Hon’ble Mr. Ajeya Matilal, Presiding Member

       Being aggrieved by and dissatisfied with Judgement dt. 04.01.2018 in CC/255/2017 passed by DCDRF, Kolkata Unit –III, Alipore, allowing the case, on contest, with cost of Rs.18,000/- and compensation of Rs.90,000/- with default clause regarding payment of interest, the Appellants/Opposite Parties preferred this appeal.

         Fact of the case is in short like that the Respondents/Complainants filed Complaint Case being No.CC/255/2017 before the DCDRF, Kolkata Unit-III (South) under section 12, read with section 13 of Consumer Protection Act 1986, for redressal for their grievances. The names of the Respondent/Complainant No.1 and 44 others were mentioned in the cause title of the complaint in the category of the Complainants. The Complainants intended to make a trip to Andaman and Nikobar Island. So, they contacted the Appellant/OP No.1. The Complainants were assured of 7 nights and 8 days Andaman Tour Package. The Appellants/Opposite Parties assured the Respondents/Complainants that fare of the journey from Kolkata Airport to Port Blair by Indigo Airlines package per person would be Rs.15,000/-. Accordingly, the Respondents/Complainants paid Rs.3,40,000/- to the Appellant/Opposite Party No.1 between the period from February 2016 to May 2016 towards tour package and the Respondents/Complainants paid Rs.6,10,000/- only, in total, for the purpose of said trip. After receiving the said amount the Appellant/Opposite Party No.1 on several occasions came to the house of the Respondent/Complainant No.1 and informed that Indigo Airlines was not arranging any flight in the month of September 2016 for which he had to switch over to another airlines and the case of promotional fare (Ra.6,000/-) would not be from other airlines. So, the Respondent/Complainant No.1 after consulting with the other Respondents/Complainants agreed to shift to other airlines for the programme and thereafter the Appellant/Opposite Party No.1 confirmed Spice Jet Airlines schedule for the Respondent/Complainants either on 4^th or 10^th September 2016 form Kolkata to Port Blair and the Appellants/Opposite Party No.1 assured the Respondents/Complainants that PNR number will shortly be allotted to them. The Appellants/Opposite Parties failed to confirm tickets till end of July 2016 and no confirmation was made about the PNR number of booking in respect of reservation of air tickets from Spice Jet Authorities. As a result, the tour programme of the Respondent/Complainant was postponed. After repeated demands, the Appellant /Opposite Parties returned the air fare of Rs.3,40,000/- only.

        The Appellant/Opposite Parties contested the case by filing a Written Version denying material allegations of the claim petition along with technical pleas. The Appellant/ Opposite Parties admitted in their Written Version that the said tour programme was for 45 persons and the Opposite Parties received Payment of Rs.6,10,000/- only from the Respondents/Complainants and refunded Rs.2,70,000/- to them.  It is stated by them that the date of departure from Kolkata Airport was fixed on 04.09.2016 and the air tickets were obtained from Spice Jet Airlines for the persons and the fact was intimated to the Respondents/Complainants. The Hotel/s were booked for the Complainants. The arrangement of the said tour programme was completed, but the tour programme was postponed at the instance of the Respondents and the Opposite Parties refunded the sum of Rs.2,70,000/- to the Complainants by deducting Rs.3,40,000/- in terms of booking manuals of the said tour programme. The Complainants, just before 3 days of journey, cancelled the whole tour programme and as per terms and conditions of the brochure of the Appellant/ Opposite Parties, the cancellation, if made before 5 days, the Complainants would not be entitled to get any refund. In spite of that the Opposite Party No.1 refunded Rs.2,70.000/- for his good will. So, the Opposite Parties prayed for dismissal of the complaint.

The Ld. Forum Below observed that the Complainants cancelled the package tour just before 3 days. So, the Complainants are not entitled to any refund, but out of good will, the OPs refunded Rs.2,70,000/-. It is found by the Ld. Forum below that the Opposite Parties did not file any documents which would substantiate any allegation that the tour package was cancelled at the request of the Complainants.

         Now the question is that whether the impugned judgement is sustainable in law.

     In this regard, following points are required to be considered:

1. The complaint was filed on behalf of 45 Complainants, out of them the Complainant No.9, Master Arunabha Ghosh, Complainant No.10, Master Anirban Ghosh, Complainant No.42, Master Ishan Majumder are minors. They are not represented by their guardians, as required under the procedural law. As per Order-XXXII, Rule 1 of Civil Procedure Code, 1908, “Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.” Undoubtedly in the complaint the minors were not represented by their next friends. Complete address of Complainant No.43, Ashike Maitra and Complainant No.44 Mrs. Babli Maitra were not furnished in the complaint. As far as the Complainant No. 45 Krishnendu Ghosh is concerned, it is mentioned that he is residing at Hyderabad. The particulars of his address have not been mentioned in the complaint.
2. As per 12 (1) (c) of Consumer Protection Act, 1986, “one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested or”. We find an application u/s 12 (1) (c) of the Consumer Protection Act 1986 in the L.C.R., but there is nothing on record to the effect that whether the instant petition was entertained or not by the Forum Below. There is no whisper in this regard. We are of the view, without allowing the instant petition there was no scope for the Ld. Forum below to proceed with the case.
3. The Complainants did not mention the value of the complaint. So, it is very difficult for us to conceive how the Ld. Forum below proceeded with the complaint case without valuation of the complaint. So, the Forum Below did not entertain the question whether it has any pecuniary jurisdiction to entertain the aforesaid case. Because without fixing the valuation of the complaint it was not proper for the Forum below to proceed with the case. 
4. Furthermore, the Complainants prayed for refund of Rs.3,40,000/- with litigation cost, but the Forum below passed the impugned order directing the Appellant/Opposite Parties to pay Rs.9955/- to each of the Complainants and the total amount of refund was Rs.4,47,975/- instead of Rs.3,40,000/-. So, it exceeded the claimed amount.

        So, we are of the view for the aforementioned reasons, the impugned judgement cannot be sustained and it should be set aside. The inherent defects of the aforesaid judgement cannot be cured by sending back the case to the Forum Below on remand for fresh adjudication of the disputes.

         In view of the aforesaid directions, the Appeal is allowed. The impugned judgement is set aside.

        However, we make it clear that if the law permits, the Complainants may file a fresh application, if so advised, within 3 months from this judgment. The formalities regarding period of limitation only is waived.

        The Complainants are at liberty to take steps within the aforesaid period.