:    J U D G M E N T    :

This is the case under Section 12 of the Consumer Protection Act.  The facts of the case to put in a nutshell, are as below:-

The complainants file this case against OP Sankar Sarkar.  Complainant No. 3 hired the vehicle being No. WB 52 N 2321 of the OP with an agreement that he would pay Rs. 7/- per km for travelling to Nepal and extra Rs. 200/- would be paid for night hault.  Accordingly the complainant No. 1 paid Rs. 500/- as an advance to the OP on 16.12.12.  On 11.01.13 complainant intended to travel their journey to Kathmandu via Siliguri and Tanki Border but the OP completed journey via Rasol Border in Bihar taking more kilometers and more times.  On 13.01.13 the complainant went to Sanglam Restaurant with OP and the OP expended Rs. 27,000/- for his drink and meals.  That bills had to pay by the complainants selling their ornaments.  As there was no ATM counter complainants had to use their ATM at Nepal Border.  At the time of returning from Nepal Border to Kathmandu the OP did not go and OP promised to give all the losses faced by the complainants.  On 18.01.13 complainants returned their homes spending Rs. 64,000/-.  On 21.01.13 complainants informed the matter to the OP but in vein.  Finding no other alternative complainant filed this case praying for Rs. 64,000/- and compensation of Rs. 4,00,000/- and other reliefs stated in the complaint. 

At the time of trial OP 1, Bijoy Saha died.  So on 28.11.14 this Forum deleted his name vide order No. 28.

OP No. 2, Sankar Saha files written version on 11.12.13.  The sum and substance of the written version is stated below:-

Complainants have no cause of action and the complaint is not maintainable in its present form.  It is barred by waiver, estoppels and acquiescence.  It is also malafide, motivated and misconceived and complainants have no locus standi to file this case.  OP denied the agreement executed between him and the complainants and all the facts stated by the complainants in their complaint.  It is admitted by the OP that as per instructions of the complainants went to Nepal with his vehicle and after reaching a hotel named ‘Hotel Tibet Holiday Inn’ in Nepal the complainants reserved their rooms and went into a dance bar and took meal and liquor.  As they did not pay their bills the hotel authority forced them to deposit their ornaments.  OP states that as the vehicle was out of order at Racksol border and the parts of the vehicle was not found there on the contrary the complainants did not pay car rent and other expenses for repairing.  The complainants left OP willingly.   So he has no negligence or deficiency in service on his part so the case should be dismissed with cost.

POINTS FOR DECISION

1. Point No. 1:   Are the complainants consumers?
2. Point No. 2:   Is there any fault or deficiency in service on the part of OP?
3. Point No. 3:   What relief the complainants are entitled to get?

REASOND DECISIONS

            For the purpose of brevity and convenience all the points are taken up together for discussion.

            Perused all documents along with the complaint, written version, written arguments filed by the parties, evidence etc.  There were number of judgments passed by the Hon'ble Supreme Court, Hon'ble National Commission and Hon'ble State Commission wherein it should be the duty of complainant to prove himself / herself to be a consumer under the purview of Consumer Protection Act, 1986.  We try to analysis at first in the following manners:-

(1)        The complainants submit a document ( Annexure - 10) wherein it has been written that journey to Nepal would be started on 11.01.2013.  Return from Nepal would be fixed on 18.01.2013.  Rs. 7/- would be fixed for each kilo meter.  Rs. 200/- would be fixed for every night halt.  Amount of Rs. 500/- has been deposited.  But there are no signatures of the complainants & opposite parties herein.  This document does not carry the basic features of the agreement.

(2)        This document (Annexure – 10) does not speak clearly that who received the consideration money of Rs. 500/-, who paid the said amount, and in what respect the said amount was given.  All these questions and its answers are in dark.  It is not crystal clear before the Forum.  Be it mentioned that Annexure – 10 is a plain paper document which does not clear to us whether this document was issued by OPs or not.

(3)        In evidence in chief (PWS) complainants stated that an agreement between the parties has been executed regarding tour to Nepal, but no agreement was filed by the complainants before the Forum.  

(4)        As per Consumer Protection Act, 1986, the goods or services must have been purchased or hired or availed of for consideration which has been paid in full or in part or under a system of deferred payment.  But in the instant case it is not clear to us whether the consideration money has been paid to OPs or not.  Also it is not clear to us whether the OPs received the same or not for conducting the tour programme of Nepal.  To that effect there is no scrap of paper produced by complainants by which it is understood.  Regarding this matter Annexure – 10 is not sufficient to prove the case of the complainants Prima facie. 

(5)        There is nothing except evidence on affidavit filed by the complainants.  The agreement of tour stated in their chief has no corroboration with the documents along with Annexure – 10 filed by the complainants.

            The complainants cited / referred the following case laws:-

1. M. Seeta Ramanjaneyulu & Ors vs. Supreme Travels Pvt. Ltd. & Another, II (2011) CPJ 569 and
2. K. Gururaj & Ors vs. Sree Saraswati Tours & Travels & Another II (2013) CPJ 218 (NC)
3. Alice Garg vs. Laxmi Vilas Hotels & Ors II (2008) CPJ 157 (NC).

In all above cases the complainants were able to prove them as consumers as per Consumer Protection Act, 1986.  These cases are applicable only when the complainants are to be treated as consumer as per Consumer Protection Act, 1986.

As per our view these case laws are not applicable in the instant cases as the complainants have failed to prove them as “consumers” as per Consumer Protection Act, 1986.  So as per above observation there is no question of negligence or fault or deficiency in service on the part of the OP.  The consumers are not entitled to get any relief as prayed for.  The case fails.   

Hence,

Ordered,

That, the case CC/2013/49 be and the same is dismissed on contest without cost.

Let a copy of this judgment be delivered to the parties free of cost.