22.01.2016
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
The instant appeal has been preferred by the Appellants/O.Ps under Section 15 of the C. P. Act, 1986 challenging the impugned judgment and order dated 08.03.2013 passed by the Ld. District Forum, South 24 Parganas in CC Case No. 106 of 2011 allowing the complaint on contest with directions as under :-
“That the case being C.C. no. 106 of 2011 be and the same is decreed on contest against O.P nos. 1, 2 & 4 with cost of Rs.15,000/- and without cost to O.P-3.
The O.P nos. 1, 2 & 4 are directed to refund Rs.21,078/- against the Air fare within one month from this date.
The O.P nos. 1,2 & 4are also directed to pay Rs.1,00,000/- to the complainant as compensation for harassment and mental agony and also to pay Rs.4,00,000/- as penalty out of which Rs.50,000/- will be paid to the complainant and Rs.3,50,000/- will be deposited to the State Consumer Welfare Fund within one month from this date failing which the entire amount will carry an interest @ 10 p.a. from the date of default till realization”.
The facts of the case, in short, are that the Respondent No. 1/Complainant, with a view to receiving advance medical care at Chennai, purchased, from his office i.e. U.B.I., Behala Regional Office, Kolkata as appearing from the petition of complaint as well as his Lawyer’s letter dated 04.03.2011, the air tickets in the economy class through online payment gateway system for to and fro journey from Kolkata to Chennai on 18.01.2011 and 31.01.2011 respectively in Air India Flight No. IC-765 and IC-766 respectively from the office of the Appellant/O.P. No. 1 located in Kolkata, being the Appellant/O.P. No. 4. The total amount of Rs.12,717/- only was paid online by the Respondent No. 1/Complainant for his both way journey as credit card payment through Standard Chartered Bank. The e-ticket fair of Rs.12,717/- which was inclusive of all the service charges was debited from the credit card accounts of Respondent No. 1/Complainant by the Respondent No. 1/Complainant’s aforesaid banker and an SMS towards the said debiting was sent by the said banker to the Respondent No. 1/Complainant.
The Respondent No. 1/Complainant received from the Appellants/O.P. Nos. 1 & 2 the booking confirmation in respect of the e-tickets showing therein the allocation of airline PNR Nos. RE3VEE and REBJX7 respectively for to and fro journey as aforesaid with status indicated as “confirmed”. On 18.01.2011, the Respondent No. 1/Complainant, after reaching the NSCBI Air Port in due time, came to know from the counter staff of Air India, the Respondent No. 1/O.P. No. 3, that there was no valid booking of air tickets in the name of the Respondent No. 1/Complainant. Similar information was also confirmed by the staff in the ticket counter of the Respondent No. 2/O.P. No. 3 who, as alleged, also gave an added information that the booking of e-ticket was cancelled due to fault on the part of the Appellant/O.P. No. 1. The Respondent No. 1/Complainant contacted the Kolkata office, Appellant/O.P. No. 4 over phone and informed the awkward circumstances that he has been put to. The Respondent No. 1/Complainant was, instead of any remedy being given, advised by the office of the Appellant/O.P. No. 4 to take up the matter with the Head Office of the company, Appellant/O.P. No. 1. The office of the Appellant/O.P. No. 1 which could be contacted after repeated efforts, informed that the ticket was cancelled for technical reason and advised the Respondent No. 1/Complainant to book the ticket of his own.
The Respondent No. 1/Complainant, however, being aware of on enquiry as to the availability of business class ticket in the same flight, booked his ticket for his journey to Chennai at a higher rate of Rs.28,358/- in view of his emergency medical check-up.
Subsequent efforts of the Respondent No. 1/Complainant to contact the Appellants/O.Ps for having his grievances addressed yielded him no result as there was no formal regret or effective remedial measure on the part of the Appellants/O.Ps for miseries that the Respondent No. 1/Complainant was subjected to because of the alleged deficiency in services done by the Appellants/O.Ps.
The Respondent No. 1/Complainant then sent an e-mail to the O.P. No. 1 narrating therein the details of his sufferings and strangely, as stated in the complaint, was refunded with a meagre amount of Rs.7,307/- only. The Respondent No. 1/Complainant, being aggrieved, filed the complaint case before the Ld. District Forum which the impugned judgment and order relates to.
Heard the Ld. Advocates on behalf of the Appellants/O.Ps and Respondent No. 1/Complainant. The Ld. Advocate on behalf of the Appellants/O.Ps submitted that in the instant appeal the Appellants/O.P. Nos. 1 & 2 stay at Gurgaon, Haryana and the Appellants/O.P. Nos. 3 & 4 stay in Kolkata but the complaint has been filed by the Respondent No. 1/Complainant before the Ld. District Forum, South 24 Parganas. The complaint, therefore, is barred by lack of territorial jurisdiction of the Ld. District Forum.
It was further submitted by the Ld. Advocate that the e-ticket of the Complainant could not be booked because of technical fault. Moreover, the Respondent No. 1/Complainant did not check his e-mail for collecting the latest status of the e-ticket. Had he done it, enough time would have been available to take corrective steps.
Ld. Advocate contended that the Respondent No. 1/Complainant accepted the refund amount of Rs.7,307/- unconditionally. He referred to the judgment of the Hon’ble National Commission reported in 2013 (1) CPR 536 (NC ) wherein the Hon’ble National Commission held that privity of contract came to an end the moment the petitioner accepted the amount unconditionally. Since the Respondent No. 1/Complainant, as the Ld. Advocate contended, accepted the refund unconditionally before filing the complaint, Respondent No. 1/Complainant ceased to be a consumer right from the very moment of acceptance of the refund amount.
The Ld. Advocate drew the notice of the Bench to the impugned judgment and order and stated that the Ld. District Forum ordered for payment of Rs.1,00,000/- for harassment, when, in fact, no harassment was actually caused to the Respondent No. 1/Complainant as he could avail himself of the same flight. The Ld. District Forum also ordered for payment of penalty of Rs.4,00,000/- when there was no claim of penalty at all in the complaint.
The Ld. Advocate prayed for the impugned order to be set aside in view of the given circumstances.
Heard the Ld. Advocate for the Respondent No. 1/Complainant who submitted that the Appellants/O.Ps did not submit questionnaire or the Notes of Argument at the time of hearing in the Ld. District Forum and is now raising the points which had never been agitated earlier. The Ld. Advocate submitted further that the PNR is a unique confirmation number which was given to the Respondent No. 1/Complainant by the Appellants/O.Ps showing therein the status of the tickets as “confirmed”.
The Ld. Advocate went on to submit that on 18.10.2011, the Respondent No. 1/Complainant reached the airport in time and received the information of the ticket being not booked in his name. There was no intimation as to the cancellation of the ticket from the Appellants/O.Ps, nor was there any initiative from their side to make any alternative arrangement, rather, the Appellants/O.Ps were too indifferent to take any remedial measure and discourteous enough to share the woe that the Respondent No. 1/Complainant had to pass through solely for the negligence on the part of the Appellants/O.Ps.
It was informed by the Ld. Advocate for the Respondent No. 1/Complainant that the Respondent No. 1/Complainant had to book the business class reservation of much higher value, as he was in dire necessity to go to Chennai for his medical check-up.
The Ld. Advocate concluded praying for affirmation of the impugned order in view of the facts that the Respondent No. 1/Complainant had to sustain serious mental agony and harassment because of the aforesaid deficiency of services done by the Appellants/O.Ps.
Perused the papers on record. Before adverting to the other issues involved in the case it appears to us to be expedient to dwell upon that the territorial jurisdiction of the case.
The petition of complaint as well as the Respondent No. 1/Complainant lawyer’s letter dated 04.03.2011 reveals that the air ticket was booked from the office of the Respondent No. 1/Complainant i.e. U.B.I., Behala Regional Office, Kolkata and hence the performance of the contract in question was completed at Behala, Kolkata and thus, the cause of action, at least in part arose at the said place and Section 11(2) of the C. P. Act, 1986 is thus instrumental in resolving the issue of territorial jurisdiction of the case on hand. In the present case as the transaction was completed at Behala office of the Respondent No. 1/Complainant, hence the territorial jurisdiction of the case comes within the territorial jurisdiction of South 24 Parganas.
It appears that the airway tickets were reported to have been booked by way of booking confirmation slip wherein the PNR numbers of both way journey were seen to have been allocated and status of the tickets was indicated as “confirmed”. Undoubtedly, any person will not have any doubt as regards authenticity of the booking or any apprehension of subsequent cancellation of the tickets what had actually happened with the Respondent No. 1/Complainant. The Appellants/O.Ps were seemed to be more inclined to point out the faults of the Respondent No. 1/Complainant for not checking his e-mail for downloading e-tickets but, was too indifferent to assess the deficiencies done by them as service provider by not making the Respondent No. 1/Complainant aware of the change of the status of booking consequent upon cancellation of tickets and there the deficiency lies.
Observation of the Hon’ble National Commission in a revision petition No. 3954 of 2012 [M/s Vijay Stationers, Proprietor – vs. – Divisional Manager, United India Insurance Co. Ltd.] reported in 2013 (1) CPR 536 (NC) which the Ld. Advocate for the Appellants/O.Ps has referred to relates to insurance matter. Hon’ble National Commission in the said revision petition held as follows:-
“Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the “offeree” was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case discloses that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct.”
In the light of the above observation of the Hon’ble National Commission, since the instant case is not squarely identical to that referred to by the Ld. Advocate of the Appellants/O.Ps, the logic of cessation of consumership of the Respondent No. 1/Complainant, consequent upon acceptance of the refund amount, as the Ld. Advocate for the Appellant/O.Ps contended, does not stand.
We are, therefore, of the considered view that there is deficiency of service done by the Appellants/O.P. Nos. 1, 2 & 4. The appeal, therefore, is allowed in part. The impugned order is modified as under:-
The appeal is allowed in part on contest with cost of Rs.5,000/- to be paid to the Respondent No. 1/Complainant by the Appellants/O.P. Nos. 1, 2 & 4 jointly and severally. The Appellants/O.P. Nos. 1, 2 & 4 are further directed to refund an amount of Rs.21,078/- being additional air fair that the Respondent No. 1/Complainant had to bear out of his own fund and also to pay a compensation of Rs.5,000/- for the deficiency in service done by them.
The entire amount of Rs.31,078/- only shall be paid by the Appellants/O.P. Nos. 1, 2 & 4 to the Respondent No. 1/Complainant within 45 days from the date of this order, failing which, simple interest @ 9% per annum shall accrue to the said amount of Rs.31,078/- from the date of default till full payment is made. The other directions passed by the Ld. District Forum are set aside.
The impugned judgment and order is modified accordingly.
