SRI SUBHRA SANKAR BHATTA, JUDICIAL MEMBER
The instant Appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) has been preferred at the behest of the Appellants/Opposite Parties assailing the impugned order No. 22 dated 24.05.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit—I (North) in Consumer Complaint Case No. CC/256/2016 wherein and whereby Ld. District Forum was pleased to allow the Complaint Case on contest with cost against O.P Nos. 1 to 3 and dismiss on contest without cost against O.P No. 4. Ld. Fora below was further pleased to hold that OP Nos. 1 to 3 are jointly and/or severally directed to refund the amount of Rs. 56,180/- (Rupees Fifty Six thousand One hundred Eighty) only to the Complainant along with compensation of Rs. 5,000/- (Rupees Five thousand) only for harassment and mental agony and litigation cost of Rs. 2,000/- (Rupees Two thousand) only within 30 days from the date of communication of this order i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the Complainant till full realization.
The case of the Complainant/Respondent No. 1 herein, in a nut-shell, is that the Complainant was the holder of credit card being no. 5376521003067006 issued by O.P No. 1 Indusind Bank Ltd & others on or about October, 2014. The OP No. 1 through its sales representative approached the Complainant with a proposal to upgrade the said credit card with Pinnacle Credit Card because of sound track record. Complainant was offered by O.P No. 1 that upon payment of Rs. 50,000/- and service tax thereon, the Complainant will be given gift vouchers for travel by Jet Airways or for spending on Genesis Gift. Relying upon those representations and assurances of OP No. 1, the Complainant agreed for upgradation of his said card and paid the sum of Rs. 50,000/- along with service tax aggregating Rs. 56,180/- to O.P No. 1 for opting vouchers of Jet Airways.
It is the further case of the Complainant that on 07.11.2014 the O.P No. 1 issued 16 nos. of vouchers for Jet Airways which were valid only for the travel within 31.03.2015. Bookings for air travel against the said vouchers were to be made online on website of Jet Airways by application of Code provided to the Complainant. The Complainant for the first time came to know that the said vouchers were valid only for “V” class tickets when he wanted to utilise the said vouchers for his travel through Jet Airways and every time he tried to make booking he was always informed by the Jet Airways that “V” class tickets were not available. The Complainant alleged that the fact of the said vouchers were valid only for “V” class tickets was not informed to the Complainant at the time of sales pitch. In view of non-availability of air ticket of “V” class air passage on several occasions the Complainant sent an email on 09.03.2015 to the Opposite Parties, inter alia requesting the authorities to change the said vouchers to the Genesis Luxury Vouchers on priority basis at the earliest but the said request was not entertained. On 04.04.2015 the Complainant once again sent mail with a request that if the said vouchers of the Complainant have not been changed to Genesis Luxury Vouchers and if it is not possible at all, the Opposite Parties should refund the entire amount of Rs. 56,180/- to the Complainant. The Opposite Parties straightway rejected the said request of the Complainant. Being aggrieved with the same, the Complainant sent a letter to the Opposite Parties on 11.06.2015 through his Ld. Advocate demanding refund of the entire amount of Rs. 56,180/-. Despite receipt of the said letter the Opposite Parties did not refund the amount. Finding no other alternative the Complainant was compelled to file the Consumer Complaint Case with the prayer for refund of Rs. 56,180/-, Rs. 2,00,000/- as special damages for mental shock, pain and agony, Rs. 2,00,000/- as punitive damages and Rs. 10,000/- as litigation costs.
The Opposite Parties Nos. 1 to 3 and 4 contested the case by filing separate written version. In their W/V O.P Nos. 1 to 3 categorically contended that as per the agreement signed by the Complainant there was a clause to the effect that the Bank deserves the right to deduct on the card account a reasonable service charges and any expenses the Bank incurs including legal fees etc. The salient rules regarding the said free gift vouchers are seats under this offer are subject to availability of Jet Airways for which the Indusind Bank does not guarantee availability of seats under this offer. Tickets against free travel should be booked at least 7 days earlier of the travel date. The free tickets code is valid for six months for booking and travel. Suppressing the terms and conditions of the agreement Complainant filed the instant case. The O.P Nos. 1 to 3 prayed for dismissal of the Complaint Case.
On the other hand O.P No. 4 contended in the W/V that the agreement in question was executed between the Complainant and O.P No. 1 Bank and as such they cannot be held responsible for non-compliance of the condition undertook by O.P No. 1/Bank to the Complainant. O.P No. 4 candidly contended that there was no relationship between the Complainant and O.P No. 4 and the Complainant is not at all a Consumer under this answering O.P No. 4. On such grounds O.P no. 4 prayed for dismissal of the case.
Considering the pleadings of the respective parties to the Complaint Case and on perusal of the documents and evidence available on record Ld. District Fora was pleased to allow the Complaint Case on contest with cost against O.P No. 1 and dismiss on contest without cost against O.P No. 4. Ld. Fora below was pleased to give certain directions against O.P No. 1 as mentioned in the operative part of the said order/judgment.
Being aggrieved by and dissatisfied with the above order/judgment of the Ld. Fora below the O.P Nos. 1 to 3 as Appellants have preferred the present Appeal contending inter alia that the Ld. Forum below erred both in fact and law in deciding the Complaint Case; that the impugned order cannot sustain in the eye of law; that the Ld. Forum below acted illegally with material irregularity in deciding the Complaint Case; that the Ld. Forum below failed to appreciate that the Complainant/Respondent No. 1 had availed of the Pinnacle Credit Card after accepting the terms and conditions by signing the Acknowledgement Form; that the Ld. Forum below failed to appreciate that the Complainant/Respondent No. 1 had received the vouchers as promised by the Appellants; that the Ld. Forum below failed to consider that those vouchers were for the tickets from Respondent No. 2 subject to availability of the same; that the Ld. Forum failed to appreciate the main grievance of the Complainant/Respondent No. 1; that there was no unfair trade practice on the part of the Appellants for such non-availability of tickets; that there was no deficiency of service as the Complainant/Respondent No. 1 had received the Jet Airways Vouchers as promised by the Appellants; that the Ld. Forum below failed to appreciate that the tickets were to be provided by Respondent No. 2 and the liability of the Appellants were limited to payment of the base fare of the tickets so booked by the Complainant/Respondent No. 1; that the Ld. Forum below failed to consider that the Appellants were not at all responsible for such non-availability of seats rather Respondent No. 2 was certainly responsible as they could not provide the same to the Complainant/Respondent no. 1. On all such grounds the Appellants have prayed for allowing the present Appeal after setting aside the order/judgment impugned.
After hearing the Ld. Counsel for the Appellants and regard being had to the facts, circumstances, pleadings and contention of BNA we are of the opinion that the following points are required to be adjudged in this Appeal:-
POINTS FOR DETERMINATION
- Whether the Ld. Fora below has committed any error or illegality or irregularity in passing the impugned order/judgment.
- Whether the impugned order/judgment dated 24.05.2018 passed in Consumer Complaint Case No. CC/256/2016 can be sustained in the eye of law.
- Whether the impugned order/judgment deserves interference of this appellate Commission.
DECISION WITH REASONS
All the above points are taken up together for the brevity of discussion and in order to avoid unnecessary repetitions. At the very outset of discussion it is pertinent to mention that despite service of notice the Respondent Nos. 1 and 2 did not turn up to contest the present Appeal. Consequently, the present Appeal was proceeded ex parte against the Respondents in view of order no. 10 dated 09.02.2022.
Ld. Counsel for the Appellant has submitted that the credit Card of the Complainant/Respondent No. 1 was upgraded and as per choice of the Complainant/Respondent No. 1 gift vouchers of Jet Airways were handed over. On the said upgradation the Complainant/Respondent No. 1 had signed the customer Acknowledgement Form having certain Terms and Conditions. He has further submitted that the Terms and Conditions of the Jet Airways bookings were laid down in the said Form and the class of tickets is subject to availability and the change of class is absolutely under the discretion of Jet Airways and the dispute resulting from the said tickets the Complainant/Respondent No. 1 was obliged to intimate the same to Jet Airways directly within 10 days but the Complainant/Respondent No. 1 failed to produce any document in support of his grievances. According to the Ld. Counsel the responsibility of the availability of the tickets was not at the hand of the Appellants. It has been candidly argued that there was no deficiency of service on the part of the Appellants.
Admittedly, Complainant/Respondent No. 1 was a holder of credit card being no. 5376521003067006 under the Appellant No. 1. Subsequently, the said card was upgraded to Pinnacle Credit Card after due payment in order to avail of the offer promised by the Appellant Bank. Accordingly, Gift Vouchers for travel by Jet Airways or for spending on Genesis Gift were provided to the Complainant/Respondent No. 1 by executing Customer Acknowledgement Form having certain terms and conditions. The said document was signed by the Applicant/Complainant and the Bank on 14.10.2014. The Complainant/Respondent No. 1 tried to book tickets from Respondent No. 2 (Jet Airways) but failed due to non-availability of seat in the said class. In the Customer Acknowledgment Form it has been embodied that “Bookings to be made at least (seven) 7 days prior to the desired date of travel” and each Code is valid for six (06) months subject to availability of seats from the end of Respondent No. 2. The Complainant/Respondent No. 1 tried to change the vouchers for getting the benefit of upper class but the authorities did not pay any heed to such request. Subsequently, on 04.04.2015 the Complainant/Respondent No. 1 sent mail with the request to change the vouchers to Genesis Luxury Vouchers with a request that if the said vouchers of the Complainant/Respondent No. 1 have not been changed to Genesis Luxury Vouchers and if it is not at all possible, the Opposite Party should refund the entire amount of Rs. 56,180/- to the Complainant/Respondent No. 1 but the O.Ps/Appellants neither changed those vouchers with Genesis Luxury Vouchers nor refunded the amount paid by the Complainant/Respondent No. 1. The Complainant/Respondent No. 1 approached the authority for exchange of the said vouchers to Genesis Luxury Vouchers or for refund of the card joining fees but the OPs/Appellants straight way rejected the said request. The Complainant/Respondent No. 1 also sent Advocate’s letter on 11.06.2015 to the OPs/Appellants demanding refund of the entire amount of 56,180/-. Despite receipt of the said letter the OPs/Appellants neither refunded the amount nor took any initiative for refund of the said amount. According to the Complainant/Respondent No. 1 such action on the part of OP Nos. 1 to 3/Appellants tantamounts to deficiency in service towards the Complainant/Respondent No. 1.
Customer Acknowledgment Form—Indusind Bank Pinnacle Credit Card (Bank copy) goes to establish that the said form was executed between the Complainant and Bank Authority on 14.10.2014 with certain terms and conditions morefully enumerated therein the body of the said form. Jet Airways Private Limited/Respondent No. 2 did not execute or sign on the said Acknowledgment form as a party but certain terms and conditions have been written in the Acknowledgement form under the head Welcome Gift Jet Airways, Priority pass, Entertainment offer, Movie offer, Golf and Special offer, Golf of offer—Abridged terms and conditions, Jet Airways bookings and others. Undoubtedly, the Appellants/OP Nos. 1, 2 and 3 could not able to provide the facilities of those vouchers as promised and assured at the time of upgradation of the credit card. Admittedly, Complainant/Respondent No. 1 paid Rs. 56,180/- for upgradation of the credit card to Pinnacle Credit Card and the Complainant/Respondent No. 1 was given gift vouchers for travel by Jet Airways or for spending on Genesis gift. The Complainant could not avail of the facility despite best effort on his part. Thus being the position we have no hesitation to hold that Appellants/OP Nos. 1, 2 and 3 are absolutely responsible for not providing the facilities as promised and assured to the Complainant/Respondent no. 1 The Complainant/Respondent No. 1 could not avail the facilities of those vouchers as assured by Appellants/OP Nos. 1, 2 and 3. The argument as advanced by the Ld. Counsel for the Appellants that Respondent No. 2/Jet Airways is solely responsible for not providing the free air passage to the Respondent No.1/Complainant on the ground of non-availability of air tickets of ‘V’ class air passage. But such argument cannot be and should not be accepted on any score. The Xerox copy of Customer Acknowledgement Forum goes to prove that there are certain terms and conditions of the Jet Airways without involving Jet Airways as a party to that document. Such lacunae clearly proves that there was no deficiency in service on the part of Respondent No. 2/Jet Airways and there was no relationship of Jet Airways with the Complainant. Respondent No. 1/Complainant failed to avail the facilities as promised by the Appellants/Bank at the time of upgradation of the Credit Card. Thus, we have no option left but to hold that there was deficiency in service on the part of the Appellants/OP Nos. 1, 2 and 3 for not fulfilling the assurance promised by them. In view of above elaborate discussions we have no hesitation to hold that the Ld. Forum below after considering all aspects from all angles and keeping in mind the pleadings of the respective parties arrived at the conclusion and rightly allowed the Complaint Case with cost against O.P Nos. 1, 2 and 3 and dismissed on contest without cost against OP No. 4. The impugned order/judgement does not deserve interference of this Appellate Commission.
It requires to be sustained.
All the issues are thus disposed of.
Resultantly, the present Appeal fails.
Hence,
It is, therefore,
ORDERED
That the present Appeal being No. 667/2018 be and the same is dismissed ex parte without any order as to costs.
The order/judgment passed by the Ld. District Forum Kolkata—I (north) in Complaint Case No. CC/256/2016 on 24th May, 2018 is hereby affirmed.
Let a copy of this judgment/order be transmitted to the Ld. District Forum below forthwith for information and taking necessary action.
Thus, the Appeal sands disposed of.
Note accordingly.
