Delhi

North East

CC/330/2014

Sh. Devendra Singh - Complainant(s)

Versus

Mr. Ajay Singh - Opp.Party(s)

25 Apr 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 330/14

 

In the matter of:

 

	Sh. Devendra Singh S/o Sh. Prithavi Singh R/o Flat No. 86, Bhagirati Appartments Sector-9, Rohini New Delhi-110085	Complainant
	Versus
1           2	Mr. Ajay Singh S/o Sh. Ravindra Pratap Singh Shop No. B-9, Dilshad Colony (near New Creations Public School) Delhi-110095   Ms. Reena Singh W/o Mr. Ajay Singh Shop No. B-9, Dilshad Colony (near New Creations Public School) Delhi-110095	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

27.08.2014 25.04.2019 25.04.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

 

 

ORDER

1. Briefly stated facts of the case are that the complainant sometime in March 2014 came in contact with OP1 who posed himself as owner of M/s. Aryan Travel Point, a Travel and Tour agency, for travel plans to visit Sikkim in particular Gangtok, Yamthang Valley and Darjeeling. Both parties met at the complainant’s official address at P.S. Defence Colony where the complainant was posted as ACP with Delhi Police. OP1 promised the complainant to provide all facilities such as Air Travel tickets, comfortable Taxi transportation, Boarding / lodging, good food and clean hotel rooms. Relying on the assurance given by OP1, the total package was settled at Rs. 80,000/- out of which complainant paid Rs. 9,000/- as booking amount for Bagdogra vide cheque  no. 525746 dated 24.03.2014 drawn on Axis Bank and Rs. 50,000/- for North East travel vide cheque no. 525749 drawn on Axis Bank. The said amounts were acknowledged by OP1 vide receipts no. 1869 dated 24.03.2014 and 1308 dated 19.04.2014 issued in favour of complainant. The complainant also handed over a post dated cheque no. 525751 dated 19.05.2014 drawn on Axis Bank to OP1 as balance amount against receipt no. 1309 dated 10.04.2014 issued by OP1. The complainant alongwith his wife and daughter traveled to Bagdogra in Spicejet flight on 21.04.2014 and from there were taken to Gangtok by Taxi. The hardship of the complainant commenced 22.04.2014 onwards when as per schedule, he alongwith his family was to visit Yamthang Valley but the Taxi that got arranged by representative of OP1 was an eight seater vehicle and was made available on sharing basis for which reason the complainant’s family was huddled in a tight corner with discomfort and the entire journey was very torturous. The hotel Saga Renzyong Inn at Lachung in North Sikkim which was provided to the complainant by the OP1 had very poor service in terms of food, bed linen and cleanliness and had no proper arrangement for rest. The complainant was further shocked to find no locks in the room and when he questioned about the same with the Manager of the hotel, he was assured of safety of his luggage and was told that no locks are supplied by the hotel to the guests. The complainant believing the management, left the room opened with his baggage and when he returned after sight seeing, he found his luggage was scattered in the room and was ransacked / searched by someone in the hotel. The complainant made an oral complaint with the Manager of the hotel about poor service but he instead misbehaved with the complainant. The complainant did not get proper food and room service also. Due to bad service and misbehavior and attempt of theft, the complainant suffered mental and physical torture but OP never paid any heed to the grievance when complainant met his agent on return from trip after 27.04.2014. The complainant issued a legal notice through counsel to OP1 dated 16.05.2014 alleging deficiency of service and informing him of stop payment of the PDC of Rs. 21,000/- by the complainant due to bad arrangement made by OP1. Complainant has submitted that for the first time he acquired knowledge of misrepresentation made by OP1  posing himself as the owner when he received reply dated 19.06.2014 to his legal notice on behalf of OP2 as sole proprietor of M/s Aryan Travel Point in which apart from denial of  allegations leveled by the complainant, the counsel for OP2 stated that it is OP2 and not OP1 who is the proprietor of M/s Aryan Travel Point and also opposed the stop payment instruction issued by complainant for the balance amount of    Rs. 21,000/-. Therefore alleging deficiency of service, the complainant was constrained to file the present complaint before this Forum praying for issuance of direction against the OPs to pay Rs. 5,00,000/- as compensation for harassment, mental and physical torture and tension undergone by the complainant alongwith refund of the entire amount of Rs. 59,000/- paid by complainant to OPs for the Sikkim Trip.
2. Complainant has attached copy of brochures and business card of OP advertising trip packages offered, payment receipts of amounts paid to the tune of Rs. 59,000/- by complainant to OP and   Rs. 21,000/- as PDC, copy of air ticket through Spicejet Flight from Delhi to Bagdogra to Delhi dated 21.04.2014 & 27.04.2014 copy of legal notice dated 16.05.2015 by complainant to OP1 and reply thereto dated 19.06.2014 by OP2 to complainant.
3. The complaint was heard on admission on 02.09.2014 and complainant had addressed arguments in person on maintainability of complaint. The erstwhile bench of this Forum dismissed the complaint in limine observing no deficiency of service on part of OP and on ground of complainant having failed to fulfill his part of contract by issuing stop payment instructions for clearance of the cheque of balance amount. The complainant had preferred Appeal No. appeal no. 962/14 before  Hon’ble SCDRC against the impugned order of this Forum and the Hon’ble SCDRC vide order dated 04.08.2015 set aside the said order remanded back the case for reconsideration of complaint keeping in view the payments made by complainant to OP to the tune of    Rs. 59,000/-.
4. Accordingly, notice was issued to OPs on 15.12.2014. OPs entered appearance and filed written statement in which while admitting the receipt of payment of Rs. 59,000/- from complainant, took the objection that complainant failed to discharge his legal liability towards OPs of making balance payment of Rs. 21,000/- by issuing stop payment instruction to his account holding bank for cheque no. 525751 dated 19.05.2014 which was returned dishonored / unpaid on presentation with remarks “payment stopped by drawer.” OPs submitted that OP1 filed a criminal complaint no. 849 / 2014 u/s 138 N.I. Act 1881 against the complainant at Patiala House Courts in September 2014 and on receiving summons of which and on directions of the concerned Ld. MM Dheeraj Mittal, the complainant deposited a DD of Rs. 21,000/- in the concerned court. But the OP referred to receive the said DD as he has claimed twice the value of the cheque amount in the complaint. OPs further submitted that the entire dealing between complainant and OPs and money transactions took place at OP’s office and not complainant’s office and denied OP1 posing himself as registered proprietor of travel company or being an agent of OP2 since the relationship between them is that of husband and wife  and OP2 is the sole proprietor of the company which facts the complainant was already apprised of OPs further urged that they fulfilled all the promises and provided all facilities under the package and complainant never made a single complaint during his entire trip regarding issue of taxi or poor facility in the hotel to OPs even after coming back from Sikkim. OPs denied having provided a taxi to Yamthang Valley to the complainant and his family on sharing basis or they being put to any inconvenience or any theft attempt being made with regard to their luggage at the hotel where they were put up. OPs denied the allegation of the complainant of the hotel Saga Renzyong Inn having no locks in their hotel room since the usual practice is that all hotel rooms have locks and the keys are handed over to their respective occupants and therefore the question of searching of bag or luggage being scattered in the room behind complainant’s back in his absence is out of question. OPs further questioned absence of any written complaint to the owner of the hotel by the complainant regarding poor service and specifically denied any misbehavior or mental or physical torture caused by hotel staff or by OP to the complainant and stated that the complainant never ever made any verbal complaint regarding any problem during his trip to OP. Lastly, OPs prayed for dismissal of the complaint contending that complainant is legally bound to pay the outstanding amount with interest and no negligence can be attributed to OP since they performed their duty with sincerity and provided all services to complainant and his family causing no hardship to them.
5. OP has attached copy of criminal complaint filed against complainant before Patiala House Court alongwith annexures viz copy of dishonored PDC of Rs. 21,000/- alongwith return memo issued by ICICI Bank and copy of legal notice dated 07.08.2014 by OP to complainant u/s 138 N.I. Act with postal receipt and track report.
6. Rejoinder in rebuttal to defence taken by OPs was filed by the complainant in reiteration of his grievance against OPs while admitting having deposited DD of Rs. 21,000/- before MM court at Patiala House Court in complaint case  filed by the OP against complainant.
7. Evidence by way of affidavit was filed by the complainant wherein he exhibited the documents relied upon / annexed with complaint and in addition thereto attached photographs of the hotel room at Yamthang Valley and the taxi hired for taking complainant and his family from Gangtok to Yamthang Valley.
8. Evidence by way of affidavit was filed by the OPs exhibiting copy of paper book of complaint case u/s 138 N.I. Act filed against complainant and also submitted that the taxi hired by OP to take complainant and his family to Yamthang was without any sharing basis.
9. Written arguments were filed by both the parties in reassertion / reemphasis of their respective grievance / defence summarizing their previous pleadings. Complainant placed on record copy of order dated 27.08.2018 passed by Mr. Pankaj Arora Ld. MM, Karkardoma Court, Shahdara in the 138 N.I. Act case vide which the same was dismissed in default due to non prosecution / non appearance of complainant (OP herein).
10. We have heard the rival contention of both the parties and have given our anxious consideration to the documentary evidence placed on record before us. It is undisputed that a travel package to Sikkim Valley was taken by complainant from OPs at a mutually agreed sum of Rs. 80,000/- out of which Rs. 59,000/- was paid by complainant to OP before going for the trip i.e. before 21.04.2014 and for remaining Rs. 21,000/- a PDC dated 19.05.2014 was given to be encashed after the return date i.e. 27.04.2014 which was stopped by the complainant as informed to OP vide legal notice dated 16.05.2014. It is also not a dispute that the complainant and his family started the journey to Sikkim Valley as per scheduled date of package and covered all areas which were part of package offered by OP and the culmination of trip as per date of departure on the travel ticket. The dispute arose for the first time when the complainant issued a legal notice to  the OP voicing his grievance of improper service, poor food quality, bad hotel room and uncomfortable travelling, attempt of theft of baggage, hotel doors not having locks etc., and therefore demanding   compensation and intimating of stop payment of balance amount cheque. During the course of oral arguments, a specific question was put by this Forum to the complainant of any written complaint or e-mail to either Yamthang Valley hotel management or to OP regarding series of grievance and allegation leveled by the complainant in the complaint para 8 to 16 more so from the perspective that the complainant being a senior police officer would understand the importance of a written communication and significance of such a documented complaint and its evidentiary value in a legal proceedings being fully aware that all legal proceedings, more specifically criminal in nature which he is accustomed and adept at handling in due course of duty starts with a preliminary complaint. The complainant admitted to not having placed on record any such complaint as none was written either to the Yamthang Valley hotel management or to OP by him. Further complainant has not placed any written agreement executed between the parties by which it could be ascertained the exact nature of facilities / amenities were to be provided to the complainant by OP specifically taxi, food and hotel etc., which are the basis of the grievance of the complainant in the present complaint and in absence any written agreement, merely on basis of affidavit of complainant and unsubstantiated and uncorroborated statements, it cannot be inferred that the allegation leveled by the complainant against OPs are true and correct. The Hon'ble National Commission Dalia Roy Vs Anindya Mukherjee II (2017) CPJ 258 (NC) held in a similar case of alleging deficiency of service of substandard lodging fooding etc., that in absence of written agreement, merely on basis of affidavit, it cannot be inferred in the services agreed to be provided to OP by complainant, the photographs placed on record by the complainant do not bring out clearly as to which hotel or which room they pertain to since no supporting affidavit or factual details of the concerned place has been brought about in those pictures and can be of any random and shabby place. The OP1 argued that the complainant never even once during and after the entire Sikkim trip informed the OP about any alleged hardship or inconvenience suffered by him or his family during the said trip before issuing a legal notice in May 2014, just when the encashment date of the PDC was drawing closer and stopped payment of the same and started demanding, compensation. The flight tickets Delhi-Bagdogra-Delhi booked by OP through Spicejet for complainant and his family alone cost Rs. 65,000/- and the total trip package was to the tune of Rs. 80,000/- inclusive of Air tickets, hotel, food and conveyance out of which the complainant paid Rs. 59,000/- to OP and with held Rs. 21,000/- on grounds of deficient service and poor arrangement provided by OP.
11. We have applied our judicial mind and opine that the complainant has failed to prove any deficiency of service on the part of OPs by leading any cogent evidence and after having availed of the entire trip package by under paying the OP short of Rs. 21,000/- made up a frivolous complaint because if the deficiency of service and mismanagement was actually of such a serious nature as presented by the complainant, it is hard to believe that the complainant despite being  well read educated police officer did not  intimate the OP telephonically or in writing of hardship faced by him and his family at Sikkim or would not have exercised his position as a senior police officer by initiating legal proceedings against the concerned hotel with the nearest police station for having ransacked his baggage / luggage in his absence. The complainant failed to adduce any evidence that during the journey he made any complaint to OP or afterwards on return except legal notice in May 2016 replied by OP in June 2016. The entire complaint was built so that the complainant wriggles out of his monitory liability to clear the outstanding payment of Rs. 21,000/- accruing to OP. The OP having initiated Section 138 N.I. Act proceedings against complainant for dishonor of cheque fortifies our belief.
12. Therefore considering the entire case in totality in proper factual and legal perspective, having exhaustively discussed the rival contentions of both parties, legal proposition in the foregoing paras and after examining all the evidence placed on record, we are of the considered view that OP was not deficient in service & complainant deserves no refund of the part payment made by him to OP with respect to the Sikkim tour package as having availed of the same and more so when this is not the entire consideration amount which the complainant himself had admitted to not having paid / withheld and availed of the entire trip package by payment of Rs. 59,000/- to OP whereas the Air tickets price Rs. 65,000/- alone exceeded the said sum and therefore keeping in view the balance / equity, the present complaint is devoid of merits and is hereby dismissed the same as frivolous and vexatious u/s 26 of Consumer Protection Act with stern direction to the complainant to abstain from misusing the process of law being a law officer himself.
13.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on  25.04.2019

(N.K. Sharma)      President

(Sonica Mehrotra)  Member