BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 74/2006 Filed on 10.03.2006 Dated : 16.02.2009
Complainant:
Adhithya Sports and Arts Club, Keezhavoor, Andoorkonam P.O, Pothencode (via), Thiruvananthapuram represented by its Secretary.
(By adv. M. Nizamudeen)
Opposite parties:
M.S. Manu, S/o Sudhakaran, Aiswarya, Mamom, Attingal, Thiruvananthapuram, Proprietor, NAVERA, the Tour People, Near Moonnumukku, Mamom, Attingal, Thiruvananthapuram.
Suresh, Manager, NAVERA, the Tour People, Near Moonnumukku, Mamom, Attingal, Thiruvananthapuram.
This O.P having been heard on 15.01.2009, the Forum on 16.02.2009 delivered the following: ORDER SMT. S.K.SREELA : MEMBER The Secretary, Adhithya Sports and Arts Club has filed the complaint against the opposite parties alleging the following: The complainant Club which has made exemplary achievements in social, cultural, educational activities etc. and which has got a predominant position with very good reputation and goodwill used to conduct tour programmes for its members and family etc. during every Onam season for the last 20 years. Accordingly in 2005 also the club organized a tour programme during Onam season from 17.09.2005 to 19.09.2005 to visit the places viz; Athirapally, Vazhachal, Guruvayoor, Malampuzha, Palani, Kodaikkanal, Madurai via Coimbatore, Kuttalam and return to the boarding/starting point at Keezhavoor. There were 49 passengers consisting of 12 families including children of six months of age etc. The passengers are the 'Club' members and their family members. For the said journeys, the tour convener of the complainant booked the opposite parties' vehicle -Tourist Bus-vide Agreement No. 752 dated 23.07.2005 and paid an advance amount of Rs. 1,500/-. Accordingly the opposite parties provided a 49 seater tourist bus bearing Regn. No. KL-01/V1885 for the said journey. The journey started at 11 p.m on 16.09.2005 with 49 passengers. On 17.09.2005 night the passengers stayed at Guruvayoor. On 18.09.2005 before noon the parties halted at Malampuzha. In the afternoon when the vehicle was proceeding to Kodaikanal via Palani, the vehicle stopped for checking at Gopalapuram Check Post in Palakkad District at about 3 p.m on 18.09.2005. On verification of the vehicular documents of the tourist bus provided by the opposite parties, by the Check Post Authorities and officials of the Motor Vehicles Department it was found that the bus bearing Regn. No. KL-01/V 1885 provided by the opposite parties for the aforesaid journey as per the aforesaid agreement was not fit to ply in the public road by carrying passengers as the said vehicle was not having valid Certificate of Fitness during that time. The said vehicle was taken into custody by the Check Post Authorities and Motor Vehicles Authorities for plying the vehicle for violating the provisions of law, Motor Vehicles Act and Rules and Traffic Rules. The Club Members and their families, friends and relatives travelling in the said bus including ladies and children were held up in the public road for about four hours upto 7 p.m in very hot sun, in a most difficult situation in dust without getting suitable and sufficient space to sit or getting a cup of drinking water and without getting toilet facility. Due to the illegal and unlawful act of the opposite parties and their negligence, carelessness and deficiency in service the complainants members and the persons who travelled in the said bus suffered a lot of physical and mental pain and suffering, loss of happiness and enjoyment which they never suffered in their lives. Considering the difficulties and sufferings of the passengers on 18.09.2005 the Check Post Authorities at the request of the passengers allowed the return of the said bus with passengers after imposing fine of Rs. 3,000/-. The passengers were taken back to the boarding point at Keezhavoor without completing the journey to the agreed places, viz; Palani, Kodaikkanal via Coimbatore, Madurai, Kuttalam etc. which are the most important and interesting places agreed to travel as per thesaid agreement entered into between the complainant and the opposite parties. In addition of the advance amount of Rs. 1,500/- the opposite parties received Rs. 5,000/- towards diesel charges from the complainant. Due to the breakage of the aforesaid journey in violation of the aforesaid agreement solely due to negligence, deficiency in service and unfair trade practice committed by the opposite parties, the complainant and its members including passengers suffered a lot of mental agony, hardships and loss of reputation and goodwill, loss of faith among its members, passengers and general public. For the illegal, unfair and irresponsible act of the opposite parties and the deficiency in service and unfair trade practice committed by the opposite parties, the complainant is legally entitled to get an amount of Rs. 50,000/- towards compensation for loss of reputation and goodwill and for mental agony, loss and hardships caused to the complainant. The complainant is also entitled to get an amount of Rs. 6,500/- received by the opposite parties from the complainant at the time of execution of the said agreement on 16.09.2005. The complainant issued a lawyer's notice dated 17.10.2005 to the opposite parties. Since no amount has been paid by the opposite parties, this complaint has been enunciated for redressal of their grievances.
The opposite parties were served with notices by this forum and the notices returned 'unclaimed'. Hence the opposite parties were set exparte.
The complainant has filed affidavit in lieu of chief examination and examined as PW1, marked Exts. P1 to P14 on the part of the complainant. PW1 has not been cross examined, hence his affidavit stands unchallenged.
The following issues arise for consideration Whether there is deficiency in service on the part of the opposite parties? Whether the complainant is entitled for the reliefs claimed in the complaint?
Points (i) & (ii):- The complaint before us has been filed by the Secretary of Adhithya Sports and Arts Club for and on behalf of the 49 passengers who are also the club members and their family members. Along with complaint, application seeking sanction of this Forum to allow the complainant to proceed the complaint on behalf of other passengers has also been filed. Each one of the passengers on whose behalf the complaint has been filed has hired the services of the opposite parties. Thus, all the passengers on whose behalf the complaint has been filed come within the definition of consumer.
The agreement form, Ext. P6, reveals that the complainant has paid Rs. 1500/- as advance to the opposite parties for a journey to Athirapally, Vazhachal, Guruvayoor, Malampuzha, Palani, Kodaikkanal, Madurai, Kuttalam and return. The said journey, as per Ext. P6, commences from 16.09.2005 to 19.09.2005. The main allegation of the complainant is that while the bus was proceeding to Kodaikkanal via Palani, the vehicle was stopped for checking at Gopalapuram Check Post in Palakkad district on 18.09.2005 and on verification by the officials of the Motor Vehicles Department, it was found that the bus provided by the opposite parties for the said journey was not fit to ply in the public road by carrying passengers as the said vehicle was not having valid certificate of fitness during that time and the vehicle was taken into their custody for violation of the provisions of law as per Motor Vehicles Act and Rules and Traffic Rules. Due to the negligence and deficiency in service of the opposite parties, the passengers in the said bus had to suffer a lot for 4 hours upto 7 p.m. The complainant has further pleaded that, at the request of the passengers, the bus was returned after imposing a fine of Rs. 3,000/- at 7 p.m on 18.09.2005. As per the pleadings, the passengers were taken back to the boarding place without completing the journey to the agreed places viz; Palani, Kodaikkanal via Coimbatore, Madurai, Kuttalam etc. Ext. P7(a) proves the payment of Rs. 3000/- to the Motor Vehicle Department at Gopalapuram Check Post on 18.09.2005 which bears the seal of the club. As per Ext. P7 it is seen that the fitness certificate of the above said vehicle has already expired.
The opposite parties never turned to contest the case or deny the allegations levelled against them. Ext. P8 is the copy of the lawyer's notice issued to the opposite parties on behalf of the club and Ext. P10 is the original notice which has been returned by the 2nd oppositeparty with endorsement 'unclaimed'. We have considered the material brought on record and also written arguments as well as heard arguments. The fact that the discomfort and unhappiness to the passengers have been established by the complainant. When the bus proceeded from the boarding it had no valid certificate of fitness. The opposite parties ought not to have taken the bus with 49 passengers and the opposite parties have not turned up to give proper explanation or justification for the same. There is serious default on the part of the opposite parties in taking the bus without proper certificates. What is more tantalizing is the condition of the passengers who had travelled in a bus which is actually not purported for the same. Fortunately no such incident has been reported herein. Every bus owner knows that the bus must be in perfect condition with proper documents and before transport they have not taken any care to see that the bus was in good condition with proper documents. As per the pleadings, the entire schedule of the tour has not been completed by the opposite parties. The failure on the part of the opposite parties in ensuring the completion of the entire tour as per the obligation undertaken by them for which they had charged a substantial amount from the complainant amounts to deficiency in service on their part.
The opposite parties were well aware of the contingency that would happen in plying the vehicle without proper fitness certificate. The opposite parties inspite of their prior knowledge had not made any efforts for clearing the same. This is not an omission which can be said to be wholly unforeseen. The opposite parties cannot escape the liability having regard to the facts and circumstances of the case and in the light of the incident that had taken place. The passengers which included ladies and children were forced to face numerous difficulties during the course of their journey for no fault of theirs. Further the entire tour programme has not been completed by the opposite parties which is revealed by Ext. P6(a) also. As per Ext. P6(a) the receipt of Rs. 5000/- on 16.09.2005 has been acknowledged.
In the above circumstance we find that the complainant is entitled for refund of Rs. 5,000/- paid on 16.09.2005, anyhow the said passengers visited Guruvayoor and Malampuzha by travelling in the opposite parties' bus for which we deduct the above referred amount of Rs. 5000/- along with Rs. 1500/- paid as advance by the complainant on 23.07.2005. The complainant has further claimed Rs. 1000/- per passenger for the loss and inconvenience suffered. Obviously it is practically impossible to bring out in evidence the actual monetary loss, inconvenience and mental sufferings caused to each passenger. One can understand the condition of such passengers at that time when one puts himself in their place. Though the sufferings cannot be commutted in terms of money they have to be compensated for the sufferings they had to undergo for which we find the amount claimed by the complainant as genuine and reasonable. The complainant is also found entitled for an amount of Rs. 5000/- towards compensation for the loss of reputation caused to the club. In the result, the opposite parties shall pay Rs. 54,000/- (Rs. 49000/- + Rs. 5000/-) as compensation to the complainant along with a cost of Rs. 2,500/- within one month of the receipt of the order failing which the amounts shall carry interest @ 9%. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 16th February 2009.
S.K. SREELA : MEMBER
G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
C.C. No. 74/2006 APPENDIX I COMPLAINANT'S WITNESS : PW1 - G. Vinukumar II COMPLAINANT'S DOCUMENTS :
P1 - Copy of registration certificate of Societies of No. 323/84. P2 - Copy of renewed registration certificate of Kerala Sangeetha Nataka Academy from 01.04.2005 to 31.03.2008. P2(a) - Copy of renewed registration certificate of Kerala Sangeetha Nataka Academy from 01.04.2002 to 31.03.2005. P2(b) - Copy of renewed registration certificate of Kerala Sangeetha Nataka Academy from 13.12.99 to 31.03.2002. P2(c) - Copy of renewed registration certificate of Kerala Sangeetha Nataka Academy dated 3 years from 13.12.96. P2(d) - Copy of renewed registration certificate of Kerala Sangeetha Nataka Academy dated 3 years from 13.12.1993. P3 - Copy of certificate of affiliation dated 01.07.1999. P4 - Copy of certificate issued by Sree Chithra Thirunal Institute for Medical Science and Technology dated 03.09.2005. P5 - Copy of certificate of merit issued by Andoorkonam Panchayat. P6 - Carbon copy of agreement form dated 23.07.2005. P7 - Copy of check report of vehicle No. KL-01 V-1885 dated 18.09.05 issued by Check Post, Gopalapuram. P7(a) - Photocopy of acknowledgement for receipt of fees dated 18.09.2005. P8 - Copy of advocate notice dated 17.10.2005 issued by the complainant to opposite party. P9 - Postal receipt. P10 - Two returned letters marked as 'unclaimed-returned to sender'
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
