DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.350/07
M/s Synapse Communication Pvt. Ltd.
through authorized representative
Shri Arvind Kumar
B-523, Second Floor,
New Friends Colony,
New Delhi …. Complainant
Versus
1. M/s Cosmic Air Pvt. Ltd.
through Managing Director
Chundevi Maharajganj,
Kathmandu, Nepal
2. M/s Surhit Services Pvt. Ltd.
112-113, Gautam Nagar,
New Delhi
3. M/s Cosmic Air,
Room No.205 & 208,
2nd Floor, 25, Black Burn Lane,
Kolkatta …. Opposite parties
Date of Institution : 28.02.07 Date of Order : 23.11.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Briefly stated, the case of the Complainant is that the Complainant M/s Synapse Communication Pvt. Ltd. is incorporated under the Companies Act and Sh. Arvind Kr. is constituted as its attorney appointed by the board of directors to authorize to sign, verify and institute the complaint. The Complainant saw the advertisement online regarding the new scheme offered by the OPs that if the consumers booked bulk tickets in advance through their travel agency they will get lucrative offer and that it was only Airline to flight twice daily between Katmandu (Nepal) and Delhi. Complainant purchased 66 open tickets from the OPs airlines through Caravan Travels, Kolkata for their employees. The families of the employees of Complainant, namely, Ashim Chatterjee and Mr. Hemant Mathur had taken OPs flight to Kathmandu but while in return journey they were held up in Kathmandu due to cancellation of the flight No. F5603 on 4th September from Kathmandu to Delhi. The OPs confirmed that this flight was cancelled due to low number of seats sold. The other people who particularly suffered at the hands of the OPs were Mr. & Mrs. Joshi and Mr. Kasar’s family comprising of four persons out of which three were ladies. The Complainant requested the OPs’ representative in Delhi Mr. Lal Sudhari to provide hotel accommodation in Kathmandu for their employees but he flatly refused to accept the Complainant’s request and did not provide any satisfactory reply. Their employees waited for more than 4 hours at Kathmandu airport without any basic amenities and despite constant request the OPs did not bother to take any action to provide or to assist the helpless families of the employees of the Complainant. Flight schedule of Sh. Jitender Joshi, another employee of the Complainant was changed at the last movement from 07.09.06 to 08.09.06 without any prior information and hence the said action of the OPs led to mental agony, harassment and ill treatment to their employees despite paying entire amount in advance for the tour, instead of getting privileges these consumers were not provided with the minimum basic facilities by the OPs. Therefore, Complainant was forced to serve a notice to the OPs on 04.10.06 but the OPs sent a frivolous reply dated 14.10.06. The Complainant has claimed a sum of Rs.5,00,000/- as compensation from the OPs jointly and severally under various heads amongst following:-
a. Compensation on account of
deficiency in service = Rs.2 lacs
b. pecuniary loss in terms of
loss of manhours = Rs.1.5 lacs
c. compensation for mental
agony and harassment = Rs.1.5 lacs
d. compensation for hotel and
other expenses incurred = Rs.1 lac
Hence, this complaint.
OPs in their joint written statement have stated that the present complaint relates to OP No.1’s cancelled flight No.F5 603 for which Mr. Ashim Chatterjee and Mr. Hemant Mathur (employees of the Complainant Company) held tickets for travel. However, the said passengers have nether signed, verified or instituted the present complaint, nor authorized any party to do so on their behalf. The complaint has instead been signed, verified and instituted by one Mr. Arvind Kumar, authorized by the Board of Directors of the Complainant company. It is further stated that if at all, it is the passengers who may claim locus standi in the present complaint and not the Complainant company. As there is no authorization in favour of Mr. Arvind Kumar nor any supporting affidavit by the passengers, the instant complaint deserves to be dismissed at the outset. It is submitted that the OP No.1 is a low cost carrier and is very low as compared to other airlines such as Jet Airways, Royal Nepal, Indian Airlines and Gulf Air. They sold air tickets to the Complainant Company on its low cost carrier @ Rs.3603/- for two way ticket for travel from Delhi- Kathmandu- Delhi and in the event of cancellation and delay they offered alternative arrangements/refund to their customers as per clause 9 & 10 of terms and conditions. The relevant portion of the terms and conditions is as follows:
“ 9.1 Schedule: We will use our best efforts to avoid delay in carrying you and your baggage. We will endeavour to adhere to published schedules in effect on the date of travel. However, times shown in timetables, schedules or elsewhere are subject to change at any time and from time to time and we shall not be liable in any way whatsoever for any loss incurred by passengers as a result of such change.
9.2 Cancellation, Changes of Schedule: At any time after a booking has been made we may change our schedules and/or cancel, terminate, divert, postpone, reschedule or delay any flight where we reasonably consider this to be justified by circumstances beyond our control or for reason of safety or commercial reasons. In the event of such flight cancellation, we shall at our option, either
- Carry you at the earliest opportunity or another of our scheduled service on which space is avail able without addition charge and, where necessary, extend the validity of your booking; or
- Should you choose to ravel at another time, retain the value of your fare in a credit account for your future travel provided that you must re-book within three (3) months therefrom; or
- Make a refund to you in accordance with these Terms & Conditions.
9.3. Sole remedies: Upon occurrence of any of the events settlement out in Article 9.2, the options outlined in Article 9.2(a) to (c) are the sole and exclusive remedies available to you and wee shall have no further liability to you.
10.1 Proper person: We shall make a refund only to the person who has paid for the Seat upon presentation of identification and satisfactory proof of such payment.
10.2. Process: Request for refunds must be made in writing and accompanied by the original Itinerary and/or booking number, proof of payment and identification.”
It is stated that they have a sales agent in various cities in India including Delhi and Varanasi and the OP No.3 office in Kolkata has since been shut and no operation is carried out from there. It is submitted that the OP No.1 issued various schemes like other airlines for promotion from time to time making available discount etc. to the customers and these schemes are subject to the terms and conditions available for the limited period of time. The Complainant had not mentioned the identifying features or time period of the “scheme” under which it allegedly purchased tickets from OP No.1’s agent. In 2005-06, OP No.1 was operating two flight daily between Kathmandu and Delhi; from 17.10.07 onwards OP No.1 operated 12 flights between Delhi and Kathmandu per week. It is submitted that Sh. Ashim Chaterjee and Mr. Hemant Kumar, the employees of the complainant company travelled from Delhi to Kathmandu and for their return flights, flight was scheduled to depart from Kathmandu to Delhi on 04.09.06 at 1745 hours but the flight had to be cancelled due to technical reasons. OP No.1 informed the concerned passengers at the earliest possible time about the cancellation by intimating its agent in Kathmandu. It is denied that the flight was cancelled due to low number of seats sold. The Complainant has not mentioned the details of the flight number of Mr, Joshi, Mrs. Joshi, Mr. Kausar and his family comprising four persons regarding these passengers flight number, date, time of departure/arrival, itinerary, grievance, etc. It appears that none of these passengers had tickets aboard OP No.1 flight No. F5603 scheduled to part on 04.09.2006 and it appears that Mr. N. Mathur, Mrs. R. Kausar, Ms. S Kausar, Ms. R. Kausar etc. held tickets dating from 08.10.2006 to 26.03.2006 and on 29.03.2006 on different flights operated by OP No.1. There is no identification as to which flight is complained by these passengers and what was their grievances. The Complainant has not explained how or why the said passengers have suffered at the hands of OP No.1. As per the terms and conditions of the tickets all passenger are required to reconfirm their tickets 72 hrs. prior to departure. In the event of there is any change, delay or cancellation in the flight schedule, passengers are informed thereof at the time of reconfirmation and are immediately accommodated on OP No.1’s alternative schedule flight. The passenger failed to reconfirm their tickets but the OP No.1 made every effort to accommodate them on next scheduled flight on September 05, 2006 as per clause 9.2 (A) of the terms and conditions. The demands raised by the Complainant are fraudulent and baseless. The Complainant is not entitled to any relief as prayed. The Complainant company having availed of the services has absolutely no cause of complain of deficiency in service on their part. OPs have prayed for dismissal of the complaint.
Complainant has filed a rejoinder to the written statement.
Affidavit of Sh. Arvind Kumar AR of the Complainant has been filed in evidence. On the other hand, affidavit of Sh. Khemraj Shrestha, attorney of OP No.1 and Sh. Dhiren Tamang, attorney of OP No.2 have been filed on behalf of OP No.1 & 3 and OP No.2 respectively.
Written arguments have been filed on behalf of the parties.
We have also gone through the file very carefully.
The Complainant had purchased 66 open tickets from the OPs for the use of its employees. Therefore, the Complainant which is a private limited company and thus must be presumed to have been engaged in carrying out commercial activities had not purchased the said tickets for its personal use i.e. for the use of its director and/or their family members. The Complainant has not specified as to why their employees and their family members mentioned in the complaint had been asked to travel to Kathmandu. It is not clear whether they had gone to Kathmandu in connection with any business or as tourists. Even if it is presumed that the Complainant had allowed its employees and their families to travel to Kathmandu as tourists, the Complainant had done so with the sole purpose of promoting its business by giving free ticket facilities to its employees. Therefore, we are of the opinion that the Complainant is not a “Consumer” as defined in the Consumer Protection Act. Secondly, the complaint has not been filed for and on behalf of the employees of the Complainant who had allegedly suffered pain and agony due to the act of the OPs. Thus, the complaint filed through Sh. Arvind Kr., constituted attorney is not maintainable. Thirdly, the Complainant has not given the full account of the utilization of 66 open tickets. Therefore, the complaint does not contain all specific details which ought to have been mentioned in the complaint. Therefore, we hold that the Complainant has failed to prove any deficiency in service on the part of the OPs especially in view of the terms and conditions No.9 and 10 reproduced hereinabove.
In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 23.11.2016
