DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.417/2013
Mr. Ratha Krishnan Nayager,
7 D Saturina, Barbara Avenue,
Morehill, Benoni, South Africa
Mrs. Yvette Debroah Nayager,
7 D Saturina, Barbara Avenue,
Morehill, Benoni, South Africa
….Complainant
Versus
Mr. Eftkhar Khan, Assistant Manager,
Caper Travels Company Private Limited,
279/A, Masjid Moth, 2nd Floor,
South Extension-II, New Delhi-110049
Mr. Sanjeev Kaul,
‘Maharajas Express’ Palace on Wheel
70, L.G.F. World Trade Centre,
Barakhamba Lane,
New Delhi - 110001
….Opposite Parties
Date of Institution : 26.07.2013
Date of Order : 07.02.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
It is the case of the Complainants that they availed the services of OP 1-4 for a tour of 8 days/7 nights package with the journey name of “The Indian Splendor” for the journey between 22.12.2012 to 29.12.2012 for one double and one single Deluxe cabin. It is alleged that OP no. 1-4 being Caper Travels Co. Ltd. (P) Ltd. (along with its Director, Senior Manager and Assistant Manager) is engaged in the business of arranging packaging tour and OP 5 (Sh. Sanjeev Kaul, Maharajas Express, Palace on Wheels) is engaged in the business of providing tours on luxury trains in India. It is further stated that upon boarding of train on 22.12.2012 they were shocked to find that the cabin booked for them had two separate beds instead of the double bed which was contrary to the expressed preference at the time of booking of tour. It is further stated that initially their complaints were unheeded by the OP’s however, in para 21 of the complaint it is stated that the guest of the complainants was accommodated in a deluxe cabin having double bed without any extra cost, though a demand of USD 30,000 was made for upgradation to deluxe cabin having double bed. The complainants have inter-alia prayed for refund of Rs. 8,10,000/- being the cost of tour package, compensation of Rs. 1,00,000/- towards mental agony and physical harassment and Rs. 2,00,000 towards deficiency in service.
OP’s 1-4 have filed a common written statement wherein it is stated that the present complainant is bad for misjoinder of parties It is stated that OP’s 2-4 have improperly been impleaded. It is stated that OP 3-4 are the employees of OP 1 hence there is no cause of action against them. It is further stated that OP 1 has provided all requisite services which were within its scope, without any deviation or breach and thus no claim shall lie against them. It is further stated that reservation in Maharaja’s Express is managed by IRCTC (Indian Railway Catering and Tourism Corporation Limited) who also issue confirmation/travel ticket/voucher is generated by IRCTC. Incidentally IRCTC has not been impleaded in the present complaint. On the merits it is stated the agent of complainant, while making request on their behalf of made no mention of any requirement of any specific kind of bed (double bed). The bookings were done for two Deluxe cabins one with single guest and another with two adults. It is further stated OP 1 forwarded the similar request to IRCTC. It is only on account of extra ordinary efforts on the part of OP 1 that rooms were upgraded to double bedrooms with no extra cost. It is further stated that OP’s 1-4 were mere booking agents and cannot be burdened with responsibility of providing accommodation, there is no deficiency on their part. Lastly, it is stated that present case involves complicated question of facts and cannot be adjudged in these summary proceedings.
OP 5 was proceeded ex-parte on 1.03.2016 and no written statement has been filed on their behalf. Complainant has filed rejoinder to the WS of OP 1-4 wherein contents of complaint have been reiterated. Contesting parties have filed affidavit by way of service in line with their respective pleadings.
OP’s 1-4 have challenged the jurisdiction of this Commission to adjudicate upon this issue because it involves complicated question of law, cannot be decided summarily, which requires the matter to be tried by the civil court. The Hon’ble Supreme Court in the matter of J J Merchant vs Shrinath Chaturvedi AIR 2002 SC 2931 has held the following
“It was next contended that such complicated questions of facts cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side is not necessary. It should be kept in mind that legislature has provided alternative efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act providers sufficient safeguards”.
The Supreme Court reiterated the above position in CCI Chambers Co-op Housing Society Limited vs Development Credit Bank Limited AIR 2004 SC 184 by holding the following:
“The decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the for a under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the High Court, Each District Forum is headed by person who is, or has been, or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a forum under the Act”.
The Hon’ble NCDRC in the matter of Narinder Kumar vs Sanjiv Kumar Revision Petition no. 299 of 2000 has held Consumer Protection Act is a benevolent legislation and its provisions are to be given liberal consideration and NCDRC cannot put restriction on the jurisdiction of the Forum established under the Act. In view of the above-mentioned judgments, this Commission holds that it has jurisdiction to adjudicate upon complicated facts of law and their jurisdiction is not barred for the reasons stated by OP’s 1-4. In any case, in the present case, factually there is no dispute between the parties which would require trial. Hence this plea of the OP’s 1-4 is rejected.
Complainant has relied upon judgment of Hon’ble NCDRC in the matter of M/s Kuoni Travel(India) Pvt. Ltd vs Arun Sinha I (2012) CPJ 513(NC) to contend that OP 1 cannot escape their liability towards complainant by alleging they are only booking agents. This commission agrees with the complainant as far as the fixation of responsibility on OP 1-4 is concerned.
The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint. The Rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side”
It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP. This Commission has gone through the pleadings and documents filed by the parties and find that complainant has not been able to discharge its onus. A look at the documents indicate that the complainant for the first time, vide its mail dated 23/12/2012 Ex-CW-1/H brought to the notice to the OP 1-4 that they had booked Deluxe cabins with double bed and were disappointed that they were allotted deluxe cabins with twin beds. The mail further stated that the complainant was informed by officials of Maharaja Express that they have sent various emails to OP 1 informing them there are no double beds available. This claim of complainant is contradicted by Ex-CW-1/B and Ex-CW-1/C which are emails between OP 1 and OP 5. The mails clearly indicate booking was sought and held for 1 double and 1 single deluxe cabin without any preference for nature of bed i.e. twin bed or double bed. Confirmation ticket voucher also notes room type as double, again without any specification of kind of bed. The complainant has not filed any mail from OP 5 which would support their plea that OP 5 informed OP 1 about non-availability of double bed. In view of the above, this Commission is of the view, that complainant has not been able to prove that they had booked for cabins with double bed.
The OP 1 has claimed and which stands proved by Ex-CW-1/L, which is an email dated 27th December 2012 whereby it is evident that issue of double room has been resolved. In this email, OP 1 has advised that complainants should not pay the difference in tariff notwithstanding an invoice has been raised by the IRCTC. OP 1 has gone beyond its call of duty to organize cabin with double bed facility while the tour was on.
Since the complainant and their guest availed the entire tour of 8 days and 7 nights partially in what they had booked and partially in upgraded cabin they are not entitled to refund of booking amount. OP 1 has performed its duties sincerely and cannot be said to be deficient in its services hence claim against them, is dismissed. There is no allegation against OP 2-4 being employees of OP 1 and because the OP 1 has not been held deficient in their service therefore complaint against OP 2-4 is also dismissed. Claim against OP 5 is dismissed as their principal IRCTC has not been impleaded. No order as to costs.
File be consigned to record room after providing copy of the order to the parties. Order be uploaded on the website.
