State Consumer Disputes Redressal Commission
Cox & Kings Ltd vs Shri Mandar Shashikant Kulkarni on 19 December, 2017
A/14/789 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/14/789
(Arisen out of order dtd.19/08/2014 in Complaint No.CC/13/324 of
District Consumer Disputes Redressal Forum, Kolhapur)
1. COX & KINGS LTD.
Hotel Pearl,
New Shaupuri "E" Ward,
Kolhapur.
2. Ms. Charulata Vanire
C/o. COX & KINGS LTD.
(Through its Authorized Representative)
Hotel Pearl,
New Shaupuri "E" Ward, .....Appellants
Kolhapur. (Org. Opp.Party Nos.1 & 2)
Versus
1. Shri. Mandar Shashikant Kulkarni
R/o-Tirth Garden Circuit House,
Kadamwadi Road, Tarabai Park, ..... Respondent No.1.
Kolhapur. (Org. Complainant No.1)
2. Dr. Shashikant Rajaram Kulkarni
R/o-Tirth Garden Circuit House,
Kadamwadi Road, Tarabai Park, ..... Respondent No.2.
Kolhapur. (Org. Complainant No.2)
BEFORE: Justice Mr.A.P.Bhangale, President
Mr.A.K. Zade, Member
PRESENT: Advocate Shri. Hemant Kenjalkar for Appellant.
Shri. V.Bolinjkar for Respondent.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This appeal is filed by the Appellants-Original Opponent Nos.1 & 2 against the order dtd.19/08/2014 in Consumer Complaint No.CC/13/324 passed by District Consumer Disputes Redressal Forum, Kolhapur, by A/14/789 2 which the Ld. District Forum has partly allowed the complaint and directed Opponent No.1 to pay the amount of air tickets of Rs.1,02,441/- alongwith 9% interest per year from the date of filing the complaint i.e.05/12/2013 till its realization. The Opponent Nos.1 & 2 were also directed to pay Rs.5,000/- towards mental harassment and Rs.3,000/- towards the cost of complaint to the Complainant.
2) The facts of the case are as follows -
The Opponent No.1 carries the business of travel agent and render service on consideration for air travelers for booking their air tickets in India and abroad of international flights. Opponent No.2 is working in service of Opponent No.1 Company and is concerned with air bookings through the Kolhapur office of Opponent No.1 in respect of Respondent's i.e. Original Complainant's air journey. According to Complainants, Complainant No.2- Respondent No.2 herein had approached Opponent Nos.1 & 2 on 27/08/2012 for air travel booking of his son Complainant No.1-Respondent No.1 herein from Phoenix (USA) to Delhi and return journey to Phoenix (USA) from Bombay. As per the Complainants, Opponents did not give any written or oral information to Complainants before booking tickets on British Airways about requirement of transit visa for travel through British Airways and no written or verbal terms and conditions were issued to Complainants and the Opponents booked on their own the Complainant No.1's air travel from Phoenix to Delhi via London and return journey from Bombay to Phoenix through British Airways and recovered total amount of Rs.1,02,441/- in cash in Opponent's office at Kolhapur. The dates were duly informed to the Complainant No.1 and the Complainant No.1 had sent his Passport Scanned copies. It is the contention of Complainants that it was primary duty of Opponent Nos.1 & 2 to check the validity of American H1B Visa and also to inform the Complainants about requirement of transit visa A/14/789 3 while travelling on British Airways and there were at least 5-6 Airlines departing from Phoenix to Delhi which do not require any such visa for international travel. As per the Complainants, if they would have made aware of the same, they would have booked tickets through such other airlines. When Complainant No.1 contacted UK Embassy, he came to know about requirement of transit visa. As per Complainants, the Complainant No.1 had made it known to Opponents that his US Visa has expired and he would need transit visa. As the Opponents did not inform Complainant No.1 about transit visa for journey via London for air tickets through British Airways, the Complainants allege the Opponents for unfair trade practice in booking said tickets for Complainant No.1 and for deficiency in service provided by them. As per the Complainants, by e-mail dtd.20/11/2012, Complainant No.1 informed Appellants to cancel forward flight from Phoenix to Delhi and on return will undertake journey from Bombay to Phoenix by British Airways on 27/12/2012 and asked to confirm whether the same was possible and requested for refund of cancelled ticket and also requested to inform if he needs to cancel the whole ticket. As per Complainants, on receiving the said e-mail of Complainant, Opponent cancelled the said whole ticket and communicated to the Complainants vide email dtd.26//11/2012 stating that the cancellation amount was Rs.93,048 and the refundable amount would be of Rs.9,393/- only.
3) As per the Complainants, their approach for cancellation was well in advance and they experienced very unpleasant manner of rendering service by Opponents with regard to payment of money, non-issuance of receipt for cash, undue demand for money and mental harassment. Complainant had to make alternate arrangement for the said air journey and had to incur considerable amount of Rs.1,02,441/- there for. The Complainants also contend that they are put to suffer mental agony, constant follow up by e-mail and out of pocket expenses incurred and harassment to the amount of A/14/789 4 Rs.1,00,000/- for which Opponents are liable. As per Complainants, Opponents are also liable and responsible to make good the loss on account of alternate arrangement for Complainant No.1 at least to the amount of Rs.1,50,000/- and loss towards mental agony out pocket expenses incurred and harassment to the amount of Rs.1,00,000/- and Rs.2,000/- towards the cost and expenses of legal notice and Rs.10,000/- towards litigation cost total claim including the said cost of tickets total amounting to Rs.4,64,441/- The Complainants therefore prayed for directions to Opponents to pay them Rs.4,64,441/- alongwith interest @ 18% p.a. and also the cost of the complaint.
4) The Opponents did not appear before the Ld. District Forum though served and did not submit any written statement. Therefore, the Ld. District Forum proceeded ex-parte against Opponents and passed the impugned order after going through the complaint, affidavit of evidence and documents filed by the Complainants and hearing arguments on their behalf.
5) As per Appellants, when Respondent No.2 approached the Appellant's office on 27/08/2012, a specific request to book air tickets for travel of Respondent No.1 for sector Phoenix (USA) to Delhi on 27/11/2012 and Mumbai to Phoenix on 27/12/2012 on British Airways flight was received from Respondent No.2 and accordingly after discussions, Appellant No.1 vide e-mail dtd.27/08/2012 addressed to Respondents gave the quote for flight options alongwith fares. As specific request was received for above travel on British Airways, Appellant blocked seats accordingly and the details were mailed to Respondents vide email dtd.29/08/2012. As per the Appellants, in pursuance with instructions received from Respondents, Appellant performed its part of contract by booking the said air tickets. Appellants further contend that, at the time of booking, no inquiry of requirement for transit visa was made by Respondents which would have given rise to a separate contract with A/14/789 5 different pricing etc. and same is evident from the emails exchanged between the Appellants and Respondents. The total cost of the round trip air fare for Respondent No.1 was Rs.1.02,441/- and the said air tickets were forwarded to Respondent No.1 vide email dtd.06/09/2012. It is the contention of Appellants that just 10 days prior to Respondent No.1's travel date, which was 27/11/2012, Respondent No.1 enquired as to whether he would require UK transit visa, upon which the Appellants informed the Respondents that UK Transit Visa is not required as per the USA Transit Visa Rules for Indian citizens holding valid USA Visa. However, it was not within the knowledge of Appellants that the Respondent No.1 had not renewed his expired visa. It is the contention of Appellants that Respondents had informed the Appellants at the time of booking that necessary steps would be taken by them to renew visa of Respondent No.1. However, vide email dtd.20/11/2012, the Respondent No.1 for the first time informed that his USA Visa had expired and therefore he would require UK Transit Visa. It is also the contention of the Appellants that Respondents had booked services with the Appellants only for air tickets and obtaining visa was the sole responsibility of Respondents. If at all UK Transit Visa was to be applied it could be applied for Respondent No.1 from Phoenix. The Appellants have filed with appeal, copy of emails dated 16th November, 17 th November and 20th November, 2012 of Respondent No.1 sent to Appellants.
6) Vide email dtd.21/11/2012, Respondent No.1 asked the Appellants to cancel his booking from Phoenix to Delhi booked through British Airways. Upon receipt of said email, Appellants advised Respondent No.1 to change the date of departure since the said ticket was non-refundable and had validity for 11 months mentioned on air tickets which were forwarded to the Respondents two months prior to his departure. By email dtd.24/11/2012 Respondent No.1 asked the Appellants to examine with airlines if a solution was possible to cancel one way departure ticket and to retain the return A/14/789 6 ticket. Finally by email dtd.26/11/2012, Respondent No.1 asked the Appellants to cancel the whole ticket. Copies of email correspondence between Appellants and Respondent No.1 dtd.21/11/2012, 22/11/2012, 24/11/2012 and 26/11/2012 are also filed by the Appellants alongwith appeal. As per the Appellants, the Respondent No.1 was given various options to reschedule his tickets with the applicable amendment charges but the same were rejected by Respondent No.1 who refused to reschedule tickets and advised to cancel the same. The Appellants further contend that vide email dtd.19/12/2012 it was informed to the Respondent No.1 that as per British Airways rules, the amount of Rs.10,194/- only was refundable. The copy of said email is also filed by the Appellants alongwith appeal.
7) The Appellants have filed the instant appeal on the ground that the Ld. District Forum erred in law in entertaining the complaint against the local branch office and not the Company having its registered office at Mumbai. As per Appellants, Appellant No.1 is the Franchisee office at Kolhapur of the Company having its registered office at Mumbai but the Company having registered office at Kolhapur is not made a party and therefore the complaint filed by the Respondent is bad for non-joinder and should have been dismissed on that ground and as the impugned order is passed without due representation of the Company having registered office at Mumbai, the judgment passed by the Ld. District Forum, Kolhapur is liable to be quashed and set aside. Appellants could have booked the tickets through other airlines for Respondent No.1, if such request would have been made by him. However, as the Respondent No.1 specifically requested to book the British Airways tickets and as adhering to his request said tickets were booked, the Ld. District Forum cannot hold and penalize the appellants for adhering to the request of Respondents.
8) It is also the ground of Appellants that the Ld. District Forum erred in A/14/789 7 holding that Appellant did not inform the Respondents either orally or in writing that while travelling on British Airways a transit visa is required. As per the Appellants, the Respondents had approached the Appellants only for booking the air tickets and no enquiry was made by them about transit visa at the time of booking and the Appellant had performed its part of contract by issuing the tickets and visa was never a part of contract but the Ld. District Forum failed to consider these facts. It is also the ground of Appellants that the Ld. District Forum ignored the fact that it was not Appellants' duty to check the validity of Respondent No.1's USA Visa and it was duty cast upon Respondent to hold valid documents and when Appellants brought to the notice of Respondent No.1 about expiry of his USA Visa, he informed Appellants that he will take necessary steps for its renewal. The Ld. District Forum failed to look into the fact that if respondent would have requested the Appellants to check the rules of transit visa, the Appellants would have advised Respondents accordingly after making necessary enquiries. As per the Appellants, it is a false story of the Respondents that Respondent was not given proper guidance and that Respondent was not aware of the rules for UK Transit Visa and also there is suppression of facts by Respondents about email correspondence with deliberate intention, to mislead the Ld. District Forum. As the emails were not produced before the Ld. District Forum, it could not realize the facts. It is also a ground of Appellants that the Ld. District Forum erred in holding Appellant guilty and liable for cancellation charges when such cancellation was as per rules of British Airways and not that of Appellants and that the tickets which were issued two months prior to departure to the Respondent No.1 clearly mentioned that the tickets were non refundable.
9) Another ground of Appellant is that the Ld. District Forum erred in deciding the Respondents' complaint which should have been dismissed by it for non-joinder of the necessary party- the British Airways which actually A/14/789 8 levelled cancellation charges. It is also a ground of appeal that the Ld. District Forum erred in deciding the complaint ex-parte and without giving opportunity by issuing fresh notice and to ensure that the Appellants- Opponents appear before the Ld. District Forum to defend the allegations. It is the ground of Appellant that the Ld. District Forum failed to note that when Respondent informed the Appellant that Respondent No.1 wants to cancel the ticket from Phoenix to Delhi as his visa had expired, the Appellant informed the Respondents that once the Respondent cancel air tickets from Phoenix to Delhi Sector, then by rules of British Airways the ticket for Mumbai to Phoenix will also get cancelled and it is the policy of British Airways and not that of Appellants to impose cancellation charges.
10) Another ground of Appellants is that the Ld. District Forum erred in holding Appellants guilty of suppression of information on transit visa while the visa of Respondent No.1 had expired long back and Respondent No.1 was aware of its expiry and he had informed the Appellants that he will be taking necessary steps for its renewal and when the Respondent No.1 was unable to get his US Visa renewed, he tried to shift his responsibility and blame on Appellants. It is also a ground of Appellant that the Ld. District Forum failed to note that vide email dtd.27/11/2012, Respondent No.1 himself admitted that he is aware of British Rules that once onward route ticket is cancelled, then return route ticket automatically gets cancelled and further informed Appellants that he is not interested in refund of whole ticket amount but only to use part of ticket to book the return flight and thus, agreed to lose amount of cancellation but later filed false complaint to obtain unjustifiable compensation and cause wrongful loss to Appellants. It is the ground of Appellants that because of suppression of facts by the Respondents regarding email correspondence, the Ld. District Forum had come to such findings made in impugned order and if the Respondent would A/14/789 9 have produced the said emails, the Ld. District Forum would have come to know the factual position. The Appellants therefore prayed for setting aside the impugned order.
11) Perused the record, heard arguments on behalf of the parties. We have gone through the email correspondence between the parties. From the correspondence, there is reason to apprehend that the Complainant No.1- Respondent No.1 was aware of the fact that transit visa was required while traveling through London by British Airways and the same was not required if the traveler has US Visa. The Complainant No.1-Respondent No.1 himself communicated to Opponents- Appellants that 'unfortunately my US Visa is expired'. In spite of such expiry of US Visa how the Complainant No.1-Respondent No.1 could travel from USA to India and back is not clear from the record. It is also not clear as to when the said US Visa expired and if it was renewed subsequently to enable the Respondent No.1 to travel to India and back then when it was renewed. In the instant case we find that the Ld. District Forum has proceeded ex-parte against the Appellant and therefore, the defence of Opponents-Appellants and the entire email correspondence between the parties was not before the Ld. District Forum and because of the said reason, the Ld. District Forum could not appreciate the facts of the case. We therefore feel it proper in the interest of justice to remand the matter back to the Ld. District Forum to decide the matter afresh on merits according to law after giving opportunity to both the parties to file their say and submit their affidavits of evidence alongwith necessary documents before the Ld. District Forum. We make it clear that we have not made any observation on the various points raised in the appeal and also the points raised by the Complainants in original complaint and all the points are open for deciding afresh by the Ld. District Forum in light of the above discussion. We therefore, pass the following order -
A/14/789 10
ORDER
(i) Appeal is partly allowed.
(ii) The order dtd.19/08/2014 in Consumer Complainant No.CC/13/324
passed by the Ld. District Consumer Disputes Redressal Forum, Kolhapur, is set aside and the matter is remanded back to the Ld. District Forum for deciding afresh on merits after giving opportunity to both the parties to put up their say, submit their affidavits of evidence alongwith necessary documents, submit written arguments and to advance oral arguments.
(iii) No order as to costs.
(iv) The parties are directed to appear before the Ld. District Forum on
19/01/2018 at 10.30 a.m.
(v) Copies of the order be furnished to the parties.
Pronounced on 19th October, 2017.
[Justice A.P.Bhangale]
President
[A.K.Zade]
Member
aj