PER SHRI. S.S. PATIL - HON’BLE MEMBER :

2) The facts mentioned in the complaint by the Complainant are that the Opposite Party No.2 is a Tour Organizing Company. On the basis of information given by the Opposite Party Complainant decided to visit Kerala. The Complainant visited the office of Opposite Party No.2 at Chembur. The brochure and tariff sheet contained the package tour viz ‘Gorgeous Kerala’ with 3 options. The Complainant selected option 3, the highest option. On 24/10/04, he booked the package for himself alongwith his wife. The tour was to start form 11/11/04 and was to finish on 18/11/04. It was told to the Complainant by Opposite Party No.2 that they would provided A/c. ambassador car. In addition the Complainant also booked for A/c. houseboat during the tour on 17th & 18th of Nov., 04. The total cost of the above package service was Rs.51,150/- excluding the price of houseboat.

3) The Complainant has further alleged that Opposite Parties informed the Complainant on 06/04/04 that they booked the hotels of lower grade at Periyar & Kumarakom as per option 2 and not the hotels as per option 3 as selected by the Complainant. The Complainant under coercion and force had to accept the same.

4) The Opposite Parties also failed to provide itinerary, hotel vouchers but on receiving the balance amount of Rs.43,589/-, on 10/11/2004 at 8.30 p.m. the representative of the Opposite Party No.2 provided tour itinerary, hotel voucher, etc.

5) The Complainant has further added that as per itinerary, on 11/11/04, he reached at Cochin Airport, they were received by on Ramani who apparently was the agent of Opposite Party No.2. However, instead of A/c. Ambassador Car, an Indica car was provided to them at the Cochi Airport, contrary to the vouchers and itinerary. The driver of the car was also new and was not conversant with the roads and places where the Complainant and his wife visited on the day 1st of their tour. Thus, Opposite Party No.2 has failed and neglected to organize and manage the tour as per promises.

6) The Complainant has further stated that on 17/11/04, he went to the jetty for boarding the houseboat. But the houseboat, booked for the Complainant was very old model and it was Non A/c. The Opposite Parties have charged for A/c. houseboat but provided a non A/c. houseboat. This caused mental & physical harassment to the Complainant and his wife. Thus, Opposite Parties are deficient in providing the services as promised by them. They have adopted unfair trade practices by charging heavy prices for the services and they did not take care and confirmed that the promised services are provided to their consumers.

7) It is further submitted by the Complainant that their houseboat reached at Alleppey Jetty on 18/11/04 at 9.30 a.m. At that time again Indica Car was waiting for them. But he insisted for A/c. Ambassador Car. Then only after waiting for half an hour, the promised Ambassador Car was provided. All these short comings in the services provided to the Complainant by the Opposite Parties were mentioned in his tour report of Guest of the Evergreen tour who had arranged the houseboat. The Complainant reached Mumbai on 19/11/04. The Complainant has reported all these grievances to the Opposite Party vide his letter dtd.25/11/04 addressed to Opposite Party No.1 and called upon Opposite Parties to refund the entire cost of the tour, compensation, etc.

8) In reply to the above letter the representative of Opposite Party No.2 apologized for inconveniences caused to the Complainant vide e-mail dtd.01/12/04 & 13/12/04. Opposite Party offered Rs.4,000/- to the Complainant. The cheque of Rs.4,000/- was received by the servant of the Complainant on 29/12/04. On receipt of this cheque the Complainant vide e-mail dtd.04/01/05 he informed Opposite Party No.2 that he has accepted the cheque, without prejudice to the rights.

9) Finally the Complainant has prayed for the following reliefs –

     The Opposite Parties be directed to refund the entire amount of the tour package i.e. Rs.53,589/- with interest @ 21% p.a. from the date of payment till realization of the same, a compensation of Rs.2 Lacs for physical discomforts and mental agony, etc. and Rs.50,000/- towards legal and other expenses.

10) The Complainant has attached xerox copies of the following documents in support of his complaint – A brochure with sheet of tariff, Receipt dtd.03/11/04, Proforma Invoice with tour itinerary and list of hotels & voucher, Report dtd.18/11/04, Letter dtd.25/11/04 of the Complainant, E-mail dtd.01/12/04 & 13/12/04, 04/01/05.

11) The complaint was admitted and notices were served on the Opposite Parties.

      The Opposite Parties appeared through their Ld.Advocates and filed their written statements. Opposite Party No.1 has specifically stated in his written statement that in this respect the Complainant has already accepted a sum of Rs.4,000/- from the Opposite Party and therefore, estopped from raising any claim.
 

13) The Opposite Party No.2 has elaborately filed its written statement wherein it is stated that Opposite Party had never assured to provide an Ambassador Car to the Complainant nor he was liable to travel in an Ambassador Car as per the brochure. On simple perusal of the brochure on which the Complainant has relist, it is clear that he was to be provided with non air conditioned small car, for round trip, transport starting from Cochin Airport on day 1, till drop at Cochin Station Airport on day 8. The Complainant has admittedly availed option 3. This option clearly states that for 2-3 Adults a small car would be provided. The medium car option was for 4-5 adults. It is the admitted fact that the Complainant was travelling alongwith his wife only and hence, as per option 3 only he was entitled to a small car only. Accordingly a voucher for small car was given to the Complainant. Thereafter there is no deficiency in this respect. The Opposite Party No.2 has further stated that it was only for the drive from airport to Casino hotel, a distance of 45 minutes drive, the Complainant had to go in Indica car but for the rest of the entire trip the Complainant was provided with the Ambassador car. Therefore, the allegations of deficiency in respect of non providing an ambassador car is baseless, false & frivolous and with malafide motivation.

14) Regarding the itinerary, the Complainant has made the rest of the payment only one day before the trip started. So he himself has committed a delay in making the balance payment of the tour cost and therefore, he was not provided with the itinerary in advance but at the time of making the entire payment for the tour.

15) Regarding not providing A/c. houseboat, it is the contention of the Opposite Party No.1 that, the cost of the A/c. houseboat was Rs.8,000/-. Though the Opposite Party No.1 did not admit that Complainant was entitled to A/c. houseboat, the Opposite Party No.1 has stated that, it refunded a sum of Rs.4,000/- to the Complainant. The Complainant accepted this sum. Therefore, from the whole contention it appears that the Complainant has opted for A/c. houseboat and he had paid for the same but due to Non A/c. houseboat, the Opposite Party No.2 has refunded Rs.4,000/- to the Complainant. The Complainant has accepted the same but after returning to Mumbai, he has communicated to the Opposite Parties that he had accepted the same without any prejudice and he reserves his right. The Opposite Party No.2 has further submitted that assuming that the Complainant was entitled to A/c. houseboat, the same cannot be a ground for deficiency in service entitling the Complainant to refund of the entire payment for the whole trip and after having accepted Rs.4,000/-.

16) Regarding the hotel rooms of lower grade mentioned in option 2, the Opposite Party No.2 has submitted that the Complainant was well informed prior to the commencement of the tour that, due to peak season, they were being housed into alternative hotels and were required to pay accordingly. The Complainant had expressed his acquiescence to the same by making payment without any protest. Now the Complainant cannot raise any allegation in this respect. The allegations in this respect that the lower grade hotel rooms were provided are after thought.

17) The Opposite Party No.2 in its para 6 of the written statement has stated that it was made clear to the Complainant that for a small car we provide an ambassador or an Indica. This means the Complainant had asked for the Ambassador Car. The Opposite Party No.2 has also stated that, the Complainant had a request for A/c. Ambassador Car and A/c. Houseboat and he had opted for option 3 hotels. It is however, made it clear to the Complainant that these are subject to availability. It is further admitted by the Opposite Party No.2 that being peak season, the hotels were full and the Complainant was offered hotels which were available. However, these option 2 hotels were equally good quality, but the Complainant has by his conduct accepted option 2 hotels.

18) It was further denied by the Opposite Party No.2 that the driver of the car was not familiar to the roads in the city. It is submitted that on the request of the Complainant the car was changed to A/c. Ambassador. Thereafter the Opposite Party No.2 has almost denied every allegation of deficiency and unfair trade practice alleged by the Complainant. Finally the Opposite Party No.2 has prayed for the dismissal of the complaint with cost. The Opposite Party also filed its affidavit of evidence and written argument. Opposite Party No.1 also filed his affidavit of evidence wherein they reiterated the facts mentioned in their written statements. The Complainant also filed his affidavit of evidence and written argument wherein he reiterated the facts mentioned in his complaint and he denied the points raised by the Opposite Party No.1 & 2 in their written statements and affidavits of evidence.

19) We heard the Ld.Advocates of all the parties, perused all the papers filed by them and our findings are as follows –

      The Complainant wanted to visit Kerala on holidays for sightseeing. The Opposite Parties are the organizers of different domestic & international tours. Therefore, he approached the Opposite Parties. The Opposite Parties offered him 3 options of the tour called ‘Gorgeous Kerala’. He opted for the highest option no.3 of the package tour, ‘Gorgeous Kerala’. The tour was to commence on 11/11/04 and conclude on 18/11/04. He was to undertake the tour package alongwith his wife. Accordingly, he paid total sum of Rs.53,589/- to the Opposite Party against the cost of the above said tour.

20) The 1^st and foremost deficiency alleged by the Complainant is that when he reached Cochi Airport, the Opposite Parties provided Indica Non-A/c. car instead of A/c. Ambassador Car. In this respect the Opposite Party has admitted in para 6 of the written statement that the Complainant had opted for option 3 hotels with an amendment of a houseboat. It was made clear to the Complainant that for a small car we provide an ambassador or an Indica. The Complainant had finally settled for an ambassador car. This clearly indicates that the Complainant had asked for ambassador car and the Opposite Parties had also agreed for the same but when the Complainant reached at Cochi Airport he was provided with non A/c. Indica car for half a day on 11/11/04. This is certainly appears a deficiency on the part of Opposite Parties as they did not provide the service for which they had already agreed.

21) The another allegation leveled against the Opposite Parties is that the driver was new to the road and places to be visited. This is only a bare allegation not supported with any cognate evidence. The Opposite Parties have vehemently denied this allegation. Therefore, this allegation is not substantiated.

22) The Complainant has further made grievances against the Opposite Parties that the hotels booked for him were the hotels prescribed in option 2 and not of option 3 standard. In this respect the Opposite Parties also admitted this fact and in their written statement and affidavits of evidence they have justified this fact by saying that, the Complainant was already informed in advance before the commencement of the tour that the hotels of option 3 would be provided subject to the availability. The alternate arrangement was made due to the peak season. Therefore, in this respect also the Opposite Party No.2 has specifically admitted that the alternate rooms were given to the Complainant which was not opted for, by the Complainant. Therefore, in our view, this is also the deficiency in service on the part of Opposite Parties as they did not provide the Complainant the hotel rooms as per option 3 but of lower grade option 2.

23) The last and important allegation about providing Non A/c. and old model houseboat to the Complainant. In this respect also, the Opposite Parties have indirectly accepted this allegation and stated in their written statement that for this shortcoming they refunded an amount of Rs.4,000/- to the Complainant. The total cost of the A/c. houseboat being Rs.8,000/-, they reimbursed Rs.4,000/- to the Complainant.

24) It is clearly observed that the Opposite Party No.2 has indirectly admitted the deficiency mentioned in the para 20, 22 & 23 above on one side of their written statement and at the same time denied that these facts do not amount to deficiency.

25) However, for the above said deficiency i.e. providing Indica car instead of A/c. Ambassador, for half a day, providing hotel rooms of lower grade and non A/c. houseboat, the Complainant has demanded a refund of entire tour cost i.e. Rs.53,589/- alongwith 21% interest Rs.2 Lacs compensation and Rs.50,000/- as legal cost. The demand of the Complainant is not justifiable.

26) In our candid view, the entire cost of the ‘Gorgeous Kerala’ package is Rs.51,487.90. During this entire tour, the Complainant was provided with Indica non A/c. car for half day. The hotel rooms provided were of the grade mentioned in option 2 and an old model non A/c. houseboat on the last night of the tour programme. Taking into consideration these facts and circumstances, a refund of Rs.10,000/- from the total cost of the tour programme is just and proper. Out of this amount, the Opposite Party No.2 has already refunded Rs.4,000/- to the Complainant and the Complainant has accepted this amount through his maid servant. He has not only accepted but the cheque was enchased by him voluntarily. Therefore, in our patient opinion the Complainant is entitled to only for Rs.6,000/- for the deficiency in service on the part of Opposite Parties as mentioned above. 
 

28) It is brought on the record by Opposite Party No.2 that Opposite Party No.1 has left Opposite Party No.2. But at the time of cause of action, both the Opposite Parties were responsible for the deficiency in their service. Hence, they are jointly and severally liable for the deficiency in service and hence, we pass the order as follows –

 O R D E R

        a.Complaint No.25/2005 is partly allowed.

        b. Opposite Party No.1 & 2 are directed to reimburse to the Complainant jointly and/or severally a sum of Rs.6,000/

          - (Rs. Six Thousand Only) alongwith interest @ 9% p.a. from 18/11/2004 till its payment.

        c. Opposite Party No.1 & 2 are directed to pay to the Complainant jointly and/or severally a compensation of

          Rs.5,000/-(Rs.Five Thousand Only) towards the inconvenience, mental and physical agony caused to the

          Complainant as stated above.

         f. Certified copies of this order be furnished to the parties free of cost.