STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

M/s Thakural Travels & Immigration Consultants, SCO 66-67, 2nd Floor, Sector 8-C, Madhya Marg, Chandigarh, through its Prop. Sh. Ravinder Partap Singh Thakural.

….…Appellant/Opposite Party No.1

V E R S U S

1.     Smt. Shukla Kumari wife of Sh. J.C. Kapoor, resident of H.No. 3598, Sector 37-D, Chandigarh.

….Respondent/Complainant.

2.     Ravinder Partap Singh Thakural, Proprietor M/s Thakural Travels & Immigration Consultants, SCO 66-67, 2nd Floor, Sector 8-C, Madhya Marg, Chandigarh. [struck off vide order dated 13.7.2011 passed by the District Forum-II]

3.     Ravinder Partap Singh Thakural, Proprietor M/s Thakural Travels & Immigration Consultants, resident of H.No. 3504, Sector 37-D, Chandigarh. [struck off vide order dated 13.7.2011 passed by the District Forum-II]

(Service of respondents No.2 and 3 dispensed vide order dated 10.07.2012)

.…..Respondents /Opposite Parties No.2 and 3

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                MRS. NEENA SANDHU, MEMBER

Argued by:Sh.Barjesh Mittal, Advocate for the appellant.

Sh.J.C.Kapoor, Advocate for respondent No.1

Service of respondents No.2 and 3 dispensed vide order dated 10.07.2012

MRS. NEENA SANDHU, MEMBER

                This appeal is directed against the order dated 26.04.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant and directed Opposite Party No.1(now appellant) as under:-

“Hence, in the light of above observations, we find a definite deficiency in service on the part of the Opposite Party No.1. The present complaint of the Complainant succeeds against the Opposite Party No.1, and the same is allowed. The Opposite Party No.1 is directed to refund Rs.63,513/- along with interest @ 9% per annum from the date of institution of this complaint, within 30 days of the receipt of this order, along with Rs.7,000/- as litigation expenses. Thereafter, the amount of Rs. 63,513-/ shell attract interest @18% per annum from the date of institution of this complaint, till it is actually paid”.

2.                    The facts of the case, in brief, are that the complainant booked ticket of KLM Royal Dutch Airlines, on 25.02.09, from Delhi to Minneapolis USA and back, through the Opposite Parties vide Invoice No.353, Annexure C-1 by paying Rs.50,000/-. The complainant planned to commence her journey from 3.4.2009, from Delhi, and the return journey was planned for 28.07.2009 from Minneapolis USA.  It was stated that the complainant due to some emergency, advanced her visit to Minneapolis USA for 3.3.2009 and, therefore, she requested the Opposite Parties to cancel the previous ticket, issued for 3.4.2009 and arrange a confirmed ticket for 3.3.2009. Annexure C-3 is the confirmed ticket for 03.03.2009.  It was further stated that the complainant could not commence her journey on 3.3.2009, and intimated the Opposite Parties, regarding the non-commencement of the same, on their telephone numbers 0172-4669997, 4669998 and 98148-38398. It was further stated that the complainant again made a request to the Opposite Parties, for air ticket, in the Economy Class for the flight departing on 05.03.2009.  However, the Opposite Parties while answering to this request, claimed that if desired, a confirmed Business Class Ticket was available for 05.03.2009, and there was no availability of Economy Class Ticket. It was further stated that the complainant, in her urgency, paid Rs.33,500/- and another Rs.50,000/- to one Sh.Sanjeev the representative of the Opposite Parties on 3.3.2009 vide receipts, Annexure C-4 & C-5 respectively. The Complainant commenced her journey on 5.3.2009, but during her journey, she came to know that she had been given the ticket of Economy Class and not of Business Class, as promised despite the fact that the Opposite Parties had charged Rs.83,500/- in excess of Rs.50,000/-, which were paid earlier on 25.2.2009 vide Annexure C-1. The Complainant claimed to have received Rs.19,987/- vide cheque dated 3.4.2009 (Annexure C-9) as refund. It was further stated that the complainant requested the Opposite Parties to make necessary refund of the excess amount charged by them, by serving a legal notice dated 21.6.2010 (Annexure C-6) but to no effect. It was further stated that the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In its written reply, Opposite Party No.1 stated that it was merely a booking agent of KLM Royal Dutch Airlines.  It was further stated that the complainant actually availed of the services of KLM Royal Dutch Airlines, for her journey and it was the said Airlines, which had refunded the amount, payable to the complainant, after cancellation of her tickets, booked on different dates. It was further stated that necessary deductions on each such cancellation included, date change charges as applicable + difference of fare as there were different categories in Economy Class itself, namely H-Class and V-Class + re-issuance charges + service charges of the service which it (Opposite Party No.1) is providing to its clients. While replying to the allegations of the Complainant about the lesser amount of refund, it was stated, in para 12, that she was intimated that she could check at any point of time with KLM Royal Dutch Airlines about the charges, which were applicable, with regard to the different categories and class of tickets. It was further stated that the Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice.

4.                    The names of Opposite Parties No.2 and 3, were struck off from the array of the Opposite Parties vide order dated 13.07.2011 by the District Forum.

5.                    The Parties led evidence, in support of their case.

6.                    After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above. 

7.                    Feeling aggrieved, the instant appeal, has been filed by appellant/Opposite Party No.1.

8.                    We have heard the Counsel for the parties and, have gone through the evidence and record of the case, carefully. 

9.                    The Counsel for appellant/Opposite Party No.1 submitted that the District Forum ignored the fact that the complaint was not maintainable, on the ground of non-joinder of necessary party i.e. KLM Royal Dutch Airlines to the complaint. This submission of the appellant is not tenable because the complainant availed of the services of the appellant for the purchase of tickets, in question, and had a grievance against it only. There was, thus, privity of contract between the complainant and Opposite Party No.1. Moreover, the complainant did not allege any deficiency in service  against KLM Royal Dutch Airlines and, thus, the complaint was not bad for non-joinder of necessary party.

10.                 The Counsel for appellant/Opposite Party No.1, further submitted that the complainant filed the complaint before the District Forum, on the wrong assumption, that an amount of Rs.33,500/- and Rs.50,000/- were charged from her for undertaking the journey on 05.03.2009, whereas, the correct facts of the case were that the said amount of Rs.33,500/-  was charged from her for pre-ponement/date change and on account of change/variation of class from Economy (V) to higher class of Economy (H) for undertaking the journey on 03.03.09, which, ultimately, she did not undertake and consequently the seat remained vacant and it was declared as ‘No Show’. In the itinerary at page 42 of the appeal file, it was mentioned as under:-

“Ticket is non-refundable in case of no-show

                Note

Before outbound Departure

No Show

Ticket is non-refundable when passenger cancels after departure of the originally scheduled flight”

He further submitted that the complainant was, thus, not entitled to the refund of the price of ticket booked for 3.3.09. However, due to the personal efforts of the appellant, KLM Royal Dutch Airlines as a goodwill gesture refunded a sum of Rs.19,987/- and the same was received by her before filing the complaint.

11.                 On the contrary, the Counsel for the complainant vehemently argued that on 03.03.2009, the appellant charged Rs.83,500/- towards the booking of the ticket, in the business class, for the journey to be undertaken by her on 05.03.09 and not for change of class as alleged by the appellant. He further submitted that this fact was rightly appreciated by the District Forum, and thus, the appeal against the impugned order passed by the District Forum was liable to be dismissed. 

12.                 Now the moot point for discussion, before us, is as to whether the complainant paid a sum of Rs.33,500/- on 3.3.2009 on account of change/variation of class from economy (V) to higher class of economy (H) for undertaking journey on 3.3.2009 or not. It is established, on record, that the complainant paid a sum of Rs.50,000/- and Rs.33,500/- to the appellant on 03.03.09, and the receipts Annexure C-4 and C-5 were duly issued by it, whereas, the request for pre-ponement/date of change for 03.03.09 was duly accepted by the appellant and it reissued the ticket on 29.02.2009 having the same booking reservation No.5MTJEJ, which was mentioned in the earlier reservation slip of the ticket booked for 03.04.2009. The perusal of tickets dated 3.4.2009 (Annexures C-2) and ticket dated 3.3.2009 (AnnexureC-3) show that in both the tickets under the heading “Fare Type” the words “economy restricted” were mentioned. No distinction regarding the Class of Economy (V) and Class of Economy (H) had been mentioned. If there was any change in the class from economy V to Economy H,  then while issuing the new ticket for 03.03.09 the appellant should have mentioned the change of class also and  it should have charged the amount on the same date, but it failed to do so.  Moreover, the appellant failed to give any plausible reason, as to why, it was not mentioned in the receipt dated 03.03.09, Annexure C-5, that the amount received on 03.03.09 was the deferred payment, on account of change of class.  Thus the appellant miserably failed to prove that the sum of Rs.33,500/- charged by it on 3.3.2009 was for the change of class from economy V to economy H and as such, we are left with no other alternative, but to believe the contention of the complainant that she paid a sum of Rs.50,000/- (C-4) plus 33,500/- (C-5) on 3.3.2009 for the booking of the ticket in business class for 5.3.2009.  However, the OP booked the ticket in economy class worth Rs.50,000/ and the same was evident from Annexure C-3/A and she was, thus, entitled to the refund of Rs.33,500/-.

13.                 It is pertinent to mention here that the appellant has already credited a sum of Rs.34,500/-, to the account of the complainant, on account of refund of the amount of the ticket of her husband, whereas, the complainant was entitled to the refund of Rs.28,000/- i.e. Rs.33,500/- minus Rs.5,500/-, charged on account of date change as is evident from receipt dated 29.05.09, Annexure A-5. So, the complainant has received a sum of Rs.6500/- in excess and the appellant is entitled to the refund of the same. 

14.                 As regards the prayer for refund of Rs.30,013/- (50,000/- -19,987/-) for the ticket 3.3.2009 is concerned the complainant is certainly not entitled to the same because admittedly the complainant did not undertake the journey herself on 3.3.2009 and consequently, the seat remained vacant and was declared as ‘no show’. As per the Rules of the Airlines, the amount of ticket is non-refundable, in case of ‘No Show’. As the appellant refunded a sum of Rs.19,987/- as a goodwill gesture, thus, the complainant should feel happy & satisfied with this amount only.

15.                 Keeping in view the above discussion, we are of the considered view that the District Forum did not appreciate the facts, circumstances and evidence, on record in its proper perspective. Thus the directions given by the District Forum in the order impugned, regarding refund of amount and litigation expenses are liable to be set aside.

16.                 For the reasons recorded above, the appeal is partly accepted, with no order, as to costs and the impugned order of the District Forum is modified as under:-

                i)      The direction of the District Forum to Opposite Party No.1/appellant  for refund of Rs.63,513/- with interest @ 9% p.a. is set aside.

                ii)     The direction of the District Forum granting litigation costs of Rs.7000/- and penal interest @ 18% p.a. to the complainant is also set aside.

                iii)    Since the complainant received a sum of
Rs.6500/- in excess from the appellant, she is directed to refund the same to the appellant within a period of 45 days from the date of receipt of a certified copy of this order failing which the aforesaid amount shall carry interest @ 12% p.a. from the date of this order till its realization.

17.                 Certified Copies of this order be sent to the parties, free of charge.

18.                 The file be consigned to Record Room, after completion.

Pronounced.                                                                                      Sd/-

30.11.2012                               [JUSTICE SHAM SUNDER[RETD.]

                                                                                 PRESIDENT         

Cmg                                                                                                                                                                            

Sd/-                      

            [NEENA SANDHU]

                                                                                                MEMBER