Kingfisher Airlines vs M. L. Sudheen on 27 February, 2012

Transcription

1 National Consumer Disputes Redressal Kingfisher Airlines vs M. L. Sudheen on 27 February, 2012 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO OF 2007 (From the order dated of the Delhi State Consumer Disputes Redressal Commission, Delhi in Appeal no. 384 of 2007) Kingfisher Airlines Indian Kanoon - 1

2 Kingfisher House Western Express Highway Petitioner Ville Parle (East) Mumbai versus M. L. Sudheen Son of Late M. K. Lakshman 344-E, Mayur Vihar Phase II Respondent Delhi BEFORE: HONBLE MR. ANUPAM DASGUPTA PRESIDING MEMBER HONBLE MR. SURESH CHANDRA MEMBER For the Petitioner Ms. Manika Tripathi Pandey, Advocate Indian Kanoon - 2

3 For the Respondent Mr. Fateh Pal Singh Chhabra, Advocate Pronounced on 27th February 2012 ORDER ANUPAM DASGUPTA This revision petition challenges the order dated of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, the State Commission), by which the State Commission dismissed the appeal filed by the predecessorin-interest (Deccan Air) of the present petitioner with the following observations/ directions: 6. It is common experience that whenever such schemes are floated by the service providers or the traders the gist of the scheme is printed in such a font and in such manner and at such a place that it does not attract attention of the consumer at all because the rosy picture of the schemes is printed in very bold and highly pronounced manner and under the garb of this mischief poor consumers are lured and when they want to avail the service the door is slammed on his face by showing him all insignificant and unclear endorsement that this was for some particular purpose. 7. In our view there cannot be worse kind of making oneself unjustly rich. No service provider can be allowed to forfeit consideration received by it in case consumer has not availed such a service or has not been provided any kind of other service. In both the eventuality service provider has to refund the amount received by it. 8. Moreover, in this case there was no term of contract displayed on the website that in case the consumer does not avail the service then the amount deposited by him shall be non-refundable and if at all there was such term it was highly unconscionable and therefore void and ineffective. Until and unless service provider provides service or the consumer avails the service no amount of consideration can be forfeited by the service provider. 9. Thus from any aspect we may examine this mater the only ineluctable conclusion is that the appellant has indulged in most unfair trade practice and has found a very unscrupulous and uncouth way to cheat the poor consumers under the garb of misleading and misrepresenting advertisement displayed on the website. In our view the District Forum has taken a very conservative view by directing the appellant to refund the amount with compensation of Rs.5000/- only. Indian Kanoon - 3

4 10. In the result we dismiss the appeal with punitive damage of Rs.10,000/- which shall be deposited in the State Consumer Welfare Fund (Legal Aid) because of the audacity of the appellant in resisting such an order which even otherwise was not in the nature of compensating consumer fully and forcing him to approach Consumer Forum. 11. The appellant shall deposit the above cost of Rs.10,000/- in the Delhi State Consumer Welfare Fund (Legal Aid) within one month and the order of the District Forum shall be complied with within one month from the date of receipt of this order. 12. Appeal is disposed of in aforesaid terms. [Emphasis supplied] 2. The respondent here was the complainant before the District Consumer Disputes Redressal Forum VII, New Delhi (in short, the District Forum) and Air Deccan, New Delhi was the opposite party (OP). During the pendency of the revision petition before this Commission, Air Deccan was taken over by Kingfisher Airlines and, accordingly, appropriate change in the array of parties was allowed. 3. The complainants allegation against the OP was that he was lured into purchasing a package of air tickets of Air Deccan for the sum of Rs.50,000/- which entitled him to 26 tickets. The complainant was interested in journeys on Delhi-Bangalore, Mumbai-Bangalore routes but he could not make use of any of these tickets because the OP refused to allow him to travel on the aforesaid routes and did not also refund the amount of Rs.50,000/- paid by him, despite many requests. The complainant, therefore, prayed for refund of Rs.50,000/- as well as Rs.2 lakh as compensation for mental harassment and agony and Rs.20,000/- towards cost of litigation. 4. Before the District Forum, the OP denied the allegations and contended that the package that the complainant had purchased was called Super Flier, providing 26 tickets valid for 12 months for the sum of Rs.50,000/- The web page display of these packages at the relevant point of time (February 2006) clearly mentioned that Value Flier and Super Flier were valid only for travel on ATR Routes/Sectors and advised calling Air Deccan Customer Care number for details. In addition, against each package, showing the price, number of tickets and period of validity, the words View Current Sectors were also recorded. Therefore, there was no question of the complainant purchasing the Super Flier package without being aware of the routes on which these air tickets could be availed of. According to the OP, therefore, it was the mistake committed by the complainant himself if he purchased the Super Flier package while wanting to travel only on the Delhi-Bangalore and Mumbai-Bangalore sectors. Further, the terms and conditions of these Packages/Schemes clearly mentioned that these tickets could not be exchanged or settled in cash or in kind and the entire package was non-refundable. Thus, the OP pleaded that there was no deficiency in service on its part and prayed for dismissal of the complaint. 5. On hearing the parties and perusing the material brought on record, the District Forum allowed the complaint under its order dated by holding as under: Indian Kanoon - 4

5 It is admitted by the OP that the complainant had purchased the package of 30 tickets against the payment of Rs.50,000/-. The OP has also admitted that the complainant has not used any ticket. The complainant had made several requests to the OP to allow him use the package for Delhi-Bangalore, Mumbai-Bangalore. He has sent several s and has made several phone calls from Delhi to the Head Office of the OP at Bangalore. The complainant also went to Bangalore to personally request for refund of the amount but all his requests were declined by the OP on the ground that the sector (sic scheme?) chosen by the complainant had a condition that the complainant can fly under the scheme only on the sectors available under the scheme and also that the refund of the amount was not permissible under the scheme. The OP has failed to adduce evidence that the sectors in which the complainant wishes to fly are not covered under the scheme. Non refund of the amount even when the complainant is not allowed to avail the package for the sectors on which he wanted to fly amounts to unfair trade practice and we hold the OP guilty of unfair trade practice in retaining the money of the complainant. We, therefore, direct the OP to refund to the complainant the amount deposited by him. As the conduct of the OP has caused mental tension and inconvenience to the complainant we direct the OP to pay to the complainant an amount of Rs.5000/- and an amount of Rs.2500/- towards cost of litigation. Copy of the order be supplied to the parties as per rules. OP shall comply with the order within 30 days of receipt of its copy. 6. We have heard Ms. Manika Tripathi Pandey and Mr. Fateh Pal Singh Chhabra, Counsel for the parties and carefully considered the documents produced on record. Among the documentary evidence produced by the OP before the District Forum was a printout of the Air Deccan web page displaying the available Schemes at the relevant point of time and detailing their various terms and conditions. It is useful to reproduce some relevant parts of this document which was not disputed by the complainant before the District Forum: AVAILABLE PACKAGES Package name Price: INR No. of tickets Valid for View Current Sectors Value Flier Plus 48,000/- 12 months View Current Sectors Value Flier 24,000/- -do- View Current Sectors Super Flier Plus 1,00,000/- -do- View Current Sectors Super Flier 50,000/- Indian Kanoon - 5

6 -do- View Current Sectors 1. These packages are for Frequent Fliers for use and may include family members also. 2. Once the details of family members are entered, they cannot be changed under any circumstances. 3. Value Flier and Super Flier are valid only to fly in ATR Routes/Sectors; for further details call Air Deccan Customer Care. 4. Customer Care number: (All India) 5. Tips for effective use of the package (FAQ) Terms and Conditions Super Flier and Value Flier Schemes (Please note that these terms and conditions are valid for all schemes Super Flier, Super Flier Plus, Value Flier and Value Flier Plus) Congratulations for choosing to become a member of our Value Flier or Super Flier Scheme. Now your family and you have the freedom to simplify for one full year from the date of purchase of this package. You have the freedom to fly with your spouse (no more complaints) and even better, you can use these tickets for your children (two). All the while helping you spend more high-quality family time. So fly Air Deccan and enjoy this holiday season with your family. But remember, you should exhaust all these tickets within one year from the date of purchase of the coupon. These tickets cannot be exchanged or settled in cash or kind (please dont request us for any settlement as we will not be able to entertain such requests. With this package, you can fly on any operational Air Deccan Sector (please check the valid sectors for your scheme). So whether it is to fly on business or to explore our magnificent country (we fly to many holiday destinations), the scheme enables you to be there with your family at highly affordable air fares. But there are some things you must keep in mind while registering as also booking the tickets. [Note: Emphasis supplied; there was no highlighting of the said portions in the document itself.] (i) Even a cursory perusal of the extracts of the web page reproduced above would show that for the Super Flier package for which the complainant had purchased the tickets/coupon on line, the endorsement very clearly mentioned, View Current Sectors and Value Flier and Super Flier are valid only to fly in ATR Routes/Sectors. Indian Kanoon - 6

7 (ii) Further, that the cost of the tickets was non-refundable was another explicitly stated condition as was the advice (repeated a second time) to check the sectors valid for the respective Schemes. (iii) Therefore, for the District Forum was not right in holding that the OPs denying the complainant travel on Delhi-Bangalore and Mumbai-Bangalore sectors amounted to unfair trade practice. (iv) However, it is seen from the correspondence exchanged between various Departments of the OP (Air Deccan) during the pendency of the latters appeal before the State Commission that no documentary evidence was produced before the District Forum to show the sectors of travel that were permissible under the Super Flier package in February (v) Therefore, it was a valid observation of the District Forum that the OP failed to produce evidence about the non-admissibility of the sectors that the complainant wished to fly under the said package. However, this was the only (limited) deficiency in service on the part of the OP. The complainant, on his own showing a well educated person very familiar with air travel and booking tickets on line, in all probability committed an inadvertent mistake in buying the Super Flier package without first checking if his preferred sectors of air travel (Delhi Bangalore and Mumbai Bangalore) were permissible under that Scheme. Having bought the tickets on line, he would have also definitely noticed the condition that neither refund nor exchange of the tickets purchased under these saving schemes was permissible. 8. If the District Forum thus erred in holding the OP guilty of unfair trade practice, the State Commission went a step ahead in the same unwarranted direction and, in addition to the award of the District Forum, imposed a punitive cost of Rs.10,000/- on the OP. Clearly, the OP, which was the appellant before the State Commission, could not have been saddled with a higher liability when the complainant was quite happy with the order of the District Forum and did not challenge it before the State Commission in appeal. That apart, as the portions of the State Commissions order emphasised in paragraph 1 above would show, the State Commission, instead of examining the evidence on record, went off at a tangent to base its conclusions on general perceptions of its own. The observations in paragraph 8 of the impugned order were clearly not factually correct. The impugned order of the State Commission is, therefore, totally unsustainable and must be set aside. 9. In conclusion, the revision petition is allowed in part and the orders of the State Commission as well as the award of the District Forum are set aside. However, on consideration of the facts that (a) the respondent/complainant did not actually avail of any travel under the Scheme for which he had paid Rs.50,000/- and (b) the petitioner/op failed to conclusively show before the District Forum that the sectors preferred by the respondent/complainant were not covered under the package that he purchased, we direct the petitioner to refund to the complainant the sum of Rs.50,000/-. The direction, which is based on the special facts and circumstances of this case, may be complied with within 4 weeks but shall not be cited prejudicially to the petitioner in any other similar matter. 10. The revision petition is disposed of in the foregoing terms, leaving the parties to bear their own costs. Indian Kanoon - 7

8 Sd/-... [Anupam Dasgupta] Presiding Member Sd/-. [Suresh Chandra] Member Satish Indian Kanoon - 8