M.S.ABDUL SHATHI vs PAKKIR MOHAMMED

THIS appeal is directed against the order dated the 5th day of March, 1997 in C.O.P. No. 22/96 on the file of the District Consumer Disputes Redressal Forum, Tirunelveli.

THE appellant one Mr. M.S. Abdul Shathi, Partner, Aero-World Travels is the opposite party while the respondent Pakkir Mohammed is the complainant. The opposite party, it is said, is a travel agency. The complainant wanted to send her sister''s son one Diwanuli to Saudi Arabia. He approached the opposite party to arrange for his travel from India to Saudi Arabia. The opposite party, it is said, collected Rs. 17,005/- as air ticket fare, Rs. 300/- as airport tax and service charges of Rs. 1,500/- and another sum of Rs. 11,500/- for getting VISA and for endorsements of the VISA. Thus the opposite party collected a total sum of Rs. 30,305/- from the complainant.

The complainant would claim that the employer at Saudi Arabia itself paid the VISA fees and obtained VISA and sent it to the opposite party. Therefore the sum of Rs. 11,500/- collected by the opposite party towards VISA fee is unauthorised collection. Again another sum of Rs. 300/- collected towards airport tax is liable to be refunded to the complainant inasmuch as the complainant''s sister''s son at the time of his travel to Saudi Arabia had paid that fees. Therefore the opposite party had collected excess amount of Rs. 11,800/- from the complainant.

THE complainant demanded the refund of this amount by writing several letters but there was no response from the opposite party. THE complainant claims a compensation of Rs. 5,000/- for the mental agony and anguish he had. The complainant would allege that there is deficiency in service on the part of the opposite party and also unfair trade practice and consequently he would claim a refund of a sum of Rs. 16,800/- from the opposite party. It is for this sort of reliefs he approached the District Forum by way of a complaint.

PROCESS had been issued to the opposite party by the lower Forum and on receipt of process he engaged a Counsel of his choice who filed Vakalat for and on his behalf. The said Counsel prayed for time for filing objections. However, the opposite party did not file any objections though the matter was pending from 17.4.1996 till up to 26.2.1997 for filing counter. On 26.2.1997 no objection or counter filed. The opposite party was also absent and ultimately the Forum below after taking into consideration the averments in the complaint and the documents filed in support of the averments by the complainant passed an order directing the opposite party to pay the complainant a sum of Rs. 11,800/- together with interest @ 12% p.a. from 24.6.1995 and cost of Rs. 500/- within two months from the date of its order. Aggrieved by the order, the opposite party resorted to the present action. On receipt of process in this action the complainant engaged a Counsel of his choice namely learned Counsel Mr. Mohammed Ibrahim Ali. When this matter came up for hearing today, the said learned Counsel is not present. The complainant Pakkir Mohammed is also not present to express his hues of views in this action. The fact that the complainant and his learned Counsel is absent from Court today does not mean that we cannot dispose of the matter on merits of course after hearing the learned Counsel Mr. S. John Sundarlal Suresh, appearing for the appellant and of course after perusal of the records. That is exactly what we have done. Mr. S. John Sundarlal Suresh, learned Counsel for the appellant would submit that the complainant Pakkir Mohammed can on the facts and in the circumstances of the case be ever construed as a consumer availing the services of the opposite party Mr. Abdul Shathi, a travel agency for consideration and therefore it is the complaint as filed by the complainant was not maintainable. He would further submit that though the opposite party did not file any objection on this aspect of the matter in the Forum below, yet, such a question can very well be raised before this Commission inasmuch as the same is a pure question of law. We agree with the learned Counsel on this aspect of the matter and therefore we permit him to raise such a question before us. Even as per the avernments in the complaint, the person went to Saudi Arabia was one Diwanuli, the sister''s son of the complainant. It was only he who paid the charges towards the air ticket fee, airport tax, service charges, VISA charges, etc., as evidenced by Ex. A1 marked on the side of the complainant. Such being the case, the said Diwanuli, alone can be said to have availed of the services of the opposite party travel agency for his travel to Saudi Arabia for consideration. The said Diwanuli is admittedly not the complainant as seen from the records. The complainant is one Pakkir Mohammed as already indicated. In such state of affairs, the complainant cannot at all be called as a consumer falling within the four corners of definition as adumbrated under Section 2(1)(d) of the Consumer Protection Act, 1986. In this view of the matter, there is no other go for us except to accede to the submission of the learned Counsel for the opposite party to hold that the complaint as instituted by the complainant is not maintainable. For the reasons, as above, the appeal deserves to be allowed.

IN fine, the appeal is allowed, the order of the Forum below is set aside. However, we make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.