BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 25^th DAY OF JUNE, 2021

CONSUMER COMPLAINT NO.1220/2019

PRESENT:                                                          

Sri.C.V.Maragoor, B.com, LL.M.           ….     PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….    MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.            ….         MEMBER

1. S.Aswath Narayan,

S/o Late M.R.Subramanyam,

Aged about 71 Years.

2. Smt.S.A.Aparna,

D/o S.Aswathnarayan,

Aged about 29 Years,

Both are residing at No.3735,

HAL 2^nd Stage, Bengaluru-560008.

(Rep by Sri.Abdul Salam N.K, Adv)

V/s

OPPOSITE PARTIES:

1. M/s Orchids Travel & Tours,

Represented by its Director/

Authorised Signatory,

Office No.98, 1^st Floor,

DVG Road, Basavanagudi,

2. Mr. Cheluvaraj. R,

Director / Authorised Signatory,

Having Office at No.98,

First Floor, DVG Road,

 (Rep by Kamath and Kamath, Adv)

BY SRI C.V.MARAGOOR., PRESIDENT

******

//ORDER//

1. This complaint is filed under section 12 of Consumer Protection Act, 1986 to direct the opposite parties to refund amount of Rs.2,38,000/- which includes interest, damages and compensation for deficiency in service.
2. It is the case of complainants that they have engaged the services of the opposite party No.1 & 2 for 8 days Sri.Mukthinath Tour duration of 8 days/7 nights commencing from 20.10.2018 to 27.10.2018.  The tour destination places are Kathmandu, Pokhara, Jomsom, Mustang and travel by jeep to Sri.Mukthinath temple.  The 1^st complainant is the father of 2^nd complainant.  Due to chronic orthopedic problem of 1^st complainant and also old age and orthopedic problem of 2^nd complainant, both have discussed with the opposite parties and told them to book flight ticket from Pokhara to Jomsom.  The complainants have paid tour price of Rs.75,000/- on 14.08.2018 and Rs.97,500/- on 01.10.2018 for three persons. 
3. It is further case of complainants that the tour program commenced with happy movements and all the things stood smoothly with a happy going.  The opposite parties agent after reaching Kathmandu have handed over flight journey ticket to travel from Kathmandu to Pokhara as the complainants have paid amount separately in addition to tour cost as they were unable to travel by road from Kathmandu to Pokhara.  The tour schedule was on 23.10.2018 to visit Mukthinath temple situated near Jomsom as such the complainant and other tourist have reached Pokhara on 23.10.2018.  The opposite parties have not booked air tickets to travel from Pokhara to Jomsom.  The opposite parties have arranged for remaining tourists to reach Jomsom by road, but the complainants did not agree due to their health problem.  The complainants have requested the opposite parties to make arrangements for air tickets to visit Mukthinath temple on 24.10.2018, but they failed to respond the request of complainants.  On the contrary on 23.10.2018 the opposite parties have booked a taxi with the cost of complainants of Rs.5,000/- to visit Manakamana temple.  The opposite parties have agreed to book air tickets to travel from Pokhara to Jomsom, but they failed to discharge their service. 
4. The complainants after returning back to Bengaluru have got issued legal notice calling upon the opposite parties to refund the cost of tour amount as they failed to book air tickets as per the brochure.   The opposite parties have given evasive reply to the legal notice.   Hence this complaint.

5. Opposite party No.1 & 2 in response to the notice, appeared through their learned counsel and filed written version admitting that the complainants have paid amount for Kathmandu tour with one Mr.Venkatesh T.G who has booked for 14 passengers from Bengaluru to Mukthinath in Nepal and back including himself and subsequently, he has added another two persons making it a total number of persons as 16 passengers from the group.  It is the specific case of opposite parties that on 22.10.2018 it was announced by the Air Travel Operator that there will not be any flights available on 23.10.2018 in view of the weather conditions prevailing in the valley.  The flights are operated only between 7.00 am to 10.00 am every day.  Beyond 10.00 am, there are no flights flying in that region in view of sudden change of weather and also rough wind conditions in which there will be safety issues in view of air craft being small one.  The flight arrangements are purely dependent on the weather conditions of that region on those particular days.  The local guide informed the opposite parties of the cancellation by the Air operator.  Accordingly, the next available mode of transportation was by road.  Immediately, the opposite parties organized sufficient number of vehicles for transportation of passengers between Pokhara-Jomsom.  Upon hearing the cancellation of the flights the complainants were unwilling to travel by road to Mukthinath for the reasons best known to them.  However on the same day, they gave visit to Manokamana temple which is also about 4 to 5 hours journey from Pokhara and the same amount of four to five hours to return back.  The complainants were physically fit as such they were able to carry out the trip to Manokamana temple.  If the complainants were undergoing any medical problems they would not able to travel by road and would have chosen to stay in their room. The complainants have filed this complaint with a malafide intention.   Hence, the opposite parties request this commission to dismiss the complaint.  

6. The 1^st complainant filed his affidavit evidence and got marked EXs.P1 to P12 documents.  The 2^nd opposite party Sri.R.Cheluvaraj filed his affidavit evidence and produced terms and conditions and brochure.   
7. We have heard the oral arguments advanced by the learned counsel for complainants in addition to written brief submitted by on behalf of complainants and opposite parties and the points that would arise for our determination are as under;

1. Whether the complainants prove that the act of opposite parties not booking flight tickets to visit Mukthinath temple from Pokhara amounts to deficiency in service ?
2. Is complainant entitled to the reliefs sought for ?

8. Our findings on the above points are as under:-

1. POINT NO.1  : Affirmative
2. POINT NO.2  : Partly affirmative for

                       the following;

:REASONS:

9. POINT NO.1 & 2:- The learned counsel for complainants submitted that though there was agreement between the parties to arrange for air travel from Pokhara to Jomsom and back on 23.10.2018 and 24.10.2018  but the opposite parties have failed to book air tickets.  The opposite parties have not disputed booking made by the complainants for Nepal trip well in advance i.e., two months prior to the schedule tour date.  The opposite parties have not disputed tour cost paid by the complainants well in advance.  The complainants have produced EX.P2 receipt dt.14.08.2018 issued by opposite parties for payment of Rs.75,000/- for Mukthinath Yatra schedule date 20.10.2018, the same can be found in EX.P2 receipt that the 2^nd complainant has made payment of Rs.75,000/- for Mukthinath Yatra trip dt.20.10.2018.  EX.P3 is another receipt dt.01.10.2018 for payment of Rs.97,500/- for the same tour dt.20.10.2018.  EX.P5 is another receipt issued by opposite parties for payment of Rs.8,000/- made by 2^nd complainant towards flight charges to travel from Mukthinath to Pokhara.

10. In this case material document is EX.P1 tour itinerary issued by opposite parties and it is named as 8 days Sri.Mukthinath temple-Royal Nepal tour duration 8 days/7 nights on 20.10.2018 to 27.10.2018.  The tour destination Kathmandu, Pokhara, Jomsom and Mustang.  The complainants have not disputed arrangement made by the opposite parties for sightseeing at Kathmandu, Mustang except the flight arrangement from Pokhara to Jomsom to offer dharshan of Mukthinath deity. EX.P1 reveals 4^th day trip i.e., 23.10.2018 flight from Pokhara to Jomsom and 5^th day i.e., 24.10.2018 flight from Jomsom to Pokhara.  The opposite parties have marked EX.R1 terms and conditions document signed by the customer and EX.R2 brochure.  EX.R2 is material document for complainants and opposite parties.  This is styled as Nepal Special Divine Sri.Mukthinatha Yatra.  On the second page of EX.R2, it is mentioned as Yatra cost includes the following services (1) Bengaluru/Kathmandu/Bengaluru by flight including all taxes (2) Pokhara/Jomsom/Pokhara by flight including all taxes (3) Room accommodation at all the places according to itinerary (Twin/Triple-sharing) 3 night stay at Kathmandu, 3 night stay at Pokhara, 1 night stay at Jomsom.  Orchid travel and tours at para No.3 it is specifically mentioned under heading important note for all the Devotees(1) As per our yatra travel plan, we have Pre-Booked the flight ticket to all devotees from Pokhara to Jomsom and next day Jomsom to Pokhara.  Flights are operated only in the morning 06. Am to 10 am.  Charter of 16 seater flights operates subject to the local weather condition and aviation clearance.  (2) If flights are cancelled due to bad weather, we cannot postpone or prepone your flight tickets as all the tickets are pre-paid and booked in advance for the schedule date. In case of flight cancellation, alternate travel arrangements by road are made.  Travel by road is costlier than travel by air (3) unutilized service cannot be refunded.
11. On plain reading of EX.R2 it can be said that Yatra cost included booking of flight charges from Pokhara to Jomsom on 23.10.2018 and return journey from Jomsom to Pokhara on 24.10.2018.  The opposite parties shall book the flight ticket from Pokhara to Jomsom and back as flight charges included in Yatra cost as per EX.R2 brochure of the opposite parties.  It is specific case of opposite parties that due to bad weather condition flight scheduled on 23.10.2018 was cancelled and it was communicated by the Air operator on previous day i.e, on 22.10.2018.  The defence taken by opposite parties that on previous day itself i.e., 22.10.2018 cancellation of flight from Pokhara to Jomsom was due to bad weather conditions.  No one can expect that what would happen on the next day.   It shows that the defence taken by opposite parties is false as no can expect weather condition of the next day.  The defence of Opposite Parties cannot be believed on the second ground as they have failed to produce air tickets booked for complainants and others to travel from Pokhara to Jomsom on 23.10.2018 and back on 24.10.2018.  Except the defence taken in the version and affidavit evidence of the opposite parties have not produced any documentary evidence to show that they have booked air tickets to the complainants and others to travel from Pokhara to Jomsom and back on 23.10.2018 and 24.10.2018 as per booking schedule.  That apart the opposite parties have not produced any documentary evidence issued by civil aviation authority of Nepal to show that flights scheduled on 23^rd and 24^th October 2018 from Pokhara to Jomsom and back were cancelled due to bad weather condition.  On the contrary the complainants have produced document dt.11.11.2019 i.e., mail sent by 2^nd complainant to the Deputy Director General, Civil Aviation Safety Regulation Directorate, Kathmandu, Nepal in respect of availability of flight from Pokhara to Jomsom on 23^rd, 24^th, 25^th October,  2018.  The Civil Aviation Authority of Nepal has sent flights from Pokhara to Jomsom and back on the above dates.

12. The learned Counsel for complainants have relied upon the case of Thomas Cook India Limited V/s Sh.R.K.Jain and others dt.12.07.2013 decision rendered by the State Consumer Commission, New Delhi. In the above decision, the complainants/respondents have engaged the services of appellant Thomas Cook India Limited tour to visit Cambridge U.K to attend their son LLM convocation ceremony which was fixed on 28.06.2008 and thereafter to visit other foreign countries along with their son.  But the appellant has failed to get visa of the complainants’ son as such they have approached the District Consumer Forum, New Delhi and the complainant was allowed directing the appellant to pay a sum of Rs.1,00,000/- as compensation for harassment, mental agony along with Rs.75,000/- for providing deficient services specially on account of not guiding the properly in applying visa in time for Sh.Akash Jain and also awarded Rs.25,000/- towards litigation charges.  The appellant being aggrieved by the order passed by the District Consumer Commission has preferred appeal, but the Hon’ble State Commission New Delhi dismissed the appeal confirming order passed by the District Commission.  In para-18 of the judgement, the State Commission has relied upon the judgement of Hon’ble Supreme Court in the case titled Ravneet Singh Bagga V/s K.L.M.Royal Dutch Airlines and another (2000) I SCC 66 where the Hon’ble Supreme Court has held that the deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is performed by a persons in pursuance of a contract or otherwise in relation to any services.
13. The initial burden is on the complainants to prove the deficiency in service on the part of the opposite parties.  In the case on hand, the opposite parties have committed deficiency in service as they have failed to book air tickets to the Complainants to travel from Pokhara to Jomsom and back on 23.10.2018 and 24.10.2018.  In fact the opposite parties have booked air tickets in advance to make journey on 23.10.2018 and 24.10.2018 they would have handed over air tickets to the complainants on 23.10.2018 to show their bonafide.  The 2^nd complainant has made conversation on WhatsApp with opposite party No.2 R.Cheluvaraj for not booking of flights from Pokhara to Jomsom.  The 2^nd complainant has produced EX.P10 WhatsApp chat with opposite party No.2 and their agent at Nepal on 23.10.2018 and 24.10.2018 which runs 4 pages.  On perusal of this, we can say that the opposite parties have not booked flight tickets from Pokhara to Jomsom on 23.10.2018 and 24.10.2018.  The opposite parties to escape from their liability have come up with the false defence that on 23.10.2018 the flights were cancelled due to bad weather condition.  Infact the opposite parties have booked air tickets to the complainants  to travel from Pokhara to Jomsom and back on 23.10.2018 and 24.10.2018 either they would have handed over air tickets to the complainants at Pokhara on 23.10.2018 or at list they would have produced in this case to show their bonafides.  Thus the Complainants proved that the opposite parties have committed deficient service in not booking air tickets from Pokhara to Jomsom and back for schedule date on 23^rd and 24^th October 2018.
14. The opposite parties have taken defence that on 23.10.2018 the complainants have travelled in taxi for 4 hours from Pokhara to Manokamana temple.  The complainants have produced EX.P6 receipt for payment of Rs.5,000/- towards taxi provided by Fish Tail Tours and Travels Private Limited, Nepal on 27.10.018 for providing vehicle to Manokamana temple.  The complainant’s contention is that Manokamana temple road was motor able to travel by road and contrary leading to Jomsom is kacha road and duration to reach Jomsom from Pokhara is 12 hours.  The defence taken by the opposite parties is not relevant because they have failed to book air tickets as per EX.R2 brochure as the opposite parties should book air tickets from Pokhara to Jomsom and back which includes tour costs.  If the opposite parties have booked air tickets for schedule tour to Mukthinatha temple and the opposite parties have produced material to show that the flights were cancelled due to bad weather condition then the defence would have been accepted.  On the contrary the opposite parties have failed to provide service by booking air tickets as per EX.R2 as such they are liable to refund the cost of the tour including compensation. 
15. In Thomas Cook India Limited V/s Sh.R.K.Jain and others (cited supra) in paragraph No.18 of the judgement last sub para referred judgement of Hon’ble Supreme Court of India in Ghaziabad Development Authority V/s Balbir Singh (2004) 7 CLD 861 (SC).  The Hon’ble Supreme Court explained Section-14(i)(d) of the Consumer Protection Act.  The word compensation is of a very wide connotation.  It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss.  The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done.  The commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him.  The Complainants had paid tour cost well in advance to the opposite parties of Nepal tour program.  The 1^st complainant is more than 71 years and he could not travel by road due to his advanced age and also orthopedic problem.  The opposite parties have agreed to book flight tickets from Pokhara to Jomsom and back as per EX.R2 to offer Dharshana to Mukthinath Deity.   The complainants have booked flight tickets from Kathmandu to Pokhara for which they have paid Rs.8,000/- to the opposite parties.  Though the Mukthinath temple visit cost included in the tour cost as per EX.R2 but the opposite parties have committed deficiency in service not booking flight tickets well in advance and on the contrary have come up with false plea that flight was cancelled due to bad weather condition.  The complainants have tried to visit Mukthinath temple by making communication with opposite party No.2 on 23.10.2018 and 24.10.2018 vide EX.P10 chat runs 4 pages.  The complainants have not only suffered physically but also mentally.  Further they have to face insult of their friends, family members as they did not visit Mukthinath temple due to deficiency in service on the part of the opposite parties.  Therefore, the opposite parties shall pay compensation of Rs.50,000/- to each complainant in addition to Rs.25,000/- to each as flight charges from Pokhara to Jomsom and back and litigation cost of Rs.15,000/-.    In the result, we proceed to pass the following;

         The complaint is partly allowed directing the opposite party No.1 & 2 jointly and severally liable to pay Rs.50,000/- as flight charges and Rs.1,00,000/- towards compensation to the complainant No.1 & 2 within 30 days from the date of order.

     It is further ordered that the opposite parties shall pay litigation cost of Rs.15,000/- to the complainants within 30 days.  In case the opposite parties fail to comply with the order within stipulated period, it carries interest at the rate of 8% p.a. from the date of filing of complaint till the date of payment.

       Supply free copy of this order to both the parties and return extra copies of the pleadings and evidence to the parties.

 (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 25^th day of June, 2021)                                            

•  M.B. SEENA )         (L.MAMATHA)          (C.V.MARAGOOR)    
•  

                                    //ANNEXURE//

Witness examined for the complainants side:

Sri.S.Aswath Narayan, who being the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Copy of itinerary.
2. Copy of receipt bearing No.1554 dt.14.08.2018 issued by opposite party in favour 2^nd complainant for having received a sum of Rs.75,000/- by cheque.
3. Copy of another receipt bearing No.1796 dt.01.10.2018 issued by the opposite party for having received a sum of Rs.97,500/-.
4. Copy of the statement of account in respect of SB account No.0415101004662.
5. Another receipt bearing No.1823 dt.06.10.2018 issued by the opposite party for having received a sum of Rs.8,000/-.
6. Receipt bearing No.701 dt.27^th of October issued by the Fish Tail Tours and Travels Private Limited, Balu water Kathmandu, Nepal for having received a sum of Rs.5,000/-
7. Certificate dt.13.09.2019 titled as “To Whom So Ever it may concern” issued by the medical officer of U.R.Rao Satellite Center regarding my health condition prior to and after return from the tour.
8. Copy of the legal notice dt.07.05.2019.
9. Copy of postal receipt and postal acknowledgment.
10. Copy of reply notice send by the advocate for the opposite party.
11. The documents which are produced in the form of electronic records i.e., 4 sheets in document No.4 which are the WhatsApp chat conversation and 2 sheets in document No.6 which are found along with the list of documents filled on 20.01.2020 were through her mobile bearing No.9535109531 and also through her E-, certificate u/s 65 B of the Indian Evidence Act.

Witness examined for the opposite party side:                  

     Sri.R.Cheluvaraj, Authorized Signatory of Opposite Party has filed his affidavit.

Documents marked for the Opposite Parties side:

1. Original copy of terms and conditions of opposite party.
2. Original copy of broacher.

• M.B. SEENA )         (L.MAMATHA)          (C.V.MARAGOOR)    
•