This appeal has been filed by the OP in C.C. No.113/2008 and is directed against final order dated 4/08/2014.
2. Some facts are required to be stated to dispose off this appeal.
3. The Complainants engaged the services of the OP, a travel agent, for the purpose of booking of tickets, booking of hotels and visa arrangements, as the Complainants were to visit Venice (i.e. Venezia) and Rome in Italy, and, Interlaken and Zurich in Switzerland. The Complainants paid to the OP a sum of 2,420 U.S. dollars equivalent to Rs.1,04,104/-, @ Rs.43/- per U.S. dollar, for hotel bookings only.
4. The Complainants reached at Marco Polo airport at Venice on 3/06/08 at about 9 a.m. The OP had booked for the Complainants Hotel Admiral @ $ 265 per night. The Complainants were told that it was a four star hotel.
5. On reaching the said Marco Polo airport at about 9 a.m. on 3/06/2008, the Complainants made inquiries to reach the said Hotel Admiral. They made inquiries to find out how much a taxi would charge, and on being told that the taxi would charge 100 euros, equivalent to Rs.6,500/- they proceeded by bus and reached Hotel Admiral, at Padua (i.e. Padova) at about 12.45 p.m. and were taken to a small dark room where there was only one window which was shut with a shutter and the Complainants found that it was an ordinary hotel or as the Complainants would call it a zero star hotel. When asked for a better room the Complainants were told to pay 30 euros per person, per night. On making further inquiries, the Complainants found that they were not in Venice but in Padua, a town about 36kms. away from Venice. The Complainants got in touch with Ms. Evelise Sequeira of the OP, through whom they had made the said arrangements for tickets, hotel bookings and visa and spent about Rs.1,321/-, and, thereafter moved on to Venice, to stay at an Inn, an old flat, arranged by Marco Costa, director of Hotel Admiral and reached there, first by taxi, then by train and then by a motor boat at about 8 p.m. The Complainants claim that they lost
two days out of three days of their holiday due to the fault of OP. Their other travails have been detailed by them in para 19, 20, 22 and 24 of the complaint.
6. The Complainants were to stay at Zurich in Hotel Goldeness Schwert for 3 nights from 13/06/2008 and were to pay $ 843 per night. This hotel was meant to be a 3 star hotel. They were given a room on the 3rd floor with a dirty worn out carpet, and, according to the Complainants this hotel had no restaurant attached. According to them, there was a dance night club situated on the first and the second floors of the said hotel building, where there was loud music and noise from 10.00 p.m. to around 5.30 p.m., etc. and they had to suffer continuously strong cigar and cigarette smoke coming into their room on account of which they spent three sleepless nights. They were provided with ear plugs.
7. Complainants did not stay at Hotel Admiral at Padua but in that connection they raised a claim of expenditure of Rs.2,860/- plus Rs.25,908.53 and compensation of Rs.30,000/- for each of the Complainants. Regarding their stay at Hotel Goldeness Schewart at Zurich the Complainants raised a claim for refund of Rs.36,249/- @ Rs.43/- per US dollar and compensation of Rs.60,000/-. These claims were raised by the Complainants first by their letter dated 23/06/2008.
8. The Complainants had given their itinerary for booking of tickets, hotels, etc. by their letter dated 10/03/2008 which was produced subsequently.
9. The Lr. District Forum by their impugned order has directed that the Complainants be refunded a sum of Rs.15,576/- inclusive of Rs.11,395/- paid by the Complainants for the booking of Hotel Admiral, Rs. 2,860/- for transport from Padua to Venice and
Rs.1,321/- towards phone call charges. The Complainants have also been awarded compensation of Rs.25,000/- and costs of Rs.25,000/- for mental stress and agony. Complainants have not been awarded any compensation for their nightmare at Hotel GoldenessSchwert at Zurich. There is no appeal filed by the Complainants against the impugned order.
10. In awarding the said compensation, the Lr. District Forum observed that the Complainants spent a tiring, frustrating and depressing vacation and that Hotel Admiral at Padua was not at the destination as promised to the Complainants who wanted an accommodation at Venice which were different districts altogether and that it was the responsibility of the OP to have given to the Complainants a clear cut picture of the exact location. The Lr. District Forum has further observed by way of illustration, that if one was to book a hotel in Washington, U.S.A., one would expect to stay in the capital city of U.S.A. and not Washington district which is elsewhere in the U.S.A. and therefore the OP was liable for misrepresentation. As regards Hotel Goldeness Schwert at Zurich, the Lr. District Forum observed that it was extremely a noisy place and the fact that ear plugs were provided in every room at the hotel spoke for itself.
11. We have perused the record, and heard arguments. Shri P. Agarwal, the lr. counsel of the OP, would submit that the OP acted only as facilitator in booking the hotels. Lr. advocate submits that the Complainants asked the OP to choose the hotels and they chose them on commission basis and as per the ratings given by GTA (Gulivers Travel Associates) which is globally recognized agency. Lr. advocate concedes that Padua is about 36 kms. away from Venice and would require about 2 ½ hours to reach by bus but submits that Padua is part of mainland Venice. Lr. advocate submits that in
Venice island the hotels are expensive and for that reason the hotel was booked for Complainants at Padua. Lr. advocate therefore submits that the OP cannot be made liable for the deficiency in service provided by the Hotels and further submits that a complaint being made to the OP, the OP took up the matter with the GTA.Lr. advocate submits that detailed information was given to the Complainants beforehand but concedes that the distance from Venice to Padua was not shown on the Hotel Admiral voucher given to the Complainants.
12. On the other hand, Shri Apte lr. advocateof the Complainants would submit that the Complainants had requested for a hotel in Venice but were booked a hotel at Padua and this itself amounts to deficiency in service. Lr. advocate submits that on reaching Hotel Admiral the Complainants came to know that it was located at Padua and not in Venice. Lr. advocate Shri Apte has referred to page 109 of record of the trial Forum as regards the classification of hotels into different star categories and what facilities each category is required to provide.
13. As already stated, the Complainants have not been awarded any compensation for their miserable stay for 3 nights at Hotel Goldeness Schwert and the Complainants have not filed any appeal against the impugned order.
14. The Complainants’ misery at Hotel Goldeness Schwert at Zurich was acknowledged by the OP in their letter dated 8/08/08 in the following words:
“As far as music noise and cigarette smoke coming out from the night club of the hotel is concerned, this disturbance was caused, we believe by outside guests during the Euro Cup matches and it was unfortunate that you were a victim.”
The fact that the Complainants were provided with ear plugs would show that noisy nights must have been a daily feature.
15. As far as Hotel Admiral at Padua is concerned, Hotel Admiral appears to have been earlier reluctant to give a full refund of all 3 nights because the Complainants had held on in the hotel for sometime as can be seen from their letter dated 15/06/08 to the Complainants but later they not only agreed to refund for all three nights, as can be seen from letter dated 8/08/2008 but refunded to the OP the amount of Rs.11,395/- paid by the Complainants at its equivalent exchange rate per dollar. The OP, therefore, is not expected to unjustly enrich itself at the cost of the Complainants and is bound to refund the said amount to the Complainants irrespective of whether there has been deficiency in service on the part of the OP or not. Admittedly, the Complainant wanted to be in Venice and not at Padua which is about 36 kms. away from Venice. The OP did not file any affidavit of Ms. Evelise Sequeira who had done the bookings for the Complainants on behalf of the OP except an affidavit to say that she had not received the itinerary of the Complainants by letter dated 10th March, 2008. The OP has tried to defend their action of booking Hotel Admiral at Padua on the specious plea that it is listed in Venice mainland by GTA. The Complainants’ answer to that is that the Complainants had given their itinerary of tickets, visa and hotel booking to ensure that everything was taken care of by the OP professionally although the Complainants were aware that hotel bookings could be done easily on the internet.
16. In our view, firstly, there was deficiency in service on the part of the OP in booking Hotel Admiral at Padua when the Complainants wanted a hotel to stay at Venice. Secondly, there was deficiency in service on the part of the OP by representing to the Complainants that Hotel Admiral was a four star hotel. Hotel Admiral could not pass the test of four star hotel, as described by the Complainants. If the Complainants relied on the information provided by GTA, it is entirely the fault of OP. There are also reviews available on the internet about the service provided by the hotels, which ought to have been verified by the OP. The OP could also have verified the exact location of Hotel Admiral. The printout at page 73 does not at all show that Hotel admiral is in mainland Venice. On the contrary it shows that it is 35 kms. away from Marco Polo Airport which is at Venice. Infact, Hotel Admiral is in suburbs of Padua.
17. Hotel Goldeness Schwert took the stand, in their letter dated 14/07/2008, that the Complainants should take up the matter with their travel agent i.e. the OP. The Complainants had availed the expertise of the OP in booking hotels, tickets and arranging visas. The plea that the OP did not provide a package tour is not of any significance. The OP had booked hotels for the Complainants at four places at a consolidated sum of Rs.1,04,104/- i.e. $ 2420 which included the OP’s commission. In other words, hotels were booked by the OP, not free of charge, but for consideration. The expression “service” has been defined in Section 2 (1) (o) of C.P. Act, 1986 in very wide terms so as to include service of any description which is made available to potential users but does not include service rendered free of charge. The Complainants are consumers and the OP is a service provider. The OP was deficient in the service provided to the Complainants in booking hotels Admiral and Goldeness Schwert.
18. We, therefore, find there is no merit in this appeal. Consequently, the same is hereby dismissed with no order as to costs.
