1. M/s Daivik Amrith Konkani Monthly V/S Mrs. Laimole Kokkattukunnel Varkey - Consumer Court Case

Karnataka

Dakshina Kannada

CC/65/2013

Mrs. Laimole Kokkattukunnel Varkey - Complainant(s)

Versus

1. M/s Daivik Amrith Konkani Monthly - Opp.Party(s)

KPAS

20 Apr 2017

ORDER

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Complaint Case No. CC/65/2013

1. Mrs. Laimole Kokkattukunnel Varkey

Aged 43 years, W/o. Mr. Sunney Mathew R/at Chaprathu House, Punnayar Keerithodu Post, Idukki Kerala State.

...........Complainant(s)

Versus

1. 1. M/s Daivik Amrith Konkani Monthly

#504, 3rd Floor Kunil Complex, Bendoorwell Kankanady Mangalore 575002

............Opp.Party(s)

BEFORE:
	HON'BLE MR. Vishweshwara Bhat D PRESIDENT
	HON'BLE MR. T.C.Rajashekar MEMBER

For the Complainant:	KPAS, Advocate
For the Opp. Party:

Dated : 20 Apr 2017

Final Order / Judgement

BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

Dated this the 20^th April 2017

PRESENT

SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT

SRI T.C. RAJASHEKAR : HON’BLE MEMBER

ORDERS IN

C.C.No.65/2013

(Admitted on 1.3.2013)

Mrs. Laimole Kokkattukunnel Varkey,

Aged 43 years, W/o Mr. Sunney Mathew,

Residing at Chaprathu House,

Punnayar Keerithodu Post,

Iddukki, Kerala State.

Represented by her GPA holder,

Mr.Lawrence Michael Lobo,

S/o Mr. Gregory Lobo,

Manal Kodi, J.M. Road, Bajal, Mangalore.

….. COMPLAINANT

(Advocate for the Complainant: Sri KPAS)

VERSUS

M/s Daivik Amrith Konkani Monthly,

#504, 3^rd floor, kunil complex,

Bendoorwell, Kankanady,

Mangalore 575002.

Mr. Sathosh Lobo, Manager,

M/s Daivik Amrith Konkani Monthly,

#504, 3^rd floor, Kunil complex,

Bendoorwell, Kankanady,

Mangalore 575002.

….....OPPOSITE PARTIES

(Advocate for the Opposite Party: Smt. MPN)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay Rs.74,000/ with 18% interest per month towards the amount paid by the complainant, to pay Rs. 1,00,000/ towards compensation, to pay cost Rs. 10,000/ and such other reliefs.

2. In support of the above complaint the complainant Mr. Lawrence Michael Lobo, filed affidavit evidence on behalf of the through GPA as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below. On behalf of the opposite parties Mr. Santhosh Lobo,(RW1) Manager, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R4 as detailed in the annexure here below.

The brief facts of the case are as under:

We perused the complaint and the version. The dispute in nutshell is, the complainant had booked for a holy land trip with the opposite party but the opposite party not conducted the tour and on claiming refund, not refunded the money paid hence alleges deficiency in service. The opposite parties contested the complaint and states that, the complaint not reached in time and hence she could not be taken on tour. Also since they have taken Air tickets and tour arrangements have been made, they are not in position to refund. Because of the complainant reaching late he could not able to join the tour and others have gone on tour as scheduled and returned. The opposite party also disputes the authority on the GPA is being issued. These are being the facts of dispute we are of the view to decide the following.

POINTS FOR ADJUDICATION:

On perusal of the evidence produced and the documents filed, the admitted facts are, the advertisement given for conducting of tour, the booking of the tour, the payment made by the complainants and the complainant not picked up for the tour. The denials are the complainant reached in time as per schedule to join for the tour, the issue of the GPA by the complainant to file the complaint, The complainant denies that the tour has been conducted, the late arrival of the complainant to the airport to join for the tour. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.

Whether the complainant is the consumer under the consumer protection Act 1986?
Whether opposite parties proves that the tour has been conducted, all the arrangements of tickets and visa are made and because of the complainant reaching late the complainant could not able to join the tour?
Whether complainant entitled for the relief prayed for?
What order?

We have considered the facts of the case and the evidence and the documents on record. Heard the party counsels’ submissions and answered the above points as under.

In the affirmative.
In the negative.
In the affirmative.
As per delivered order.

REASON

POINT NO 1: The complainant produced the receipt for payment of Rs 74000/ as EX C 2 which shows the complainant had paid the amount to opposite party No1. The amount received by the opposite parties for taking complainant on the HOLY LAND TOUR is not disputed. Hence there formed a relation of consumer and the service provider between the complainant and the opposite parties, we answered the point no 1 in the affirmative.

POINT NO 2: The complainant alleges that the opposite parties have given advertisement of conducting of the HOLY LAND TOUR package for 74,000/ rupees per person including expenses of air fare from cochin to Israel, transportation, lodging and boarding facility in 3 star hotel along with sightseeing at different places at Israel, Amman, Egypt and the complainant on seeing the advertisement paid Rs 74,000/ and furnished all the details and the documents to the opposite parties as requested by the opposite parties for the purpose of arranging air tickets and Visa. The opposite party not disputed the advertisement of the HOLY LAND TOUR program, the cost of the tour as aforesaid, and the payment made by the complainant. It is also inferred that, as complainant alleged, the required documents for arranging tickets and Visa has been furnished by the complainant, as opposite parties claim that, they have arranged the Air tickets and also Visa but the complainant reached late to the Airport and hence he was left out for the tour. Opposite party also alleges the complainant did not have original pass port at the time of reporting to air port. The specific case of the complainant is that, he had reached the Air port as per schedule three hours before, and the opposite party not conducted the tour at all. They have taken Rs. 74,000/ and not taken the complainant on tour. There is no dispute with regard to the payment made by the complainant. Now it is opposite party’s burden to prove the complainant reached Air port late and missed the tour and they have conducted the tour as per schedule for the remaining persons booked for the tour and hence the point no 2 taken for consideration.

2. The opposite party to prove their claim have produced the EX R 1, EX R 2 and EX R 3. EX R 1 is the bunch of the email correspondences took place before the tour. It shows the correspondence have taken place with regard to payment, tour program, and documents sending. In the email correspondence dated 11.10.2012 at 1:42 pm (identified as R1 (a)) it is informed from the opposite party No 1 to the email id flight ticket is attached please transfer the amount immediately. There was few interrogations in Q no 24 to 27 of the opposite party referring about the emails. From these questions we infer these emails were made to one Fr. Kurian. EXR 2 is the document as it states e Ticket receipt prepared for KOKKATTUKUNNEL VARKEY/LAIMOLE MRS the complainant herein. It contains the departure and arrival timings in different places. The ticket number is mentioned as 9102407636230/31 but it is neither air ticket nor copy of the air ticket but prepared by the opposite parties. EX R 3 is captioned as the VISA NAME LIST (SH 10 COCHIN GROUP). Again it is prepared by the opposite party but does not contain the visa details of any body either the VISA number or specification and duration etc.

3. None of the above documents prove the opposite party conducted the tour and the opposite party has obtained the air ticket or got Visa in the name of the complainant. We are at a loss to understand why the opposite party not produced the copy of the air ticket and the copy of the Visa obtained in the name of the complainant. There was a specific question from the bench asking opposite party whether the opposite party produced copy of the ticket and Visa it was answered in the affirmative. But we do not see any copy of the ticket or Visa. We also not come across any documents showing applying for cancellation of the ticket of the complainant or any documents for payment for the ticket made by the opposite party for the airline authorities. It is noted here in one email correspondence it is stated that the ticket is attached. If it is true the opposite party could have produced the copy of the air ticket by taking printout from the email sent. In this kind of situation we are declined to accept the opposite party contention that they have spent for the complainant for tour program.

4. We have not come across in the file any documents pertaining to show the tour has been conducted for the remaining persons in the group as opposite party claimed, such as payment receipt, tour ticket in Israel Amman or Egypt etc. or any piece of evidence to show that HOLY LAND TOUR had been conducted.

5. The complainant claims he has reached the air port in time. But opposite party contradicts and says he has reached late. The opposite party not produced any record from the airport authorities that such person not issued the boarding pass or not travelled certificate. On considering the above facts we are of the opinion that the opposite party not proved their case as per point No 2 above and there is deficiency in service on the part of the opposite party and hence we answered the point no 2 in the negative.

6. Other facts like power of attorney is not issued by the complainant is not substantiated. Mere allegation will not survive. In respect of non-Joining of Riya Travels and Tours Pvt. ltd is concern we do not see the necessity as there no any record to show the privity of contract or nexus between the complainant and Riya Travels and Tours Pvt ltd. Hence we consider it unnecessary to discuss on the point.

POINT NO 3: From the above findings we conclude the opposite party not proved that they have conducted the tour and they have spent for the tour booking of the complainant for tickets and other arrangements and the complainant reached the airport late and because of complainants default the complainant missed the tour. So we held the opposite parties for the deficiency in service and liable for the complainant. In our view the complainant is entitled for the refund of Rs 74,000/ with an interest of 9% per annum from the date of payment made on 14.10.2012 till the date of payment. The complainant suffered because of the negligence in conducting the tour and the complainant made to travel from Mangalore to Cochin unnecessarily an amount of Rs 30,000/ as compensation and an Rs 8,000/ towards litigation expenses. Hence we answered the point no 3 in the affirmative.

POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following

ORDER

The complaint is allowed. The opposite parties shall pay the complainant an amount of Rs 74,000/ from the date of 14.10.2012 with an interest of 9 % per annum till the date of payment and an amount of Rs 30,000/ towards compensation and Rs 8,000/ towards litigation expenses within 30 days from the date of the copy of this order received.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 9 directly typed by Member, revised and pronounced in the open court on this the 20^th April 2017)

MEMBER PRESIDENT