Present :     Justice P.N. Sinha, President

Shri Liju Thankachan, R/o Garacharma

The Owner of Fly World Travels, No.3 Akash Market,

Bathu Basti, Garacharma, Port Blair.                         …… Appellant

Vs

 

Shri Santhosh Kumar Pandey,

R/o Junglighat

Under the PS, Aberdeen, Port Blair Tehsil            …….. Respondent

Date      :    09^th day of April, 2009

 

 

The appellant has preferred this appeal being aggrieved by and dissatisfied with the judgment dated 01.09.08 passed by the District Consumer Redressal Forum, Andaman, Port Blair in C.D.Case No.41 of 06 as by the said judgment the appellant was directed by District Forum to pay Rs.4891/- as compensation to the respondent.

Fact of the case, in brief, is that the respondent (complainant before the District Forum) had purchased air tickets from Fly World Travels on 26.07.06 for himself and his friend for onward journey from Port Blair to Kolkata on 09.08.06 and to make return journey from Kolkata to Port Blair on 02.09.06 by Air Deccan. The allegation of the respondent was that the tickets were cancelled and reissued by the appellant thrice without his knowledge and consent which had resulted into severe inconvenience to him for which he suffered mental agony. The respondent accordingly claimed compensation to the tune of Rs.10,000/- for inconvenience, Rs.10,000/- for mental agony and Rs.3,000/- as price of the ticket.

The appellant as opposite party before the District Forum contested the matter by filing written objection and inter-alia contented that the complaint was not maintainable. It was specifically stated by him that whenever the tickets were cancelled and again booked the same was done on the approach of the complainant.

The District Forum after hearing the respective parties and taking evidence by the impure order on 01.09.08 allowed the complaint in part and directed the appellant to pay Rs.4891/- as compensation to the respondent.

The Learned Advocate for the appellant before us contended that examination-in-chief of the respondent as complainant was not in-accordance with law or rules as there was no affirmation of affidavit. The complainant in his examination-in-chief did not mention about his loss or his claim for mental agony and inconvenience. He further contented that the District Forum did not proceed with the complaint properly and there was no marking of documents as exhibits. Each agent has separate code number and one agent cannot use code number of the other agent and as such story of cancellation of tickets without consent of complainant is not believable. The price of tickets and claim for tickets are different and as no exhibit mark was given, it is not clear as to on which ticket the District Forum placed reliance. The complainant also did not produce any cash memo to show the purchase of fresh tickets at Kolkata during his return journey and no boarding pass was produced before the District Forum to prove that he actually went to kolkata availing of the Air Deccan flight. Accordingly, the order of the District Forum was bad both in fact and in law and it should be set aside.

On the contrary, the Learned Advocate for the respondent submitted that paragraph XXII and XXIV of the memorandum of appeal reveals that the appellant has more or less accepted the verdict of the District Forum and his only grievance is that the amount of compensation allowed by the District Forum was harsh. He further submitted that the complainant respondent has made the claim for compensation for first purchase of tickets on 26.07.06 which was cancelled by the appellant without the constant of the respondent.

We have carefully perused the materials on record and the records of the District Forum in C.D.Case No.41 of 06. We find that there is some force in the arguments advanced by the Learned Advocate for the appellant. It appears from the record of the District Forum that the examination-in-chief of the complainant respondent was by affidavit. When the examination-in-chief was by affidavit, there must be affirmation and without affirmation the affidavit is not valid. The District Forum is a quasi judicial body and it cannot place reliance on such evidence which was by affidavit but without affirmation. The affidavit may be sworn before any judge or Magistrate or Notary Public or other authorized persons as defined in the Notaries Act. The Examination-in-Chief of complainant was thus not proper and it should be rectified before any reliance can be placed on such evidence.

We find several Electronic Tickets of Air Deccan inside the record of the District Forum. We are unable to understand over which ticket the District Forum placed reliance to come to the finding that there was deficiency in service on the part of the appellant to cause mental agony and harassment to respondent by canceling the ticket without his consent. The District Forum should have marked such ticket and other documents as exhibits before placing reliance on such documents.

We also find that the district Forum did not consider whether the complaint was bad for not impleding proper parties. The District Forum should have considered whether the agent and the Airlines were to be implemented as parties before it. In Indian Airlines Ltd.–VS-Travlinx Travels Private Ltd reported in 2004 (II) CPJ 688 the tickets of complainant was cancelled without seeking instruction from him. The complainant was put into great harassment. The matter went up to the National Redressal Commission wherein the National Redressal Commission held that the Travel agent as well as Airlines were liable on the principle that the principal was liable for the negligence of the agent.

In P.Gopinathan-Vs-Chairman, Air India reported in 1992 (1) CPR 93: (1992) 1CPJ5 the complainant alleged the deficiency in service on the part of Airlines on the ground that though he had a ticket which was okayed by the Travel agent his name was not on the list of passengers. The matter finally went before the National Consumer Disputes Redressal Commission wherein the National Commission dismissed the complaint contenting that the claim was hypothetical and also on the ground that the complainant had failed to implead the travel agent. In the instead matter though it is difficult for us to consider which Electronic Ticket was considered by the District Forum, we find that over the tickets which bears rubber stamp of appellant, the name of Janta Tours and Travels was also printed as the agency. It is not clear to us whether Janta Tours & Travels was the agent and the appellant was sub-agent. Be that it may, the complaint was bad for not impleading proper parties particularly the principal as the agents work and book or cancel tickets for the principal.

Besides that, there are some other defects also as in examination-in-chief, which was not affirmed, the complainant did not state anything about his claim or the amount of loss suffered by him. The price mentioned on the tickets and claim made by the complainant was also different which was also not properly explained by the complainant and considered by the District Forum.

Considering the entire facts and circumstances and materials on record we find that there is merit in the appeal, and consequently, the same is allowed. At the same time we find that the complaint cannot be dismissed as the District Forum did    not follow proper procedure. The order or judgment of the District Forum dated 01.09.08 is accordingly set aside. The matter, that is, the complaint is sent back to the District Consumer Forum for fresh consideration on the complaint after giving the complainant an opportunity to remove defect in respect of examination-in-chief. The grounds of remand have already been indicated above and we expect that at the time of hearing the complaint afresh the District Forum would consider these matters before proceeding with the complaint. Since the matter has been sent back on remand the District Forum would give opportunity to the parties to produce further oral and documentary evidence, if they so desire.

Parties do bear their respective costs in this appeal. Send down the records of the District Forum along with a copy of this judgment to the District Consumer Redressal Forum, Port Blair for information and necessary action.

Supply copy of judgment to the respective parties free of cost.

The amount deposited by the appellant at the time of admission of appeal be returned to the Learned Advocate for the appellant on proper receipt after observing all the necessary formalities in the office.