UTPAL KUMAR BHATTACHARYA , MEMBER 

             Instant Appeal u/S 15 of the C.P. Act, 1986 challenges the Judgment and Order dated 11.07.2017 passed by the Ld. District Forum , Kolkata Unit –II in complaint case No. CC/558/2015 allowing the complaint with cost of Rs. 10,000/- against the OP.

            The OP was directed further to pay a compensation of Rs. 25,000/- to the Complainant for causing mental pain and agony and for adopting deceitful manner of trade by misrepresentation and for being negligent and deficient in delivery of services.

            The order was clear enough towards payment of penal damages of Rs. 2,000/- per month in case of non compliance of the order to the fullest satisfaction by paying Rs. 35,000/-.

            The provision of  imposition of fine and penalty through  prosecution u/S 25 read with Section 27 of the CP Act, 1986 was also kept open in the said order in case of non compliance.

            The case , in brief, was that the Respondent / Complainant in connection with her trip to Russia along with her friend , got her hotel booked on different dates by the Appellant/OP, the travel company. The booking of hotels , excepting that in Kostroma  where the Respondent /Complainant were supposed to pass two nights , were in order. At Kostroma , as alleged in the complaint, the Complainant , after a through search by hired  taxi  and spending a good amount as hire charge , failed to trace out ‘Mercure Koprino Bay’ the hotel allegedly booked for her . Subsequently, the Respondent / Complainant came to know that the hotel in question was not in the vicinity of her touring circuit.  The subject hotel which was more than 200 Km . away from  the touring spot, as the complaint narrated , was not even within the jurisdiction of the district Kostroma. The Respondent / Complainant , being misinformed, was subjected to serious mental agony , harassment and financial loss as she was compelled to book accommodation paying charges out of her own in a hotel within the vicinity of the said touring spot.           

            The Respondent/ Complainant informed the matter to the Appellant/OP through e-mail and contacted them on return with the demand of paying her back the charges for faulty reservation of the hotel at Kastroma. No result being found forthcoming, the Respondent / Complainant filed the complaint case which the impugned judgment and order relates to.

              Heard Ld. Advocates appearing on behalf of the Appellant/OP and the Respondent / Complainant personally.

           The Ld. Advocates appearing on behalf of the Appellant /OP submitted that the Respondent / Complainant’s main allegation was the wrong location of the hotel. The available papers , particularly , running page numbers 25 and 26 made it clear that the Respondent / Complainant was aware of Google map as well as its  checking.   That the booked hotel was located at a distance of more than 200 km. and that she was unwilling to stay in that hotel because of its distance from the intended touring spot should have been informed by her to the Appellant /OP which she did not do.

            Ld. Advocate , referring to page No. 27, submitted that the booking slip issued by Salvia Travels was carrying a clear mention that the booking, once confirmed, could not be modified. There was also an indication in the said slip that the reservation details should be carefully scrutinized and confusion or misgiving , if any , should be got clarified.

            As submitted, the Respondent / Complainant in her e-mail dated June , 26, requested for booking a guest house and not hotels so as to ensure a rate comparatively cheaper for one night stay. Such request actually closed the opportunity for exploring any category of hotel for accommodation. There was , as confirmed, no direct communication with the travel agency. All communications were made to one Mr. Banerjee .

            The Ld. Advocate , further submitted that the accommodation for two nights at Kostroma, instead of Rostov Valiki, was suggested by the Respondent / Complainant in her e-mail dated 13.07.2015 as no hotel accommodation appeared to be available at Rostov Valiki . Accordingly, accommodation for two nights at Volga was arranged in hotel Kostroma and such booking was duly communicated to the Respondent / Complainant.

            The Ld. Advocate contended that the observation made by the Ld. District Forum at second para of running page 16 towards non- denial of the allegation of harassment was not true . In fact, all the allegations were denied by the Appellant /OP. The Ld. Advocate contended that none of the other persons accompanying the Respondent/Complainant lodged any complaint against the Appellant /OP.

The Ld. Advocate maintained that the Respondent / Complainant did not make the agencies for booking the tickets a party .  The said agency being a necessary party for unveiling the truth and proper adjudication, as submitted , the complaint suffered from the demerits for non-joinder of necessary party . Besides, there was suppression of facts on the part of the Respondent / Complainant.

            As further submitted , the Respondent / Complainant had made an effort to take advantage of her own lapse . The complaint actually did not lie as there was no previty of contract between the parties.

            In their efforts to justify their points of argument , the Ld. Advocate referred to the decision of the Hon’ble National Commission in RP No. 1731 of 2016 reported in 2017 (1) CPR 823 (NC) [Banwarilal Agarwal-vs Jitan Prasad] wherein it was observed that consumer complaint lacked maintainability in absence of any previty of Agreement.

            The Ld. Advocate further referred to the decision of the Hon’ble  National Commission reported in 2015 (4) CPR 144 (NC) [M/s. Wipro Ltd. –vs- Surendra Singh Chana & Ors.] wherein it was observed that the burden of proving the facts rested on the party who had ascertained affirmative issue and not on the party who had denied it .

            The Ld. Advocate also cited that the decision of the Hon’ble National Commission reported in 2015 (II) C.P and 202 (NC) [Raj Krishna Mishra –vs- UP Awas Evam Vikash Parishad and Anr] in revision petition No. 1262  of 2012 wherein , while dismissing the revision petition, the Hon’ble National Commission observed that the complaint deserved to be dismissed due to non-joinder of necessary party.

            The Ld. Advocate pointed out finally that the Ld. District Forum passed an adverse order without ascertaining any deficiency on the part of the Appellant /OP and without offering any tenable explanation for such an adverse order. The impugned order, as the Ld. Advocate concluded, therefore, needed to be set aside allowing the Appeal.

            The Respondent / Complainant , on the contrary , submitted that the club -7 , the Appellant/OP, was approached for booking hotel and also for VISA .

            As stated , all correspondences were made with the Appellant /OP and the hotels at all sites excepting that of Kostroma were properly booked .

            The ‘Macure Kaprina Bay Hotel’ which was booked for Kostroma was , in fact, located not in Kostroma but at a location approximately 216 Km. away from Kostroma, one of the spots belonging to ‘Golden ring’, the touring circuit they were intending to visit.

            As continued , they were deceived by citing the name ‘Kostroma’ in the booking slip beside the name of the hotel and such deceptive practice was resorted to by the Appellant/OP in connivance of the subject hotel.

            As maintained , no Mr. K. Banerjee was involved with the process. The Respondent / Complainant communicated to one Mr. S. Banerjee, the Manager of the Appellant /OP organization. Salvia Travels through which the hotels were booked was the agent of the Appellant /OP.

There was, as contended, physical exertion , mental pain and economic loss in course of futile attempt by hired taxi to trace the booked hotel which the Respondent/Complainant was given to understand to be located at Kostroma. Subsequently, being aware of the fact that the hotel in question was located 216 Km away from Kostroma , the Respondent/Complainant was rather compelled to book a hotel , much nearer , after further  moving from one place to another on her own cost.

            As submitted , the Ld. District Forum passed the impugned judgement and order assessing correctly the merit of the case. The impugned judgement  and order  was needed to be upheld .

             Perused the papers on record. The crux of the problem appeared to have been centred around booking of hotel accommodation at one of the intending tourist spots – Kostroma .

            As per complaint, the said accommodation was okayed by the Respondent / Complainant being deceived by the Appellant /OP who , allegedly , in connivance with the hotel owner inserted ‘Kostroma’ ‘inserted against the name of the hotel in question in the booking slip when the location of the hotel was in a different district, about 216 Km away from Kostroma , the place intended to be visited .

            We have gone through the impugned order. It appeared that the Ld. District Forum, on verification of the Google map , ascertained the location of the hotel in question about 321 Km away from Kostroma . The Ld. Advocates appearing on behalf of the Appellant/OP, although denied to accept the  assessment of distance  mentioned above by the Ld. District Forum because of the same being out of pleading , never denied the said distance as 216 Km which was pleaded and which was figured in the complaint.

            It is difficult to believe that a person interested to visit a spot will opt for stay in an accommodation located at 216 Km away from the said spot.

            The Ld. Advocate appearing on behalf of the Appellant /OP had not controverted the alleged location of the subject hotel at a different district which only indicated admittance of  the allegation.

            The facts and circumstances narrated above only led us to believe that noting the name of the district ‘Kostroma’ immediately after the name of the hotel in the booking slip, misconvinced the Respondent / Complainant to consider the location of the hotel at ‘Kostroma’  which actually was not so as the location of the hotel was in a different district about 216 Km away from the contemplated location.

            In the light of the above, we are unable to rule out the deficiency on the part of the Appellant  / OP.

            We , therefore, are of considered view that the impugned order does not deserve any intervention from this commission.

            The Appeal stands dismissed. The impugned judgment and order of the Ld. District Forum stands affirmed.

            No order as to costs.