State Consumer Disputes Redressal Commission
Bahagirath D. Sheth,2Nd Floor, Chennai ... vs M/S.Hi-Tours Mamallapuram Pvt. ... on 20 October, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSSAL COMMISSION, MYLAPORE, CHENNAI 600 004 BEFORE THE STATE CONSUMER DISPUTES REDRESSSAL COMMISSION, MYLAPORE, CHENNAI 600 004 PRESENT: HONBLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT THIRU. SAMBANDAM, B.Sc., MEMBER II COMMON ORDER IN F.A.NO.17/2007 & 109/2007 Dated this the 20th day of October 2010 (Against the order in C.C.No.477/2005, on the file of the District Forum, Chennai (South) F.A.NO.17/2007 Bahagirath D. Sheth No.1003, Poonamallee High Rpad Krishna Apartments, C-Block 2nd Floor, Chennai 600 004 Appellant/ Complainant Vs. M/s.HI-Tours Mamallapuram Pvt. Ltd., Rep. by its Vice President Ajit Kumar No.83, Pantheon Road, First Floor Sri Kalyan Square, Egmore Chennai- 600 008 Respondent/Opposite party F.A.NO.109/2007 M/s.HI-Tours Mamallapuram Pvt. Ltd., Rep. by its Vice President Ajit Kumar No.83, Pantheon Road, First Floor Sri Kalyan Square, Egmore Chennai- 600 008 Appellant/Opposite party Vs. Bahagirath D. Sheth No.1003, Poonamallee High Rpad Krishna Apartments, C-Block 2nd Floor, Chennai 600 004 Respondent/ Complainant The complainant filed a complaint before the District Forum against the opposite party, praying for the direction to the opposite party to pay Rs.2000/- being the extra amount collected for taxi, with 12% interest, alongwith compensation of Rs.2 lakhs and cost of Rs.10000/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred by the opposite party in F.A.No.109/2007 praying to set aside the order of the District Forum dt.13.12.2006 in OP No.477/2005, and F.A.No.17/2007 filed by the complainant, praying for the grant of Rs.2000/- with interest, and to enhance the compensation awarded. This petitions coming before us for hearing finally on 01.10.2010. Upon hearing the arguments of the counsel on either side, perusing the documents, written arguments filed by the complainant, lower court records, as well as the order passed by the District Forum, this commission made the following order: Counsel for the Appellant/ Respondent/ Complainant: Mr. G.Kumud Jhabakh, Counsel for Appellant/ Respondent/ opposite party: M/s. Syed Naresh Sherif, JUSTICE M. THANIKACHALAM, PRESIDENT 1.
The complainant and opposite parties in C.C.No.477/2005, on the file of District Forum, Chennai (South), are the appellants in FA.Nos.17/2007 and 109/2007 respectively.
2. The parties are referred as arrayed in original complaint.
3. The complainant, in order to have a pleasure trip to Thailand, Malaysia, and Singapore, commencing from 20.5.2005, approached the opposite party/organizer on 6.5.2005. As requested and as per the understanding, in the tour programe, the complainant had paid a total sum of Rs.1,57,000/- for him, and for his family members, which includes taxi charge also. When the complainant and his family members, reached Bangkok, by Indian Airlines flight, as agreed, no separate taxi was arranged to take them to Pattaya, whereas they were transferred alongwith other passengers.
Thus the opposite party, having collected extra amount of Rs.2000/- for taxi, failed to provide at Bangkok, which should be construed as deficiency.
4. The complainant obtained confirmed flight ticket, for flight No.IC 853, to travel from Bangkok to Kuala Lumpur, which is scheduled to departure at 11.25 hours.
When the complainant and his family members checked at Bangkok airport, at 9.00 p.m, they were informed that IC 853, has been cancelled, and immediately the opposite party, who assured smooth transportation, failed to make necessary alternative arrangement, thereby causing mental agony and suffering to complainant and his family members. After much effort, the complainant himself made arrangement, to board Lufthansa airlines at 15 hours, thereby causing delay of 5 hours, which also should be construed as deficiency in service.
5. After returning from the tour, informing the difficulties and sufferings, though notice has been issued, the opposite party kept silent, informing as if he had sent a sum of Rs.2000/-, which he has not received till today. For the above said deficiency, the complainant is entitled to refund of Rs.2000/-, being the extra amount collected for taxi fare, as well as for a compensation of Rs.2 lakhs, for mental agony, loss, damage etc., including unfair trade practice.
6. The opposite party, admitting the tour arrangement, which commenced on 20.5.2005, from Chennai, as well the receipt of amounts from the complainant, opposed the claim, on the grounds, interalia contending, that they had booked tickets, through one M/s. Thania Travels, a recognized Indian Airlines booking agent, that if IC 853 was not operative, they would not have issued confirmed ticket, since issued they are not responsible, and if at all the recognized agent of Indian Airlines alone could be held responsible, that the cancellation of flight No.IC853 on 25.5.2005, was beyond the scope and control of the opposite party, and for the same, no deficiency or unfair trade practice could be attributed to the opposite parties, that immediately on the information regarding cancellation of IC853, arrangement was made for the complainant, and his family members, to accommodate in Lufthansa Airlines, and that because of the delay in the international airport, and due to shift in change of flight timings, the taxi arranged, waited, left, for which also the opposite parties cannot be held responsible, and in this view, there is no deficiency at all, which follows the case itself is not maintainable, thereby praying for the dismissal of the complaint.
7. The District Forum, concluding that the opposite party being a tour organising agency, should have organized the flight time, as well scheduled the programme, well in advance, which they failed, that the opposite party had already returned Rs.2000/-, by way of cheque, for the failure to arrange taxi, which was acknowledged by the complainant, and that for the above said deficiency alone, the complainant if at all, entitled to some compensation. Thus, considering the status of the parties, nature of deficiency, occured in foreign soil, quantum was fixed at Rs.10000/-, for which direction has been issued, for the payment as per order dt.13.12.2006, not satisfying both, resulting two appeals.
8. It is the common case of the parties, that the complainant approached the opposite party, for arranging tour programe, to Thailand, Malaysia, Singapore, for which including taxi fare, the opposite party had collected a sum of Rs.157000/-, not only for the complainant, but also for three other family members. Pursuant to the acceptance, the opposite party had purchased tickets not confirmed, from the recognized Indian Airlines, and handed over the same, to the complainant.
The complainant and his family members, commenced their journey, from Chennai Airport to Bangkok, on 20.5.2005. It is also an admitted fact that the opposite party had agreed to provide a separate taxi, for the complainant and his family members from Bangkok Airport to Pattaya, were stay arrangement appears to have been made.
But, as agreed, though a sum of Rs.2000/- collected extra, taxi was not made available to the complainant, on his landing, whereas, he was constrained and compelled to travel alongwith other passengers, in the common transport. Therefore, according to the complainant, this is one of the deficiencies.
9. In order to travel from Hong Kong to Kuala Lumpur, Admittedly conformed/OK tickets, were given to the complainant, for the flight IC 853. Having hope that the flight will be ready to take off, from Bangkok to Kuala Lumpur, when the complainant reached Bangkok airport, he was informed about the cancellation of flight No.IC 853, on 20.5.2005.
Thereafter, after much effort, he left Bangkok to Kuala Lumpur, in the flight operated by Lufthansa airlines.
Since, tickets were booked, in the flight No.IC 853, which were cancelled or not operational, from April 2005 onwards, which is the second deficiency, leveled against the opposite party. On these two grounds alone, as seen from the complainant, a sum of Rs.2000/-, is claimed as returned, being the taxi fare collected, and a sum of Rs.2 lakhs, as compensation for mental agony, loss, damage, unfair trade practice etc.
10. The learned counsel for opposite party urged before us, that in fact a separate taxi was arranged at Bangkok airport, but the same was not available for taking the complainant and his family members, because of shift in change of flight timings, for which he cannot be held responsible. It is also an admitted fact, that the complainant travelled alongwith other passengers, in the common carrier, thereby indicating that the amount ofRs.2000/- collected by the opposite party, for providing taxi, has not been spent. In this view, the complainant as of right, is entitled to refund of Rs.2000/-. The District Forum, has recorded a finding, as if the opposite party, has already returned Rs.2000/-, by way of cheque, which was acknowledged by the complainant. It is the specific case of the complainant, that they have not received the amount. As seen from Ex.B5, cheque was drawn in favour of the complainant on 17.6.2005, for Rs.2000/-, representing this taxi fare amount. It is also the case of the opposite party, that the same was sent by courier, acknowledged by the complainant, placing reliance upon Ex.B7, wherein we find the signature of the complainant also. Therefore, the contention of the complainant that he has not received the amount, and encashed the same, must be incorrect, and it must be a suppression of fact. Before us also, it is not the case of the complainant, that they have not received the cheque amount, and they have not received the cheque, acknowledged the same under Ex.B7. Therefore, as recorded by the District Forum, we are also constrained to say that the taxi fare collected from the complainant was returned by way of cheque, whether it was casted or not, The opposite party though issued a cheque, when the complainant denied its encashing, the opposite party should have produced his account, for its encashment, which they failed. When this was pointed out, the learned counsel for appellant, was willing to pay Rs.2000/-, despite the fact, that already cheque was issued, since we have no material, that cheque was encashed, amount emanated from the account of the opposite party. Hence, the complainant is entitled to refund of Rs.2000/-, irrespective of Ex.B5, and the acknowledgement in the courier, since amount not encashed.
11. As tour agent-organizer, as per the flight schedules available, published by Indian Airlines, tickets were purchased, by the complainant, through the recognized agent, by name M/s. Thania Travels. As rightly submitted by the learned counsel for the opposite party, if the flight IC 853 was not operational, from April 2005, it is not known, under what circumstances, a confirmed ticket was issued, for the travel in the month of May 2005.
If the operation of IC 853 has been suspended, or cancelled, from April 2005, then issuance of ticket, by the recognized travel agent, must be deficiency of service, not this opposite party, who has not been impleaded as party. Therefore, assuming IC 853 was not operational, for the issue of OK ticket, by the recognized agent of the Indian Airlines, the opposite party cannot be held responsible, since the operation of flights, are not under the control of the opposite party.
12. As submitted by the learned counsel for the opposite party, the suspension or withdrawal of IC 853, on 25.5.2005, was informed to the agent concerned, for being conveyed to the passengers, who booked through that recognized agency, is revealed under communication dt.8.6.2005, wherein it is said the schedule change (withdrawal of flight IC 853) was incorporation in the PNR, as early as on 13.5.2005, as booking was reflected as HK/UN4, thereby informing the withdrawal in advance, which was not made known to the opposite party, and that is why, they were unable to inform the complainant, for which they cannot be held responsible, and if at all the recognized agent of Indian Airlines, or the Indian Airlines, should be held responsible, who are all not parties. Therefore, for the cancellation or withdrawal of IC 853, on 25.5.2005, the opposite party cannot be held responsible, and we cannot affix the seal of deficiency also, for this act, which was not properly considered by the District Forum.
13. Further by the cancellation or withdrawal of IC 853, on 25.5.2005, the complainant or his family members would not have suffered a lot, as attempted to magnify so, in the complaint, for which sky high claim of Rs.2 lakhs is claimed, without any basis which is reflected in the communication dt.16.6.2005 and 17.6.2005. In the communication dt.16.6.2005, describing the history of PNR As per history of the PNR booking was made in CRS on 5th May 2005 for MAA/BKK/KUL/SIN/MAA by M/s. Taanya Travels.
Cancellation of flight IC853 BKK:KUL 25 May 05 was incorporated in the system at 1614 hrs on 13 May 2005. Mr. Naveed of Taanya Travels reconfirmed the MAA:BKK leg on 7 May 2005 at 12.07 hours at our call centre, they have further informed the complainants family members were travelled by Lufthansa Airlines, even accusing that the lapses was committed by the booking agent, not informing the passengers, regarding the withdrawal of the flight at Bangkok airport, as indicated in the communication dt.17.6.2005, complainant and his family members were provided with meals, and also felicitated, making a call to Kuala Lumpur etc. Therefore, when some mistake had crept in, knowingly or unknowingly, and when the same was informed, the agent alone has failed to inform to the passenger, for which the tour organizer cannot be held responsible, since it is not the case of the Indian Airlines, or its recognized agent, that the agent who had booked the ticket were also informed about the change of flight time or shifting the time etc., Thus when the opposite party had no knowledge about the withdrawal or cancellation, of the flight, they cannot make any immediate effective arrangement, and the Indian Airlines itself, appears to have made arrangement, as discussed above, which cannot be described as deficiency, on the part of the opposite party.
No other deficiency has been alleged against opposite parties, as if they have failed to take the complainant, and his family members to the places, as agreed or failed to provide facilities at hotel, as agreed or anyother things, which were in their control. The alleged deficiency is not within the control of the opposite party, and it was beyond their control, that too, by the mistake committed by somebody, for which we cannot grant any compensation, as awarded by the District Forum, which deserves to be set aside. Further, for the claim of Rs.2 lakhs, though separate appeal has been placed/filed, no material has been filed, and in view of our finding, no deficiency has been proved, and the complainant is entitled to only Rs.2000/-, and nothing more. For these reasons, the appeal preferred by the complainant, deserves to be dismissed, and appeal preferred by the opposite party, deserves partial acceptance, requiring modification.
14. In the result, the appeal in F.A.No.17/2007 is dismissed. No order as to cost.
The appeal in F.A.No.107/2007 is allowed, is modifying the order of the District Forum, directing the appellant/opposite party to pay a sum of Rs.2000/-, within two months, failing which the amount so awarded shall carry interest @12% p.a., from the date of default, till its realization. There will be no order as to cost in this appeal.
S. SAMBANDAM M. THANIKACHALAM MEMBER II PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Travels