Delhi

North East

cc/263/2013

Sh. Kailash Bhatt - Complainant(s)

Versus

NVR India Pvt. Ltd. - Opp.Party(s)

18 Jun 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  263/13

 

In the matter of:

 

	Shri Kailash Bhatt S/o Shri Prem Ballabh Bhatt R/o- B-174, Nehru Vihar Delhi-110094	Complainant
	Versus
	NVR India Pvt. Ltd. 482, 4th Floor, L2-Commercial Tower, Cloud-9, Sector-1 Vaishali, Ghaziabad-201010	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

17.08.2013 18.06.2020 18.06.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts giving rise to the present complaint are that the complainant was planning a round trip from Delhi to Katra (Jammu) alongwith his family and friends in January 2013 for which purpose on enquiry from Just Dial, complainant received the contact number of OP travel and tour agency by customer care of Just Dial and was told that OP shall be contacting him soon. One Smt. Renuka Garg, employee / agent / executive of OP contacted the complainant and suggested a twenty seater Delux and luxury and specious bus with air conditioner to suit the requirement of complainant for a comfortable and luxurious trip. OP through its executive sent photographs of the 20 seater Mitsubishi Rosa Luxury Air Conditioned bus and relying on the representation and proposal made by OP, complainant deposited Rs. 2,000/- in cash as advanced booking amount for the bus shown in photographs with mutual verbal agreement between the parties for round trip from Delhi to Katra for journey to be undertaken on 24.01.2013 @ Rs. 24 Per kilometer including expense of the driver and rest of the amount to be paid post trip. However, to the utter dismay of the complainant, on the scheduled date of travel, OP sent a different non AC ordinary 16 seater bus which was not even luxurious or spacious. Instead of what was shown to the complainant and agreed upon between parties and on objection raised by the complainant, OP asked the complainant to either avail the services of the said bus or to leave it and refused to send any other bus. At this time, the driver of OP left the location leaving complainant, his family, friends and relatives stranded on the road for five-six hours. The complainant, under such compelling circumstances had to book another bus which was less luxurious and not comfortable on a higher tariff of Rs. 65,000/- in addition to driver’s wages of Rs. 300/- per day at 10:00 PM on 24.01.2013 with one Balaji Tourist Bus Service on urgent basis and had to suffer and bear the exorbitant expenses and higher charges due to OP’s acts / omissions and failure to comply with the agreement. Later, on completion of trip when the complainant approached OP demanding explanation for the same, no clarification was forthcoming and OP even refused to refund the advance of Rs. 2,000/- to the complainant. The complainant, due to such acts of the OP of unfair trade practice and entrapment of gullible consumers, sent a legal notice dated 03.06.2013 through his counsel to OP demanding compensation. However, OP refused to receive the same. In the interim period, complainant continuously visited OP office for seeking compensation but not avail. Lastly, complainant was compelled to filed the present complaint against the OP being aggrieved with the acts of OP causing hardship, mental torture, physical harassment and financial trouble and prayed for issuance of direction against the OP to refund the booking amount of Rs 2,000/- alongwith interest @ 18% p.a., pay Rs. 65,000/- as higher tariff for alternate arrangement of conveyance made by the complainant in addition to Rs. 3,000/- incurred by the complainant per day on driver’s cost between 24.01.2013 to 27.01.2013, Rs. 4,00,000/- as compensation for mental tension, physical harassment, faced by complainant due to unfair trade practice of OP as Rs. 25,000/- cost of litigation.
2. Complainant has attached copy of email and bus photographs of Mitsubishi Rosa 20 seater attached therewith sent by OP executive to complainant in January 2013, copy of advance receipt issued by OP acknowledging Rs. 2,000/- from the complainant for trip to Katra schedule on 24.01.2013 and rest of the amount to be paid post trip, copy of photographs of non luxury bus, copy of receipt no. 468 dated 24.01.2013 issued by Balaji Tourist Bus Service for non AC bus with booking expenses of Rs. 65,000/- plus Rs. 3,000/- per day of driver and copy of legal notice date 03.06.2015 by complainant’s counsel to OP with postal receipt. Complainant filed additional documents by way of list of 20 travelers including himself for whom the bus service facility was to be availed from OP, original duty slip of bus service availed from Balaji Tourist Service alongwith list of 20 travelers including complainant for schedule date of travel i.e 24.01.2013.
3. Notice was issued to the OP on 03.10.2013 OP entered appearance and filed written statement vide which it took the preliminary objection of complaint having been filed to blackmail the OP who engage a good reputation and good will in the market for business of travel agency which can be seen from the public feedback on Just Dial website. To the allegation leveled by the complainant, per contrara OP submitted in its defence that OP was never contacted by Just Dial with respect to complainant’s query as can be seen from the detailed call records with date, time, name, mobile no. and catalogue for the period 01.12.2012 to 15.02.2013 and it was the complainant who had approached the OP asking for details of 20 seaters bus for which mails and pictures were sent to complainant pre negotiation and without commitment and finally it was agreed OP would provide a 16 seater non AC, non-luxurious bus to the complainant @ Rs. 18 per kilometer on 24.01.2013 at 10:00 PM round trip from Delhi to Katra but the complainant refused to accept the same / agreed upon  bus on the date of travel and had already book another less luxurious bus which was booked in the name of some other person and not the complainant himself showing the booking done on 24.01.2013 at 10:00 PM which contradict complainant’s own statement of having been left stranded for 5-6 hours on road. OP submitted in its defence that the complainant had earlier asked to share picture of 20 seater non AC bus but later modified his order for 16 seater non AC bus a day before the journey date and finally when the said bus as per his requirement was sent for his service he refused to accept the same as he actually required bus for more than 20 people as there were 24 to 28 persons with him when the OP had sent the 16 seater bus at 10:00 PM on 24.01.2013 which definitely could not have been accommodated in a 16 seater bus and therefore the complainant was himself confused about the exact requirement of the bus in terms of capacity of passenger and confused the OP too and despite having knowledge that initial booking amount was also non refundable, complainant not only cancelled the booking at the last minute but also took photographs of bus sent by OP to harass the OPs and filed the complaint after ten months alleged incident just an afterthought. OP further submitted that the complainant had given only a tentative booking amount of Rs. 2,000/- for round trip from Delhi to Katra on 24.01.2013 and was not an advance sum as the advance sum is usually minimum of 25% of the total travel cost. OP further urged that the booking slip issued by Balaji shows the departure time as 10:00 PM and was issued in the name of some person which clearly revealed that the said booking was already made before hand by complainant who had called for OP bus too at 10:00 PM which he refused to avail service despite having asked for it himself by holding on booking from 07.01.2013 till 24.01.2013 with OP but used another service provider. Lastly, OP submitted that not only the complainant exceeded his group of travellers number but also did not communicate the same to OP and even otherwise, for a 27 seater bus as subsequently arranged for, Rs. 65,000/- is normal prevalent market rate for Delhi to Katra including Patni Top. Therefore, OP prayed for dismissal of the complaint for defence so taken.
4. OP has attached copy of certificate of incorporation and memorandum of association, copy of customer feedback reports on Just Dial Website and copy of contact details of people who contacted OP between 01.12.2012 to 15.02.2013.
5. Rejoinder to the written statement was filed in rebuttal by the complainant vide which he alleged the feedback annexed by the OP is false, forge and manipulated as a marketing strategy to attract gullible consumer and the list of customer who purportedly contacted the OP between December 2012 to February 2013 is of no evidencary value as several entries do not bear particulars of name of people, mobile no. and purpose mention for call which clearly shows that the list is manipulated. Complainant denied having ever asked for 16 seater non AC, non-luxurious bus having agreed upon the same and submitted that OP had failed to furnish any proof of the said assertion made by it and further that the requirement of the complainant was of 20 seater bus as admitted by OP. In so far as the receipt issued by the Balaji Travel not bearing the number of complainant as objection taken by the OP, complainant submitted that the said receipt was issued in his friend’s name namely Mr. Pramod Pandey who was co-traveler with him to the Delhi-katra round trip and his name also find mentioned in the list of passenger as well as the corresponding emails from OP to the complainant whereby OP had sent the receipt of advance payment of Rs. 2000/-. Complainant denied that the allegation having modified his requirement from 20 seater bus to 16 seater non AC bus or having cancelled the booking at the very time the bus of OP arrived for his service as there were 24 to 28 persons with him. Complainant submitted that he traveled by another bus due to compelling circumstances because the advance that he paid regarding the bus shown in the pictures was never sent by OP. Complainant submitted that OP has contradicted its own stand of having sent the bus booked by the complainant on payment of Rs. 2,000/- but on the other hand was stating that the minimum booking amount is 25% of expected total which is therefore falsified and even otherwise the complainant was never informed by OP that the amount paid by him was not refundable. Lastly, complainant submitted that the bus of the OP was supposed to reach at 5:00 PM but instead reached the complainant site between 8:00 PM to 9:00 PM as a result of which the complainant alongwith his co-traveler kept on waiting to 5-6 hours of the bus.
6. Evidence by way of affidavit filed by the complainant exhibiting documents relied up as Ex. CW1/1 to Ex. CW1/16.
7. Counter affidavit was filed by the OP in response to the rejoinder filed by complainant in which OP submitted that the advance of  Rs. 2000/- was a token amount / partial advance which is self explanatory from the advance receipt as also the fact that the said amount was not paid for any specific order viz specific requirement for 20 seater luxury bus for round trip of Delhi to Katra. Therefore, it cannot be contented in any manner that the said payment was with regard to the pictures of the traveler vain sent by OP to complainant through email which email in fact was sent to the complainant only to furnish details sought by him and was not in any manner and offer or invitation or final conclusive contract. OP contended that the complainant had contradicted his own stand by stating on one hand that the bus sent by OP reached at 8:00-9:00 PM and the complainant was stranded on the road for 5-6 hours and on the other hand revealed that the bus booked by him from Balaji Tourist Bus Service reached at 10:00 PM i.e. in merely an hour’s difference which falsifies its own case. Further, OP urged that it had approached Balaji Travel to verify the authenticity of the contends of the receipt issued by it to the complainant when OP was informed by one Mr. Surender Kumar Verma, owner / proprietor of the said travel company that the requirement of the complainant was for 27 seater bus and to the best of his knowledge more than 22 people were on board on the bus sent by him at 10:00 PM on the night of 24.01.2013 for Delhi-Katra round trip to be undertaken by complainant and his companions. OP placed on record copy of the said duty slip no. 468 dated 24.01.2013 issued by the said travel company alongwith signed statement of its proprietor certifying that “requirement was for 27 seated bus. And passenger was more than 22 people”. The said receipt was attached as annexure R-3. Lastly, OP urged that the complainant, in utter confusion before finalizing the booking changed his requirements several times from 20 seater to 24 seater and finally settled for 16 seater non AC and non luxurious bus just a day before travel on the travel date when OP sent the 16 seater bus at the location of complainant, he was informed that there were 24 to 28 persons waiting to board who obviously could not have been accommodated in 16 seater bus and when OP offered the complainant to send another bigger bus, complainant refused to avail of OP’s services which was obvious and apparent from the fact that he had already made alternate booking arrangement and instead demanding refund of Rs. 2000/- from OP’s driver on site despite having been made clear that the said amount was not refundable in the event of cancellation at the time complainant had finalized booking of 16 seater Non AC and Non luxurious bus and submitted that the complainant held one booking from 07.01.2013 till 24.01.2013 but used another service provider. OP therefore prayed for dismissal of the complaint.
8. Written arguments were filed by both parties in reassertion / reiteration of their respective grievance / defence. The complainant argued that it was OP’s own admission in emails exchanged between the parties that the complainant had expressed desire to book a 20 seater bus for Delhi to Katra round trip and therefore in accordance to the said demand, OP had sent email to the complainant attaching pictures of a 20 seater Mitsubishi Rosa Luxury Air conditioned Bus and the booking for the same was mutually agreed by its own admission but OP sent a 16 seater non AC, non-luxurious bus on the date of travel i.e. 24.01.2013 compelling the complainant to make alternate arraignments at a short notice at a higher tariff and the receipt of which was issued in the name of one of the travellers who was a close friend of complainant and whose name was also mentioned in the list of passenger. Complainant argued that OP has failed to support his false plea of complainant changing his requirement from 20 seater to 16 seater bus by any corroborative evidence which shows that OP had deliberately sent the said bus in order to cheat the complainant and evade the trip booked with it and therefore was deficient in service for such an act. OP on other hand in its written arguments reiterated the defence taken in written statement and counter affidavit that complainant had booked a non AC 16 seater bus and therefore in accordance, the same was sent by OP on the schedule date of travel i.e. 24.01.2013 which was declined by the complainant as his team size had exceeded 16 people and there were around 24 to 28 people on scheduled day for travel for which reason the complainant had booked a 27 seater bus from Balaji Tourist for Rs. 65,000/- for Delhi-Katra-Delhi including Patni Top which was the normal prevalent market rate at that time.
9. We have heard the arguments addressed by OP and as per telephonic conversation held between the complainant and staff of this Forum, he has requested to consider his pleadings placed on record for the purpose of oral arguments and expressed his inability to attend the court in person. We have carefully perused the documentary evidence placed on record and have given our anxious consideration to the same. It is not disputed that a Delhi-Katra round trip was being discussed between complainant and OP for journey to be undertaken in January 2013 by road for which the complainant had paid an advance amount of Rs. 2,000/- to OP duly acknowledged receipt of. During the course of oral arguments, the complainant was specifically put to question by this Forum about the corroborative record / proof for booking 20 seater AC luxury Mitsubishi Rosa whose pictures were sent by OP in early January 2013 to the complainant and at what rate was the deal / trip finalized for 20 people from Delhi-Katra round trip. However, the complainant expressed his inability to prove the same by way of any cogent document and submitted that it was all verbal communication with OP. Likewise, OP was put to specific query to prove by way of any document its allegation that the complainant had modified / revised his requirement from 20 seater bus to 16 seater non AC and non luxury bus which was then sent by the OP on 24.01.2013 and declined acceptance by the complainant. However, OP too could not place on record any documentary proof to prove veracity of its contention. In so far as the receipt no. 468 dated 24.01.2013 (relied upon by OP) issued by Balaji Tourist and endorsement thereon by its proprietor stating that the requirement of the complainant was for 27 seater bus as they were more than 22 passengers waiting to board the bus is concerned, the same stands un-corroborative / unverified as the said proprietor neither produced by OP nor his affidavit was filed before this Forum. On close of the said receipt, the signature of the proprietor is in Hindi whereas on the passenger list issued by Balaji Bus Service as exhibit CW1/14, the signature of the proprietor is in English and the name too spelt differently in the two documents as Mr. Surender Kumar in the passenger list and Mr. Surendra Kumar in the booking receipt no. 468.
10. We have given our thoughtful consideration to the lapses and lack of evidence from both sides. The present complaint also suffers from lacunae of lack of documentary evidence and from bare pleadings appears to be a frivolous complaint without any cause of action and devoid of merits as complainant has been unable to prove his own case given the contradiction and vagueness of the pleadings. In our view therefore, even on merits, the complainant has failed to prove his own averments. The Hon'ble National Commission in Pushpa Bhutani Vs HUDA, Hissar (2006) 3 CPR 239 held that a complaint cannot be allowed if complainant is unable to prove his averments.
11. The complainant has since largely failed to establish any culpability against the OP for deficiency of service or unfair trade practice on its part except that we find OP deficient in service for having sent a 16 seater bus whereas all documentary evidence in terms of emails and list of passengers revealed that there was never less than 20 people for whom the said trip was proposed and vehicle to be booked accordingly and also OP’s failure to refund Rs. 2,000/- to the complainant as nowhere on record OP has been able to establish that the amount of Rs. 2,000/- paid by complainant to OP as advance was non-refundable. Therefore the complaint is partly allowed only to the extent of direction to OP to refund Rs. 2,000/- to the complainant alongwith interest @ 6% p.a. from the date of institution of complaint till realization and a sum of Rs. 10,000/- as compensation to the complainant for having sent a 16 seater bus instead of 20 seater bus despite OP’s own admission in its email that the requirement of the complainant was that of a 20 seater bus. Let the order be complied with by OP within 30 days of receipt of copy of this order.
12. Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
13.  File be consigned to record room.
14.  Announced on  18.06.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member