Kerala

StateCommission

A/413/2018

RIYA HOLIDAYS PVT.LTD - Complainant(s)

Versus

K B NINAN - Opp.Party(s)

NEMOM V SANJEEV

16 Oct 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 413/18

JUDGMENT DATED : 16.10.2019

 

(Appeal filed against the order in CC.No.210/2015 on the file of CDRF, Ernakulam)

PRESENT

SRI.T.S.P.MOOSATH                        : JUDICIAL MEMBER

SRI.RANJIT.R                           : MEMBER

SMT.BEENA KUMARI.A           : MEMBER

 

APPELLANT / OPPOSITE PARTIES

1. The Chairman and Managing Director, M/s.Riya Holidays Pvt Ltd, Registered Office at 227, Mashraque Building 237, P.D.Mello Road, Mumbai – 400 001

 

2. Sreekanth.G, Senior Manager, Riya Holidays, Second Floor, Bab Chambers, Atlantis, M.G.Road, Cochin, Pin code – 682 015

 

 

 

(By Adv.Nemom V Sanjeev & Adv.Sri.Narayan.R)

 

 

565.  

 

RESPONDENTS / COMPLAINANTS

1. K.B.Ninan, Kunchattil, 51/776, Thottunkathara Road,

South Kadavanthara, Kochi – 682 020

 

 

 

2. Raphi Davis, 14/E, (South Tower), Abad Oriental Garden,

Karukapilly, Desabhimani Road, Kochi – 25

 

(R1 & R2 appeared in person)

 

78503207062.  

SRI.T.S.P.MOOSATH                        : JUDICIAL MEMBER

        The opposite parties in CC.No.210/2015 of Consumer Disputes Redressal Forum, Ernakulam in short the district forum has filed the appeal against the order passed by the district forum by which they were directed to pay Rs 1,02,000/- to the first complainant and Rs 89,625/- to the second complainant and Rs 50,000/- each to the complainants towards compensation and Rs 5000/- each as cost to them.

 

                     2.        The averments contained in the complaint are in brief as follows. The complainants are the permanent residents in the address shown above. The present complaint is field alleging unfair trade practice and deficiency in service on the part of the opposite parties, which had resulted in monetary loss in addition to the mental agony, pain and suffering to the complainants and their family members. It is submitted that the complainants were persuaded by the advertisement and consequential offer made by the opposite parties for 5 nights / 6 days holidays trip to Kashmir commenced from 6^th September 2014, which allured the complainants to be a part of such holiday’s trip. The complainants had agreed to pay the entire amount quoted by the opposite parties towards Tour cost and had paid the amount in full before commencement of the journey from Kochi on 6^th September, 2014. The complainants had remitted an amount of Rs 1,36,000/- and Rs 1,19.500/- respectively to the account of opposite parties through banks and the opposite parties had also encashed the said amount in full. The opposite parties had taken the complainants and their family members from Kochi to Delhi. When they reached at Delhi to the dismay of complainants it was noticed that the circumstances in Kashmir was not fit for travel due to heavy flood there at Kashmir and the opposite parties had knowledge regarding the flood situation even prior to the commencement of their journey from Kochi. It is submitted that being a “reputed travel arranger”, the opposite parties ought to have foreseen the after effect of heavy flood in a State like Kashmir but they negated such circumstances and persuaded the complainants and their family to proceed further with the trip to Kashmir from New Delhi on 06.09.2014 itself, assuring that the agent of the opposite parties located at Kashmir had made all arrangements for the journey. In fact, all the leading English and Vernacular dailies of 5^th September, 2015 ( one day prior to the journey) had specifically pointed out that the flood waters have already ravaged parts of Srinagar City, including Lal Chowk, the nerve center of Srinagar. Both MalayalaManorama and Indian Express had carried visuals as well, that revealed the gravity of the situation. It is submitted that believing the assurance of the opposite parties the complainants and their family members had reached at Kashmir, but it was noticed that the tourists already there were wedged for the past two days due to heavy flood and the complainants had realized the situation as worse to even move in the valley state rather a holiday trip. In fact, from 6^th September to 15^thSeptember, virtually the complainants and their family members lived like cattle in a hotel without drinking water and much less food for their survival. The ‘ tour manager’ deputed by the opposite parties had acted like a spectator to all these events as he did not even know the Hindi language to seek assistance of any of one there and also he was travelling to Kashmir for the first time in his life. The complainants and their family members were wedged in the hotel for 9 days as aforesaid and at last with the assistance of the Hotel Manager, somehow they managed to reach at Leh and from there to their home town, by grace. It is submitted that the opposite parties failed to give the offered ‘holiday trip’ to the complainants and their family members, after accepting the tour cost in full from them. It amounted to breach of trust. The misleading assurances and persuasion by the opposite parties amounted to unfair trade practice which ought not to have been occurred. Further, the deliberate acts to unload the complainants and their family members into the flood affected State, even after the notice of worse condition as reported in major vernacular dailies throughout the country amounted to deficiency in service on the part of the opposite parties. The opposite parties ought to have diverted the trip to other places. It is submitted that the pain and suffering of the complainants and their family members from 6^th September to 15^th 2014 are beyond description. It is submitted that inspite of repeated requests and despite lawyer notice, the opposite parties did not even show the courtesy to refund the amount collected from the complainants and to pay compensation for the pain and sufferings. Therefore, this complaint is filed seeking direction of this Forum to the opposite parties to refund to both the complainants the tour cost of Rs 2,35,000/- towards compensation for the deficiency in service and unfair trade practice committed by the opposite parties along with costs of this proceedings.

 

                 3.    Opposite parties filed version raising the following contentions. The opposite parties had not done any unfair practice, as alleged by the complainants, that the opposite parties had not offered any deficient services to the complainants. It is submitted that M/s.Riya Holidays had made an advertisement in leading Malayalam Daily about the tour programme from Kochi to Kashmir and the first and second complainants had paid Rs 1,36,000/- and 119,500/- respectively towards tour cost of the trip to M/s.Riya Holidays Pvt Ltd and the complainants along with other tour members were taken from Kochi to Delhi on 06.09.2014. On seeing a news in MalayalaManorama Daily on 05.09.2014 with regard to the bad weather in Rajouri and Jammu, the opposite parties had contacted their supplier Mr.Aboobacker, Perfect Holidays, Srinagar about the situation there and it was informed that there was no problem at Srinagar. There was flood at Srinagar on 07.09.2014. From 07.09.2014 the opposite parties were in constant contact with their tour manager till there was tele communication connection. The opposite parties knew that the tour group including the complainants were in Hotel Royal Batoo for more than a week and the opposite parties had done all possible things to bring the tour group including the complainants back to Kerala. Therefore, the opposite parties sought for the dismissal of the case.

 

                 4.    PW1 was examined and Exts.A1 to A5 & A6 series were marked on the side of the complainant. DW1 was examined and Exts.B1 to B5 & B6 series were marked on the side of the opposite parties. Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order.

 

                 5.    Aggrieved by the order passed by the district forum the opposite parties has preferred the present appeal.

 

                 6.    Heard both sides. Perused the records.

 

                 7.    There is no dispute to the fact that on the basis of the advertisement made by the opposite parties in the newspapers the complainant booked the tour trip from Kochi to Kashmir which was scheduled to commence on 06.09.2014 to and on 15.09.2014. There is no dispute regarding the payment of the tour cost of Rs 1,36,000/-by the first complainant and Rs 1,19,500/- by the second complainant/ Respondents. The opposite parties had taken the complainant to Delhi. The allegation of the complainants is that when they were in Delhi it was noticed that the circumstances in Kashmir was not fit for travel due to heavy flood there and the opposite parties had knowledge regarding the flood situation even prior to the commencement of their journey from Kochi. The opposite parties ought to have foreseen th after effect of heavy flood in a State like Kashmir but they negated such circumstances and persuaded the complainants and their family to proceed further with the trip to Kashmir from New Delhi on 06.09.2014 itself. When the complainants and their family reached at Kashmir it was noticed that due to heavy flood no one was able to move. The complainants and their family members were constrained to reside in a hotel for about 9 days and they had suffered much due to the lack of facilities including the drinking water. Later the complainants somehow managed to return to their native place. The complainants sent a notice to the opposite parties to refund the amount collected from them and for compensation for the pain and sufferings undergone by them, but they have not accepted request the of the complainants and so complainants have filed the complaint. The opposite parties contended that the flood situation in Kashmir was due to natural calamity for which the opposite parties are not liable to compensate the complainants. The opposite parties had done everything to bring back the complainants to their native place safely. The complainants were arranged seats in the flight to Delhi and they were received at Delhi by the Delhi manager of the opposite parties and lunch was arranged at Kerala House, Delhi. The district forum relied on Ext.A6 (a) and A6 (b) newspapers, MalayalaManorama and Indian Express dated 05.09.2014 and found that there was incessant rain in both Jammu and Kashmir, that the water level in most rivers in the State had arisen above danger level due to incessant rain, that the central Kashmir, Srinagar and Budgan district had also been flooded. The opposite parties ought to have cancelled the trip of Kashmir or to divert the trip to safer places. That was not done. The above acts of the part of the opposite parties amounts to deficiency in service. The district forum directed the opposite parties to refund 75% of the tour cost to each complainants and pay Rs 50,000/- to each complainants towards compensation and cost of Rs 5000/ to each of them. As observed by the district forum the facts of the case show that both the complainants and opposite parties had prior knowledge about the flood situation at Srinagar. The complainants did not apply their prudence to take a decision to dispense with the tour to the flood affected area. The opposite parties being a reputed tour arranger / operator ought to have foreseen the after effect of heavy flood in a State like Kashmir and they should have convinced the complainants about the situation and advised them not to proceed further to Kashmir. They did not take reasonable care and caution to cancel the trip to Kashmir. Complainants being the residents in Kerala, far away from Kashmir, cannot get more details about the actual flood situation / true picture of the situation in Kashmir, other than the information which they got from the newspapers and the TV channels and they had relied the assurance of the opposite parties that there will be no problems and believing the words of the opposite parties they proceeded further to Kashmir. As found by the district forum the opposite parties should have cancelled the trip to Kashmir and the above acts of the opposite parties amounts to deficiency in service. So the complainants are entitled to get compensation for the sufferings, inconvenience and mental agony to them. We consider that there is no reason / ground to interfere with the finding of the district forum that there was deficiency of service on the part of the opposite parties and the complainants are entitled to get compensation from the opposite parties.

 

                 8.    In fixing / computing quantum of compensation several factors have to be taken into consideration. The opposite parties could not give the assured services to the complainants due to the flood situation in Jammu and Kashmir, even though they had received the complete tour cost from the complainants. It was not because of their fault but because of heavy flood in Kashmir, natural calamity. But the fact remains that the opposite parties could not give the assured service to the opposite parties. There is absolutely no evidence regarding the allegations of the complainants that even before the commencement of the journey of the complainants from Kerala the opposite parties had knowledge regarding the flood situation in Jammu and Kashmir. It is pointed out by the counsel for the appellants that neither the Government of India nor Jammu and Kashmir Government had issued any warning or red alerts alerting people about the alarming situation in Jammu and Kashmir for preventory or restricting any tour. It is stated by the opposite parties that they had made all efforts and done all possible things to bring back the complainants and the family members safely to their native places. Ext.B3 is the e-mail issued by the first complainant to the second opposite party expressing thanks to him and his team for their effort to bring them back safely. PW1 admtited that he had sent Ext.B3 e-mail to the second opposite party. Considering all these facts it can be seen that the direction of the district forum to the opposite parties to refund 75% of the tour cost and pay Rs 50,000/- each to the complainants 1 &2 is on the higher side and it is to be reduced / modified. Considering facts and circumstances we consider that compensation of Rs 1,00,000/- each to the complainants will be just and reasonable. So the order passed by the district forum is to be modified to that effect. The cost ordered by the district forum is just and reasonable and hence no interference is called for regarding the quantum of payment of cost ordered by the district forum.

 

                 In the result, the appeal is partly allowed. The order passed by the district forum is modified as follows. The appellants / opposite parties are directed to pay Rs 1,00,000/- each to the respondents/ complainants 1 & 2 as compensation together with cost of Rs 5000/- each to them.

 

                 The parties are directed to suffer their respective costs.

 

                 At the time of filing of the appeal the appellants have deposited Rs 25,000/-. The respondents / complainants 1 & 2 are permitted to obtain release of the said amount equally (Rs 12,500/-each) on filing proper application to be credited / adjusted towards the compensation and cost ordered above.

 

                 The appellants had deposited Rs 50,000/- before the district forum as per the order in IA.No774/2018 as a condition for granting stay. Respondents / complainants 1 & 2 are permitted to obtain release of the said amount from the district forum equally       ( Rs 25,000/- each ) on filing proper application before the district forum to be adjusted / credited towards the compensation and cost ordered as above.

 

                 The appellants / opposite parties shall pay the balance amount within 30 days of the receipt of the copy of this order, failing which the said amount will carry interest at the rate of 10% per annum from the date of the order till realization.

 

T.S.P.MOOSATH      : JUDICIAL MEMBER

 

RANJIT.R                 : MEMBER

 

BEENA KUMARI.A           : MEMBER

 

 

Be/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

 VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NUMBER 413/18

JUDGMENT DATED :16.10.2019