:    FINAL ORDER    :

DATE OF FILING : 24.12.2014

ORDER No.      41       

DATE.  07.05.2018   

Smt. Nabanita Kar – President-in-Charge

            This case has been filed by the Petitioner Prabir Kumar Maitra, Kalyani, Nadia praying for an order against the OP to refund of Rs. 3,57,970/- along with interest and compensation of Rs. 3,00,000/- & cost of Rs. 50,000/-.

            The case of the petitioner is that the OP Club 7 Holidays Ltd. published an advertisement for a tour named “European Essence” for the duration of 10 nights and 11 days costing of Rs. 79,000/- + Euro 1025/- + gratuity Euro 33/- per head.  Finding the said advertisement, the complainant booked this tour for slot scheduled on 12-04-2014 for him and his wife .  On 19-12-2013 the complainant gave advance of Rs. 10,000/-.  On 30-12-2013 he also gave Rs. 40,000/- for registration charges.  He also gave Rs. 1,04,635/- as tour charges and Rs. 31,399/- + Rs. 1,71,936/-  as Euro exchange amount.  The complainant paid in total amount of Rs. 3,57,970/-.  The complaint has alleged that OP did not provide safety and security during the tour as a result Euro 13/- was stolen from his room No. 376 in Movenpick Hotel , Switzerland on 19-04-2014.   The complainant has also alleged that OP did not show all the spots as promised in their itinerary.  The OP also did not show the Roman Forum, The Arch De Constantine, The Pantheon, The Victoria Emanuel Monument & the Trevi Fountain on 23-04-2014.  The OP did not show; Windmill, Cheese & Clog Factory on 15-04-2014 and Panoramic view of the Grand Palace & Manikin Pis on 15-04-2014.  Thus, OP has violated the terms of contract with the complainant by not showing the tourist spots promised by them.  Thereafter, the complainant sent notice through International Consumer Rights Protection Council on 05-11-2014.  The cause of action arose on and from 09-12-2013 when the complainant used OPs website and learnt about the tour and its itinerary.  As the OP did not take any step against his letter so the complainant, finding no other alternative, has filed this case. 

                        OP has contested this case by filing a written version denying and disputing, inter alia, the claim and contention of the complainant with prayer for dismissal of the case with cost.   The specific stand of the OP is that the complainant has filed this case on frivolous and motivated ground. The case is not maintainable for non- joinder of necessary parties.  Complainant has suppressed the material facts.  The OP has stated also that they conducted the tour as per their terms and conditions, so they have no negligence or deficiency in service on their part and complainant will not be entitled to get any relief from this case.          

:Points for consideration:

1. Is the case maintainable both in law and fact?
2. Is the complainant a consumer?
3. Is the OP guilty for deficiency in service as alleged?
4. Is the complainant entitled to get the relief/reliefs as prayed for?

:DECISION WITH REASON:

            The complainant has adduced evidence in support of his case.  Challenging the said evidence the OP put some questionnaires and the complainant replied the same, but not supported by any affidavit.  The OP has also adduced evidence.  The complainant filed questionnaires for cross-examination of the OP and the OP has replied to the questionnaires supported by an affidavit.  The complainant has also filed BNA.

            It is pertinent to mention here that in view of the landmark judgment of the Hon’ble Supreme Court in the case of Dr. J. J. Merchant Vs. Srinath Chaturbedi wherein Their Lordships was pleased to observe that the reply should be filed supported by affidavit.

            We have carefully perused the record, documents as filed by the parties and heard arguments advanced by the Ld. Counsels for the parties.  It is seen by us that being attracted with an advertisement in the Website of the OP the complainant became interested to join in the Tour Programme of the OP.  The duration of the Tour Programme was scheduled as 10 nights and 11 days.   The complainant booked the Tour Programme and paid the amount as mentioned in the Website.  The allegation of the complainant is that in spite of mentioning of the different spots and sites in the Tour Programme, the OP did not show him the said spots and sites in spite of receipt of entire consideration money from him.  Alleging deficiency in service as well as unfair trade practice on this ground the complainant has prayed for compensation from the OP.   As the OP did not pay any heed to his request for making payment of compensation and as his grievance had not been redressed by the OP till filing of this complaint, hence by filing this complaint the complainant has prayed for direction upon the OP to refund the entire amount as paid by him along with interest thereon as well as certain reliefs.

            The complaint has been contested by the OP by filing written version denying the entire allegations as made out by the complainant in the petition of complaint.  Prayer is made by the OP for dismissal of the complaint.

            We have noticed that the territorial jurisdiction of this complaint has already been decided by the Hon’ble SCDRC as well as the Hon’ble NCDRC. Therefore we are not inclined to interfere with the territorial jurisdiction of this Forum. As the OP did not challenge the order of the Hon’ble NCDRC before the Hon’ble Supreme Court, hence the order passed by the Hon’ble NCDRC got its finality. The Hon’ble NCDRC was pleased to hold that the instant complaint is very much maintainable on the point of its territorial jurisdiction.  Therefore we are not inclined or have no authority to interfere in the matter of territorial jurisdiction further.

            Therefore, we are now to adjudicate as to whether there is any deficiency in service or not and whether the complainant is entitled to get an order in his favour as sought for.

            It is mentioned earlier that the complainant did not file his reply to the questionnaires of the OP in view of the settled legal proposition. For this reason, the reply filed by the complainant does not bear any evidentiary value.  In the petition of complaint, the complainant has merely alleged that the OP did not show him several spots and sites during the tour programme as per the terms and the conditions of the agreement. Only the complainant put some questionnaires to the OP regarding his allegation. Therefore the complainant has made some allegations against the OP in the petition of the complaint, but the same has not been corroborated by him by adducing cogent documentary evidence.  Based on merely on the pleadings without any document, the complaint cannot be succeeded.  As the Complainant has failed to prove his complaint by producing cogent document in support of his contention, hence the complaint fails going by the foregoing discussion.

Hence, it is

Ordered,

That the complaint is dismissed on contest against the OP.  However considering the facts and circumstances there is no order as to cost.

            Let a plain copy of this final order be supplied to the parties / their Ld. Advocates / agents forthwith free of cost or send by ordinary post.