Per Mr.B.S.Wasekar, Hon’ble President 

1)                The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, he visited the office of the opponent along with his wife on 10^th May, 2012 for enquiry about the tour for Jammu and Kashmir.  He booked the tour for eight days and paid token amount of Rs.5,000/-.  The opponent wrote places of tour on small papers bearing Sai Travels rubber stamp.  Thereafter, the complainant booked the flight tickets.  The complainant paid amount of Rs.34,000/- to the opponent by cheque and informed the dates of flight booking.  The cheque was encahsed.  The complainant has produced the copy of bank account statement.  The complainant demanded detailed itinerary of tour.  The opponent told him that local tour operator at Srinagar would take care of it.  The opponent informed the name of local tour operator as Mr.Hashmi and his mobile number and vehicle number. On 23^rd May, 2012, the complainant and his wife reached Srinagar at 12.20 noon. Mr.Hashmi and Mr.Adi met the complainant.  They started for Katra from Srinagar. On the way, the tour operator wasted lot of time for cigarette breaks.  They reached Katra at 02.15 hours.  As per agreement, the opponent agreed to provide stay at three start hotel with deluxe room but during the tour they were compelled to stay in ordinary hotel with poor condition.  The tour operators were harassing the complainant and his wife.  They were not providing healthy food and stay in proper hotel.  They were also threatening the complainant and his wife. The complainant tried to contact the opponent but he was not available on phone.  The tour operators were not showing the sight as agreed.  At Pahelgam the complainant was forced to see the local market instead of the sight seeing. They were also compelled to pay Rs.4,000/- for pony/horse ride.  On 26^th May, 2012, at Pahelgam, the complainant requested the tour operator to show him temple.  But, the tour operator abused him. Tour operator Mr.Adi borrowed Rs.1,000/- from the complainant which was not returned.  The complainant was told about three nights stay at hotel just opposite to Dal Lake.  In that hotel, both the tour operators insisted their stay with the complainant and his wife.  The complainant refused their stay with him.  The tour operators were also allowing other persons in their vehicle.  Thus, there was harassment in their tour.  The complainant suffered mentally and physically. On telephonic talk, the opponent was asking the complainant to bear with them. 

2)                The complainant tried to see the officer of Tourist Reservation Centre but the office was closed due to Sunday.  He explained his difficulty to the officer on mobile.  He also provided mobile number of Superintendent of Police.  The Police Station Office asked the complainant to lodge written complaint against the tour operator but the complainant was to stay there till 30^th May, 2012.  Therefore, written complaint was not lodged.  The complainant spent for stay in the hotel even though the amount was paid to the opponent in advance for food expenses and hotel stay.  The complainant visited Jammu and Kashmir for sight seeing and for enjoying and relaxing but the purpose was defeated and the complainant suffered from mental harassment. 

3)                On return, the complainant saw the office of the opponent and narrated the incident but the opponent blamed the complainant. Therefore, the complainant has filed this complaint for refund of the flight charges, amount paid to the opponent total Rs.1,18,858/- with interest. He has also prayed for compensation of Rs.4 Lakhs for mental and physical harassment. He has prayed for cost of proceeding Rs.20,000/-  and expenses of Rs.25,000/-. 

4)                The opponent appeared and filed written statement.  It is submitted that the complaint is not maintainable.  The opponent is the Manager of the Sai Travels since last several years.  The complainant is known to the opponent since last several years as he was the occasional customer of Sai Travels and traveled for several times for package tours arranged by the Sai Travels.  The opponent has cordial relations with the complainant.  The complainant visited the office of Sai Travels on 17^th May, 2012 with two air tickets in the name of complainant and his wife for the journey on 23^rd May, 2012 to Srinagar and return to Mumbai on 30^th May, 2012.  He requested the opponent to arrange tour through local tour operator for eight days in Jammu and Kashmir, for stay in hotels, sight seeing and other ancillary services.  Sai Travels refused to arrange part tour.  Therefore, the complainant requested the opponent to arrange tour in friendly relations.  Being a good friend the opponent used his personal connections with local tour operators in Jammu and Kashmir to save the flight expenses of Rs.50,000/- of the complainant. The opponent agreed to help at his personal level and there would be no connection Sai Travels and the arrangement would be at the personal risk and consequences of the complainant only. Neither Sai Travels nor opponent would be held liable for any services of the local tour operator.  The opponent at his personal level called one Oscar Tours and Travels, the local tour operator of Srinagar.  The said Oscar Tours and Travels initially declined to help as it was not feasible. On the request of the opponent, the tour was arranged.  The opponent accepted the amount paid by the complainant on account of Oscar Tours and Travels including the gratuitous amount paid to the opponent for personal efforts taken by the opponent in arranging the tour. There was no contractual obligation in between the parties. Therefore, there is no deficiency in service. Whatever is transpired between the complainant and the local tour operator, the opponent was not concern and not liable for the same. Therefore, the compliant is liable to be dismissed with cost. 

5)                After hearing both the parties and after going through the record following points arise for our consideration

POINTS

REASONS

6) As to Point No.1 :- According to the opponent, he is the Manager of Sai Travels and not the Proprietor.  The opponent has not cleared the name of the Proprietor of Sai Travels.  The talks took place in between the complainant and the opponent.  The amount was paid to the opponent.  Therefore, he can not avoid his liability by saying that he is a Manger and not the Proprietor of Sai Travels.  Even if he is Manager still he is liable for deficiency in service as the amount was paid to him on behalf of Sai Travels.  According to the opponent, the amount was accepted on behalf of Oscar Tours and Travels but the opponent has not produced any evidence to that effect. On the other hand, the complainant has produced copy of bank statement dated 23^rd May, 2012 showing the clearance of cheque amount of Rs.34,000/- to Sai Travels.  Therefore, the complaint is maintainable. 

7) As to Point No.2 to 3 :-  It is not disputed that the complainant approached the opponent for packaged tour of Jammu and Kashmir for eight days.  According to the opponent, he refused to arrange the part package tour but due to personal relations with the complainant he made arrangement for the local tour operators.  According to him, he has requested Oscar Tours and Travels from Srinagar to arrange the tour and accepted the amount on behalf of Oscar Tours and Travels.   In para 6 of the written statement, the opponent has admitted that the complainant requested him for the arrangement of the travels including stay in hotels, sight seeing and other ancillary services.  Even though initially, the opponent refused still he accepted the amount from the complainant.  As stated above, the opponent failed to produce any evidence to show that amount was accepted from the complainant on behalf of Oscar Tours and Travels.  It is the business of the opponent to arrange package tours.  Once the amount is accepted for package tour, it is the responsibility of the opponent to see that tour is arranged properly as per agreement.  The opponent is avoiding his responsibility by saying that he has requested Oscar Tours and Travels to arrange the tour in his personal capacity and the Sai Travels or opponent has no contractual obligation and is not liable for any deficiency in service.  Once the amount is accepted by the opponent, it is his responsibility to arrange the tour.  If the tour is not arranged properly then it will be treated as deficiency in service on the part of the opponent.  In the complaint and affidavit of evidence, the complainant has narrated the harassment to him and his wife by the local tour operator. It is not challenged by the opponent by filing affidavits of his local tour operator. The best person to challenge the allegations of the complainant was the local tour operator who conducted the tour on behalf of the opponent.  As the opponent failed to challenge the allegations, we have to accept it.  The complainant spent the amount with intention of sight seeing, enjoyment and relaxation.  But, the evidence on record shows that he was harassed physically and mentally thereby the very purpose of tour was frustrated.  The opponent is responsible for it therefore he is liable to refund the amount paid to him by the complainant and also to pay compensation for harassment. 

8)                According to the complainant, he has spent Rs.48,858/- for flight charges.  The flight tickets were booked by the complainant himself.  These tickets charges were not included in the tour.  The complainant visited Srinagar therefore he is not entitled to claim this amount from the opponent.  According to the complainant he paid Rs.5,000/- in cash and Rs.34,000/- by cheque to the opponent.  The opponent has denied it.  The complainant has produced evidence about payment of Rs.34,000/- only.  The complainant is entitled for refund of this amount from the opponent.  The complainant prayed for refund of Rs.1,000/- paid to Mr.Adi but there is no evidence to that effect.  The complainant has claimed the amount of Rs.30,000/-  but the complainant had produced receipt only for Rs.5,100/-. There is no evidence about the other expenses paid by the complainant.  Therefore, the complainant is entitled to recover Rs.39,100/- from the opponent. 

9)                The complainant has claimed compensation of Rs.4 Lakhs for mental and physical harassment.  The evidence on record show that the opponent spoiled the tour of the complainant thereby the complainant suffered mental and physical harassment.  We think the compensation claimed by the complainant is excessive. The compensation of Rs.40,000/- will be the reasonable compensation.  Besides this, the complainant is entitled for cost of this proceeding Rs.10,000/-.  Hence, we proceed to pass the following order.

ORDER

1. Complaint is partly allowed.
2. The opponent is directed to refund Rs.39,100/- (Rs.Thirty Nine Thousand One Hundred Only) to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 5^th December, 2012 till realization.
3. The opponent is also directed to pay Rs.40,000/- (Rs.Fourty Thousand Only) to the complainant as compensation towards mental and physical harassment.
4. The opponent is further directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant as cost of this proceeding.
5. The above order shall be complied with within a period of one month from today.
6. Copies of this order be sent to the parties free of cost.

Pronounced

Dated 16^th July, 2014