Karnataka

Bangalore 4th Additional

CC/14/1140

Mr. Amitabh Roushan - Complainant(s)

Versus

M/s. Darshan Travel & Holidays Pvt Ltd - Opp.Party(s)

25 Apr 2018

ORDER

Complaint filed on: 26.06.2014                                                    Disposed on: 25.04.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1140/2014

DATED THIS THE 25^th APRIL OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mr.Amitabh Roushan

S/o Sri.Mithilesh Kumar Sinha, Aged about 41 years,

Senior Branch Manager,

Bank of Baroda,

H.S.R.Layout Branch,

No.1026, 11^th cross,

24^th main, Sector-I,

HSR Layout,  

Bengaluru-34

 

By Adv.Sri.Gopalkrishna

R Hegde     

 

V/s

Opposite party/s

Respondent/s:-

 

M/s.Darshan Travel and Holidays Pvt. ltd.,

Rep. by its Managing Director Mr.Raju B Kamatkar,

Corporate Office: no.D77

Ground floor, Vashi Plaza

Sector-17, Vashi Navi Mumbai, Mumbai-03.

 

Ex-parte

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to pay Rs.3,35,771/- towards deficiency of service and with cost.

 

          2. The brief facts of the case of the Complainant are that, he is working as Branch Manager of Bank of Baroda. It is the case of the Complainant that, he had taken the services of Op to visit various places in India to from Bengaluru to Delhi, Delhi to Srinagar, Srinagar to Mato Vaishno Devi, Srinagar to Delhi and Delhi to Bengaluru by Air India to avoid his LTC under the LTC packages provided by Air India and according to that the Op had sent Air India letter (quotation) to the Complainant. The Op had agreed to arrange and provide services to the Complainant and his family members i.e. two adults and two children including Air ticket booking, sight seeing and hotel booking. for that Op sent invoice dtd.07.11.13 and accordingly he paid Rs.3,25,000/- for which Complainant acknowledged the receipt.  As per the agreed terms the travel starts from 15.11.13 and ends on 29.11.13. Op through email informed that the original bills, receipts and air tickets will be delivered at Delhi. The Complainant further submits that, Op has not made proper arrangement about the accommodation, food and travel properly. Everywhere the Complainant was forced to make payment for food ordered by them or on the restricted items. The Op have cheated the Complainant everywhere. The Complainant had sent email dtd.23.11.13 about the said complaint and grievance. But Op has not bothered to resolve the grievance of the Complainant. The Complainant was forced to pay the air ticket charges of Rs.10,771/- for his daughter. The Complainant further submits that, Op had promised 5 star hotel accommodation and to provide other services and accepted the amount. Once the Complainant along with his family started their journey, Op failed to arrange the hotel accommodation, taxis, food etc., properly. Complainant tried to contact through phone and email but all became vain and no further response. The Complainant further submits that, he is entitled to recover the compensation for depriving him and his family to avail the advantage of LTC facility given by his employer i.e. Bank of Baroda, only once in four years block, due to Op’s wrongful and fraudulent act. The Complainant further submits that, the Op has cheated the Complainant and failed to perform his part of obligation and thereby committed deficiency of service in all respects. Though he is entitled to claim losses, damages, inconvenience, fraud, harassment etc., In the context, he issued legal notice on 17.12.13 but no response from Op. Hence prays to allow the complaint.

 

3. On issuance of notice to Op, Op did not appear to oppose the claim of the Complainant. Hence placed exparte.

         

          4. The Complainant to substantiate his case filed affidavit evidence and though produced 8 documents, not marked. Complainant also filed written arguments. Heard the learned counsel for the Complainant.

  

 

 

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Op, if so, whether the Complainant entitled for the relief sought for ?  
2. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  In the instant case, though Op placed exparte, it does not mean that the claim of the Complainant is to be considered in toto. In this context, we placed reliance on the contents of the complaint, documents produced by the Complainant with list dtd.26.06.14, so also the written arguments. In the contents of the complaint, Complainant has made several allegations as against the Op in not providing basic amenities during his entire tour period. Except self-serving sworn testimony of the Complainant nothing is placed on record as to how the Op found to be negligent in providing service. The specific contention taken by the Complainant is that, he is entitled to recover the compensation for depriving him and his family to avail the advantage of LTC facility given by his employer i.e. Bank of Baroda, only once in four years block, due to wrongful and fraudulent act of Op. He has also taken specific contention that, Op has cheated him and failed to perform his part of obligation and thereby committed deficiency of service in all respects. Though he is entitled to claim losses, damages, inconvenience, fraud, harassment etc., When the Complainant has taken the plea of fraudulent act of Op, so also the cheating, which requires to be proved in the full pledged trail by adducing cogent evidence but not in summary trail which is being adopted by this forum. Hence, complaint filed by the Complainant on the allegations of fraud and cheating has no legs to stand in the light of the following decisions:

1. I (1993) CPJ 88 (NC) in the case of N.Shivaji Rao vs. M/s.Daman Motor company & ors.,

Consumer Protection Act, 1986 – Sec.2(1)(c) - complaint – fraud and cheating – State Commission declined to adjudicate the complaint because of complicated questions including fraud and cheating – hence appeal.

Held: It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant – Complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency of service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery there under cannot be effectively utilized for determining complicated questions of the fraud and cheating. The appeal is rejected and the order of the State Commission is confirmed.

 

2. I (1996) CPJ 283 in the case of Dr.Sudhir G Rao vs. Kokila & Ors

Consumer Protection Act, 1986 – Section 2(1)(c) – complaint – fraud – complaint filed – allegations of fraud and cheating – whether investigation can be done by the Redressal forum ? – No

Held: As per the averments made in the complaint, the case set up by the Complainant is of fraud regarding which no investigation can be done by the Redressal forums.

Held further: In the present case, as referred above, deficiency of service on the part of the Ops is only incidental to the act of fraud and cheating alleged to have been committed by the Ops.

So, having regard to these facts, we are constrained to hold that this complaint is untenable.

 

3. Hon'ble Karnataka State Commission, Appeal no.1109/2011 dtd.02.08.12 in the case of M/s.Praveen Gift centre vs. Smt.Jyothi Jain, wherein it is held that:

5. The LC for the appellant has submitted that the complaint filed by the Complainant is not maintainable. The DF has no jurisdiction to entertain the complaint as the respondent/Complainant has alleges fraud and cheating played by the appellant in selling the goods for wrongful gain and to cause wrongful loss to him. He further submitted that the order passed by the DF is against the documents that have been produced by the appellant before it as the invoices were prepared in the name of a third person.

6. Admittedly, the Complainant/respondent has purchased four mobile handsets from the appellant/Op in all for Rs.94,150/- on 07.11.09. Admittedly, the invoices were raised in the name of Mr.Sandeep. If at all, the respondent was unaware of Mr.Sandeep she should not have accepted the bills. Moreover, both the parties agrees that the respondent has purchased the mobile sets in the name of third person. That means it creates a doubt that the Complainant/respondent has purchased 4 mobile handsets for commercial purpose and not for her own use. It is not the case of the respondent that the mobile handsets which were purchased by her are suffering from any manufacturing defects. The only grievance is that the Op/appellant has duped and cheated her. If at all, there is fraud and cheating played by the appellant as alleged by the respondent/Complainant for which she is at liberty to approach appropriate court for relief. DF has no jurisdiction to entertain the complaint. In the result, we pass the following:

 

ORDER

Appeal is allowed. The impugned order is set aside. The complaint filed by the Complainant is dismissed with a liberty to approach appropriate court for relief.

 

8. In the light of the decision cited supra, we come to the conclusion that, complaint filed by the Complainant is liable to be dismissed. Anyhow, an option is left open to the Complainant to get redress his remedy by way of approaching appropriate court of law having got jurisdiction. Accordingly we answered the point no.1 in the negative.

 

          9. Point no.2: In the result, we passed the following:

 

 

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed devoid of any merits.

 

2. Anyhow, an option is left open to the Complainant to get redress his remedy by way of approaching appropriate court of law having got jurisdiction.

 

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer in the open forum and pronounced on 25^th April 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Amitabh Roushan, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

Doc.no.1	Invoice dtd.07.11.13
Doc.no.2	RTGS payment voucher dtd.08.11.13
Doc.no.3	Email confirmation letter dtd.08.11.13
Doc.no.4	e.ticket dtd.05.11.13 (two)
Doc.no.5	Email correspondence dtd.30.11.13
Doc.no.6	Hotel boarding voucher (three)
Doc.no.7	Air India flight ticket dtd.21.11.13
Doc.no.8	Email correspondence dtd.23.11.13

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT