BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 358/2002 Filed on 14.08.2002<br /> Dated : 15.10.2008<br /> Complainants:<br /> <br /> 1.M. Sasi Kumar, Sree Nilayam, Punnakkamugal, Thirumala P.O, Thiruvananthapuram.<br /> <br /> 2.Aji Kumar.K, Sarojam, T.C 18/484(1), Punnakkamugal, Karamana P.O, Thiruvananthapuram.<br /> <br /> 3.S. Sreekumar, Padma Vilas, Bhagavathi Nada, Balaramapuram P.O, Thiruvananthapuram. <br /> <br /> (By adv. D.S. Jayachandran)<br /> Opposite party:<br /> <br /> Sundan Raj Travel Corporation, Luxury and Long Route Passenger Bus Operators, T.C 14/2350, Malankara Building Complex, Palayam, Thiruvananthapuram represented by its Proprietor. <br /> (By adv. S. Laila)<br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 06.07.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 15.09.2008, the Forum on 15.10.2008 delivered the following:<br /> ORDER <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> The facts leading to the filing of the complaint are that complainants organized a six day trip for seeing several places namely Guruvayoor, Kadampuzha, Mangalapuram, Dharmastalam, Udippi, Mookambika, Chamundi Hill, Lalbah, Bangalore, Mysore, Vrindavan Garden, Ootty etc. Complainants approached the opposite party and booked for high tech bus on 07.03.2002 for the said trip scheduled to be started at 7.30 p.m on 10.05.2002 from Karamana and to be returned to Thiruvananthapuram on 16.05.2002. For the said trip opposite party charged Rs. 35,500/-, and as advance for the same Rs. 1000/- was received by the opposite party. 15 days before the date of journey opposite party called the complainant and made him to make a payment of Rs. 8000/- for obtaining permit and tax. 1st complainant paid the same on 27.04.2002 and the same was acknowledged in the agreement form also. Opposite party made the 1st complainant to pay the rest of the amount to the driver of the vehicle. On 10.05.2002 complainants along with other 40 persons reached the boarding point at Karamana at 7 p.m and waited for the bus. Opposite party did not provide bus in time and complainants with other passengers waited for 6 hours. At about 2 a.m opposite party managed to provide an ordinary bus bearing Reg. No. KL-01 C 7237 owned by Fathima Travels. Complainants had no other option and started the journey in the ordinary bus paying the fare of high tech bus. The bus developed several problems at different places. When it reached at Attingal, the back tyre of the bus was bursted. When the said bus reached Chavara another tyre got bursted. In the meantime the driver of the bus received a sum of Rs. 8000/- from the 1st complainant for the purchase of a second hand tyre. When the bus reached Mahe the driver received Rs. 3500/- for filling diesel. On the next day, on the way to Dharmastalam, the vehicle got brake down and in the meantime the driver received a sum of Rs. 1500/-. On 14.05.2002 on the way to Bangalore at about 3 p.m the vehicle was stopped at Hassan by the R.T.O as the vehicle was not having tourist bus permit. The vehicle was taken possession by the R.T.O and complainant had to take all passengers to a lodge and Rs. 4000/- was paid for lodging. Thereafter complainants made earnest efforts to release the vehicle from the custody of the R.T.O, but they could not succeed the same as the vehicle has no valid documents. Thereafter complainant had to hire a bus of M/s Lokesh Travels, Mysore for returning to Thiruvananthapuram. Complainants had incurred additional expenses. Complainants collected gold ornaments from the passengers and pledged the same for a sum of Rs. 14,060/- at Santhosh Pawn Brokers, Mysore. Thus paid an advance amount of Rs. 16000/- to the bus operator and got the bus and returned to Thiruvananthapuram. The balance amount was paid to the driver of the vehicle at Thiruvananthapuram. After returning to Thiruvananthapuram complainants met the opposite party and demanded to repay the additional amount incurred to the complainants. But opposite party was reluctant to accept the said demand. The act of the opposite party is a clear deficiency in service and they are legally bound to compensate the complainants. Hence this complaint claiming Rs. 100000/- as damages for the pain and sufferings caused to the complainants, Rs. 30000/- towards return expenses from Hassan and Rs. 20000/- towards monetary loss incurred to the complainants. <br /> Opposite party entered appearance and filed version contending that complaint is not maintainable either in law or on facts. Complainant is not a consumer. It is true that opposite party is an authorized bus operator and that on 07.03.2002 complainant approached the opposite party and booked for a high tech bus for a trip only to Mookambika, Mysore, Bangalore, Ootty and return to Thiruvananthapuram. There was no contract to visit Guruvayoor, Kadampuzha, Mangalapuram, Dharmastalam, Udippi, Chamundi Hill or Lalbah. The charges for the said trip was fixed as Rs. 35500/- and opposite party received Rs. 1000/- as advance. As per clause 6 of the agreement the complainant has to remit the entire balance amount one month before the journey that is on or before 10.04.2002, otherwise the agreement will become unenforceable and the bus will not be made available for the journey. Subsequently complainant remitted another sum of Rs. 8000/- and promised to remit the entire balance before 10.04.2002. After that till 20.04.2002 complainant not turned up and on 20.04.2002 complainant approached the opposite party and requested for some more time to pay the balance amount. Inspite of paying the entire balance amount complainant approached one of the trainees of the opposite party's office and made him endorse the part payment of Rs. 8000/-. The opposite party called upon the 3rd complainant to take the refund of Rs. 8000/-. But the complainant had not approached the opposite party for refund till 10.05.2002. 1st complainant who is known to one of the partners of the opposite party Mr. Madhukumar, approached him and requested to make some arrangement for another bus as they failed to get another bus. Mr. Madhukumar telephoned to N.S.M Motors for sending a bus for complainants. They sent a bus by 4.30 p.m on 10.05.2002. N.S.M Motors demanded full payment before journey. But the opposite party was not ready and willing to pay the amount and hence the bus returned. Again the 1st complainant requested Mr. Madhukumar to help him in getting another bus. Out of humanitarian consideration Madhukumar approached Fathima Travels and managed to get a bus for hire for Rs. 25000/-. Mr. Madukumar gave Rs. 8500/- to Fathima Travels. Complainants promised to pay the balance amount and meet all other expenses and taxes during the journey. Complainants started journey on 11.05.2002 early morning. As per the terms of agreement the opposite party is not bound to reimburse the advance amount to the complainants as there is breach of contract from their side. Opposite party has no knowledge about the allegations stated in paragraphs 7 to 13 of the complaint. Hence opposite party prayed for dismissal of the complaint with costs. <br /> The points that would arise for consideration are <br /> (i)Whether there has been deficiency in service on the part of opposite party?<br /> (ii)Reliefs and costs. <br /> To support the contention in the complaint, 1st complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and marked Exts. P1 to P5 and witness has been examined as PW2. To support the contention in the version, Rajendra Kumar, Managing Partner of the opposite party has filed a proof affidavit and marked Ext. D1. <br /> Points (i) & (ii):- Admittedly on 07.03.2002 complainant approached the opposite party and booked for a high tech bus for a trip scheduled to be started at 7.30 p.m on 10.05.2002 from Karamana and to be returned to Thiruvananthapuram on 16.05.2002. It has been the case of the complainant that the said trip was for visiting several places such as Guruvayoor, Kadampuzha, Mangalapuram, Dharmastalam, Udippi, Mookambika, Chamundi Hill, Lalbah, Bangalore, Mysore, Vrindavan Garden, Ootty etc. According to the opposite party there was no contract to visit Guruvayoor, Kadampuzha, Mangalapuram, Dharmastalam, Udippi, Chamundi Hill or Lalbah. Admittedly the charge was fixed as Rs. 35500/- for the said trip and agreement was entered between the 1st complainant and opposite party and remitted Rs. 1000/- as advance. Ext. P1 is the copy of the programme notice published by the complainant regarding the places to visit, cost of visit per person etc. Ext. P2 is the copy of the agreement form. As per Ext. P2 the boarding point is Karamana, trip to Mookambika, Mysore, Bangalore, Ootty via come back to Thiruvananthapuram. Departure date is 10.05.2002 at 7.30 p.m and arrival date is 16.05.2002 at 7.30 p.m, rate is Rs. 35500/-, advance Rs. 1000/- (it is seen written in blue ink) in continuation 8000+1000= 9000 which is seen written in red ink on 27.04.2002, balance is Rs. 34500/-. Ext. D1 is the original agreement form. A perusal of Exts. P2 and D1 signify some discrepancy in the advance amount. As per Ext. D1 advance amount is Rs. 1000/- which is seen written in blue ink and in continuation it is written in red ink as under: “As per receipt No. 409 dated 07.03.2002”. Submission by the complainant is that 15 days before the date of journey the opposite party called the 1st complainant and made him to make payment of Rs. 8000/- for obtaining permit and tax and 1st complainant paid the same on 27.04.2002 and the same was acknowledged in Ext. P2 and 1st complainant was made to pay the balance amount to the driver of the vehicle. The main grievance of the complainant is that on 10.05.2002 when the complainants along with other passengers reached the boarding point at Karamana at 7 p.m, and waited for the bus, opposite party did not provide the bus in time and passengers had been made to wait there for more than six hours and at 2 a.m opposite party managed to provide an ordinary bus contrary to the agreement. It has been contended by the complainant that as there was no other option complainants had to start their journey in the ordinary bus and the said bus developed troubles at different places. Complainant did not furnish any document to show the troubles and expenses incurred thereon. On 14.05.2002 the said vehicle was possessed by the R.T.O as the vehicle was not having tourist permit and passengers were taken to a lodge. Thereafter complainants hired another bus of M/s Lokesh Travel Service. Ext. P4 is the receipt issued by M.S Lokesh Services. To pay advance amount as demanded by the said bus operator, it is submitted by the complainant that they have pledged the gold ornaments at Santhosh Pawn Brokers, Mysore. Ext. P5 is the copy of pawn ticket. PW1 has been vehemently cross examined by the opposite party. In his cross examination PW1 deposed that at the time of booking complainant had given Ext. P1 notice to the opposite party, but opposite party had recorded only important places in Ext. P2. PW1 further deposed that the condition printed on overleaf are in English and opposite party never read out the said conditions. PW1 further deposed that opposite party directed the complainant to pay the balance amount before entering the bus. When asked wouldn't the said agreement cancel due to non-payment of the entire amount as per conditions in Ext. P2, PW1 answered that even after the said date opposite party had received Rs. 8000/- from the complainants and the same has been entered in Ext. P2 itself. On the date of journey instead of sending high tech bus opposite party had brought ordinary bus of Fathima Travels, belatedly at around 2 a.m on 11.05.2002, though complainant had no relation with Fathima Travels. PW2 identified his signature in writing in Ext. P2. When asked why places stated in Ext. P1 are not written in Ext. P2 and P3, PW2 replied that only main points will be recorded. PW2 admitted that complainant had approached the opposite party for a high tech bus which is comfortable compared to an ordinary bus. PW2 further deposed that complainant had booked KL-01 S 3000, a high tech bus, after seeing it and on the date of booking complainant had remitted Rs. 1000/- and on 27.04.2002 complainant had remitted Rs. 8000/-. PW2 further deposed that though he was resigned on 01.05.2002 he went to opposite party's office on 10.05.2002 to arrange the said bus since the said booking was done under his responsibility. Opposite party could not arrange the said bus, instead arranged N.S.M Travels vehicle. PW2 further deposed that advance amount of Rs. 9000/- was not given to N.S.M Travels by the opposite party and hence the said vehicle went back and thereafter the opposite party contacted Fathima Travels, Kollam and their vehicle reached Thiruvananthapuram at 9.30 p.m. PW2 did not know what happened thereafter. While signing Ext. P2 and P3, PW2 deposed that complainant did not read those printed in English on the overleaf of Ext. P2 and P3. In his cross examination PW2 answered that he was appointed as Manager in Sundanraj Travel Corporation. Though he was resigned on 01.05.2002 from the opposite party's travels he went to opposite party's office on 10.05.2002 as he was called by Madhu Sir. The signature seen in Ext. P2 and P3 and the signature of PW2 seen in the deposition are one and the same. Hence we come to the conclusion that PW2 has worked in the opposite party's travels and Ext. P2 and P3 were executed in his presence and we could not disbelieve the deposition of PW2. On behalf of opposite party Rajendra Kumar filed affidavit and marked Ext. D1 which is the original of Ext. P2. Ext. P2 is the carbon copy of Ext. D1. The handwriting seen in Ext. P2 and D1 are one and the same. A perusal of Ext. P2 and D1 will reveal some discrepancy. While in Ext. P2 the vehicle No. is written in red ink, but in Ext. D1 the same is not seen written. Another discrepancy is seen in the amount remitted by the complainant. While in Ext. P2 and Ext. D1 advance Rs. 1000/- is written in blue ink. In Ext. P2 in continuation of advance Rs. 1000/- it is seen written in red ink as under: “+ 8000= 9000/- , Total advance cash 27.04.2002”, while in Ext. D1 in continuation of advance Rs. 1000/- it is seen written in red ink as follows: (As per receipt No. 409 dated 07.03.2002). It is pertinent to point out that PW2 has identified the signature and hand writing seen in Ext. P2 and PW2 was examined on 08.03.2004 and posted for defence evidence on 29.04.2004, while opposite party filed document (Ext. D1) on 25.05.2004 and counter affidavit on 12.07.2004 and marked Ext. D1 and evidence was closed. Thereafter evidence was re-opened on petition filed by the complainant for cross examination of the opposite party on payment of cost which was paid by the complainant and opposite party was directed to appear for cross examination. But opposite party did not appear thereafter. Since they did not appear in witness box and offer himself to be cross examined, the only course open to this Forum would be to draw an adverse inference from them. As per clause 6 of the terms and conditions printed on the overleaf of Ext. P2/Ext. D1, “the balance amount in full, deducting the advance amount should be remitted one month before the journey and receipt be obtained. Otherwise the bus will not be made available for the journey. Additional running k.m charge will be settled immediately after the journey is over and official receipt should be received from the in-charge of the bus”. The journey date was 10.05.2002, one month prior to the journey was 10.04.2002. Before the said date no amount was seen remitted by the complainant. A perusal of Ext. P2 shows that complainant had remitted an additional amount of Rs. 8000/- on 27.04.2002. It is seen received by the opposite party in violation of clause 6 of the terms and conditions in Ext. P2. PW2 and opposite party admitted the receipt of the said amount. Since the said amount was received by the opposite party in violation of the terms of the agreement on 27.04.2002 opposite party would have to arrange the high tech bus for the trip. PW2 deposed that opposite party arranged N.S.M Travels' Vehicle for the said trip, but the said vehicle could not be operated since the advance amount received by the opposite party was not handed over to NSM Travels and thereafter opposite party managed to arrange Fathima Travels Vehicle which arrived at 9.30 p.m. Opposite party submitted that advance amount received by the opposite party was given to Fathima Travels. Opposite party did not produce any document to show that the said amount was handed over to Fathima Travels nor did opposite party produce any document showing the relationship between Fathima Travels and complainants, nor did opposite party adduce any evidence to corroborate the pleadings in the version. In view of the above we strongly believe that opposite party might have provided the said Fathima Travels' vehicle on the strength of Ext. P2 and P3 and complainant was forced to start the journey in the said ordinary bus, which caused troubles, tension and mental pain to the complainants and thereby the very purpose of the journey has been disturbed, and complainants were forced to pledge their ornaments by Ext. P5 and hired another vehicle from Mysore for return journey vide Ext. P4, which occurred due to the negligence and deficiency on the part of opposite party. Deficiency in service is proved. <br /> In the result complaint is allowed. Opposite party shall pay the complainants an amount of Rs. 15,000/- towards compensation for deficiency in service and Rs. 1,500/- towards costs. The said amount shall carry interest at the rate of 12% if not paid within two months from the date of this order. <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th October 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K. SREELA : MEMBER <br /> <br /> <br /> O.P.No. 358/2002<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Sasikumar<br /> PW2 - Radhakrishnan Nair<br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Advertisement issued by opposite party. <br /> P2 - Carbon copy of agreement form No. 137 dated 17.03.2002.<br /> P3 - Original receipt No. 409 dated 07.03.2002.<br /> P4 - Copy of receipt dated 16.05.2002 issued by M/s Lokesh <br /> Travels, Mysore.<br /> <br /> P5 - Copy of receipt dated 16.05.2002 issued by Santhosh Pawn <br /> Brokers. <br /> <br /> III OPPOSITE PARTY'S WITNESS :<br /> NIL <br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> D1 - Original agreement form No. 137 dated 17.03.2002.<br /> <br /> <br /> <br /> PRESIDENT<br /> <br />