Date of Filing – 05.10.2016
Date of Hearing – 06.06.2017
The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) to assail the Order No.13 dated 01.09.2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint no. 159/2016. By its order, the Ld. District Forum allowed the complaint lodged by the Respondents under Section 12 of the Act on contest with certain directions like to refund Rs.1,50,000/-, to pay compensation of Rs.20,000/- and litigation cost of Rs.10,000/- within one month from the date of the order.
The Respondents herein being Complainants lodged the complaint asserting that receiving telephone call from the opposite party, they attend the office of OP at Kasba to receive some gifts on 08.11.2015. Being persuaded by the OP’s men and agent, the complainants paid Rs.1,50,000/- on that date. OP gave them five gram gold coin and two glass bowl as gift and admitted the complainants as member of the OP being No. PTIS/H/247. According to the agreement, the members are entitled to free package tour for six nights and seven days in every year in the place mentioned in the Agreement as per their choice. On 1st week of November, 2015, complainants approached the OP to book resort at Mandermoni for 31.12.2015 but OP expressed their inability to book the same on the ground of termination of contract. Again the complainants requested the OP to book hotel at Srinagar for six nights seven days tour from 22.03.2016 but OP refused on some fictitious grounds. The complainants further requested the OP to book hotel at Puri from 22.03.2016 to 26.03.2016 which also went in vain. Hence, the complainants requested the OP to return the amount of Rs.1,50,000/- but did not receive any positive response. Hence, the respondents approached the Ld. District Forum with prayer for refund of Rs.1,50,000/-, compensation of Rs.50,000/- and litigation cost of Rs.5,000/-.
The appellant being opposite party by filing a written version has stated that the complainants duly signed the contract with their own consent being impressed by the venues, resorts and club facilities and paid a total purchase price of Rs.1,50,000/- on 08.11.2015. Denying the allegations of deficiency in services, the OP states that they had given the complainants all possible venues and/or resorts to avail their services but the complainants have not availed any holiday and/or vacation from the OP. According to the OP, the allegations are baseless.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the consumer complaint with certain directions, as indicated above, which prompted the OP to approach this Commission with the instant appeal.
Mr. Sumeet Chowdhury, Ld. Advocate appearing for the appellant on the threshold of submission has submitted that the Ld. District Forum should have dismissed the complaint as there was no privity of contract in between the parties. He has further submitted that the Ld. District Forum ought to have appreciated the terms and conditions of the vacation agreement which is binding upon the parties and the complaint being premature one should have been dismissed. He has finally submitted that as there was no deficiency in services, the Ld. District Forum ought to have dismissed the complaint. In support of his contention, Ld. Advocate for the appellant has referred several decisions of the Hon’ble Supreme Court reported in (1) 1993 Scale (4) 620 (India Oil Corporation – Vs. – Consumer Protection Council); (2) AIR 1970 SC 500 (M.C. Chacko – Vs. – State Bank of Tavancore); (3) the order dated 04.03.2011 in Civil Appeal No.6956 of 2004 (H. Siddiqui (dead) by LRs. –Vs. – A. Ramalingam); (4) the decision dated 02.04.2003 in SLP (Civil) No.5835/2001 (Roop Kumar – Vs. – Mohan Thedani) and (5) the decision dated 09.05.2016 in the case of Bharati Knitting Co. – Vs. – DHL Worldwide Express Courier Division of Air Freight Ltd.). Ld. Advocate for the appellant has submitted that considering the facts and law involved in this case and keeping in view, the broad principle of law enunciated by the Hon’ble Supreme Court in a catena of a decision, the Ld. District Forum should have dismissed the complaint.
The respondents, who appeared in person by filing a brief notes of arguments has submitted that the appellant did not provide them any booking in their any resort rather insisted them to book hotel at Srinagar on payment which indicates clear deficiency in services on the part of them. They have submitted that the appellant assured to provide six nights and seven days at any of the places mentioned in the agreement but the appellant did not give any proposal to them to avail the said facility and as such the Ld. District Forum was quite justified in passing the order impugned which should not be disturbed.
I have given due consideration to the submission advanced by the Ld. Advocate for the appellant as well as the respondents. I have gone through the materials on record including the brief notes of arguments filed by the parties.
Undisputedly, on receiving the telephone call from the office of appellant, the respondents attended the office of appellant at Kasba to receive some gifts on 08.11.2015 and it would reveal that after persuasion and entering into an agreement, the appellant gave the respondents five gram of gold coin and two glass of bowl as gift. In fact, the respondents were not informed earlier that on behalf of appellant company, they have been invited to have an idea about the tours or enjoying vacation at their leisure time. In any case, it is quite apparent that on 08.11.2015, the respondents had entered into a vacation agreement with the appellant.
The said agreement goes to show that as per agreement, the respondents had an opportunity to enjoy vacation benefits to the extent that they may stay for a period of every year upto six nights and seven days each year at appellant’s companies properties within India. The fact remains that immediately after entering into the agreement, the respondents approached the appellant company for booking their resort at Mandermoni for 31.12.2015. The appellant expressed their inability to book Mandermoni on account of termination of contract between them and ADB Canvas. The appellant company took a plea that de-affiliating a particular tie up is completely within the discretion of the OP/Appellant. It is true the terms of the agreement speaks so but in all fairness, the appellant company should have mentioned when they entered into tie-up with ADB Canvas and the exact date when the de-affiliation was took place. Subsequently, the respondents took an idea to visit Srinagar for six nights and seven days from 22.03.2016. The said requests of the respondents has also turned down and in the alternative, they were given an understanding to book the hotels at their costs. Finding the precarious situation, again the respondents requested the appellant company to book hotel at Puri from 22.03.2016 to 26.03.2016 but the said request was also rejected on the ground that there is no available vacancy at Puri on those dates.
The appellant company insisted the respondents to book resort other than vacation and the respondents could not respond to the same on the ground that respondent no.1 is a school teacher and respondent no.2 is a dental surgeon and as such for a Government employee, it would not be possible to them to enjoy the vacation during working days,
The facts and circumstances goes to show that the appellant company could not keep their promise in providing resort to the respondents as pert terms of the Vacations Agreement dated 08.11.2015.
Ld. Advocate for the complainant has submitted that as there was no privity of contract in between the respondents and appellant, the Ld. District Forum should have dismissed the complaint on this ground alone. The respondents having no nuance of law could not give any reply on that point. Therefore, the duty casts upon this Commission to consider the decisions referred by the Ld. Advocate for the appellant on this point. In the petition of complaint, the respondents had impleaded the manager, (Country Vacations) as opposite party. The copy of vacations agreement goes to show that the agreement was executed one authorised signatory of Country Vacations, a Division of Country Club (India) Ltd. as the first party and the respondents as the second party. The appellant after entered appearance in their written version have mentioned them as – The Manager, Country Vacations (A division of Country Club Hospitality and Holiday’s Ltd.). There is no reason to raise doubt against whom the respondents lodged the complaint.
In the case of Indian Oil Corporation (supra) the possession of LPG Gas cylinder by Dr. Kamalasanan was not authorised. Therefore, on the strength of obtaining possession by means of an unauthorised connection, it is not open to first respondent to foist a contract on the Corporation and as such the Hon’ble Supreme Court has observed that there was no privity of contract between the Indian Oil Corporation and the consumer. In the case of State Bank of Tavancore (supra) it was held that it must be taken as well settled that except in case of a beneficiary under a trust created by a contract or in the case of a family arrangement may be enforced by a person who is not a party to that contract. In the case of H. Siddiqui (supra) the point came for consideration whether a copy of Power of Attorney which was never filed before the Ld. Trial Court has any probative value. The referred decisions do not appear to me relevant for consideration in the facts and circumstances in the present case.
It is trite law that the parties are bound by the agreement. The decision in the case of Bharathi Knitting Co. (supra) has made it clear that when there is a written agreement in which the parties have put their signatures, the contents of the agreement towers above the rest. Referring to several clauses of the agreement including ‘the membership fee is not refundable under any circumstances and that the membership fee is not a refundable deposit’ the Ld. Advocate for the appellant has submitted that as per terms of the agreement, the Ld. District Forum should not have passed any order to refund the amount, far less to speak of compensation etc.
After giving due consideration to the submission advanced by the Ld. Advocate for the appellant, I am in agreement that when there is a written instrument to which parties signed after knowing its pros and cons, it is certainly bind upon them. But the contents of the agreement cannot be read in such a way which may offend the very object and purpose of enactment of this Act. The avowed object of the Act is to protect a consumer. In Lucknow Development Authority – Vs. – M.K. Gupta reported in (1994) 1 SCC 243 the Hon’ble Supreme Court has observed thus –
“To begin with the preamble of the Act, which can afford useful assistance to ascertain the legilslative intention, it was enacted, to provide for the protection of the interest of consumers. Use of the word ‘protection’ furnishes key to the minds of makers of the Act. Various definitions and provision ......”.
Keeping in view of the same, a liberal and constructive approach should be taken to protect a consumer, particularly when there is apparent deficiency on the part of opposite party/appellant in providing any offer to the respondents to enjoy the vacation at any resort for six nights and seven days or at least two nights three days at any of their resorts.
In that perspective, the Ld. District Forum was quite justified in allowing the complaint and directing the OP/appellant to refund Rs.1,50,000/-. However, the Ld. District Forum should have restrained itself from awarding any amount as compensation because the respondents have also contributed the negligence since they have executed the documents without going through the entire contents of it. The litigation cost of Rs.10,000/- imposed by the Ld. District Forum is also appears to me on the higher side as the respondents/complainants represent their case by themselves and therefore, the same should have been quantified at Rs.2,000/-.
With the above observations, the appeal stands disposed of with a direction upon the appellant/OP to refund Rs.1,50,000/- + Rs.2,000/- as litigation cost aggregating Rs.1,52,000/- within 30 days from date otherwise the amount shall carry an interest @ 9% p.a. from date till its realisation. The Respondents to return the five gram Gold coin and tow glass bowl forthwith.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
