DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 19th day of December 2022
Filed on: 27.04.2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C.186/ 2018
COMPLAINANTS
1) Saritha C.Nair, D/o.late Chandrashekaran Nair, Chandini (H), Moolavattom P.O., Kottayam-686 013
2) Suvarna P.K., W/o Sajan N.T. (late), Saj Sadhan, U.C.College P.O., Aluva-683 102
3) Ashaletha Devi K., W/o.K.Umesh Lal, Manakkal House, Erumathal P.O., Keezhmadu Village, Aluva-683 112
4) P.K.Sudharma, W/oK.v.Dhruvan, III/5, Plot-1, Passport office Quarters, Panampilly Nagar, Kochi-682 036
5) Suma Somanathan Pillai, D/o.Late Krishna Pillai, No.83 Green Park Layout, Kithigannur, K.R.Puram P.O., Bengaluru-560 036.
6) Indu S.Nair, W/o.R.K.Nair, Flat NO.1 D, D.D.Bhavanam, Vidya Nagar, Panampilly Nagar, Kochi-682 036.
(By Adv.SamIsaac Pothiyil, Adv.Anila Umesh, Sam Isaac Pothyil & Associates, 5th Floor, Empire Building, Near High Court, Ernakulam, Kochi-18)
VS.
OPPOSITE PARTY
Reji C. Varkey, Proprietor, Bagal Holiday's, Olangattu Building , Karimugal P.O. Near Smart City Kochi, Ernakulam, Kochi- 682303.
(Ex-parte)
F I N A L O R D E R
D.B.Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainants availed service from the opposite party for entering tour package service to Delhi, Shimla, Kulu, and Manali scheduled to be conducted by the opposite party from 28th September 2017 to 3rd October 2017. The opposite party contacted the 3rd complainant at her office and convinced her that the opposite party is conducting a tour operator for a long time and provided a tour itinerary and other supporting materials. Believing the oral agreement and the tour itinerary provided by the opposite party, the complainants made payments in cash and also through bank transactions. The complainants made a total payment of Rs.4,23,700/-. The flight charges were paid by the complainants in advance. The opposite party had made the complainants believe that an amount of Rs.3000/- wanted to be paid by a person as GST. The tour package provided by the opposite party was inclusive of accommodation charges, food including breakfast, lunch, tea, and dinner, and all other travelling expenses arising therefrom. Lunch was excluded making the complainants believe that during lunchtime, they will be visiting the destinations and it will be difficult to coordinate the complainants. The complainants were made to believe that the opposite party is an experienced tour operator which is supported by a spiritual leader of a particular community. The opposite party assured the complainants that the opposite party will take their clients to all the places as per the tour plan and also to Rohtang Pass, upon payment of a special entry fee by the complainants, to which the complainants were agreeable to payment of the same. The opposite party offered the complainants that the team has to start from the hotel at 6 am. Even though the complainants were ready, the opposite party failed to provide any facilities to commence the travel in time as assured by him. The transportation provided by the opposite party is substandard and arrogant. The opposite party assured the complainants in a meeting called by the opposite party some days prior to the commencement of the tour that there is nothing to be apprehended in the quality of service to be rendered by the opposite party. The complainants are employed and engaged in several activities and have a great reputation among the public. The time is so precious for them. The opposite party has spoiled the valuable time of the complainants and caused physical and mental agony to them because of the negligent and fraudulent act committed by the opposite party. The opposite party totally deviated from the promises and tour plan provided to the complainants before the commencement of the tour. The complainants suffered a huge loss because of the negligent and fraudulent act of the opposite party. Most of the complainants were forced to avail of medical treatment immediately on return. The bus was not even having a cleaner or an expert driver. The driver provided on the bus was an inexperienced person who even does not know properly to drive the vehicle. The life of the complainants was in danger due to negligent driving. Because of the protest from the side of the complainants, the opposite party admitted to the complainants that the driver of the vehicle is not having a valid license. Fortunately, the complainants' lives were saved. The opposite party used filthy and unclean language against the complainants when they questioned the above issue and even the opposite party threatened the complainants that their clients will be manhandled if the complainants are not amenable to the demands. The complainants felt that they are brought to a refugee camp conducted by a cantankerous person like the opposite party. The opposite party did not even stop the vehicle when the complainants asked to stop the vehicle in front of good hotels or restaurants on the way. Timely food was not even provided to the complainants. Some local persons hired by the opposite party threatened the complainants and they were not able to visit 80% of the places shown in the itinerary because of the wilful negligence and fraudulent act committed by the opposite party.
Because of the negligence and fraud committed by the opposite. party, the complainants suffered physical and mental agony. The valuable time of the complainants was lost. The complainants were not provided the service assured by the opposite party. The complainants' physical condition collapsed. Accommodation, travel, food, etc provided by the opposite party was substandard. The complainants are eligible for damages for wilful negligence, fraud, and physical and mental agony. sufferings and pain and loss of valuable time.
The complainants have availed the services of the opposite party with the hope and belief that they can relax and enjoy themselves with their family. But to their utter dismay, all the above-mentioned issues and other incidental issues have arisen throughout the journey, and thereby the entire tour package had a negative impact on them and put them under great physical and mental stress. The complainants and other passengers were treated like slaves by stopping them even from relieving themselves. Every time these issues were brought up by the complainants the opposite party tried to convince them by shifting the blame onto others. The only acceptable part of the service was the quality of accommodation provided for a night stay. However, the complainants never reached those hotels to check in on time. Some of the complainants also contracted diseases during the trip due to the above-mentioned ill-treatments and had to extend their leave. The opposite party has dishonestly induced the complainants to avail of his services with fully dishonest intention, knowing that he will never abide by the tour plan and promises. Tremendous hardships caused to members who have availed the services, on account of causing complainants and their families unwarranted delay in providing food, toilet facilities, and transport facilities which were also substandard facilities, on account of illegally requiring them to find out their own source of transport and food and not providing the adequate mode of transports, and on account of a wilful violation of the itinerary. The complainants had approached the commission seeking an order directing the opposite party to pay Rs.17,43,200/- as compensation and towards the amount paid by them and the costs of the proceedings.
2) Notice
Notice was issued from the Commission to the opposite party. The opposite party received the notice but did not appear before the Commission and not filed version. Consequently, the opposite party is set ex-parte.
3) . Evidence
The complainant had filed a proof affidavit and 6 documents that were marked as Exhibits-A-1- to A-6.
Exhibit A-1: Original of itinerary issued in the name of complainants by the opposite party.
Exhibit A-2: True copies of the lawyer notice dated 29.3.2018 issued to the opposite party by the complainant and postal receipt of the lawyer notice dated 30-3-2018.
Exhibit A-3: True copy of delivery status of India Post showing a delivery date of lawyer notice to the opposite party as 31.3.2018
Exhibit A-4: True copy of the list of passengers and booking details of Indigo Flight issued by the opposite party (series)
Exhibit A-5: Original receipts issued by the opposite party to the complainants (series)
Exhibit A-6: -C. D Contains visuals of the protest.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
The Complainants fall under the ambit of the definition of a 'consumer' as defined in the Consumer Protection Act, 1986. As per Section 2 (d) a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment.
In the present case in hand, follows:
The above case is filed by the first complainant along with the other 5 complainants for compensation for the deficiency in tour package services and for damages towards the reckless and negligent handling of the tour package during the entire package period of 6 days. Believing in the tour itinerary and as per the oral agreement with the opposite party, the complainants had paid the due amount of Rs.85000/- for herself, her 5- year-old son, and her aged mother who is a senior citizen, and the same had been duly accredited to the opposite party by cash, and also through bank transactions. complainants No. 2 to 6 have paid an amount of Rs.60,000/-, Rs.1,05,000/-, Rs.1,00,000/- and Rs.38,700/- and Rs.35,000/- respectively by cash and also through bank transactions. The receipts for the same were issued in her presence by the opposite party at their office in Karimugal. Thus, the complainants have together paid a total amount of Rs.4,23,700/- in advance. The opposite party had made the complainants believe that an amount of Rs.3000/- per person has to be paid as GST. The original receipts were issued to all the complainants at the office of the opposite party (ExhibiA-5 series.) Therefore, we are only to hold that the complainants are consumers as defined under the Consumer Protection Act, of 1986. (Point No. i) goes against the opposite party. A tour plan/ itinerary was provided to the complainants in advance by the opposite (Exhibit A-1.) As per the document, the tour package was inclusive of accommodation, food (breakfast, tea, and dinner, lunch on 1st day), and all other travel expenses.
The complainants issued a detailed legal notice to the opposite party. The true copy of the lawyer notice dated 29.3.2018 along with the postal receipt (Exhibit A-2) and accepted as evidence. The copy of the delivery status of India Post shows a delivery date of lawyer notice to the opposite party. (Exhibit A-3). The copy of the list of passengers and booking details of the Indigo Flight issued by the opposite party. ((Exhibit A-4 series). The complainants had informed the opposite party on several occasions during the trip and afterwards that he has torn apart all the promises made to them and totally deviated from the tour plan and also put the complainants in great misery during the course of travel with him and thereafter and in effect spoiled the entire tour and made it a horrible experience to the complainant and her family. The opposite party had promised to refund the amount to the complainants during the trip when all the participants of the tour together protested on the 5th day but later when the complainants visited the opposite party's office the next day after returning along with some other participants for claiming refund, the opposite party declined promise and arrogantly asked the complainant to file a case. The CD containing visuals of the protest made by most of the members of the team along with the complainant and the other complainants on 3.10.2017at around 1.30 a.m and on 30.09.2017 when the bus journey was prolonged beyond everyone's expectation and due to the irresponsible of the opposite party. (Exhibit A-6).
The complainants submitted that the complainants were forced to sit inside a substandard bus for twenty-four hours in one instance which caused serious physical problems for the complainants. The main purpose and attraction of this package were for visiting Rohtang Pass. Because of the service failure, negligence and fraud played on the complainants by the opposite party, the complainants were not able to visit the Rohtang Pass. The complainants were not provided any services or made the complainants visit any places as explained by the opposite in the tour itinerary provided to the complainants. When the complainants demanded the receipts for the amounts paid by them, the opposite party made lame excuses and delayed the issuance of receipts to the complainants. Only after the completion of the tour program, when the complainants went to the office of the opposite party and raised slogans against them, the opposite party issued a formal receipt to patch up the whole issue.
The complainants further submitted that even the complainants were not provided with proper toilets. One of the complainants is an acute diabetic patient and she faded on the bus. The lady complainants were forced to urinate on the roadside because of negligence on the part of the opposite party.
We have also noticed that a Notice was issued from the Commission to the opposite party but did not file their version. Hence the opposite party set ex-parte.
The complainant has filed the Proof Affidavit and 6 documents which are marked as Exbt.A-1 to A-6. All in support of their case. But the opposite party did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-parte order passed against it.
The opposite party’s conscious failure to file their written versions in spite of their having received the Commission’s notice to that effect amounts to an admission of the allegations leveled against them. The Hon’ble National Commission held a similar stance in its order cited 2017(4) CPR page 590 (NC).
The Opposite Party has inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the Opposite Party in failing to provide the complainant’s desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainants.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainants for the serious deficiency in service that happened on the side of the opposite party. Naturally, the complainants had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite party.
In fact, the complainants had paid an amount of Rs.4,23,700/- only to the opposite party and there is no valid proof produced from the side of the complainant to the effect as regards to the other amounts claimed in the complaint.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainants.
Hence the prayer is partly allowed as follows:
The opposite party shall pay the complainants Rs.4,23,700/- towards the refund along with 5.5 % interest from 04.10.2017 till the date of realisation of the amount.
The opposite party shall pay the complainants Rs.50,000/- as compensation for loss caused to the complainants due to the deficiency in service and unfair trade practices of the opposite party.
The opposite party shall also pay the complainant Rs.10,000/- towards the cost of the proceedings.
The above-mentioned directions shall be complied with by the Opposite Party within 30 days from the date of the receipt of a copy of this order failing which the amount ordered vide (ii) above also shall attract interest @5.5% from the date of receipt of a copy of this order till the date of realization.
Pronounced in the Open Commission on this the 19th day of December 2022.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit A-1: Original of itinerary issued in the name of complainants by the opposite party.
Exhibit A-2: True copies of the lawyer notice dated 29.3.2018 issued to the opposite party by the complainant and postal receipt of the lawyer notice dated 30-3-2018.
Exhibit A-3: True copy of delivery status of India Post showing a delivery date of lawyer notice to the opposite party as 31.3.2018
Exhibit A-4: True copy of the list of passengers and booking details of Indigo Flight issued by the opposite party (series)
Exhibit A-5: Original receipts issued by the opposite party to the complainants (series)
Exhibit A-6: -C. D Contains visuals of the protest.
