Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-44/18.02.2009
[restored case in 2021]
1. Lala Ram Kataria son of Late Shri Nanak Ram
R/o B-9/272, Sector-5, Rohini, New Delhi-110085
2. Kamlesh Kataria w/o Shri Lala Ram Kataria
R/o B-9/272, Sector-5, Rohini, New Delhi-110085
3. Amit Kataria s/o Shri Lala Ram Kataria
R/o B-9/272, Sector-5, Rohini, New Delhi-110085
[through complainant no.1's elder brother
Shri Jagdish Ambedkar s/o Late Shri Nanak Ram,
r/o F-189, Rama Vihar Colony, Delhi-110081 ...Complainants
Versus
OP1: M/s Spice Jet, Group Desk Department,
319, Udgog Vihar, Phase-IV, Gurgaon (Haryana)
OP2: M/s Sahibji Travels & Tours Pvt. Ltd.
68/2276, 1st floor, Gurudwara Road,
Karol Bagh, New Delhi-110005.
OP3: M/s Travel World Holidays,
A-2/132, 1st floor, Rajouri Garden,
New Delhi-110027. ...Opposite Parties
Order Reserved on: 19.01.2023
Date of Order: 02.02.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. (Background and Introduction to case of parties) : This complaint was earlier disposed of by Ld. Predecessors/Commission by order dated 22.12.2015, however, by order dated 22.11.2021 in FA/92/2016 by Hon'ble State Consumer Disputes Redressal Commission, the complaint was restored as well as the parties were directed to appear before the District Consumer Disputes Redressal Commission. Thereafter, notices were also issued to cause appearance of the parties, the complainant, OP1 and OP3 remained present. With this background, the matter is being proceeded further.
1.2: The facts and features of the case of the parties, are scattered as well as the facts and figures have also been repeated number of times in the pleading or in other record filed, however, care is being taken to present them in a sequence in order to keep the clarity and brevity.
1.3: There are allegations by the complainants against the opposite parties in respect of deficiency of services and unfair trade practice, since the complainants booked the air tickets through OP3 for flying in the airplane of OP1, however, his booked tickets were got cancelled without his consent. Whereas on day of boarding, the complainant no.1 along with his family reported to the airport for making departure to the destination, when he surprised and shocked to learn about cancellation of his booking of air tickets, apart from other arrangements at the destination. It was discovered that OP3 had taken the services of OP2 in bookings of the air tickets as well as getting them cancelled. The amount of cancel ticket was not refunded to the complainant and it was also discovered that there was connivance of OP1, OP2 and OP3 and that is why higher amount for tickets were charged and the amount was not refunded to complainant.
On the other side, OP1 has reservation, being service provider of airline, that it has no concern with OP2 or OP3 nor they are authorized entity of OP1. The tickets were booked by OP2 and on its request, the booking was cancelled and amount was returned after compulsory cancellation charges. Whereas, according to OP3, it was complainant who got the booking cancelled and the booking was done through OP1, there was no fault on the part of OP3. They deny deficiency of any services.
2.1 (case of complainant ) : On 08.11.2008, complainants paid a sum of Rs. 15,000/- (viz. Rs. 10,000/- by way of cheque against receipt no. 1518 and Rs. 5,000/- cash against another receipt no. 1457, both dated 08.11.2008) to the OP3/ M/s Travel World Holidays, being advance amount against bill for air tickets Delhi- Bagdogra- Delhi [the receipts are at page no. 9 and 10 of the paper-book]. It was 01.12.2008 when OP3 delivered to the complainant confirmed air ticket no. DLJYAB of Spice Jet Flight No. SG 882 for departure on 26.12.2008 from Delhi to Bagdogra and another departure on 31.12.2008 from Bagdogra to Delhi [being page no. 11 of the paper-book]. In addition, there was also hotel booking voucher for stay at Anand Palace, Darjeeling, West Bengal from 26.12.2008 to 28.12.2008, also at Hotel Green Hills Kalimpong from 28.12.2008 to 29.12.2008, at Hotel New Castle, Gangtok, Sikkin from 29.12.2008 to 31.12.2008 arranged by the OP3 [which are page no. 12 to 14 of the paper-book]. The complainant was also handed over cheque of Rs. 21,000/- bearing cheque no. 001110 dated 02.12.2008 drawn on Bank of India being refund of advance amount of Rs. 15,000/- and also refund of Hotel room charges of Rs. 6,000/- as separate room for Amit Kataria (complainant no.3) could not be arranged. OP3 had also demanded payment of Rs. 99,000/- towards confirmed air ticket no. DLJYAB of Spice Jet Flight no. SG 882, which was given by the complainant vide cheque no. 264276 dated 01.12.2008 drawn on ICICI Bank for Rs. 99,000/- in favour of OP3/ M/s Travel World Holidays, which was encashed by the OP3 through its banker on 05.12.2008. The Complainants had gone to Domestic Palam Airport in a very happy mood in early morning that too in very heavy fog on 26.12.2008 [car entry ticket is at page no. 16 of paper-book] to board their airplane but it spoiled because of shock and harassment owning to cancellation of booked tickets. The complainant and his family enquired and tried their best from the desk of OP1 as to why the tickets were cancelled, after much insistence it was informed the status of air tickets of DLJYAB as cancelled and there was refund of Rs. 94,500/- in favour of M/s Sahibji Travel and Tours Pvt. Ltd. [i.e. OP2] and a sum of Rs. 4,500/- was deducted as cancellation charges by OP1, no further information was divulged and complainants were asked to contact the travel agent, who booked the tickets. Thus, there is deficiency of services as OP3 took the amount for booking etc but tickets were not booked by it, nor OP3 apprised complainants about contact number of OP2 through whom the tickets were booked nor OP3 informed the complainants about cancellation of booking of tickets, since complainants had not requested for cancellation of tickets.
2.2: It was discovered that the fare of air ticket of Spice Jet from Delhi to Bagdogra for Flight No. SG 882 for 26.12.2008 was Rs. 7,424/- and from Bagdogra to Delhi for Flight No. . SG 882 for 31.12.2008 was also Rs. 7,424/-, whereas it was OP1 which itself charged Rs. 99,000/- for said air ticket no. DLJYAB with the summary of ticket as WEB Rs. 40,125/- + WEB Rs.40,125/- + fees and charges Rs. 18,750/- [page no. 11 of the paper-book] and OP1 failed to give the details of such heavy extraordinary fare to the complainants. Similarly, OP2 and OP3 also failed to divulge the details of heavy extraordinary fare by OP1 as well as details of cancellation of air tickets, just on excuse to contact the concerned person, this also amounts to deficiency in services.
2.3: The complainant was constrained to seek legal aid of Managing Trustee of Indigent Policy Personal Sewa Trust (Regd.) who invited all the parties for conciliation, however, none of the OPs joined the meeting called for. The complainants have not requested for cancellation of their tickets nor the OPs have refund to complainants of cancelled ticket amount, there is deficiency in services by the OPs, that is why legal demand notice dated 07.01.2009 was sent [Managing Trustee of Indigent Policy Personal Sewa Trust (Regd.)] to the OPs, OP3 refused the delivery of notice by speed post but OP3 served through UPC. Other OPs were served with notice by speed post & UPC [The complainant has placed on record the reply by OP2 to said notice]. That is why, the complaint was filed for refund of Rs. 99,000/- by OPs, which was given to OP3 for booking of air ticket, apart from compensation of Rs. 3,00,000/- and litigation amount of Rs. 1,100/-.
3.1.1 (case of OP1) : OP1 opposed the complaint by detailed reply, splitting into preliminary objections and reply on merits, briefly the complaint is mala-fide to extort money from the OP1. The substantive reply is based on the plea that complainants got the tickets booked through their agent M/s Sahibji Travels and Tours Pvt. Ltd. and also remitted the requisite amount to OP1. After some days, the OP1 received written request from OP2 (who had booked the tickets) for cancellation of the said tickets and on such request the OP1 cancelled the tickets and transferred amount of Rs. 94,500/- in the credit shell of OP2 after deduction of compulsory cancellation charges being Rs. 750/- per passenger per side [i.e. Rs. 750/- x 6 = Rs. 4,500/-]. The said amount had been credited in the account of OP2. To say, after cancellation of the tickets and remittance of the amount in the credit shell of OP2, the OP1 has no role to play in the present case. Thus, no liability can be fastened against the complainant. It seems that it was OP2, who got the tickets booked for OP3. The OP1 also denies all other allegations in the complaint against it as the same are false, frivolous and misconceived, they are defamatory in nature. The complaint is liable to dismiss.
3.1.2: It is relevant to mention here, that at final hearing of this, OP1 had filed an application to delete its name from the array of parties on the ground that the tickets were booked by OP2, it was got cancelled by OP2 and after deducting compulsory of Rs. 4,500/- for six passengers, the remaining amount of Rs. 94,500/- was transferred to credit shell of OP2, let the name of OP1 be strike off from the array of parties. This application was replied and opposed by the complainant. Ld. Predecessors' were of the view that plea in this application is to be dealt in the final order, accordingly, the plea in this application will also be considered.
3.2: There was no reply on behalf of OP2.
3.3: However, the OP3 opposes the complaint on various facts. The complainant no.1 approached OP3 and enquired about a group tour of 22 persons [list of members is annexure R-1 of reply] from Delhi to Bagdogra, by stating all the said 22 persons are either employee of NDPL Delhi or their family members. Complainant introduced him as an organizer for and on behalf of other 21 tour members. The complainant had requested for separate receipt for each of the employee and tour members, since the NDPL employees have to make claim for LTC [the letter dated 12.12.2008 is Annexure R-3 at page no. 27 of reply] and the OP3 agreed thereto. The complainant’s own record of Hotel voucher [at page no. 12,13 and 14] clearly demonstrate that booking was in the name of 'Lala Ram Kataria x 22 adults' and the air ticket booked was for 22 persons of the group [Annexure- R-2 from page no 13 to 26 of reply]. The entire payment agreed was Rs. 1,36,000/- which was towards air ticket of Delhi- Bagdogra- Delhi on 26.12.2008 and Bagdogra Delhi on 31.12.2008, stay in hotel, sights seeing, drop in out from hotel/airport as also stated by complainant in its record at page no. 21, 22, 12,13,14 and 15 of the complaint.
3.4: On 02.12.2008, complainant approached and requested OP3 for cancellation of his total tour as such the tour was cancelled for reason that all the members of his tour were employee of NDPL or their family members, the tour was booked on the basis of LTC benefit but there was some confusion emerging in respect of eligibility of the amount entitlement in LTC being given by NDPL and that confusion is not clear, moreover, a circular was issued by NDPL (Annexure-R-3) therefore, on cancellation of tour, the complainant had taken back the amount of Rs. 21,000/- on 02.12.2008 by account payee cheque no. 001110 dated 02.12.2008 which he got encashed on 04.12.2008, the statement of bank account is Annexure-R-4 [page no. 28]. The complainant had earlier given advance amount of Rs. 10,000/- by way of cheque and Rs. 5,000/- by way of cash.
Thus the dispute remains only in respect of cancellation of charges of ticket, of hotel and others, however, the respondent no. 3 has right in respect of cancellation charges of entire tour of Rs. 93,000/-. Since the entire tour was got cancelled on 02.12.2008 as well as complainant had received back refund of Rs. 21,000/- nothing has been left against the OP3 as the amount of Rs. 93,000/- was retained as cancellation charges under various heads viz. air ticket, hotel booking, transportation and other charges.
The OP3 is a tour operator and organizer, it has every right to arrange the tour including air ticket and there is nothing wrong in getting the tickets through OP2 by the OP3. Moreover, the allegations of making high charges do not survive since the tour was including air ticket, hotel, sights seeing making other arrangements etc. There was no deficiency of services on any count. There is no ground for the complainant to seek refund of Rs. 99,000/- or other damages of Rs. 3,00,000/-. The complaint deserves dismissal.
4. (Replication of complainant) : The complainant filed replication to the reply of OP3, while denying the allegations of its reply as well as explaining the circumstances that amount of Rs. 15,000/- was given as advance against receipts for air tickets. The complainant no. 1 never represented him as a tour organizer of a group of 22 persons nor he had booked the hotels etc. on behalf of other. The replication refers the reply of OP3 that at page no. 13-14, 19-20, 23-24 & 25-26 that there was booking of air tickets etc. was on different dates, how the complainant no. 1 could be organizer of the tour, when there are different persons who took the services of OP3 at different point of time. Moreover, one passenger namely Vijender Kumar Rohilla was refunded amount of Rs. 44,000/- by OP3 vide cheque no. 001318 dated 05.02.2009 and cancellation charges of Rs. 18,000/- were also deducted from him, which clearly reflects that all other persons were being dealt independently by OP3, this Vijender Kumar Rohilla name is also in papers prepared by the OP3. The refund of Rs. 21,000/- (Rs.15,000/-+ Rs.6000/-) to complainant was on account of return of advance amount & want of arrangement of hotel room for complainant no.3, whereas the OP3 is misrepresenting the facts. The complainant never requested for cancellation of their bookings of air tickets. The complainant reaffirms the complaint as correct, while supplementing it with the letter of OP2 being reply sent to Indigent Police Personal Sewa Trust (Regd) in response to service of notice dated 07.01.2009.
5.1 (Evidence) : Complainant no.1, complainant no.2 and complainant no.3 filed their respective evidence of affidavits in brief, while referring and relying upon the contents of complainant and documents annexed, apart from other record filed.
5.2: Shri Vijay Roy, AR of OP1 filed detailed affidavit, which is on the basis of reply.
5.3: Shri Vineet Kumar, Proprietor, M/s Travel World Holidays/OP3 filed his three affidavits of evidence supplementing with the record filed in support of the reply and also an extract of ledger [page no. 4 and 5] of Sahibji Travel and Tours/OP2.
6. (Submission of Parties) : The complainants, OP1 and OP3 filed their respective written arguments. At the stage of oral submission, Mohd. Faisal, Counsel for complainants and Shri Jashveer Chaudhary, AR of OP1 made their respective oral submissions. Other OPs have not appeared to make the submissions. However, the contentions of all the parties will be considered as written submissions were also filed.
7.1 (Findings) : The case and contentions of the parties are considered, which are also appearing from the pleadings as well as documents. It is matter of record [at Page no. 9 and 10 of complaint], that it was 08.11.2008 when complainant no. 1 made an advance payment of Rs. 15,000/- [i.e. Rs.10,000/-+,5,000/-] for air ticket from Delhi- Bagdogra- Delhi to OP3 and there was confirmed booking of flight
[as per letter/ confirmation at page no. 11, showing total price of tickets of Rs. 99,000/-]. It is also not disputed that the complainant had given an amount of Rs. 99,000/- by way of cheque to the OP3, who got it encashed. Further, OP1 also confirms that the said tickets were got cancelled by OP2 [who got booked the tickets] and there was deduction of Rs. 4,500/- being Rs. 750/- per person x 6 [being reservation record at page no. 17] showing the ticket amount of Rs. 99,000/- as well as refund, besides showing the billing address and phone number of OP2. The OP3 also does not dispute that it got the tickets booked through OP2 and also got cancelled the same through OP2, since there was no bar for OP3 to take the services of OP2. The replication of complainant is accompanying reply of OP2 to notice dated 07.01.2009 and this reply contains vital information, inclusive on the fact that OP2 got the air tickets issued in the name of Lala Ram x 3 on instructions of OP3. On 16.12.2008 on the request of OP3 the tickets of Lala Ram x 3 were got cancelled by OP2. The refund amount issued by OP1 was adjusted by OP2 to the account of OP3. OP2 also explains in its letter that hotel vouchers for any place were not issued by OP2 in the name of Lala Ram x 3.
7.2: In the light of the facts on record, which have been culled out and compiled in paragraph in 7.1 above, the picture emerges that the complainants had not made any request either to OP1 or to OP2 for cancellation of booking. The booking was cancelled without asking original air tickets/ confirmation from the complainants nor complainants were informed after cancellation of tickets.
7.3: The complainant filed the hotel voucher [page no. 12 to 14 issued by OP3] and it shows name of passenger Lala Ram Kataria x 22 adults, whereas the record of confirmation of ticket by OP3 [ Annexure-R-2 to page no. 14 to 26] are in respect of 19 other persons and a voucher [ at page no. 13 R-2] is in respect of the complainants (3 adults), all of them are of different dates. By reading the documentary record filed by complainant inclusive of reply of OP2 to the notice dated 07.01.2009 as well as pages no. 13 to 26 of Annexure R-2 of OP3, it is abundantly clear that there was no group booking of the air tickets by the complainant no. 1 for the other 19 persons. other than complainant & his family. The OP2 in its reply also explains that there was no hotel booking through him by OP3. It also reflects that OP2 and OP3 were discussing their business affair and that is why they have been knowing various aspects of booking as well as cancellation by them. OP1 claims that the booking of complainants air ticket was cancelled on the written request of OP2, however, neither the OP1 nor OP2 had furnished any such documentary record of written request of the OP3, who had requested for cancellation of booked air tickets. It is never the case of OP3 that there was written request of complainant to get the booking cancelled.
7.4: In view of the aforementioned discussion, now the facts established by the complainants are that complainant no. 1 had booked the air tickets for him and for other complainant no. 2 and 3, through OP3 and also paid him advance of Rs. 15,000/- and then Rs. 99,000/- and complainants never requested for cancellation of the booking. As per the plea of OP3, on 02.12.2008 the complainant had approached for cancellation of the total tour, accordingly the tickets were cancelled. As per the case of complainant, it was 01.08.2008 when complainant was returned amount of Rs. 21,000/-[viz.as Rs.15,000/- was given in advance and Rs.6000/-of hotel room charges as OP3 could not arrange separate hotel room for complainant no.3] since total amount of Rs. 99,000/- was asked by way of cheque, which complainant issued in favour of OP3. Since the complainant had issued cheque of Rs. 99,000/- vide cheque no. 264276 dated 01.12.2008, the booking was also confirmed, there was no occasion for complainants to go to Palam Airport to board their flight on 26.12.2008, had the complainant no. 1 got the booking cancelled on 02.12.2008. Moreover, OP2 in its reply to letter dated 07.01.2009 also confirms that booking was cancelled on 16.12.2008 on the request of OP3.
7.5: Since the documentary record are not matching in favour of OP3 either with regard to booking for 22 persons being on different date, Annexure R1 is self prepared list of OP3, there were separate cancellations of others and refund to them by OP3 as well as there is no material to establish that the complainant had requested for cancellation of booking. Moreover, hotel vouchers are also prepared at the instance of OP3, there is no invoice record proved or other record of transactions, if so entered between the OP3 & the Hotelier for any advance amount by the OP3 for booking of rooms and such booking of hotel rooms were got cancelled.
7.6: The OP3 claims that total amount of tour was a package of Rs. 1,36,000/-. However, Rs. 21,000/- was refunded to the complainant and remaining amount after adjustment of cancellation charges of air tickets, the left out amount of Rs. 93,000/- was retained by the OP3 on various counts air tickets, hotel booking, transportation and other charges. Although, the OP3 had not given the calculations of the amount. But the calculations are simple. There is advance amount of Rs10.000/-+further advance of Rs.5,000/-+ further payment of Rs.99,000/-, which comes to Rs.1,14,000/-. After appropriate adjustment, a sum of Rs.21,000/- was returned to the complainant and remaining amount left was Rs.93,000/-. That amount was retained by OP3.
Firstly, there is no written terms or conditions between the complainants and OP3 in respect of such package of Rs. 1,36,000/-, secondly, the OP3 contends that refund of Rs. 21,000/- was after adjustment on the eve of cancellation of tour. Whereas, the receipts of Rs. 15,000/-, issued by OP3 clearly mentions that receipts were against air tickets advance amount. When the complainant paid the amount of Rs. 99,000/- by cheque to OP3, then the advance amount of Rs. 15,000/- along with another amount of Rs. 6,000/- was refunded to complainant. Had it been package of Rs.1,36,000/-, the OP3 could have establish it but there is no such proof nor any record that out of Rs.1,36,000/- , there was part-payment by the complainants. The circumstances and preponderance of probability are leaning in favour of the complainant.
For want of any specific terms and conditions between the complainants and OP3 nor there is any covenant on the receipt issued about deductions /cancellation charges under various heads, if any, to be done on the eve of cancellation of tickets. Since OP3 could not establish that there was cancellation of air booking tickets by the complainants as well as the case of OP1 is that the booking was got cancelled by OP2 and plea of OP2 in its reply to notice is also that cancellation was on the request of OP3, consequently the question does not arise for deduction of amount from the account of complainants.
7.7: The complainants have also raised an issue of over- charging of air tickets by OPs as the prevailing rate was just Rs. 7,424/- of one side, the OPs had charged on higher side. Whereas, there is no record of tariff of air tickets or otherwise established by the complainants that there was extraordinary higher charges collected by the OP1 under connivance of other OPs. In fact the Reservation record [ at page no. 17] read with evidence of OP1 clearly establish that the amount of tickets was Rs. 99,000/- for the three complaints, which are also reflecting in the booking confirmation as well as that there was refund of Rs. 94,500/- in the account of OP2, since OP2 got the booking cancelled after deduction by OP1 of Rs. 4,500/- being Rs. 750/- per person x 6; it was To and Fro ticket and vice versa for Lala Ram x 3.
7.8: Under this scenario, the complainant has established that he had paid the amount of Rs. 99,000/- for air tickets etc, but the tickets were cancelled without their permission and concerns, consequently they are entitle for return of the amount. Since the cancellation was not got done by the complainants, even they shall not suffer the cancellation charges of Rs. 4,500/-.
However, there is no evidence against the OP1 that the other OPs are its franchise or its agent, therefore the OP1 was constrained to the instructions of OP2 to book the tickets at its request and the booking of tickets was also cancelled at request of OP2. The amount for booking was tendered by OP2, thus obviously after its cancellation the amount was also refunded to OP2 and not to others. Simultaneously, OP1 was knowing that tickets were booked for the complainants and OP1 also pleads that cancellation was on the written request of OP2 but that written request was not produced nor the complainants were informed of cancellation of their confirmed tickets at the instance of OP2. Under these circumstances, although complainants have not proved any case of deficiency in services against OP1 or of unfair trade practice for want of direct transaction between the complainants & OP1. Simultaneously, under these circumstances also the name of OP1 cannot be deleted from the array of parties as requested separately in the application, that application stand disposed off in these terms.
7.9: It is an admitted case of OP3 that there as per calculations of OP3 was balance amount of Rs. 93,000/-, which is retained by it on the ground that tour was got cancelled by the complainants and it could be retained for cancellations under various head/counts. The OP2 was also knowing that tickets were belonging to complainants and without verifying the circumstances the tickets were got cancelled and complainants were not informed on the eve of cancellation of confirmed booking vis-à-vis the amount received was kept by OP2 by stating being account adjustment inter-se between the OP2 and the OP3. It clearly establishes the case of complainants that there is unfair trade practice on the part of OP3 and OP2 as well as deficiency in services.
Thus, both OP2 and OP3 are held liable jointly and severely to return the paid amount of Rs. 99,000/- to the complainants no. 1 to 3. The complainants are also allowed interest at the rate of 4% p.a. from the date of filing of complaint till the date of realization of amount.
7.10: The circumstances are speaking themselves the harassment and mental agony faced by the complainants from the hand of OP2 and OP3, thus, damages of Rs. 20,000/- are allowed in favour of complainants and against the OP2 and OP3 jointly and severely, apart from cost of Rs. 1,100/- requested in the complaint.
8.1: Accordingly, the complaint is allowed in favour of complainants and against the OP2 and OP3, to pay jointly and severally a sum of Rs. 99,000/- along with interest at the rate of 4% from the date of filing of complaint till the date of realization of amount; apart from damages of Rs. 20,000/- are allowed in favour of complainants and against the OP2 and OP3 jointly and severely & costs of Rs. 1,100/-. The amount shall be paid by OP2 and OP3 to the complainants within 30 days from the date of receipt of this order.
8.2. No order against OP1 and complaint against OP1 is dismissed.
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules.
10: Announced on this 02nd day of February, 2023 [माघ 13, साका 1944].
