The complainant filed complaint petition u/s 2(1)(g) and 2(1)(r) of the Consumer Protection Act 1986 regarding deficiency in service along with unfair trade practices against travel agency OP 1, office bearer of travel agency OP 2 and pro-forma OP3.

The case of the complainant is that being an ailing lady she gotatour program booked forMeghalaya/Guhawati for a span of 5 nights and 6 days allegedly offered by travel agency namely Mac Holidays (OP 1). It is adduced by complainant in original petition and in the evidence on affidavit that the OP 3 cum pro-forma respondent is in good relation with the Complainant herself as well as with the tour operator OP 1 and their Associate Director OP 2. The petitioner booked the tour program on an assurance for accommodation at “Red Pine Guest House” or similar hotelsatShillong and Hotel Orchard or similar hotelsat Guhawati. Thetour package was finalized for Rs. 51,500/- including 9% GST out of whichthe OP3paid Rs. 10,000/- on 03.07.2017, Rs. 20,000/- on 05.09.2017 and Rs. 11,000/- on 14.09.2017 from time to time from hisIndusInd bank accountin favour of the OP 2. Upon arrival at the starting point of the tour, though the complainant could avail transportationsatisfactorily during the tour program on 01.10.2017, but found having no booking or accommodation at Red Pine Guest House, Guwahati. The complainant failed to contact OP 1 and 2 finding their mobile phones switched off continuously. As such, complainant had to arrange alternative accommodation on their own. She also cancelled the onward tour program and completed the tour at Meghalaya by incurring costs for hotel accommodation, foodingetc. at their own expenses. After returning back to Kolkata the complainant served advocate’s notice on the OP1 and OP2 by letter dated 06.11.2017 claiming refund of entire booking amount of Rs. 41,000/- but of no avail. Hence the case. In the instant petition, the complainant prays for refund of Rs. 41,000/- paid as booking amount along with a compensation for Rs. 7,00,000/- for mental agonyand a litigation cost of Rs. 40,000/-.

The case was registered originally at Barasat Commission and thereafter transferred to Rajarhat Commission and has been running ex-parte against all OPs since 17.10.2019.

The final argument is held on 15.10.2022.

Going through the documents and exhibits, it is observed that the complainant filed exhibits under firisti as per Serial 1 to 16. Fromexhibit page 14 (a) to 14 (f) it appears that the complainant was discharged from hospital few years back on 01.01.2014. She planned to avail the Guhawati –Shillong –Cherapunji - Meghalaya tour through the tour company for five nights and six days, starting from Guhawati Airport tillback at same locationfor a price offer of Rs. 51,500/- + 9% GST against accommodation and transportation by car with pick up and drop from/to railway station/airport for five adults and one child (Exh.page 19-21). From all the correspondences over emails as per exhibits and more specifically as per Exhibit page25-29, it transpires that the terms were settled and payment was made by OP 3 in favour of OP 2 on various dates through IndusInd Bank. The complainant also exhibits a letter dated 01.10.2017 allegedly from one Red Pine Guest House, Shillong intimating no booking in favour of the complainant on the respective dates (Exhpage 30). It also appears from Exh page no. 37 to 40, the transportation during the tour costing Rs. 31,000 was availed by complainant and only the balance amount of Rs.10,000 i.e. (Rs. 41,000 - Rs. 31,000) was agreed to be refunded to OP3 by the tour company OP1.

At this stage, before going into the merit of this instant case, it is observed from the records and documents and exhibits that it is an admitted position of the complainant that no payment was madeby the her to the either of the OP 1 or OP 2. OP 3 is a proforma opposition, against whom no prayer lies. Neither any document in support to corroborate that the complainant paid to service provider (OP1) or their agent (OP2) is filed. The relationship between OP3 and complainant is as conspicuous as that of between OP3 and OP1 and hence it is next to impossible to find out whether OP3 acted as agent of the Complainant or OP1 or OP2,speciallyin view of the admitted position of the complainant and in absence of any evidence from OP3 conceding having acted on behalf of complainant. To be eligible to be a ‘consumer’ under the Consumer Protection Act 1986, the definition of ‘consumer’ may be looked into which as per Sec. 2d(ii) of the said act follows as below :-

“Consumer means any person, who :-          

“hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly  and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]”

Therefore there is no evidentiary value of the claims by the complainant to be proved as a ‘consumer’ specially in view of the catena of contradictory exhibits showing that all the payments, exchange of emails etc. had taken place between the representative of service provider (OP2) and the Proformarespondant (OP3). No document could be exhibited by the Complainant in support of herself as a ‘consumer’ of the service provider (OP1) or their agent OP2 since neither OP1 nor OP2 has received money from the complainant nor there is any cogent evidence being their beneficiary either. No relief has been prayed against OP3 being proforma OP.

As the petitioner of this complaint case is not falling under the scopes and meaning of the Consumer Protection Act, 1986hence the case is not maintainable. However the complainant is at liberty to approach other Civil Courts, if not barred otherwise.

As such, the case is dismissed without any order on costs.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER