West Bengal

Paschim Midnapore

CC/1/2016

Sourav Roy - Complainant(s)

Versus

Mrinmoy Nag - Opp.Party(s)

19 Apr 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

and

 Sagarika Sarkar, Member.

   

Complaint Case No.01/2016

 

1. Sourav Roy, S/o Biswanath Roy of Netajinagar, Sekhpura, P.O. Medinipur, P.S. Kotwali, Dist. Paschim Medinipur,
2. Sathi Das Hazra, W/o Sanjoy Hazra of Kuikota, P.O. Medinipur, P.S. Kotwali, Dist. Paschim Medinipur …………..………..……Complainants.

                                                                              Vs.

1. Mrinmoy Nag, S/O not known, The Steersman of Disha Holidays, Disha Holidays,  46 Haren Mukherjee Road, Hakimpara, Siliguri-01, District Darjeeling,
2. Samir Dey, S/O Amal Dey, The Sales Executive of Disha Holidays, Residing at 69 Milan Pally, D.P. Nagar, Belghoria, Kolkata-700056……….….Opp. Parties.

                                                    

              For the Complainant: Mr.  Ashis Roy Chowdhury, Advocate.

              For the O.P.               : Mr. Rabindra Nath Singha, Advocate.

 

Decided on: -19/04/2017

                               

ORDER

                          Bibekananda Pramanik, President – Facts of the case, in brief, is that the O.P. no.-Mrinmoy Nag is the Steersman of Disha Holiday Ltd.  and O.P.no. 2 is the Sales Executive of the said travel agency.  O.P. no.2 met the complainants and gave them proposal for going to a tour programme in Andaman.  Accordingly, O.P. no.2 contracted the complainants several times and asked the complainants to pay Rs.3,13,000/- only for such tour and  the complainants agreed to such tour progrmme  and paid him a total sum of Rs.3,13,000/-  for theirselves and the members of their family.  O.P. no.2 gave them the

Contd……………P/2

 

                                                                                       ( 2 )

 tickets on behalf of Disha Holidays Ltd.  After completion of all arrangement for going  to such tour in Andaman on 28/02/2015, the O.P. no. 2 informed  the complainants on 27/02/2015 that after taking all advance money from the complainants, the O.P. no.1, Mrinnoy Nag has fled away since 22/02/2015 and the O.P. no.2 therefore requested the complainants to give him a further sum of  Rs.20,000/- for going to Andaman and he also promised to return the said amount after completion of the tour.  Under such circumstances, the complainants were compelled to give Rs.20,000/- to the O.P. no.2.  It is stated that after arrival in Andaman, the O.P. no.2 did not take proper care of the complainants and the members of their family and they were deprived of their necessary service accordingly to their contract.  In spite of repeated request by the complainants, the O.P. no.2 did not pay the complainants said sum of Rs.20,000/- till date.  Hence the complaint, praying for directing the O.Ps. to  pay Rs.20,000/- to the complainants with interest  up-to-date  and an award of compensation of Rs.50,000/- and a sum of Rs.20,000/- as litigation cost.     

                  Notice upon the opposite party no.1 was returned with postal endorsement abolished, left India for which the complainants prayed for paper publication of notice in the newspaper as substitute service.  In spite of publication of such notice in the daily newspaper, O.P. no.1 did not turn up for which the case was ordered to be heard  ex-parte against him.

                O.P. no.2 has contested this case by filling a written objection.

                 Denying and disputing the case of the complainants, it is the specific case of the opposite party no.2 that the present petition of complaint is barred by the provision of C.P. Act, that the  complainant has no cause of action to file this case and the that the petition of complaint is not maintainable.  It is also the case of the O.P. no.2 that he is an employee under the O.P. no.1 as Sales Executive on commission basis.  The complainants paid their agreed amount of their proposed tour to the proprietor of O.P. no.1.  Said O.P. no.1 absconded since 22/2/2015.  Due to paucity of fund and in order to complete the proposed tour programme, O.P. no.2 himself invested Rs.1,70,000/-  with the hope that he will recover  the same from the O.P. no.1.  The proposed tour was scheduled for departure on 28/02/2016.  However to complete the tour programme, the complainants paid Rs.20,000/- to O.P. no.1 on condition that the said amount will be returned to them by the proprietor i.e. O.P. no.1 when he will return.  A written agreement was also executed to that effect.  There was no agreement to return the said amount to the complainants by the O.P. no.2 and therefore the complainants have no right to claim the said amount from the O.P. no.2. O.P. no.2 therefore claims dismissal of the petition of complaint.

Contd……………P/3

 

 

                                                                                           ( 3 )

           To prove their respective cases, the complainants have examined  complainant no.1 as PW-1 by tendering an examination-in-chief,  supported by an affidavit and during his evidence, few documents were marked as exhibit 1 to 5 respectively.  On the other hand, the O.P. no.2 Samir Dey has examined himself as OPW-1 by tendering a written  examination-in-chief, supported by affidavit.   

                                                                 Points for decision

1. Is the case maintainable in its present form and prayer?
2. Are the complainants consumers under the provision of C.P. Act?
3. Have the complainants cause of action to file this case?
4. Is there any deficiency in service on the part of the opposite party?
5. Are the complainants entitled to get the reliefs, as sought for?    

                   

Decision with reasons

   For the sake of convenience and brevity, all the above points are taken up together for consideration.

Admittedly, the tour programme in question was completed by the O.P. no.2 in absence of and on behalf of the proprietor of O.P. no.1. So the question of deficiency in service on the part of the O.Ps regarding completion of the tour programme does not arise.  By filing the present petition of complaint, the complainants have prayed for directing the O.Ps to pay Rs.20,000/- which they gave to the O.P. no.2 before proceeding to the tour programme and for other reliefs like compensation and litigation cost.  It appears from the respective cases of the parties that the said amount of Rs.20,000/- was given to the O.P. no.2, the agent of the O.P. no.1, as a token of loan on the undertaking that the O.P. no.2 will return the said amount to the complainants as and when the proprietor of O.P. no.1 will  return.  If the said amount, which was not a consideration of the tour programme, has not yet been returned,  such failure to pay the said amount does not attract the provision of the C.P. act but it is at best a case of civil dispute which may be decided in a money suit if  initiated in civil court.  We have  already found that there was no deficiency in service on the part of the O.Ps in completion of the tour programme.  It is therefore held that there is no deficiency in service  on the part of the O.Ps and the complainants have therefore no cause of action to file this case under the provision of C.P. Act.   The present case is therefore not maintainable and the petition of complaint is therefore liable to be dismissed.

Contd……………P/4

 

                                                                                                  ( 4 )

 

 All the points are accordingly decided against the O.Ps.

 In the result, the complainant case fails.

                                                       Hence, it is,

                                                         Ordered,

                                that the complaint case no.01/2016  is hereby dismissed on contest against O.P. no.2 and ex parte against O.P. no.1  but in the circumstances without cost.

                               Let plain copy of this order be given to the parties free of cost.

 

           Dictated & corrected by me

                Sd/-B. Pramanik                           Sd/- S. Sarkar                  Sd/-B. Pramanik. 

                       President                                      Member                         President 

                                                                                                               District Forum

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