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Overseas Air Travels & Operators v/s K.K. Raju & Others

    Appeal No. 128 of 1999

    Decided On, 06 March 2000

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Appellant: M/s. K.M. Anilkumar, S. Reena & K.O., Advocates. For the Respondents: R1, S. Reghukumar, Alex Thomas, K.G. Alexander, R2, V.S. Bhasurendran Nair, M. Kesawan Kutty Nair, R3, V.K. Mohankumar, Advocates.

Judgment Text

L. Manoharan, President:

1. The second opposite party in O.P. 522/98 on the file of the Consumer Disputes Redressal Forum, Kollam is the appellant. Complainant alleged before the District Forum that he approached the 3rd opposite party for arranging four Air Tickets for the journey of himself and his family from Bangalore to Kochi on 24.5.1998. The 3rd opposite party agreed to arrange it through the second opposite party and received Rs. 7,800/- the ticket charges alongwith the service charges. Four air tickets with O.K. Status were handed over to the complainant which was iss

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ed by the second opposite party and the complainant received it through the 3rd opposite party. The grievance of the complainant is that though he reached the Bangalore Airport at 9.30 a.m. on 24.5.1998, he was told that he is only in the waiting list. Since he was holding an OK ticket, he enquired of the same and at the behest of the first opposite party, the complainant and his family were given preference among the wait-listed persons and after two hours of tireless endeavour he and his family could clear the seat; he alleged that he had to undergo mental agony for which he sought compensation. The first opposite party contended it is not liable for the claim though the second opposite party was its agent and had issued ticket, he had to feed the ticket number into computer system on or before 19.5.1998, but 18 hours he did not comply and allowed automatic cancellation. He then made second booking for 22.5.1998. The second opposite party on the other hand sought to support the OK ticket pleading that the same was issued as confirmed by the first opposite party. The 3rd opposite party wanted to exclude himself from the liability, pleading that all that he has done being to collect the ticket from the second opposite party and hand it over to the complainant. Complainant gave evidence as P.W. 1, on behalf of the opposite party D.W. 1 was examined, complainant produced Exbts. P1 to P6. On a consideration of the said material the District Forum made a direction to the opposite parties 2 and 3 to pay the complainant, Rs. 4,000/- as compensation and also Rs. 1,000/- as costs. Aggrieved by the said direction now the second opposite party has come up in appeal.2. Learned Counsel for the appellant relying on the decision of the Supreme Court in Marine Container Services South Pvt. Ltd. v. Go Go Garments, AIR 1999 SC 80, maintained that himself being the agent is entitled to the protection under Section 215 of Indian Contract Act and the provisions thereof is applicable in a matter that arises under the Consumer Protection Act also. Therefore, according to the learned Counsel the order against him cannot be sustained. The material before the District Forum was such that the District Forum accepted the case of the first opposite party to the effect that the second opposite party, the agent since did not secure the confirmation by feeding the tickets 18 hours before 19.5.1998 the booking came to be cancelled and the same was because of the default of the second opposite party. This was sought to be supported by the conduct of the second opposite party in making a fresh booking for 22.5.1998. Having regard to the aforesaid circumstance as is found by the District Forum on the materials before it, it has to be seen as to whether even though the second opposite party is entitled to avail the benefit under Section 230 of the Indian Contract Act whether he could be totally absolved from the liability of his being guilty of negligence. Section 212 of the Indian Contract Act enjoins that an agent is bound to conduct the business of agency with as much skill as is generally possessed by persons engaged in similar business and he has to act with reasonable delegence and skill. It further provides that the agent is bound to make compensation to the principal in respect of the direct consequence of his own neglect, want of skill or misconduct. Thus though the appellant may be entitled to the benefit under Section 215 of the Contract Act, since it is demonstrated that he was negligent in discharging his duty as agent, he is bound to compensate the principal as per Section 215 of the Contract Act. The Counsel for the 3rd opposite party also urged, since he has only collected the ticket and handed over it to the complainant, he could not have been made liable.3. It should be noted that the District Forum has made a direction jointly and severally making opposite parties 2 and 3 liable for the compensation. In such circumstances a total reversal of the decree against the 3rd opposite party, in the circumstance may not be possible as he has not filed appeal and challenged that portion of the decree which made him liable. In the aforesaid circumstance we are of the view that the direction made by the District Forum has to be modified and direction shall be to the effect that the first opposite party shall pay to the complainant Rs. 4,000/- as compensation and also the costs awarded by the District Forum; but the first opposite party shall be entitled to be reimbursed by opposite parties 2 and 3 of the said amount. This is so because when it is found that interference of the decree of the District Forum is necessary, the Commission in the circumstance has to make direction so as to settle mutual right and obligations between the parties according to the justice equity and good conscience. Here the relief prayed for is against all the opposite parties. Thus the appeal has to be allowed in part.4. In the result the appeal is allowed in part, the direction made by the District Forum is modified and the 1st opposite party is directed to pay Rs. 4,000/- as compensation and Rs. 1,000/- as costs to the complainant; the first opposite party shall be entitled to be reimbursed and indemnified by opposite parties 2 and 3 for the said amount. In this appeal there will be no order as to costs.

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