This case has been U/s.12 of the Consumer Protection Act, 1986 filed by the complainant to the effect that he availed a Shimla-Manali with Kinnor Tour package scheduled for 14 days i.e from 13.10.2018 to 26.10.2018 from the opposite party for a total sum of Rs. 38,500/- only and on 6.5.2018 he paid Rs. 7,500/- only as advance and on 4.10.2018 he paid Rs. 31,000/- only. Thus, in total an amount of Rs. 38,500/- only for two adults and a child has been paid by the complainant and the opposite party received the same and as per the printed itinerary of a single page handed over by the opposite party to the complainant. The following fixture was promised and to be provided:-
“13.10.2018 – Assemble at Howrah Station to go Chandigarh on 19:40 p.m. avail train fooding in train is their own cost.
14.10.2018 - In train. Fooding in train in their own cost.
15.10.2018 - Arrival at Chandigarh on 3:00 A.M. Then start to go Manali Night Stay at Manali.
16.10.2018 - At 6:00 A.M. start from hostel to go Rohtang Pass and Solang Valley, (If their vehicle is allowed to go Rohtang Pass and Solang Valley. If their vehicle is allowed to go Rohtang Pass it is all right, if does not allow our vehicle through by union, so you have to pay extra cost to go Rohtang Pass) in the evening free for your own activities. Night stay at Manali.
17.10.2018 - After breakfast visit Hidimba Temple, Vashisht Ashram etc…. After lunch start from Manali to go Bhuntar. Night Stay Bhuntar.
18.10.2018 - After 8 a.m. breakfast visit Manikaran. After lunch start from Bhuntar to go Shoja. Night stay Shoja.
19.10.2018 - After breakfast start from Shoja via Jolori pass to go Sarahan. Night stay at Sarahan.
20.10.2018 - Early in the morning visit Bhimkali Temple. After lunch start from Sarahan to go Kalpa. Night stay at Kalpa.
21.10.2018 - After breakfast visit Kalpa sight seen. After lunch start from Kalpa to go Sangla. Night stay at Rakchem.
22.10.2018 - After Breakfast visit Chitkul. Night stay at Rakchem.
23.10.2018 - At 6:00 A.m. start from Rakchem to go Shimla. Night stay at Shimla.
24.10.2018 - Avail Toy Train from Shimla station on 14:25 p.m. (52458 SHM KLK PASS) On 17:40 (52452 SHIVALIK DLI EXP) then avail train on 23:55 p.m.(12312 KALKA MAIL) from Kalka Station. Dinner will be provided from their side.
25.10.2018 - Running in train. (Fooding in train in own cost).
26.10.2018 - Arrival at Bardhaman station on 06:28 a.m./ Howrah station on 07:55 a.m.”
The complainant also states that a proper comfortable vehicle and proper food would be made available to the complainant and the other touring members as per promise of opposite party, but some touring members which included the complainant and his family members were made to stand and sit in the floor of the vehicle and Rotang pass closed on Tuesday. Opposite party fixed 16.1.2018 i.e. Tuesday for visit at Rotang pass and on that day the complainant had to take lunch outside at his own cost, no food was provided to them as promised and the tour members were supposed to reach Bhuntar on 17.10.2018 and stay there at night, but in reality they reached Bhuntar at 12:30 a.m. or 1 a.m. on 18.10.2018 and they were not provided with food by the opposite party and all along the tour the tour members did not reach their destination on the schedule time and they were not provided with proper food.
The complainant also states that as per tour itinerary the tour members were to board Kalka Mail from Kalka Station for return journey to Burdwan or Howrah Station but there was no reservation provided to them from Kalka to Chandigarh and they were made to board general compartment from Kalka to Chandigarh with their entire luggage and at Chandigarh station they were made to alter from the general compartment and taken to another reserved compartment and the complainant sent a notice dt. 5.11.2018 to the opposite party stating therein about the harassment he faced during the tour and for refund or compensation of Rs. 38,500/ only, but there was no reply from the side of the opposite party and having no other alternative he served a demand notice dt. 19.12.2018 through his Advocate to the opposite party and the said notice was sent through speed post with A/D on 19.12.2018 and the opposite party received the said notice on 20.12.2018 and the cause of action arose on 5.11.2018, 19.12.2018, 20.12.2018 and is still continuing with the limit of Chinsurah Police Station and under the jurisdiction of this Forum.
Complainant filed the complaint petition praying for direction upon the opposite party to pay a sum of Rs.38,500/- and to pay a sum of Rs. 5,00,000/- for compensation and to pay a sum of Rs. 30,000/- as litigation cost and to pay the cost of the case and to pass any other order may deem fit and proper in law and in equity by the Forum.
The opposite party contested the case by filing written version denying inter-alia all the material allegations as leveled against him. The opposite party submits that due to natural causes and act of God that had occurred on that spot during relevant tour period, there was a slight alteration in the schedule which was in the nature of rescheduling the visit of certain places by a day and the rescheduling and shuffling was just to ensure smooth travel, safety and security of the passengers and not for any personal gain of opposite party and the provision for such food packets were made exclusively for contingent situation where the agency of the opposite party experienced. Circumstances where the provision of food by the agency staff is in no manner possible or feasible which was the case during that day and the agent of the opposite party who had accompanied the complainant during the said tour had purchased and provided the aforesaid travelling tickets from Kalka to Chandigarh to the complainant which are currently in their possession and after receiving the notice dt. 5.11.2018 the opposite party contacted the complainant over telephone but could not provide a reply to the same due to extreme ill health and after ensuing medical arrangment and the occurrence of which was informed by the opposite party to the complainant, but the complainant without considering and understanding the practicalities and the ground of realities of the same has baselessly raised allegations against the opposite party for which he owes no liability and on receipt of the demand notice of Advocate, the opposite party through his Advocate sent a letter to the complainant through speed post with A/D in reply to the same bearing dt. 25.1.2019 and the opposite party in spite of providing all comforts to the complainant became shocked to receive the summons of this case against him and feels that it is a possible revenge that the complainant is taking against the opposite party as he did not pay heed to his (complainant) acute bargain since beginning and it is clear that the complainant is of notorious nature and character as he is asking return of the whole money, after finishing the tour which has been utterly and categorically used for the purpose of ensuring a smooth tour and that too after a delay of about ten days after returning back from the trip.
Issues/points for consideration
- Whether the complainant is the consumer of the opposite party or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to get relief as prayed for?
Be it mentioned that to prove his case complainant filed affidavit in chief. But opposite party did not file any affidavit in chief whatsoever in support of his defence agitated by him in his W/V. Complainant also filed BNA but on behalf of the opposite party no BNA has been filed.
DECISIONS WITH REASONS
All the points are taken together for easiness of the discussions of this case.
- In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite party.
- Both the complainant and the opposite party are residents of Dist. Hooghly having their residential address and official address within the district of Hooghly. The claim of compensation including other claims are within the ambit of Rs. 20,00,000/- and thus, this Forum is of the view that this Forum has territorial and pecuniary jurisdiction to try this case.
- In support of his claim the complainant files copy of itinerary in respect of concerned tour announced by the opposite party. That apart complainant file copy of bill issued by the opposite party in respect of the concerned tour showing the names of travelers being complainant and his family members. Complainant also showed the letter dt. 5.11.2018 written by him address to opposite party. That apart complainant filed copies of IRCTCs e-Ticketing service, copy of postal receipt, copy of legal notice to opposite party etc.
Going through the contents of the complaint coupled with the copies of documents mentioned above on behalf of the complainant and also touching upon the contents of the W/V filed by the opposite party and also keeping in view the contents of BNA of the complainant this Forum finds sufficient merit in the allegations made by the complainant. Not only that the allegations in complaint of the complainant are being corroborated sufficiently by the documentary evidence adduced by the complainant. Obviously, the acts/omissions, behavior, attitude and whims whatsoever of the opposite party certainly made the dream of the complainant and his family members turning into a nightmare.
All this acts and deeds on the part of opposite certainly created deficiency in service, but which ought to be provided to the complainant and his family members by the opposite party adequately during the concerned tour. Obviously it is an absolutely failure on the part of opposite party to render proper and adequate service to the complainant and his family members.
Before part with this final order it may be stated that it is an admitted position that complainant and his two other family members one whom is child duly travelled in the concerned tour arranged by the opposite party, but as per itinerary opposite party could not render proper service relating to that tour.
In view of the above discussion and considering the materials on record this Forum is of the view that complainant has succeeded in proving his case.
Hence,
it is
ordered
that the instant case be and the same is allowed on contest against opposite party with costs.
Opposite party is categorically directed to pay a sum of Rs. 5,000/- towards the payment of concerned tour package.
Opposite party is further directed to pay compensation of Rs. 4,000/- to the complainant.
Opposite party is also directed to pay a sum of Rs. 1,000/- to the complainant towards litigation cost.
Above mentioned all payments should be paid by opposite party within 45 days from the date of this order.
Let copy of this order be supplied free cost to the parties/ their ld. Advocates on record by hand with proper acknowledgment/send by ordinary course for information and necessary action.
