SHAILAJA SUDHAKAR BHATI vs SOUVENIR TRAVELS

THE appellant in Appeal No. 18 of 2002 is the complainant.

THE appellant in Appeal No. 16 of 2002 is the opposite party No. 1. The appellant in Appeal No. 15 of 2003 is the opposite party No. 2.

The case of the complainant is as follows: The complainant is a qualified Architect. The husband of the complainant is also a qualified Architect Planner and is working with Aurofuture, Auroville. The husband of the complainant was sponsored by the Netherland Government for studies at the Institute of Housing and Urban Development at Roterdam, Netherland. His tour to the country was for three months starting from 19th January to 20th April, 2000. He decided that the complainant should also join him in Netherland. Therefore, the complainant made inquiry from opposite party No. 1 being the agent of opposite party No. 2 and on their informing that the earliest possible confirmed ticket was available in Kuwait Airways for 6.3.2000. The complainant got a ticket with opposite party No. 1 in the first week of February, 2000 and purchased it on 18.2.2000 by paying a sum of Rs. 30,900/-. The ticket was for a flight from New Delhi. On the ticket a sticker of O.K. was there and the opposite party No. 1 informed the complainant that her ticket was confirmed and she would board the Kuwait Airlines Flight on 6.3.2000 from Indira Gandhi International Airport, New Delhi. Thereafter, the complainant went to her parents'' house at Chandigarh from where it was easier to her to get the flight from Delhi. The complainant along with her parents started from Chandigarh and reached Indira Gandhi International Airport on 6.3.2000. But the authorities at the Airport did not allow her to board the plan saying that the ticket from Kuwait to Amsterdam was not confirmed. The complainant and her father and mother, who had gone to see her off faced lot of embarrassment and harassment. They all felt cheated because of the illegal act of opposite party. The invaluable time of the father of the complainant was wasted because of the fraudulent act of opposite party. The parents of the complainant had travelled from Chandigarh to Delhi with her by road. The embarrassment which the complainant and her parents suffered is unmatched to any indecent incident. Thereafter, the complainant returned back alone with her parents to Chandigarh. She could not even sleep during the night. She remained in continuous tension and anxiety till she could arrange for an alternative ticket. Right from 7.3.200 the complainant gave a call to opposite party No. 1 requesting them to arrange for a ticket for 9.3.2000. The opposite party No. 1 did not bother to even respond to her request and then the complainant had to make frantic calls to all the airlines operating within the country. She was fortunate enough to know from KLM Airlnes that only one seat which was reserved for a VVIP could be made available to her but on a much higher price. The cost of the ticket was Rs. 45,335/-. The complainant had no option but to purchase the ticket on a price which was more than the cost of the ticket booked by her through opposite party No. 1. The complainant accordingly flew via KLM Airlines from IGI Airport, New Delhi on 9.3.2000. Had the opposite party not falsely confirmed the ticket on 18.2.2000, she could have arranged ticket from any other airlines at that time. The entire fault for the embarrassment suffered by the complainant and her parents and the excessive cost that she had to bear for her visit to Amsterdam with the cost of the trip to New Delhi on 6.3.2000 lay solely on opposite parties. The opposite party No. 1 had assured the complainant that when the sticker of OK was affixed, the ticket was confirmed and, therefore, they are personally responsible for the compensation. The complainant issued legal notice to opposite parties on 21.11.2000. The opposite party No. 1 gave a reply. But no reply was given by opposite party No. 2. Therefore, the complainant claimed compensation from both opposite parties jointly and severally. The opposite parties are liable to pay Rs. 14,435/- the difference in the cost of the ticket and Rs. 5,00/- the amount deducted on return of ticket on account of cancellation charges. The opposite parties are liable to pay Rs. 5,000/- the amount spent for telephone calls made to opposite party on many occasions. The complainant had to depute a person to collect refund of the ticket from opposite party No. 1. The complainant is also entitled to Rs. 3,000/- the amount spent towards visit from Chandigarh to Delhi Airport and return by car and Rs. 5,000/- towards the amount spent by the complainant by way of telephone calls and personal visits to different airlines. The complainant is also entitled to Rs. two lakhs as compensation for mental agony.

THE case of the opposite party No. 1 is as follows: THE opposite party No. 1 is the ticketing agent of 2nd opposite party on commission basis. THE complainant approached the 1st opposite party on 18.2.2000 and requested for air ticket on 6.3.2000 in Kuwait Airways. 1st opposite party contacted 2nd opposite party, who is the general sale agent for Kuwait Airways and obtained an air ticket dated 18.2.2000. But the air ticket initially issued would clearly show that from New Delhi to Kuwait was O.K. i.e., confirmed but from Kuwait to Amsterdam, it was clearly mentioned R.Q. i.e., at request which means not confirmed. THE air ticket obtained from 2nd opposite party was delivered to her on 19.2.2000 and not as stated in para 4 of the complaint. At the request of the complainant to get Visa, OK sticker mentioned D.S. which means Dummy Sticker was issued since it is difficult to get visa at the last minute. Without OK sticker from the place of booking till destination, visa will not be issued. This is the business custom prevailing for a long time in India. THE complainant is well aware of this fact. Further, the complainant issued legal notice dated 15.11.2000 to the opposite party but it was received on 21.11.2000 and by the reply letter dated 5.12.2000, it was clearly mentioned that the entire booking operation was carried out by Kuwait Airways General Sales Agent, M/s. National Travel Service, Egmore, Chennai. It is false to state that the 1st opposite party informed the complainant that the ticket was confirmed. THE compensation claimed under the head Nos. 1 to 5 are arbitrary. THE OK sticker was done by 2nd opposite party. THEre is no deficiency in service on the part of the 1st opposite party. THE complaint is barred by limitation. The case of the 2nd opposite party is as follows: The 2nd opposite party transact business through different IATA approved travel agents of which the 1st opposite party was one of them. In the normal course boarding tickets are issued only if confirmed tickets are available on any international flight of this airlines. Further, it was the practice then in vogue where high valued customers and VIPs insist on obtaining a ticket with confirmed endorsement to enable them to obtain visas expeditiously, rare exceptions are made where the agent at his discretion issues a ticket with OK endorsement. Such type of tickets are issued only in exceptional circumstances where a specific request is made, in order to accommodate the customer to enable him to obtain visa. It is pertinent to state that visas for foreign travel are not issued by the respective countries if the travel tickets are not confirmed. Therefore, the tickets are issued with Dummy Sticker and the same was issued with clear instructions that the said ticket is subject to confirmation and it is the duty of the customer to make sufficient inquiry in advance as regards confirmation of the ticket before boarding the flight. In fact, the said system of issuing ''DS'' tickets have of late been discontinued. The complainant approached the local travel agent, 1st opposite party with a request for ticket. As confirmed ticket was available only for Delhi-Kuwait Sector and not for Kuwait Amsterdam Sector, the travel agent was informed accordingly. As the travel agent insisted upon this opposite party to permit him to issue dummy sticker ticket with OK endorsement for both Delhi-Kuwait and Kuwait Amsterdam Sector for enabling the complainant to get visa, the opposite party issued the same informing the agent that the ticket remains wait listed for Kuwait Amsterdam Sector. In fact, the 1st opposite party was well aware even at the time of issuance of the ticket that it is a DS ticket, which requires subsequent confirmation. As this opposite party does not deal directly with the passengers, the onus rests on the 1st opposite party, travel agent to issue such ticket. In the instant case, the ticket was issued with OK endorsement and the same has been confirmed with ''DS'' sticker. The airlines also take utmost precautions and all efforts to get such tickets confirmed. However, in certain rare cases when the tickets are not confirmed the airlines could not be faulted. Therefore, the allegations as regards the deficiency in service are incorrect. The claim made in the complaint are bad in law and not maintainable. The claim made by the complainant as regards visit from Chandigarh to Delhi, efforts by way of telephone calls, accommodation to a third party to collect refund are not correct. The claim made in item Nos. 2, 3, 4 and 5 are untenable. This opposite party is not liable to pay the amount claimed in item No. 1. This opposite party cannot be held responsible for the travel arrangements of the complainant. The opposite party rejects the claim made on account of harassment and mental agony.

NO oral evidence was let in by the parties. On the side of the complainant Exs. C1 to C8 and on the side of the opposite party Exs. R1 and R2 were marked. In the appeal additional documents Exs. C9 to Ex. C12 were marked. The 1st opposite party has also filed additional documents during the pendency of the appeal and they are marked as Exs. R3 to R7. The District Forum on consideration of the material and documents has allowed the complaint in part directing the opposite parties to pay Rs. 14,495/- and a sum of Rs. 500/-. Regarding compensation, the District Forum has directed the opposite parties to pay Rs. 30,000/-. Not being satisfied with the quantum of compensation and for disallowing the claims made under item Nos. 3 to 5, the complainant has filed the Appeal No. 18 of 2002. Aggrieved by the order of the District Forum in partly allowing the complaint, the opposite parties have filed separate appeals. The points for determination are: (1) Whether the dispute is barred by limitation? (2) Whether there is any deficiency in service on the part of the opposite party? (3) Whether the opposite parties are jointly and severally liable to pay compensation amount as claimed in the complaint? If so, to what quantum?

POINT No. 1 : The District Forum has held that the complaint is not barred by limitation under Section 24A of the Consumer Protection Act. It is seen from the pleadings that the complainant purchased the air ticket from the opposite party on 18.2.2000 for journey to Amsterdam on 6.3.2000. It is the case of the complainant that the complainant was informed by the Indira Gandhi International Airport, New Delhi that her ticket from Kuwait to Amsterdam was not confirmed. Thereafter, the complainant purchased ticket from other airlines and completed the journey. It is clear that the cause of action arose only on 6.3.2000 on which date, the complainant was not allowed to travel, as the ticket was partly confirmed. The present complaint is filed on 5.2.2002 i.e., within two years from 6.3.2000. Hence, the District Forum is justified in holding that the complaint is not barred by limitation. As the complaint is filed within two years of the date of commencing the journey i.e., 6.3.2000, we hold that the complaint is not barred by limitation. This point is answered in favour of the complainant.

POINT No. 2 : The 2nd opposite party is General Sales Agent of Kuwait Airways. It is admitted by the 2nd opposite party that the 1st opposite party is an I.A.T.A. agent. The 1st opposite party has admitted that they are commission agent. It is the case of the complainant that she purchased the ticket on 18.2.2000 by paying Rs. 30,900/- for the flight from New Delhi to Amsterdam and that a sticker of O.K. was affixed on the ticket and that she was informed that her ticket was confirmed. Ex. C1 is the receipt issued by the 1st opposite party for receipt of Rs. 30,900/- Ex. C2 is the ticket alleged to have been issued by the 1st opposite party. It is stated therein that the journey is from Delhi to Amsterdam. It is noted as O.K. against the column ''From Delhi'' but against the column ''To Kuwait'' it is noted as R.C. It is further noted as O.K. against the column ''From Amsterdam. It is further seen in the column ''to Kuwait'' it is noted as O.K. The above ticket was issued on 18.2.2000. In the ticket, Ex. C3, it is noted as "flight Ku 115 dated 6th March". The status is noted as O.K. As the complainant was not allowed to board the flight since she was told that the flight from Kuwait to Amsterdam was not confirmed, she purchased another ticket from Travel Planners (P) Ltd. for Rs. 45,335/- on 8.3.2000. Ex. C4 is the payment receipt issued by the above travel agent and on the basis of the above ticket, she flew via KLM Airlines on 9.3.2000. It is contended by the complainant that she incurred unnecessary expenditure in securing another ticket and that for the mental agony and suffering she sustained, the opposite parties are liable to pay compensation. The fact that the opposite parties had issued the flight ticket to the complainant is not denied by them. On the other hand, the 1st opposite party has admitted in the reply version that at the request of the complainant to get visa, O.K. sticker was affixed and that without the O.K. ticket from the place of booking, visa will not be issued and that in the ticket for the journey from Kuwait to Amsterdam, it is mentioned as RQ i.e., at request, which meant not confirmed. It is admitted by the 1st opposite party that they contacted the 2nd opposite party and obtained air ticket dated 18.2.2000 for the complainant. It is the specific case of the 1st opposite party that the whole booking transaction including affixing of O.K. sticker was done by the 2nd opposite party. But the 2nd opposite party has taken a different stand. They have alleged in the counter that in the normal course boarding tickets are issued only if confirmed reservation is available on any international flight and that, however, it was the practice in or about 1995-2000 where high valued customers insist on obtaining ticket with endorsement O.K. sticker to enable them to obtain visa, rare exceptions are made where the agent at his discretion issues a ticket with O.K. endorsement and that as the travel agent insisted upon this opposite party to permit him to issue dummy sticker with O.K. endorsement, the 2nd opposite party issued the same while informing the travel agent that the ticket remained Wait Listed for the Kuwait-Amsterdam sector. But the 1st opposite party has stated that the O.K. ticket was not affixed by him and that the ticket with O.K. Sticker was obtained from 2nd opposite party. It is further admitted by 2nd opposite party that the practice of issuing of D.S. ticket have been discontinued.

It is significant to note that the 2nd opposite party has admitted that the confirmed ticket was available only for the Delhi-Kuwait sector but not for Kuwait-Amsterdam sector. If that is so, the opposite parties were aware of the fact that the ticket for the journey was not available from Kuwait to Amsterdam on 6.3.2000. As the opposite parties have come forward with a specific plea of custom or arrangement in issuing O.K. sticker, it is for them to establish the same. The complainant who is only a passenger may not be aware of the practice prevailing in issuing air ticket. When the complainant purchased the ticket with O.K. sticker, she was under the impression that she could reach Amsterdam on the basis of Ex. C2. It is no doubt true that on the basis of Ex. C2, she obtained visa. Ex. R7 is the copy of the visa. It is seen that visa was obtained on 23.2.2000. The complainant, in the counter filed in Appeal No. 16 of 2002 has also admitted that along with other documents, the ticket was submitted for obtaining visa. Relying upon the above facts, it is contended by the opposite party that the complainant was well aware of the fact that the ticket with O.K. sticker was furnished to the complainant and that the complainant cannot blame the opposite party. As already stated that the complainant is only a passenger,who is not aware of the alleged custom or arrangement pleaded by the opposite party. On the other hand, it is manifestly clear that on issuance of ticket to the complainant, the opposite party made the complainant believe that the ticket is a confirmed one and that subsequently the complainant also acted on the basis of the above partly confirmed ticket. It is not noted in the ticket that the complainant is a Wait Listed passenger. In the above circumstances, the opposite party cannot wriggle out from the liability in answering the claim of the complainant.

THE alleged custom or practice in issuing O.K. sticker ticket is not explained by the opposite party in the reply notices issued to the complainant. Ex. R2 is the notice issued to the opposite parties. Ex. C6 is the acknowledgement signed by the 1st opposite party. Ex. R1 is the acknowledgement signed by the manager of the 2nd opposite party. It is clearly stated in the above notice that the opposite party affixed a sticker O.K. and that the first opposite party told the complainant that the ticket was confirmed one. Ex. C7 is the reply issued by the first opposite party wherein it is only stated that the entire booking operation was carried out by Kuwait Airways and that they have referred the matter to the airlines. Ex. C8 is the reply issued by Kuwait Airways. It is stated therein that they are obtaining instruction from their clients and that they shall shortly revert back to the notice and that none of the allegations contained in the notice are admitted. If really there is any truth in the contention of the opposite party that by affixing O.K. sticker, they represented the complainant that it is partly confirmed and that it was issued only to enable the complainant to obtain visa, nothing prevented the opposite parties to set forth the above specific plea in the reply notice. Only long after filing the complaint, the opposite parties have come forward with a plea that they told the complainant that the above ticket was partly confirmed ticket. As already stated the complainant is not a trader, who is well acquainted with the alleged custom or practice in issuing ticket with O.K. sticker. Even assuming that the ticket was issued at the request of the complainant, the opposite party made the authorities believe that the ticket is confirmed by affixing O.K. sticker. By raising the specific plea discussed above, the opposite parties want to help a party to obtain visa by fraudulent means. If really there is any truth in the contention of the opposite parties, they would have stated the above facts in the reply notice itself. THErefore, we have no hesitation in holding that the alleged custom and arrangement pleaded by the opposite party now is only an after thought. It would be useful to refer certain decisions on this aspect of the case at this stage. In 1992 (2) CPR page 11 between Dr. (Mrs.) Lalitha Kumar v. British Airways The State Commission, Madras has held as follows: When the confirmed ticket was sold to complainant by an agent of Airways Co. and the ticket was found unconfirmed at the time of check in it amounts to deficiency in service and since principal is liable for the act of agent, the non-impleading of agent does not affect the maintainability of the complaint. In 1994 (1) CPR p. 193 between A. Robert Benjamin v. Air India and Others The State Commission, Madras has held thus: Issuance of air ticket by the agent as O.K. whereas the ticket was not confirmed and the passenger is wait listed on the date of travel is a deficiency on the part of the agent which makes principal also liable. The 2nd opposite party in the above case is I.A.T.A. Agent, who is entitled to sell Air India ticket for which he gets commission of 9% and that, therefore, they are agent of the 1st opposite party and that the relationship between the first opposite party and the second opposite party is that of principal and agent. In this case, the first opposite party with the help of 2nd opposite party issued ticket on behalf of the principal Kuwait Airways. In the above case, the Commission has held that the agent is also liable along with the principal. In this case, the first opposite party has stated that they are only commission agent. In the notice issued by the complainant, it is stated that the first opposite party is the agent of the 2nd opposite party. The above fact is not denied by the first opposite party in the reply notice. It is not disputed that the first opposite party is selling air ticket on behalf of Kuwait Airways also. The complainant hired the services of first opposite party in obtaining ticket, Ex. C2. The first opposite party has admitted that they are entitled to service charges while refunding the amount. In the above circumstances, the first opposite party cannot escape its liability in answering the claim of the complainant. The decision referred to above are applicable to the facts of this case.

IT is contended on behalf of the first opposite party that the principal, Kuwait Airways has got its own office at New Delhi and that without impleading the principal, the complaint is not maintainable. In the decision reported in 1992 (2) CPR, it is held that the principal is liable for the act of agent and that the complainant is entitled to sue the principal without directly impleading Agent. But in subsequent decision reported in 1994 (1) CPR, the State Commission, Madras has held that the agent of the principal is also liable along with the principal. The National Commission in the case reported in III (2002) CPJ 39 (NC) between Express Travels v. M.R. Shah. has held that both the travel agent and airlines are jointly and severally liable to pay compensation. We are in respectable agreement with the view taken by the National Commission on this aspect of the case. It is admitted that the complainant hired the services of the opposite parties in obtaining the ticket. By affixing O.K. sticker, they assured the complainant that it is a confirmed ticket when, in fact, it is partly confirmed. It cannot be disputed that the opposite party sold the ticket acting on behalf of the principal. In the above circumstances, it has to be held that both the opposite parties are guilty of deficiency in service. The mere fact that the principal is not impleaded will not absolve the opposite parties of their liability in answering the claim of the complainant. We are unable to accept the contention of the opposite parties that knowing fully well that the ticket is partly confirmed, the complainant purchased the ticket.

THE opposite parties 1 and 2 are blaming each other in answering the claim of the complainant. As already stated the explanation throttled out by the opposite parties in affixing O.K. sticker is not set out in the reply notice. In the above circumstances, we have no hesitation in holding that the complainant believing the representation that O.K. sticker on ticket is referable to confirmed ticket, she purchased the same. Hence, we hold that both the opposite parties are guilty of deficiency in service and that they are jointly and severally liable for the claim of the complainant. This point is answered in favour of the complainant.

POINT No. 3: In view of our finding on point No. 2, we hold that both the opposite parties are jointly and severally liable. Coming to the quantum of amount claimed by the complainant, the District Forum has held that the complainant purchased the ticket, Ex. C4 for Rs. 45,335/-. The difference of the cost of ticket is Rs. 14,435/-. Had the opposite parties sold the confirmed ticket to the complainant, the complainant would not have incurred additional expenditure in purchasing the ticket from other airlines. Therefore, we hold that the District Forum is justified in holding that the opposite parties are liable to pay Rs. 14,435/- being the difference of cost of the ticket. It is contended by the complainant that the ticket sold by the first opposite party could not be put to use and that she could not board the Kuwait Airlines at Delhi and that, therefore, the first opposite party is not entitled to cancellation charges of Rs. 500/-. The District Forum has allowed the above claim. We see no infirmity in the reason adopted by the District Forum. Therefore, we hold that the complainant is entitled for refund of Rs. 500/- also.

The complainant has claimed Rs. 5,000/- towards telephone charges under paragraph 13(4). The complainant has claimed Rs. 3,000/- towards the charges of travelling in a car from Chandigarh to Delhi Airport. In paragraph 13(5), the complainant has claimed Rs. 5,000/- for the expenditure incurred towards telephone and personal visit to different airlines. Under paragraph 13(6), the complainant has claimed Rs. two lakhs as compensation for mental agony and sufferings. The District Forum has held that the reliefs claimed in prayer Columns 3, 4 and 5 are not supported by any evidence or materials. However, the District Forum has held that it cannot be said that the complainant would not have spent any amount on the days that she was made to extend her stay in Delhi or Chandigarh and that, therefore, the above claim has to be compensated by awarding adequate compensation for mental agony and sufferings. Regarding the claim under prayer Column No. 6, the District Forum has held that the claim is fanciful. The District Forum has further held that the quantum of expenditure could not be fixed in the absence of any evidence or materials and that taking into consideration of such circumstances, a sum of Rs. 30,000/- would be just and proper compensation. The learned Counsel for the complainant contended that the District Forum has not properly appreciated the materials placed by the complainant in praying for award of compensation and expenditure. On the other hand, it is contended by the opposite party that the Forum cannot award compensation on mere ipse dixit of the party. During the pendency of the appeal, the complainant has filed additional documents. Ex. C10 is the receipt issued for receipt of Rs. 3,000/- by the taxi driver. Ex. C11 is the certificate issued by the doctor. Ex. C12 is the medical record issued to the complainant. It is alleged by the complainant that she purchased air ticket for travel on 9.3.2000 and that subsequently she cancelled the same as the first opposite party offered confirmed ticket to commence journey on 6.3.2000. The complainant has not filed affidavit of the persons, who issued the above documents. In the absence of any other materials, mere production of the above documents will not advance the case of the complainant in claiming the huge amount of compensation.

IT cannot, however, be disputed that the complainant had undergone mental agony and ordeal in securing flight ticket. Normally, she would have incurred expenditure in securing another ticket. She could not travel on 6.3.2000 as the ticket was not fully confirmed. The complainant sustained mental agony and sufferings due to negligence and deficiency in service on the part of the opposite parties. The learned Counsel for the complainant on this aspect relied on a decision reported in I (1991) CPJ 34 (NC), between Jaidev Prasad Singh v. M/s. Auto Tractor Ltd., wherein it is held that even though the complainant has not produced any materials to prove the exact extent of the loss suffered by him, they are entitled to compensation.

THE opposite party relied upon a decision reported in I (1991) CPJ 75, between Supt., Telegraph, Bikaner v. District Forum and Mohammad Yamin. THE Rajasthan State Commission has held that the complainant has to establish that there was negligence on the part of the opposite party and that as a consequence thereof loss or injury was suffered by him. THE above decisions are not applicable to the facts of this case. THE question whether the complainant is entitled to compensation would depend upon the facts and circumstances of the particular case. It is established in this case that the opposite party issued ticket on the basis of which the complainant could not travel. THE complainant was made to suffer due to negligence of the opposite party. Taking into consideration the peculiar circumstances of the case, the award of Rs. 30,000/- as compensation by the District Forum cannot be said to be vitiated by any grave infirmity. For ordeals undergone by the complainant and for mental agony suffered by the complainant, the award of Rs. 30,000/- would represent just compensation. THErefore, we hold that the complainant is not entitled to a huge amount as claimed in the complaint. We hold that there are no merits in all the appeals. In the result, the three appeals are dismissed. In the circumstances of the case, we direct the parties to bear their respective costs. Appeals dismissed.