National Consumer Disputes Redressal
M/S. Indian Airlines, Delhi & Ors vs S.N. Seth & Ors. on 15 April, 2002
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 495 OF 1997 (From the order dated 17.9.1997 in complaint No.75/1995 of the State Commission Uttar Pradesh) M/s. Indian Airlines, Delhi & Ors. Appellants Vs. S.N. Seth & Ors. . Respondents BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER Travel Agent - travel by air - confirmed tickets issued by authorised travel agent of Indian Airlines - no flight on the date indicated in the air ticket - liability of Indian airlines as principal- held liable. For the appellants : Ms. Shipra Mathur, Advocate for M/s. Bhasin & Co., Advocates For the respondents : N E M O O R D E R
DATED THE 15th April, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT).
This appeal by the Indian Airlines is directed against the order of the Uttar Pradesh State Consumer Disputes Redressal Commission holding it liable for the negligence of its agent in issuing confirmed air ticket from Lucknow to Delhi when there was no flight on that particular date.
On a complaint filed by the first respondent- complainant S.N. Seth State Commission awarded him compensation of Rs.10,000/-, Rs.1,210/-
being price of the air ticket with interest @ 18% per annum being the refund of the price of the ticket and Rs.500/- as costs. State Commission passed this order not only against the Appellants-Indian Airlines but also against its authorised travel agent viz. M/s. Continental Travel Service (Delhi) Pvt. Ltd. who is respondent No.3 in this appeal. It is this third respondent who had issued the air tickets through the second respondent also working as travel agent.
Seth is a pensioner and is a retired officer of Indian Administrative Service. On 19.5.1995 he purchased tickets of the Indian Airlines for the journey from Delhi to Lucknow for 23.5.95 and from Lucknow to Delhi for 25.9.94. It is not disputed that the third respondent Continental Travel Service (Delhi) Pvt. Ltd.
was the authorised travel agent of the Indian Airlines. Seth paid Rs.3024/- being the price of the two tickets, the flight from Lucknow to Delhi being return flight. When he reached Lucknow airport on that day he was told that there was no flight on that day which undoubtedly caused him great deal of harassment, inconvenience and expense.
Seth has submitted in his written arguments that when he reached the airport staff of the Indian Airlines instead of being sympathetic to him since he was holding a confirmed air ticket they rather laughed at him and offered no help. Seth wrote to the Indian Airlines who accepted the lapse on the part of their travel agent and in turn said that travel agent has been asked to apologize to him. Indian Airlines also offered Seth and his wife two complimentary air tickets from Lucknow to Delhi and back. Offer of apology and two complimentary air tickets was not accepted by Seth.
He made a claim for Rs.5.00 lakhs towards damages.
Now in the written version stand of the Indian Airlines was that Continental Travel Service (Delhi) Pvt. Ltd. was ticketing agent to a limited extent to sell Indian Airlines tickets in accordance with the flight operation schedules and timings notified by the Indian airlines. In issuing wrong confirmed ticket regarding the date/day of flight in question due to inadvertence, negligence or otherwise Continental Travel Service (Delhi) Pvt. Ltd. acted contrary to the instructions of the Indian Airlines and in such circumstances Indian airlines shall not be responsible for any consequential loss to the complainant as action of the said travel agent was beyond the scope of his authority. This defense of the Indian Airlines did not find acceptance by the State Commission. Stand of the Indian Airlines was that summer schedule of its flight was introduced w.e.f. 7.5.1995 and there was no flight from Lucknow to Delhi on every Thursday and that this information was placed on reservation system of the Indian Airlines and all the travel agents and interline partners were informed about it well in advance and that under these circumstances it was not possible to place any requisition for reservation or reservation system of the Airlines for the flight in question when on that particular date flight was not to operate. Further stand of the Indian airlines was that Continental Travel Service (Delhi) Pvt. Ltd. had acted in dual capacity, first as an agent of the complainant and secondly as a ticketing agent to sell the tickets to the limited extent of the Indian Airlines.
State Commission after examining the whole aspect of the matter found both the Indian Airlines and the Continental Travel Service (Delhi) Pvt. Ltd. deficient in service and awarded compensation as aforesaid. It was submitted by the learned counsel for the Indian airlines that it was the travel agent who was at fault and no liability could be imposed on the Indian Airlines. In support of her submission she referred to two decisions earlier rendered by this Commission in the case of Indian Airlines Corporation Vs. Patel Ramubhai Shanker Lal & Anr. - II (1993) CPJ 205 (NC) and Chief Commercial Officer, Indian Airlines & Anr. Vs. P. Lalchand & Anr. - II (1996) CPJ 61 (NC). It was, therefore, submitted that the order of the State Commission was against the law laid down by the National Commission and the impugned order therefore could not stand.
We have examined these two judgments and in our view these judgments would confine to the facts of those cases. We have not been shown as to what were the terms of agency of Continental Travel Service (Delhi) Pvt. Ltd. Agency agreement has not been placed on record. To say that Continental Travel Service (Delhi) Pvt. Ltd. was travel agent only to a limited extent is not enough. The terms of the agency agreement were well within the knowledge of the Indian Airlines which have not been brought on record. In the correspondence that ensued between Seth and Indian Airlines before filing the complaint, it was not the case of the Indian Airlines that it was not responsible under the agency agreement with Continental Travel Service (Delhi) Pvt. Ltd.
It has to be held that travel agent is the agent of the Indian Airlines and it acts on behalf of its principal, the Indian airlines. If for any negligent act of agent loss is caused to the third party principal is certainly liable. Issuing air ticket on behalf of the Indian Airlines a contract has been entered into between Seth and Indian airlines. In such circumstances principal would certainly be bound by the terms of the contract. Section 230 of the Indian Contact Act provides that In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. In number of cases this Commission has taken decision based on the Law of Contract and contractual terms that no liability can lay on the agent who can neither sue or be sued and it is the principal who is answerable.
Supreme Court in the case of Marine Container Services South Pvt . Ltd.
Vs. GO GO Garments -
(1998) 3 SCC 247 has clearly stated in unmistakable language that Contract Act applies to the complaints filed under the Consumer protection Act, 1986. This is how the supreme Court observed:
We are not a little surprised to read that the Contract Act does not apply to complaints filed under the Consumer Protection Act. The Contract Act applies to all the litigants before the Commission under the Consumer Protection Act included. Whether in proceedings before the Commission or otherwise, an agent is entitled to invoke the provisions of Section 230 of the Contract Act and, if the facts found support him, his defence based thereon cannot be brushed away. It could be said that we are deviating in this case from the principle of law laid by this Commission earlier in two cases aforesaid. National Commission or Consumer Forum under the Consumer Protection Act, has no power of review as held by Supreme Court in the case In Jyotsana Arvind Kumar Shah & Ors. Vs. Bombay Hospital Trust - 1999 (4) SCC 325. That would apply to that case itself and if we find that decision earlier rendered was contrary to the law as laid by the Supreme Court it can certainly take a different view.
We have not been shown any statutory provision under which Indian Airlines can be absolved of its responsibility for the acts of its agent when acting within the scope of its authority. In the present case, Continental Travel Service (Delhi) Pvt. Ltd., an agent, has issued confirmed ticket from Lucknow to Delhi on a day when there was no flight. It is a clear case of deficiency in service for which Indian Airlines, the principal is liable. The order of the State Commission is correct; we affirm the same and would dismiss the appeal with cost.
Though complainant-respondent No.1 did not appear in person but he wrote that being a retired officer with meager pension he could not come to Delhi as one visit costs Rs.5,000/-. He, therefore, sent written notes of submissions. He is, therefore, entitled to cost which we assess at Rs.2,000/-.
J (D.P. WADHWA) PRESIDENT ..J (J.K. MEHRA) MEMBER .
(RAJYALAKSHMI RAO) MEMBER .
(B.K. TAIMNI) MEMBER