K. SENTHILRAJAN vs MALAYSIA AIRLINES

-THIS is a complaint under Sec. 17 read with Sec. 12 of the Consumer Protection Act.

THE complainant is a Doctor holding a M.B.B.S. Degree from the University of Madras. He applied for and got admission for the examination in Part I of Foreign Medical Graduate Examinations in Medical Sciences of U.S.A. held in Singapore on the 19th and 20th January of 1993. He approached the third opposite party in the first week of December 1992 to secure to him a confirmed ticket for travel to Singapore on 17th January 1993 and return on 21.1.93. On 29.12.92, the complainant paid to the third opposite party a sum of Rs. 10,200/-for the said purpose. THE third opposite party issued a ticket to the complainant which has been supplied by the second opposite party dated 30.12.92 for flight to Singapore by the first opposite party Malaysia Airlines on 17.1.93 and for return on 21.1.93. THE flight was Madras-Kuala Lampur-Singapore-Kaula Lampur-Madras. THE ticket showed that all the segments were confirmed and marked as O.K. On 17.1.93 when the complainant went to the Airport at Madras for boarding the plane which has to leave at 23.55 hours, he was informed by the first opposite party''s staff mat his ticket was not confirmed and he was only wait listed and there was no seat available. When the complainant expressed his urgency to go to Singapore for the examination to be held on 19th and 20th January, he was advised to purchase an Executive Class Ticket. THE complainant had put to much mental pain and agony. He borrowed money from his friends and purchased a fresh executive class ticket and paid fresh airport tax of Rs. 300/- for travel from Madras-Kuala Lampur-by executive class and thereafter from Kuala lampur-Singapore by economic class. On arrival at Singapore on 18.1.93 he approached the first opposite party''s counter for confirmation for his return flight. He was told that as the ticket was not used for onward journey, it could not be availed of for the return trip. THE complainant, was deeply worried and spent sleepless night. He wrote his examinations on 19.1.93 and 20.1.93 in high tension and pressure as a result of which he failed in the examination held on 19.1.93. On 21.1,93 he approached the first opposite party officer at Singapore and strongly protested against not allowing him to return to India by the same ticket. When he threatened to commit suicide in Singapore, the first opposite party Malaysia Airlines Officials confirmed his flight ticket to Madras on 26.1.93 on his original ticket. THE complainant was forced to stay at Singapore till 26.1.93 making hand to mourn existence. He had to beg and borrow money from persons in Singapore. THE difficulties experienced by the complainant are the direct results of the deficiency of service and negligence on the part of the opposite parties. He has therefore filed this complaint claiming compensation in the sum of Rs. 7,30,000/- on various heads. The first opposite party Malaysia Airlines denied that there was deficiency of service or negligence on its part. It is pointed out that Travel Agents are appointed by the International Air Transport Association shortly known as IATA and this IATA approved Travel Agents get tickets in bulk from the Airlines on credit and sell them to passengers. The Travel Agents are expected to follow Resolution 830 (b) strictly. He should inform the Member Airlines and ensure the availability of the seat. Till the seat is confirmed, the Travel Agent has to keep the passenger in the waiting list. Once the Airlines confirms the availability of the seats the agent will be asked to furnish the ticket number of the particular passenger within the stipulated time which is called as "Ticketing Time Limit". Upon confirmation of the ticket number, within the time, the seat will be confirmed by the Airlines. Once a seat is confirmed, the agent shall enter ''OK'' in the status box of the Ticket Flight Coupon. The Opposite Party shall not enter O.K. in the status box of the ticket unless the seat is confirmed. In the instant case, the opposite parties. 2 & 3 without adopting ticketing procedure, negligently entered ''OK'' in the status box of the Flight Ticket Coupon issued to the complainant. According to the first opposite party, the second opposite party requested the first opposite party for an allotment of a suit in respect of booking of a ticket. As no seat was available the request was kept under ''Priority Waiting List''. It was only on the 5th January 1993, the availability of the seat was confirmed and the second opposite party was asked to confirm ticket No. before 17 hours on 12th January 1993. Since the second opposite party failed to confirm the ticket within the above stipulated time, the first opposite party cancelled the seat. There was no negligence or deficiency of service on the part of the first opposite party. When the complainant came to the Airport on 17.1.93, he was fully informed of the above facts. He was also informed that the only alternative left open to him was to buy a Golden Club Ticket and fly upto Kuala Lampur in 747 flight and thereafter from Kuala Lampur to Singapore by Economy Class in DC 10 Flight, as flight No. 747 was not flying from Kuala Lampur to Singapore. The complainant was also informed that the ticket issued to him was not confirmed his return journey will have some risk. Though the complainant was possessing a faulty ticket, the first opposite party however helped him to return to Madras, on the same ticket in the next available Flight. When the complainant brought a complaint, the first opposite party contacted the opposite parties 2 & 3 and they agreed to refund the sum of Rs. 14,355/- being the fare paid by the complainant for his travel from Madras to Singapore via Kuala Lampur. The opposite parties 2&3 have thus admitted their liability. They have issued cheques but the complainant has refused to receive the same. It is denied that the failure of the complainant examination was the result of negligent attitude or deficiency of service on the part of the opposite parties. It is also pointed out that in his letter dated 31.3.93 the complainant has claimed a sum of Rs. 30,000/- only as damages. The complainant is not entitled to claim any damages against the first opposite party and the claim must fail.

It is contended by the second opposite party that mere is no privity of contract between the complainant and this opposite party and it is not a necessary party. The complainant did not approach the second opposite party directly and did not hire the services of the second opposite party. It is admitted that the second opposite party issued a confirmed ticket authenticated by the words "O.K." for the travel on 17th January 1993 in flight No. H.H. 181/6 upto Kuala Lampur and from Kuala Lampur to Singapore by Flight No. 630 on 18.1.93 and 21.1.93 from Singapore, to Kuala Lampur by flight No. H.H. 606 and to Madras by flight No. H.H. 180. According to the second opposite party, the tickets were confirmed in all sectors and it was the complainant who did not board the plane. The complainant has purposely and deliberately over-stayed at Singapore. The complainant has not suffered any damage and the claim is untenable.

THE third opposite party admits that the complainant approached it for the purchase of air tickets to and from Singapore and this opposite party immediately placed an order with the second opposite party who is the authorised dealer in Malaysia Airlines tickets. It is pointed out that as soon as a customer requests for air tickets, the travel agent makes a booking with the Airlines over phone and the Airlines gives a PNR number if a seat is available in the particular flight on the requested date. THE particulars are then feeded into the, computer and the Airlines PNR number is given to the booking agent. But the Airlines will keep the reservation as such only uptoa specified period, before which, the ticket should be purchased by the passenger from the agent and the ticket number should also be furnished to the Airlines so that they could feed it back into the computer and confirm the reservation. In this case, the second opposite party made a booking with the first opposite party, and the first opposite party made a booking and informed the second opposite party of the PNR number. THE second opposite party issued a ticket with a confirmed status, but failed thereafter to inform the issue of the ticket to the first opposite party and get the booking confirmed. As the second opposite party did not inform the first opposite party of the issue of the ticket, within the time limit prescribed for confirmation, the first opposite party automatically cancelled the booking and this resulted in the complainant being placed in the waiting list. It is also averred that the complainant never contacted the 1st opposite party on arrival at Madras Airport or at any time before 21.1.93. THE allegation of the complainant attributing his failure in the examination to the stress alleged to have been caused on his mind, is stoutly denied. It was only on account of the mistake committed by the second opposite party that the booking of the complainant could not be confirmed and not on account of any greed or unfair trade practice on the part of any of the opposite parties. On receipt of complaint from the complainant, this opposite party took up the matter with the second opposite party and wrote a letter dated 26.2.93 impressing upon the second opposite party that it is the duty of the second opposite party to reimburse the extra expenditure of Rs. 19,105/- incurred by the complainant on or before 6.3.93. THE opposite parties 2 & 3 agreed to shares the 1st opposite party the complainant but the complainant refused to accept the same, and returned the cheques. At any rate the mistake committed was that of the second opposite party and there was no deficiency of service on the part of this opposite party. Exhs. A1 to A14 and B1 to B18 are marked by consent Proof affidavits are filed by the complainant and on behalf of the opposite parties 1 to 3. No oral evidence has been let in.

THE points that arise for determination are: (1) Whether mere has been any deficiency of service or negligence on the part of the opposite parties or any of them? (2) Whether the complainant is a consumer as regards the second opposite party and the complaint is maintainable? (3) Whether the second opposite party is the agent of the first opposite party and whether the first opposite party is liable for deficiency of service or negligence, if any, of the second opposite party? (4) To what compensation, if any, is the complainant entitled?

Point No. 1 : The complainant has got admission to sit for Part-I of Foreign Medical Graduate Examinations in Medical Sciences of U.S.A., held in Singapore on 19th and 20th of January 1993. He has approached the second opposite party Madras in December 1992 to secure him an Air Ticket for travel to Singapore on 17th January and for return on 21st January 1993. He has paid a sum of Rs. 10,200/- under Exh. A6 receipt issued by the third opposite party. In course of time, the complainant received an Air ticket of 1st opposite party Malaysia Airlines under the original of Exh. A7 issued by the second opposite party. It was for travel on 17.1.93 from Madras to Kuala Lampur by Flight No. MH. 181/6 from Kuala Lampur to Singapore on 18.1.93 by Flight No. 630 from Singapore back to Kuala Lamphur on 21.1.93 by Flight No. MH. 606 and from Kuala Lampur to Madras on 21.1.93 by Flight No. MH. 180. All these four segments have been authenticated by the words ''O.K.''. When the complainant went to the Airport at Madras on 17.1.93 he was informed by the Authorities of the first opposite party that his name was only in the waiting list and there was no seat available. He was informed that the only way for him was to buy a fresh Executive Class ticket to travel from Madras to Kuala Lampur by Executive Class and from Kuala Lampur to Madras in another Flight by economic class. The complainant has borrowed from his friends and purchased a ticket for Rs. 12,769/- and paid an additional airport tax of Rs, 300/-. According to him, he was not allowed to use the original ticket for his return journey on 21.1.93 on the ground that it had not been used for onward journey. Only after the complainant raised serious-objections and threatened to commit suicide he was allowed by the first opposite party to use the same ticket and fly to Madras on 26.1.93. According to the Complainant, there was deficiency of service and negligence on the part of the opposite parties 1 to 3. He attributed his failure, in the examination tb the mental stress and strain experienced on account of the negligence of the opposite parties. He had also also overstayed at Singapore by begging and borrwing from others. Hence this complaint claiming compensation in the sum of Rs. 7,30,000/-. The first opposite party is the Malaysia Airlines. The second opposite party an IATA approved Travel Agent authorised to sell Air tickets of Malaysia Airlines. The third opposite party also claims to be an IATA approved agent but it is not dealing in tickets of Malaysia. Airlines. When the complainant approached the third opposite party for purchasing ticket for his travel to Singapore on 17.1.93 and his return on 21.1.93, the third opposite party has approached the second opposite party which has issued Exh. A7 ticket. In Exh. A7 ticket all the 4 segments namely Madras to Kuala Lampur on 17.1.93, Kuala Lampur to Singapore on 18.1.93, Singapore to Kuala Lampur on 21.1.93 and Kuala Lampur to Madras on 21,1.93 have been given ''O.K. status. When the complainant went to Madras Airport on 17.1.93 he was told that the ticket was not confirmed and his name was only in the waiting list and there was no seat available. The complainant was forced to buy a fresh Executive Class Ticket to travel from Madras to Kuala Lampur in the executive class and from Kuala Lampur to Singapore in the economy class. The procedure for a travel agent issuing ticket is as follows: The agent booking a ticket should inform the IATA Member Airlines and ensure the availability of the seat. Till the seat is confirmed the travel agent is to keep ticket in the waiting list. Once the Airlines confirms the availability of the seat, the agent will have to issue the ticket with ''O.K.'' status and inform the Airlines the ticket number of the passenger within the stipulated time which is called ticketing time limit. Upon receipt of this confirmation, the Airlines will confirm the ticket. In the instant case, the second opposite party has failed to follow the procedure. He has issued the ticket with entry ''O.K.'' status in all the said segments. Exh.B1 passenger name record shows that the second opposite party has requested the first opposite party for allotment of seat in respect of the booking by the complainant. At that time there was no seat available and the request was kept under the priority waiting list. It was only on 5.1.93, the seat became available and the first opposite party informed the second opposite party about the availability of the seat and asked the second opposite party to confirm the ticket number within the stipulated time at 17 hours on 12.1.93. The second opposite party has failed to confirm the ticket number within the stipulated time and consequently the first opposite party Airlines has cancelled the seat This case of the first opposite party is fairly conceded by the third opposite party in its counter. The second opposite, party has not chosen to rebut these facts, either in the counter or in the proof affidavit filed by S. Ramakrishnan, Manager of the second opposite party. These circumstances would clearly show that there was no negligence on the part of the first opposite party and the entire default was that of the second opposite party. The third opposite party is the travel agent who has been approached by the complainant and to whom the fare has been paid by the complainant and the duty is cash upon the third opposite party to see that the complainant''s ticket got confirmation. It has failed in that duty, and is therefore guilty on deficiency of service and negligence. It may be pointed out that the opposite parties 2 & 3, have accepted their liability to pay Rs. 14,355/- to the complainant in equal amounts and have issued cheques which have been refused by the complainant. We find that opposite parties 2 & 3 are guilty of deficiency of service and negligence.

POINT No. 2 : The second opposite party has raised the contention that there was no privity of contract between him and the complainant and that the complainant did not approach the second opposite party directly and therefore the complainant is not a consumer as regards the second opposite party. The contention has no substance. The second opposite party is an IATA approved travel agent which issued air tickets of Malaysia Airlines. The second opposite party has therefore been approached for the issue of an air ticket to Singapore by the complainant through the third opposite party. The Travel Agent as per IATA Rules gets a commission of 9% of the fare from the Airlines. This is the consideration that the travel agent gets for its services. The complainant has hired or availed of the services of the second opposite party through the third opposite party for consideration and therefore the complainant is undoubtedly a consumer as regards the second opposite party within the meaning of Sec. 2(1)(d)(ii) of the Consumer Protection Act.

POINT No. 3 : It is strenuously contended by the Learned Counsel for the first opposite party that the second opposite party Travel Agent is appointed, by the International Air Transport Association and not by itself and hence the second opposite party is not the agent of the first opposite party and the first opposite party has no vicarious liability for the negligence of the second opposite party. The International Air Transport Association is an organisation of most of the International Airlines shortly known as IATA the Travel Agents Handbook issued by IATA is produced before us and it is seen therefrom that any person or organisation wishing to seek IATA approval to promote and sell international air passenger transportation for remuneration by Members may do so by submitting an Agency Application which is the form of answers to a questionnaire. The answers should be submitted to the Secretary of the (AIP) Agency Investigation Panel of IATA and after verification the travel agent will be granted approval as an IATA approved agent entitled to represent Member Airlines. This booklet also provides for appointing Agents by Member Airlines. Under Resolution 800 E at page 39 of the Handbook, a Member Airlines may appoint an agent. (i) Either by depositing with the Agency Administrator a statement of genera concurrence for the appointment of all Approved Agents. (ii) Or by delivering to such Agent a Certificate of Appointment in the form prescribed by the Conference, a copy of which shall be simultaneously transmitted by the Member to the Agency Administrator,

It follows that IATA approved agent become the agent of the Member Airlines when the .Member Airlines gives a general concurrence for the appointment of all approved agents as their agent or by delivering to any particular agent a certificate of appointment in the prescribed form. Only then particular travel agent will be entitled to get the air tickets of the particular Member Airlines, sell the same and get commission at 9%. It is obvious therefore that the first opposite party Malaysia Airlines has recognised the second Opposite party IATA approved agent as its agent by following one of the above two procedures and consequently the first opposite party has handed over to the second opposite party its tickets in bulk and the second opposite party sells the tickets to passengers. It is no longer open to the first opposite party to repudiate the relationship of principal and agent between it and the second opposite party. Assuming without admitting that the opposite party is only an IATA approved agent and has not been recognised by the first opposite party as its agent, the question is whether a contract of agency has come into existence between the complainant and the second opposite party. Under Sec. 186 of the Indian Contract Act the authority of an agent may be expressed or employed. In the absence of express appointment the relationship of agency can be inferred from the situation of the respective parties, the circumstances of the particular case, the conduct of the principal, the usage or dealings on the matter, as pointed out by this Commission in Dr. (Mrs.) LALITHA KUMAR v. BRITISH AIRWAYS, (O.P. 192/91 Dated 18.3.92). It is an admitted fact that the second opposite party is a travel agent selling tickets for the first opposite party Malaysia Airlines and receives a commission at 9% from the first opposite party. It is therefore clear from the facts and circumstances of the case, that the second opposite party is the agent of the first opposite party for the sale of its ticket and is vicariously liable for the deficiency of service and negligence on the part of the opposite party. Point No. 4 : Because of the deficiency of service and negligence stated above, the complainant could not use Exh.A7 ticket purchased by him for his travel from Madras to Singapore via Kuala Lampur on 17.1.93. He had to purchase fresh ticket and pay a fresh airport tax. He is entitled to claim this amount of Rs. 14,040/- + Rs. 300/- i.e. Rs. 14,340/-. The complainant had also to overstay in Singapore. According to the original ticket, he was to leave on 21.1.93. Since the original ticket had not been availed of for onward journey, the first opposite party has refused to allow him to travel by that ticket. But subsequently it has allowed him to use the ticket and travel to Madras on 26.1.93. The complainant has thus been forced to stay at Singapore from 21.1.93 till 26.1.93. Boarding and lodging expenses for 5 days i.e. from 21.1.93 to 25.1.93, he is entitled to claim from the opposite party. Exh. A11 is the lodging bill for his stay at Singapore. For the boarding charges from 18.1.93 to 26.1.93 i.e. for 8 days and the charge comes to 260 Singapore Dollars. For 5 days it will come to 150 Singapore dollars equivalent to Rs. 2944.50. The complainant would have certainly spent 15 Singapore Dollars per day for food and that will come to 75 Dollars equivalent to Rs. 1472.25. The total sum in Indian Currency for boarding and lodging will come to Rs. 4416.75.

The main claim of the complainant is that because of the stress and strain experienced by him at the time of his departure from Madras on 17.1.93 and because of mental agony suffered by him immediately on arrival at Singapore on 18.1.93, when went to the first opposite party''s counter for confirming a return flight ticket on 21.1.93 he could not write his examination in a normal frame of mind and that was the reason for his failure in the examination. On a question of fact, it may be pointed out that the averment in the complaint that on arrival at Singapore on 18.1.93 he went to the first, opposite party''s counter to confirm his return flight and he was informed that he could not get the confirmation is not true. In his notice, under Exh. B11 he has categorically admitted that he went to Malaysia Airlines only on the afternoon of 20.1.93 after his examinations were over. We are unable to accept his claim that the pain and agony that he suffered at Madras at the time of his departure was the direct cause of his failure in the examinations. This is speculative and too remote to be considered for awarding damages. The complainant will not be entitled to claim any amount on this score. Infact, in his notice under Exh. B11 he did not make any such allegation. No doubt, the complainant must have been put to much mental pain and agony both at the time of the departure and later at Singapore on 21.1.93 for which we are inclined to grant a sum of Rs. 25,000/- as compensation. The claim of Rs. 5,00,000/- on this. ground is excessive, exhorbitant and arbitrary. We may again point out that in the notice under Exh. B11 he has claimed a total sum of Rs. 30,000/- only. It is only at the time of the filing of this complaint, the claim has been floated to over 7 lakhs evidently taking advantage of the beneficent provisions of the Act.

IN the result, we order as follows: (1) The opposite parties 1 to 3 shall pay to the complainant a sum of Rs. 14,340/-being the ticket fare for the fresh ticket taken by the complainant and for payment of airport tax for the second time with interest at 18% p.a. from the date of complaint till payment. (2) The opposite parties shall also pay a sum of Rs. 4416.75 to the complainant for the boarding and lodging incurred by him on his overstay at Singapore with interest at 18% from the date, of the complaint till payment. (3) The opposite parties shall also pay to the complainant a sum of Rs. 25,000/-as compensation. (4) The other claims of the complainant are negatived. (5) The opposite parties shall also pay a sum of Rs. 3,000/- to the complainants towards costs.

Complaint allowed.