OF 2008 AGAINST C.C.NO.16 OF 2007 DISTRICT CONSUMER FORUM ANANTHAPUR

Between

M/s Cox & Kings India Pvt. Ltd.,
Anam Plaza, MCH No.8-2-618,
Road No.11, Opp. Care Hospital
Banjara Hills, Hyderabad-500 033

                                                                                        Appellant/opposite party no.1

        A N D

1.     K.V.Nagi Reddy S/o K.V.Chenna Reddy
        Advocate, D.No.6-5-804, Srinagar Colony
        Ananthapur.

2.     Mr.Desai Subramanyam S/o Desai Subba Rao
        R/o Prakash Road, Ananthapur

3.     Mr.Rangappa S/o Thimma Rayudu
        R/o Prakash Road, Ananthapur

                                                                                        Respondents/complainants

4.     N.Thippaiah, P.S.A. Agent
        Cox and Kings (India) Pvt. Ltd.,
        C/o Ananthapur Air Travels
        53, Ground Floor, Raghuveera Towers
        Subash Road, Ananthapur.

                                                        Respondent/opposite partyno.2

Counsel for the Appellant                     Sri Rajasripathi Rao

Counsel for the Respondents No.1 to 3   Sri V.Gourisankara Rao
Counsel for the Respondent No.4           Served

F.A.No. 586  OF 2008 AGAINST C.C.NO.16 OF 2007

Between:

1.     K.V.Nagi Reddy S/o K.V.Chenna Reddy
        Advocate, D.No.6-5-804, Srinagar Colony
        Ananthapur.

2.     Mr.Desai Subramanyam S/o Desai Subba Rao
        Advocate, aged 65 years
        R/o Prakash Road, Ananthapur

3.     Mr.Rangappa S/o Thimma Rayudu
        Advocate, aged about 55 years
        R/o Prakash Road, Ananthapur

                                                                                        Appellants/complainants

        A N D

1. Cox and Kings (India) Pvt. Ltd.,
   No.22, BMH Complex, K.H.Road
   Bangalore-027
   rep. by its Chief Executive (Sales &
   Marketing Leisure)

2. N.Thippaiah, P.S.A. Agent
    Cox and Kings (India) Pvt. Ltd.,
    C/o Ananthapur Air Travels
    53, Ground Floor, Raghuveera Towers
    Subash Road, Ananthapur.

                                                                                        Respondents/opposite parties

Counsel for the Appellants                    Sri V.Gourisankara Rao

Counsel for the Respondents No.1                 Sri Rajasripathi Rao
Counsel for the Respondent No.2           Served

 QUORUM:            

 SRI SYED ABDULLAH, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                THURSDAY THE TWENTY EIGTH DAY OF OCTOBER

                                            TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
                                       ***

1.     M/s Cox & Kings India Pvt. Ltd., Hyderabad, the opposite party no.1 and the complainant filed the appeals against the same order dated 17.3.2008 passed by the District Forum whereby the opposite parties no.1 and 2 were directed to pay `1,00,000/- to each of the three complainants along with interest @ 9% per annum besides the costs of the litigation.

2.     The factual matrix of the case is that each of the complainants paid a sum of `1,48,170/-, on different dates through the opposite party no.2 to the opposite party no.1 for visit under the program of European Splendor and the extra amount for visit of Mount Titlis, Jungfraughoch and Lido show at Paris.  The opposite parties no.1 and 2 entered into agreement with the complainant at Ananthapur.  The opposite party no.1 arranged the tour commencing from 15.6.2006 extended for a month therefrom without providing for sight of lido show at Paris inspite of collection of amount therefor, from the complainants.  The complainants had to incur an expenditure of `10,000/- in spite of the collection of `8,900/- from each of them  for the same purpose by the opposite parties.  The opposite parties had not supplied goodies worth `16,000/- and quality food proper accommodation in violation of the promise extended under the brochure. 

3.     The opposite parties no.1 and 2 resisted the case by filing common counter contending that the District Forum has no territorial jurisdiction to entertain the complaint, for they  do not carry any business nor do have a branch office within the limits of the District Forum.  It was stated that the opposite party no.1 does not acquiesce in the institution of the complaint against it.  It was stated that there was no cause of action that had arisen within the limits of the District forum.  The complainants accepted the terms and conditions and signed the brochure.  Clause 9 of the brochure provides for adjudication of any dispute in Mumbai alone.  The courts or fora in Andhra Pradesh do not have jurisdiction to entertain the complaint.  The opposite party no.2 is the agent of Cox and Kings India Private Limited Mumbai but not the agent of the opposite party no.1.  The opposite party  no.1 acted as the agent of Cox and kings Mumbai.  Hence, the complaint is not maintainable against the opposite parties no.1 and 2. 

4.     The matter involves  leading of voluminous evidence and consideration of the rights and liabilities between the parties under the contract which cannot be decided under  summary procedure.  The complainants opted only for two optionals Mount Titlis and Jung Fraujoch and paid `14,570/-.  The amount was not a payment for three optionals and it did not include for gala evening in Paris with Lido.  The opposite party no.2 while forwarding the demand draft for `14,570/- deposited by the complainant to the opposite partyno.2 inadvertently gave a wrong figure as the amount paid by the complainants.  The opposite party no.1 informed through the opposite party no.2 to the complainants that the amount was for booking of two optionals Mount Titlis and Jung Fraujoch but not for Gala evening in Paris with lido.  The complainants accepted the version of the opposite party no.2 and agreed to travel accordingly.  Subsequently, the complainants paid `15,000/- each for which the opposite party no.2 had obtained demand draft and sent them to the opposite party no.1. 

5.     The contract for the tour was concluded at Banguluru and the contract was finally accepted by the Cox and Kings India Private Limited at Mumbai.  The opposite parties had no personal knowledge of what happened during the tour and they are not answerable to what happened in the course of the journey from Mumbai.  The accommodation was provided and the sight seeing was completed in accordance with the itinery.   Under the goodies bag scheme the opposite partyno.1 provided Aaresehult, Chamonix Valley/Mount Titlis, Grevin Wax Museum free of cost.  The complainants did not make any complaint at any point of time in tour to the person-incharge about any deficiency in service.  Hence, prayed for dismissal of the complaint.

6.     The complainant’s no.1 to 3 have filed their affidavits,  Exs.A1 to A5 had been marked. 

7.     Mr.M.Raghupathi, the employee of the opposite party no.1 has filed his affidavit.  The opposite party no.2 has filed his affidavit.  Exs.B1 to B6 have been marked on the side of the opposite parties.

8.     Feeling aggrieved by the order of the District Forum the opposite party no.1 has filed the appeal F.A.No.1090 of 2008 contending that the District Forum has not considered the documents filed by them and that the complainants have refused to accept the gifts and alternative sight seeing offered by the opposite parties.

9.     Feeling dissatisfied with the award of the amount of `one lakh granted by the District Forum, the complainant preferred the appeal on the grounds that the District Forum failed to consider the quality of the food provided by the opposite parties and collection of `8900/- from each of the complainants by the Manager of the opposite parties to visit Lido Show at Paris and despite having recording a finding that the oppose parties rendered deficient service, the District Forum has not allowed the complaint in toto. 

10.    The points for consideration are:

1)                Whether the complaint is maintainable against the opposite parties?

2)                Whether the District Forum has territorial jurisdiction to entertain the complaint?

3)                Whether the opposite parties are not the proper parties to the complaint?

4)                Whether the opposite parties had rendered any deficient service to the complainants?

5)                To what relief?

11.    POINT NO.1      The learned counsel for the opposite parties has contended that the opposite parties are only the agents of M/s Cox and Kings India Pvt Limited, Mumbai.  It is contended that the Cox & Kings Pvt. Ltd., is a company registered under the Companies Act with its registered office at Mumbai, the opposite parties no.1 and 2 being agents of M/s Cox & Kings Mumbai the complaint is not maintainable against the agents in the absence of the principal.  The District Forum has held that the opposite parties no.1 and 2 are the agents of M/s Cox & Kings Mumbai.  The complainant has not challenged the finding recorded by the District Forum in regard to the agent – principal relationship between the opposite parties no.1 and 2 and M/s Cox & Kings, Mumbai.  The District Forum held “ the opposite parts no.1 and 2 are conveniently, we can say that agent and sub-agent are not performing and functioning their duties and without furnishing the correct information at the right to the tourists, consequently, the tourist/complainants faced a lot of problems while they were on tour and put them lot of inconvenience and much hardship”. 

12.    It is settled principle of law that a suit or complaint against the agent is not maintainable particularly when the particulars of the principal are very much in the knowledge of the complainant and the principal has been doing its business in India.  Taking into consideration of the fact that the complainants had proceeded under the impression that the opposite party no.1 who collected the amount through the opposite party no.2 from them and the similarity of the name of the opposite party no.1 with that of the principal, we are inclined to give opportunity to the complainants to rectify the mistake in this regard and then proceed with the prosecution of the complaint.  This point is answered accordingly.

13.    POINTS NO.2 TO 4      In view of our finding that the complainants need be given a chance to rectify the curable irregularity as to the maintainability of the complaint, the points no.2 to 4 do not require any discussion. 

14.    The complainants filed F.A.No.586 of 2008 seeking for enhancement of compensation in terms of the relief sought for in the complaint.  In the light of our finding that the impugned order is liable to be set aside and the matter be sent back to the District Forum for impleadment of the principal of the opposite parties, the claim of the complainants for enhancement of the compensation cannot be held sustainable.

15.    POINT NO.5        In the result the appeal F.A.No.1090 of 2008 is allowed.  The order dated 17.3.2008 passed by the District Forum is set aside.  The matter is remanded to the District Forum with a direction to the complainants to implead M/s Cox & Kings India Private Limited, Turner Morrison Building, 16, Bank Street, Fort, Mumbai as the opposite party.  The District Forum is directed to dispose of the matter expeditiously.  No costs.  As a sequel, F.A.No.586 of 2008 filed by the complainants is dismissed.  There shall be no order as to costs.

                                                                        MEMBER

                                                                        MEMBER

                                                                   Dt.28.10.2010

KMK*