay emphasis on “Service” as defined in Section 2(O) of the Act. Consumer forums need not press for “proof beyond all reasonable doubts” like criminal courts in order to decide a fact or fact any issue on consideration of evidence and materials on record placed before the forums. Sub-Section (4) of Section 13 of the Act lays down that the District Forum shall have the same powers as are vested in a Civil Court in respect of matters indicated therein i.e. to deal with hearing of a complaint. When evidence produced before the District Forum is not sufficient to establish any fact or fact in issue on negligence or deficiency in service, the theory of preponderance of probabilities cannot be ruled out and reliance on preponderance of probabilities can be placed in arriving at the conclusion and that too when the appellant did not produce any oral or documentary evidence before the District Forum. In the present matter before us possibility of removal of the return flight coupon by the Indian Airlines staff at Port Blair on 18.12.05 at the time of issuing boarding pass to the respondent during his onward journey to Chennai cannot be ruled out. It was not a case of appearance of third party outsider by impersonation with original ticket and passenger coupon on 29.12.05 at Chennai Airport for return journey to Port Blair, and there after, to make the claim for refund of unused portion of airfare before the appellant.
If the appellant or his staff at Port Blair Airport made proper verification of papers and documents of 18.12.05 at the time of allowing the respondent to make onward journey to Chennai the defect or, the cause of grievance of respondent could have been detected. The appellant and his staff did not apply proper mind, attention and conscience in this matter, and thereby harassed a bonafide consumer viz. the respondent. The performs of service as well as application of conscience which should have been made by the appellant or the staff of Indian Airlines both at Chennai and Port Blair was not done and this resulted into deficiency in service as well as negligence by the appellant which caused loss or injury and harassment to the respondent for which he was entitled to some relief. The object or purpose of air service should be to look after the facilities and convenience of bonafide passengers and not to put consumers into harassment on flimsy and technical grounds when application of mind and conscience by the staff of Indian Airlines would have saved a consumer like the respondent from inconvenience and harassment.
If the appellant was not so pedantical and too technical he could have solved the claim of respondent much earlier and did not keep pending the claim of the appellant for refund of airfare for over 3 years. Accordingly, on consideration of facts, evidence and materials on record we are satisfied that the respondent is entitled to refund of Rs.8145/- as the fare of unused portion of journey from Chennai to Port Blair and he is also entitled to interest and costs as the conduct of the appellant compelled the respondent to move the District Forum when his claim for refund was not considered by appellant.
The reasons given by the District Forum granting Rs.20,613/- in favor of the respondent is not on the basis of evidence and materials on record. The respondent was not entitled to claim any amount as compensation for mental agony as it is clear from his ticket (Exhibit A) that he made the journey on Leave Travel Concession (LTC) and complainant was entitled to re-imbursement of actual fares of both ways journey made by him from the government. The respondent would get Rs.8145/- as refund of the airfare for unused portion of the return journey from Chennai to Port Blair on the basis of the Ticket No.0582269505137 and he is entitled to interest also at the rate of Rs.8% per annum from the date of filing the complaint before the District Consumer Disputes Redressal Forum, Andaman, at Port Blair i.e. from 16.11.2006 till the date of ealization. The respondent would also get Rs.1000/- as costs. The appellant is directed to make refund of the airfare indicated above with interest and costs within one month from the date of this order by making payment before the District Forum by issuing a cheque in the name of the respondent. In default of payment within the stipulated time mentioned above, the respondent would be at liberty to take steps in accordance with law for execution by filing proper application before the District Forum.
The appeal is accordingly allowed in part and the order of the District Forum passed in C.D. Case No.50 of 2006 is modified in the manner and extent as indicated above.
Send down the records of C.D. case No.50 of 2006 to the District Consumer Disputes Redressal Forum, Andaman at Port Blair along with a copy of this judgment for information and necessary Action.
Copy of this judgment be handed over to the Ld. Advocates for the parties free of cost. The Bankers Cheque amounting to Rs.10,307/- deposited by the appellant at the time of presenting the appeal be returned to the Ld. Advocate for the appellant on proper receipt after observing all necessary formalities.
