The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Parties to impeach the final order/judgment being Order No.11 dated 25.05.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit – II (in short, ‘Ld. District Forum’) in Consumer Complaint No. 10 of 2017. By its order, the Ld. District Forum allowed the complaint lodged by Respondent under Section 12 of the Act with certain directions upon the Opposite Parties/Appellants – (1) to pay Rs.14,767/-; (2) to pay an amount of Rs.2,00,000/- for indulging in unfair trade practice and (3) Rs.10,000/- as litigation cost.
The Respondent herein being complainant lodged the complaint before the Ld. District Forum asserting that he booked two hotels in the city of Shenzhen and Hangzhau at China for a trip through the OP i.e. Make My Trip India Pvt. Ltd. The complainant booked the hotel named Gold Hotel in Shenzhen city on 15.10.2016 for two rooms in the said hotel on 02.11.2016 and 03.11.2016 at a rate USD 85.06 i.e. Rs.5,734/-. However, on arriving there the complainant was surprised to find out that the said hotel has been closed one year back. After Shenzhen, the complainant left for Hangzhou city where he booked Hangzhou Hanma Holiday In for two nights from 03.11.2016 to 05.11.2016 for a total consideration of USD 134.01 i.e. Rs.9,033/- but on arriving there, again he shocked to hear that the said hotel do not have any tie up with the opposite party and no money was deposited by OP for booking rooms in favour of the complainant. Therefore, on the allegation of deficiency in services on the part of OP, the respondent herein being complainant claimed several reliefs, viz. – (a) to direct the OP to refund Rs.14,766/-; (b) to pay compensation of Rs.10,00,000/- for harassment and mental agony; (c) litigation cost of Rs.50,000/- etc.
The Appellant being opposite party by filing a written version has stated that it was the hotelier who denied to provide booking for reasons best known to them. The OP has also stated that the complainant failed to provide hotel confirmation voucher before the hotelier. The OP has also denied that they had no tie up with the hotelier i.e. Hangzhou Hnama Holiday in Hangzhou city.
After assessing the materials on record, Ld. District Forum by the impugned judgment/final order allowed the complaint with certain directions upon the OP travel agency, as indicated above. To assail the said order, the OP has come up in this Commission with the present appeal.
I have considered the submission made by the Ld. Advocates appearing for the respective parties and scrutinised the materials on record.
The overwhelming evidence on record makes it abundantly clear that the respondent booked two hotels in the city of Shenzhen and Hangzhou (China) through the appellant. In fact, the respondent booked hotel named Gold Hotel in Shenzhen city for two rooms on 02.11.2016 and 03.11.2016 on payment of USD 85.06 i.e. Rs.5,734/-. The respondent had also booked two rooms for two nights from 03.11.2016 to 05.11.2016 in Hangzhou Hanma Holiday In for Hangzhou city on payment of USD 134.01 i.e. Rs.9,033/-. Evidently, at Shenzhen city the respondent noticed that the hotel was closed for one year back. At Hangzhou city the concerned hotel had categorically stated that they do not have any tie up with the appellant.
The appellant has tried their level best to shift the burden upon the hotelier but the fact remains that the appellant being OP has failed to show any courage to put questionnaire against the affidavit filed by respondent. The appellant has also failed to adduce any evidence in support of their contention in written version. The appellant being OP has further failed to produce any document whatsoever in support of their claim.
The facts and circumstances of the case clearly indicates that the appellant/OP being a travel agency was not only deficient in rendering services towards a ‘consumer’ like respondent but also indulged in unfair trade practice by accepting money without making arrangement whatsoever for stay of respondent at China. In that perspective, the Ld. District Forum was quite justified in directing the appellant/OP to refund the amount of Rs.14,767/-. The unethical stand of the appellant/OP compelled the respondent to lodge the complaint and to bear the costs of litigation for considerable period and as such the Ld. District Forum was also justified in awarding Rs.10,000/- as costs of litigation.
However, the imposition of an amount of Rs.2,00,000/- for indulging unfair trade practice cannot be said to be logical. The Ld. District Forum has not assigned any specific reason for awarding Rs.2,00,000/- for adopting unfair trade practice. The basic ingredients of ‘unfair trade practice’ are as follows –
- it must be a trade practice;
- the trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or for the provision of any service; and
- the trade practice adopts any unfair method or unfair or deceptive practice including any of the practices enumerated in sub-clauses (1) to (6) of Section 2(1)(r) of the Act.
In (2015) 1 SCC 429 (General Motors (India) Pvt. Ltd. – vs. – Ashok Ramnik Lal Tolat & Anr.) the Hon’ble Supreme Court has observed thus :
“ 17. The Act is a piece of social legislation to provide a Forum to the consumers who are taken for a ride by suppliers of goods and services. The redress is provided to a consumer against any deficiency in service as well as against any loss or injury arising out of ‘unfair trade practice’. By later amendment, scope of complaint can cover not only individual consumer but also consumers who are not identifiable conveniently. However, the complainant has to make an averment and make a claim. Section 12 of the Act permits not only a complaint by a consumer to whom goods are sold or delivered but also any recognised consumer association or more consumers on behalf of and for the benefit of all consumers but still, a case has to be made out and the affected party heard on such issue. We are conscious that having regard to the laudable object of the social legislation to protect the interest of consumers, liberal and purposive interpretation has to be placed on the scheme of the Act avoiding hyper technical approach. At the same time, fair procedure is the hall mark of every legal proceeding and affected party is entitled to be put to notice of the claim which such affected party has to meet”.
Therefore, when there was no averment in the petition of complaint with regard to unfair trade practice or any relief claimed to that effect, the Ld. District Forum should restrain itself from passing any order under the head ‘unfair trade practice’. But at the same time, the Ld. District Forum should have passed an order of compensation for harassment and mental agony in accordance with Section 14(1) of the Act. To deal with the situation, it would be worthwhile to reproduce the provision of Section 14(1)(d) of the Act which runs as follows –
“14. Finding of the District Forum. – (1) if, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complaint against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely :
...........
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party”.
The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.
Quite naturally, the assessment of compensation depend upon the facts and circumstances of the particular case. In the case beforehand, the respondent had to face serious problem owing to language problem and to find out a shelter for stay from his own purse. But considering the loss suffered by the complainant/respondent, an amount of compensation of Rs.2,00,000/- appears to be on higher side and disproportionate to the loss suffered by the respondent. Considering the facts and circumstances of the case and taking into consideration, the harassment and mental agony suffered by the respondent for deficiency on the part of appellant, I think instead of Rs.2,00,000/- an amount of Rs.50,000/- as compensation will subserve the object of justice.
In view of the above, the appeal is allowed on contest in part with a modification of the impugned order to the extent that the appellant/OP shall refund Rs.14,767/-, Rs.50,000/- as compensation and Rs.10,000/- as litigation cost (imposed by the Ld. District Forum) aggregating Rs.74,767/- in favour of the respondent/complainant within 30 days from date in default the amount shall carry interest @ 9% p.a. from date till its total realisation.
With the above observations and directions, the instant appeal stands disposed of.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – II for information.
