DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

 

Complaint Case No : CC/227/2019

Date of Institution : 18.12.2019

Date of Decision : 24.08.2020

Sudarshan Garg aged about 47 years son of Badri Dass Garg, father/ guardian of Ayush Garg, resident of # B-XI/576, Street No. 8, K.C. Road, Barnala, Tehsil and District Barnala. …Complainant

Versus

1. Sacred Heart Convent School, Raikot Road, Barnala through its Principal.

2. Starico Private Limited, Registered Office at 4th Floor, 412, Antriksh Bhawan, Kasturba Gandhi Marg, New Delhi-110001 through its MD.

3. Starico Private Limited, Registered Office at 4th Floor, 412, Antriksh Bhawan, Kasturba Gandhi Marg, New Delhi-110001 through its Agent Manmohan Singh.

…Opposite Parties

Complaint Under Consumer Protection Act, 1986.

Present: Sh. Dhiraj Kumar counsel for complainant.

Sh. Rahul Gupta counsel for opposite party No. 1.

Opposite parties No. 2 and 3 deleted.  

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

(ORDER BY KULJIT SINGH, PRESIDENT):

    The complainant Sudarshan Garg filed the present complaint under Consumer Protection Act, 1986 (as amended up to date)  against Sacred Heart Convent School, Barnala and others. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that the Ayush Garg son of the complainant is the student of opposite party No. 1 and in the month of November 2018 the opposite party No. 1 call the complainant at school campus and told him for sending Ayush Garg to USA Nasa through educational trip. It is further alleged that, a meeting was arranged by the opposite party No. 1 with the opposite parties No. 2 and 3 being mediator at school campus and it was agreed between the complainant and the opposite parties that if the complainant paid the amount of Rs. 2,50,000/- to the opposite parties through three installments i.e. Rs. 75,000/-, Rs. 75,000/- and Rs. 1,00,000/- then they will sent son of the complainant at USA Nasa through educational trip. The opposite parties obtained the signatures of the complainant and his wife on some blank papers and blank stamp papers on the pretext of Visa Process and as per agreement in the month of November 2018 a cheque of Rs. 75,000/- was handed over by the complainant in favour of opposite party No. 2 from the joint account of Badri Dass Grg and Leela Devi who are parents of the complainant which was encashed and thereafter on demand of opposite parties a cheque for second installment amounting to Rs. 75,000/- in the name of opposite party No. 2 was also handed over by the complainant to the opposite party No. 1 in the month of December 2018 from the same account which was also encashed on 5.2.2.2019. 

3. It is further alleged that thereafter several telephonic message regarding formalities of Visa Process and regarding supply of certain documents were received by the complainant from the opposite party No. 1 and as per those messages all documents were supplied by the complainant and all the formalities were completed by the complainant as per the instructions of the opposite parties. Thereafter, a confirmation voucher was supplied by the opposite parties to the complainant for educational trip but thereafter the opposite parties failed to send the son of the complainant to USA Nasa and complainant many times requested to refund the amount of Rs. 1,50,000/- but opposite parties linger on the matter on one pretext or the other and on 19.9.2019 Rs. 25,000/- was received by the complainant through bank instead of Rs. 1,50,000/-. Thereafter, the complainant requested many times to refund the remaining amount of Rs. 1,25,000/- but to no effect which amounts to deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to make the payment of Rs. 1,25,000/- alongwith interest. 

2) To pay Rs. 30,000/- on account of compensation for humiliation and  harassment.             

3) To pay Rs. 10,000/- as litigation expenses.  

4) Any other proper relief may also be given. 

Rejoinder not filed by the complainant.

4. Upon notice of this complaint, the opposite party No. 1 filed written version taking preliminary objections on the grounds that the complainant frivolously retained Sacred Heart Convent School, Raikot Road, Barnala as opposite party No. 1 as there has never been any relationship of consumer between the complainant and the school. They further submitted that in the interest of teaching and exposure of student to gain international experience of NASA in good faith the school had introduced opposite parties No. 2 and 3 to parents of all the students and it was opposite parties No. 2 and 3 who had introduced themselves to the parents/students from time to time by giving details of tours, payments, contracts of refunds etc. The parents including the complainant had signed the required contracts with the opposite parties No. 2 and 3 of their own free will and consent and not under any compulsion from the school and paid the the amount to the opposite parties No. 2 and 3. The opposite parties No. 2 and 3 failed to fulfill its promise and opposite party No. 1 filed a complaint against the opposite parties No. 2 and 3 to SSP, Barnala on the basis of which FIR No. 421 dated 18.10.2019 under Section 420, 406, 120-B IPC PS City Barnala has been registered against the opposite parties No. 2 and 3 which is under investigation. The complainant had voluntarily agreed to enter into the arrangement/contact with opposite parties No. 2 and 3 to sent his ward to NASA, USA knowing fully well that such tour shall require a visa to be granted by the embassy of USA in India and the contract executed between the complainant and the other opposite parties contained a clause about refund of money in case of any unforeseen circumstances of loss sustained by the student if the visa is rejected by the embassy and it has been specifically undertaken by the complainant that he would like his child to joint Starico journey to USA and he will not hold the Starico or institution responsible for any unseen circumstances or loss. Now the dispute is between the complainant and the opposite parties No. 2 and 3 about the quantum of the amount of refund. 

5. On merits, it is submitted that on 24.10.2018 a meeting was held between the parents and opposite parties No. 2 and 3 wherein the said opposite parties had detailed about the tour to the parents including the formalities of documentation and payments/refund etc. It is admitted that opposite parties No. 2 and 3 had come to the school to opposite party No. 1 and explained his program of sending the students to USA and given all the parents of the students the boucher of their company containing the details of the tour. The payments wee made by the complainant through cheques into the accounts of opposite parties No. 2 and 3 and opposite party No. 1 had not charged any amount from the complainant in this regard. The opposite party No. 1 already registered FIR against the opposite parties No. 2 and 3 which prove the bonafide of opposite party No. 1 to the matter. Lastly, they prayed for the dismissal of the present complaint qua the opposite party No. 1 with costs. 

6. The opposite parties No. 2 and 3 not appeared before this Forum now Commission despite sending notices to them through RC and AD which received back with the report 'left'. But thereafter, complainant failed to file correct address of the opposite parties No. 2 and 3 and moved an application for the service of the opposite parties No. 2 and 3 by way of publication which was allowed by this Commission but even then the complainant failed to publish the said notice in the newspaper. Ultimately on 2.3.2020 counsel for complainant made a statement that complainant does not want to proceed against the opposite parties No. 2 and 3 and same may kindly be deleted from the arena of the opposite parties and accordingly this Commission deleted the opposite parties No. 2 and 3 from the arena of the opposite parties. 

7. In support of his complaint, the complainant tendered into evidence his own affidavit Ex.C-1, copies of messages Ex.C-2 to Ex.C-11, copy of confirmation voucher Ex.C-12, copy of list of students Ex.C-13, copy of notice Ex.C-14, postal receipts Ex.C-15 to Ex.C-17, copy of passbook Ex.C-18 and closed the evidence.    

8. To rebut the case of the complainant, the opposite party No. 1 tendered into evidence copy of letter dated 26.9.2019 Ex.OP-1/1, copy of US Tour Proposal Ex.OP-1/2, copy of itinerary with consent form Ex.OP-1/3, copy of screenshot of SMS sent to parents Ex.OP-1/4, copy of request to embassy for appointment with students list Ex.OP-1/5, copy of agreement/parents declaration Ex.OP-1/6, copy of e-stamp agreement with the school Ex.OP-1/7, copy of circular/addendum Ex.OP-1/8, copy of appointment confirmation Ex.OP-1/9, copy of cancellation of air tickets for both the groups Ex.OP-1/10, copy of reply of starico through email Ex.OP-1/11, copy of letter to starico to the refund the money Ex.OP-1/12, copy of bank details of parents couriered Ex.OP-1/13, copy of email to starico Ex.OP-1/14, copy of email regarding the confirmation of receipt of bank statements Ex.OP-1/15, copy of cancellation and refund form Ex.OP-1/16, copy of declaration to starico to refund Ex.OP-1/17, affidavit of Sr Lyra Lasrado Principal Sacred Heart Convent School Ex.OP-1/18 and closed the evidence. 

9. We have heard the learned counsel for the parties and have gone through the record. 

10. Before going into the merits of the present complaint firstly we like to decide that the present complaint is maintainable before this Commission or not.

11. It is admitted case of the complainant that the opposite parties No. 2 and 3 arranged a tour to USA NASA for the willing students through the opposite party No. 1 and a meeting in this regard was also held on 24.10.2018 at school campus where the opposite parties detailed about the tour to the parents. It is also admitted fact between the parties that confirmation voucher was supplied by the opposite parties No. 2 and 3 but thereafter they failed to send the son of the complainant to USA NASA and also not refund the amount of the complainant. The complainant mentioned in his complaint that the payment of tour will be given to the opposite parties No. 2 and 3 through three installments and he already paid two installments of Rs. 75,000/- each through cheque in favour of opposite party No. 2. In this way, the complainant admitted in his complaint that he paid the amount of Rs. 1,50,000/- to the opposite parties No. 2 and 3 and he has not mentioned anywhere in his complaint that he paid any amount to the opposite party No. 1 for this USA NASA tour. It is also admitted by the complainant in his complaint that opposite parties No. 2 and 3 refunded Rs. 25,000/- to him on 19.9.2019 but failed to refund the remaining amount of Rs. 1,25,000/-. 

12. On the other hand the opposite party No. 1 who is mediator in this USA NASA tour has not taken any money from the complainant rather on failure of this educational tour and on non refund of students money they registered a complaint to the Senior Superintendent of Police, Barnala Ex.OP-1/1 on the basis of which FIR registered against the opposite parties No. 2 and 3. The opposite party No. 1 also sent letter Ex.OP-1/12 and list of students alongwith their bank details Ex.OP-1/13 to opposite parties No. 2 and 3 for the refund of the tour amount but it is the opposite parties No. 2 and 3 who has not refunded the full amount of the students of tour.  So, in our view the opposite party No. 1 is not connived with the opposite parties No. 2 and 3 in this deficiency in service and unfair trade practice. 

13. Further, with regard to opposite parties No. 2 and 3 this Commission sent notices to them through RC AD which were received back with the report 'left'. Thereafter, this Commission had given many opportunities to the complainant to file correct address of the opposite parties No. 2 and 3 but he failed to do so. Thereafter, when the complainant moved an application to serve the opposite parties No. 2 and 3 through publication this Commission also allowed the application and vide order dated 3.2.2020 ordered that the opposite parties No. 2 and 3 be summoned through publication on the expenses of complainant but even then the complainant failed to publish the notice of the opposite parties No. 2 and 3 in the newspaper. Rather on 2.3.2020 counsel for complainant made a statement that the complainant does not want to proceed against the opposite parties No. 2 and 3 and same may be deleted from the arena of the opposite parties and accordingly this Commission deleted the opposite parties No. 2 and 3 from the arena of the opposite parties. But in our view the opposite parties No. 2 and 3 are necessary parties as the complainant paid the entire amount to the opposite parties No. 2 and 3 and any relief only can be granted against them. So, in our view as the opposite parties No. 2 and 3 are no more in the arena of the opposite parties without which this complaint is bad for mis joinder and non joinder of necessary parties and not maintainable before this Commission. 

14. As a result of our above discussion, the complaint of the complainant is not maintainable before this Commission being bad for mis joinder and non joinder of necessary parties and accordingly the same is dismissed. However, no order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file be consigned to the records after its due compliance.  

ANNOUNCED IN THE OPEN COMMISSION:

        24th Day of August 2020

 

 

 

            (Kuljit Singh)

            President

              

(Tejinder Singh Bhangu)

Member