N. MOHAMED BABU vs AIR INDIA

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

THE complainant who is a business man purchased a, ticket from the second Opposite Party Travelling Agent through the third Opposite Party for his travel from Madras to Kuala Lampur on 30.5.92 and for return on 2.6.92 by the first Opposite Party Air India Flight. On 30.5.92 at about 9.40 a.m. his wife was delivered of a child but because of his business commitments, he could not stay with her. He assured his wife that he would return on the second June 1992 and left for Kuala Lampur on 30.5.92 as scheduled. On 2.6.92 when he went to the Airport at Kuala Lampur for his return flight it was found that the Air India ticket for the return journey had been booked for 2.5.92 instead of 2.6.92. He could not therefore travel by Air India Flight from Kuala Lampur to Madras on 2.6.92. As he was to return from Madras immediately he took a ticket for flight by Singapore Airlines from Kuala Lampur-Singapore-Colombo-Trivandrum from where he returned to Madras by taxi. Alleging deficiency in service, he has filed this complaint. His claim is for the refund of the additional expenditure for his flight from Kuala Lampur-Singapor-Colombo-Trinvandrum at Rs. 10,934/- expenses at Kuala Lampur at Rs. 20,000/-, Rs. 1,00,000/- towards mental agony and Rs. 4,500/- being the unused return ticket fare and Rs. 5,000/- towards expenditure incurred for travelling from Trivandrum to Madras by car. The fourth Opposite Party was subsequently impleaded but no relief is claimed against it. The third Opposite Party through whom the ticket was purchased from the second Opposite Party has been exonerated.

The first Opposite Party Air India contended that though the ticket mentioned the date of return flight as 2.5.92 it was treated as 2.6.92 but the complainant was on the waiting list on that day. His ticket was not confirmed and he could not, therefore, travel on that day by Air India. There was no deficiency in service on the part of this Opposite Party. The mistake was that of the second Opposite Party in booking the ticket as a confirmed one.

THE second Opposite Party contended that the complainant did not approach this Opposite Party through the third opposite party that the second Opposite Party had not rendered any service to the complainant for any consideration and the complainant is not a consumer and he is not entitled to maintain this complaint against the second Opposite Party. THE mistake in the ticket with regard to the date of departure from Kuala Lampur is admitted. But it is averred that there was a duty and obligation on the part of the complainant to check the details contained in the tickets. He was careless. THEre was no deficiency in service. Exh. A1 to A10 and BI to B3 are marked by consent. Proof affidavits are filed. No oral evidence has been let in.

THE points that arise for determination are: (1) Whether the complainant is a consumer as regards the second Opposite Party and the claim is maintainable against the second Opposite Party? (2) Whether there has been any deficiency in service on the part of the Opposite Parties 1 or 2 and to what relief, if any, is the complainant entitled?

Point No. 1 & 2: The complainant has purchased an Air ticket from the second Opposite Party Travelling Agent through the third Opposite Party for his flight from Madras to Kuala Lampur on 30.5.92 and for return on 2.6.92. Exh. A2 is the ticket issued by the second Opposite Party. It is contended by the second Opposite Party that the complainant approached only through the third Opposite Party and the second Opposite Party did not receive any charges from the complainant for issuing the ticket and hence the complainant is not a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act. This contention is unacceptable. Every Travelling Agent who issues air ticket receives a commission from the Air Company at a certain percentage of the fair and that is the consideration for the issue of the ticket to the passenger. The complainant is, therefore, a consumer qua the second Opposite Party who has issued the ticket and is entitled to maintain this complaint for alleged deficiency in service. Exh. A2 is the Air India ticket issued by the second opposite party for the travel of the complainant from Madras to Kuala Lampur on 30.5.92 and for the return flight on 2.6.92 but by mistake the date of return flight is mentioned as 2.5.92 instead of 2.6.92. This is an obvious typographical error and this is admitted by the second Opposite Party. The contention of the second Opposite Party that the complainant must have verified the ticket and the complainant has defaulted in doing so comes with illgrace. It is the primary duty and the responsibility of the second Opposite Party who issued the ticket to verify and issue the ticket correctly which it has not done. There has, therefore, been serious default on the part of the second opposite party in issuing Exh. A2 ticket.

THE mistake has been found out by the complainant when be went to the Airport at Kuala Lampur on 2.6.92 for his return flight. But according to Air India the first Opposite Party he was not allowed, to fly on that day not because of the mistake in the ticket, the date of return flight was taken as 2.6.92 and not mentioned as 2.5.92 but his name was only in the waiting list on 2.6.92 and the second Opposite Party has issued a confirmed ticket without getting confirmation from the first Opposite Party. Exh. B1 is the passenger chart and it shows that on 2.6.92 this passenger was in the waiting list shown HL3. THE second opposite party has thus issued a confirmed ticket without verification with the Air India office. THE first Opposite Party cannot, therefore, be accused of any deficiency in service; it is the second Opposite Party who has committed deficiency in service not only in mentioning wrong date of return flight in the ticket but also in issuing it as a confirmed one. THE liability rests entirely upon the second Opposite Party.

NOW to the question of compensation. As the complainant could not fly to Madras direct from Kuala Lampur by Air India he has taken a circuitous route and booked a ticket through Singapore Air Lines from Kuala Lampur-Singapore-Colombo-Trivandrum. Exh. A3 is the ticket from Kualalampur-Singapore-Colombo and the fair is 1075 MD. Exh. A4 is the ticket of Singapore Airlines for the complainant''s flight from Colombo-Trivandrum and the fare is 124 MD. The complainant has thus spent an extra amount 1199 MD. The present exchange rate is Rs. 13 per M.D. but the complainant has claimed only at Rs. 10/- and he is entitled to recover the sum of the Rs. 11,990/- from the second Opposite Party. The complainant has claimed refund of Rs. 4,500/- being the fare for the return flight from Kaula Lampur to Madras under original Exh. A2 ticket. This claim is unsustainable. The complainant can claim either the return fare or the additional fare incurred by him for his flight by different route. He cannot claim both the fares which would mean that he is entitled to travel back from Kuala Lampur to Madras free. This claim is, therefore, rejected.

The complainant has claimed a sum of Rs. 20,000/- as room rent and incidental expenses incurred for overstay at Kuala Lampur. It is fairly considered by the learned Counsel for the complainant that he is unable to produce any voucher therefor, this claim is untenable.

THE claim for Rs. 5,000/- as taxi charges from Trivandrum to Madras which is not substantiated by any voucher and this claim cannot also be allowed. The complainant has also claimed Rs. 1,00,000/- for mental pain and agony. As already pointed out the complainant''s wife was delivered of a child on 30.5.92 when the complainant left for Malaysia. On account of his business commitments, he could not stay with his wife. He has promised to return to India on 2.6.92. His return was delayed because of the deficiency in service on the part of the second Opposite Party. The complainant must certainly have been put to much mental pain and agony. However the claim for compensation at Rs. 1,00,000/- is exhorbitant and fanciful. We are inclined to award a sum of Rs. 5,000/- as compensation.

IN the result, we order as follows: 1. The second Opposite Party shall pay to the complainant Rs. 11,990/- with interest thereon at 18% p.a. from 4.6.92 when he arrived at Trivandrum till payment. 2. The second opposite party shall also pay compensation in the sum of Rs. 5,000/- to the complainant. 3. The second Opposite Party shall also pay costs of Rs. 2,000/- to the complainant. 4. All these payments must be made within one month from the date of the order. 5. The complaint fails and is dismissed as against the Opposite Parties 1, 3, and 4 but without costs.

Complaint Allowed.