This is an application u/s.12 of the C.P. Act, 1986.
Complainant/College by filing this complaint has submitted that as per their plan to conduct an educational excursion with its students and trainers for at Darjeeling – Gangtok from 8th April, 2014 to 12th April, 2014 and accordingly approached the OPs/Tour & Travel namely Simana Chariye being one of the oldest tour and travel conductors and entered into an agreement on 29th March, 2014 through a person namely Sahanujjaman wherein it has been decided that the programme of Darjeeling – Gangtok is included with -Tour Itinerary- along with Menu Chart for which the total cost to be borne by the tour operator/OP on payment by the complainant/Institute.
Accordingly, the complainant/Bengal Teachers’ Training College agreed to pay Rs.2,62,500/- to the OP for conducting the tour with its team consisting of 65 nos. students and 3 trainers in total to 68 members for the entire excursion subject to payment of Rs.3,700/- per student and for the trainers only who will accompany the students, their food and lodging only would be provided free of cost as agreed upon by the OP.
The complainant has alleged that they paid a sum of Rs.2,82,500/- in total to the OPs for the journey and the said team departed from Kolkata station on 08-04-2014 by Haldibari Express under the supervision of the OPs and reached Darjeeling on 9th April, 2014 and stayed in a hotel that had been booked for them by the OPs and as per the tour itinerary after their breakfast at the Hotel site seeing covering Tiger Hills, seven points would be completed. It is further stated by the complainant that as per tour programme of tour itinerary, after returning from Tiger Hills the said team shall have to take their lunch and set on for Gangtok and on the next day, i.e. on 10th April, 2014 the OPs will suppose to take the said team for local site seeing of Gangtok covering seven points with three monasteries namely Rumtek Monastgery, Hanuman Tak and others and also for spot visit of Changu Lake, Baba Mandir Nathula Pas as included in the Tour Itinerary and the return of the said team was scheduled on 11th April, 2014 and after finishing lunch the said team would proceed to New Jalpaiguri Railway Station and board on Teesta Torsha Express for the return journey.
Fact remains, that the complainant/Bagnan Teachers’ Training College during the entire trip i.e. from the date of journey till the date of arrival of the said team in Kolkata, faced various discrepancies and deficiencies in rendering adequate service by the OPs which caused mental agony of the said team and simultaneously caused monetary loss of the complainant/Institute. Local site scenes of Gangtok mentioned in the tour itinerary including Rumtek Monastery, Hanuman Tok, Baba Mandir, Nathula Pass etc. which the OPs were supposed to take the said team, but the OPs did not perform according to tour programme, even the food items mentioned in the menu list were not provided by them. Moreover, while returning from the tour, the OPs were supposed to book tickets, in the sleeperclass, but they booked tickets in chair cars which were not accepted by the students of the said team and as a result the students of the team disagreed to return by the train due to seating arrangements in chair cars instead of sleeper class and they on their own paid the extra and/or difference amount for booking seats in bus and the OPs arranged by Bus for the same journey of the students along with the team managers. It is further stated that in order to provide alternative arrangement for a Bus, the OPs asked, the coordinator and director of the complainant Dr. Amanullah to pay extra Rs.30,000/- and accordingly for the urgency, the said money was paid to them. But the OPs did not return the said amount of Rs.30,000/- to the complainant.
On several occasions, the complainant/Institute had telephonic conversations with the OPs and repeatedly asked them to return the money being received by them in excess, against agreed amount already paid but initially agreed to return but finally not refunded to the complainant/Institute.
Being aggrieved of such deceitful act and deficiencies of inadequate service on the part of OPs who are also reluctant to return the excess money amounting to Rs.30,000/- without any justified reason, the complainant served a notice dated 05-05-2014 asking the OPs to refund the sum of Rs.30,000/- and also a sum of Rs.5,00,000/- towards compensation for their unfair trade practice and deficiency in service and prayed for redressal.
By filing written version, the OPs stated that on behalf of the complainants’ college one Sahanujjaman Molla contacted them for an educational tour and requested for discussion over that matter and accordingly organizer of the OP1 went to the complainant/college on 29-03-2014 and met with the Principal and the Secretary of the said college and first of all the Secretary of the Institute requested them to organize a tour for Hyderabad and coordinator of the complainant/college entered into a tour contract which was prepared by the college authority with the OP1 for a tour to Hyderabad which would be scheduled on 18-04-2014 and the date of return from Hyderabad to Kolkata was fixed on 23-04-2014. The tour programme for the said tour was prepared by OP2 on 29-03-2014 and the same was handed over to the college authority and it was agreed that college will pay Rs.3,700/- per head to the OPs for the said Hyderabad tour for 75 Heads from the college side to join the tour and accordingly the complainant/college authority paid Rs.30,000/- by a/c. payee cheque in advance to the OPs.
Fact remains, in accordance with the said contract, the OPs booked Hotel at Hyderabad for 78 Heads also booked private car there. But due to shortage of time, train tickets in Falaknama Super Fast Express for the said 75 heads were not confirmed but in waiting list and the complainant/college after knowing the same, suddenly cancelled the said tour and the complainant/College requested them to organize a tour for Darjeeling – Gangtok. For such cancellation, the OPs had to pay Rs.15,000/- as tour cancellation charge to the agent of the Hotel Authority of Hyderabad and the complainanit/college authority assured them that the said cancellation charges would be adjusted with the expenses to be incurred for Darjeeling – Gangtok tour as the train fare for Haldibary Express to go to NJP is cheaper than that of the sleeper class train fare of Hyderabad. In such a situation the OPs accepted the request of the complainant/college on 01-04-2014 for the tour of Darjeeling – Gangtok tour fixed on 29-03-2014 as starting date which was already prepared by the complainant/college authority. It was also agreed by them that per head expenses of the tour team consisting of 68 members instead of 75 would be paid at the rate Rs.4,500/- head for the said tour and 50 percent of the total expenses would be paid by the college authority few days before date of the journey and the rest amount would be paid during the tour by the complainant/college.
The OPs also stated that the tour team visited various local site scenes in Darjeeling on 09-09-2014 and, thereafter, left for Gangtok. On 10-04-2014, the tour team also visited local site scenes in Gangtok as per tour programme. Since, there was general election in Sikkim, no permission was granted by the concerned authority for visiting Changu Baba’s Mandir and Changu Lake on 10-04-2014. But on the morning of 11-04-2014 somehow OP managed to obtain permission for visiting Changu Baba’s Mandir as well as Changu Lake and for this the OPs had to pay extra money for such permission and the touring team visited all that places also.
It is further stated by the OPs that as per the tour programme, the team had to visit Nathula Pass at their own cost since cost of visit Nathula Pass was not included in per head expenses of Rs.4,500/-, but the tour team did not get permission to go there due to heavy snow fall and the tour team had to reach NJP on 11-04-2014. Since, the tour organizer/operator did not have so much amount to pay the Hotel bills as well as the charge of sleeper class Bus fare as the complainant/college did not pay with the agreed payment schedule and therefore, the OPs were compelled to take assistance of the tour team and collected Rs.35,000/- from them for making payment to the bus company and accordingly the secretary of the Institute/complainant was also requested to make the payment as soon as possible and accordingly, they only deposited Rs.20,000/- directly to the Hotel Bank A/c. Therefore, the OPs received total amount of Rs.2,62,500/- from the complainant/college against total amount of Rs.3,06,000/-. Further, it is stated by the OP’s that as per tour programme, the OPs had to buy train tickets for return journey in Teesta Torsha Express, but due to non availability of seats, the OPs bought return tickets in Haldibary Express where the train fare was Rs.155/- per head and, therefore, total of Rs.13,940/- was saved and thus total Rs.1,560/- [Rs.43,500/- – (Rs.20,000/- + Rs.8,000/- + Rs.13,940/-) = Rs.1,560/-] was fallen due which should to be paid to the OPs by the complainant/college.
The OPs reiterate that before entering into the tour contract for Darjeeling – Gangtok, the complainant/college entered into a tour contract for Hyderabad and as the train tickets were not confirmed for all the complainant/college cancelled the said Hyderabad tour and requested to organize a tour for Darjeeling – Gangtok and it was agreed that per head expenses of the 68 tour team member would be Rs.4,500/- and it is not true that per head expenses was fixed at the rate Rs.3,700/- per head i.e. total amount of Rs.2,62,500/- for conducting the tour programme at Darjeeling – Gangtok with the complainant/college.
It is also stated that the OPs never did any wrong throughout the tour, rather they continued tour providing best services to the tour team and made them satisfied in all respect but the complainant/college failed to pay the contractual amount to the OPs.
Decision with Reasons
On proper study of the complaint and the written version and the affidavit in chief of both the parties it is found that the complainant/college booked for a tour for a trip to /Darjeeling-Gangtok from 5th April, 2014 to 12th April, 2014 and entered into an agreement on 29th March, 2014 for journey and tour of 65 students and 3 trainers to be conducted by the OPs/Tour & Travel Company and for said a 4-day tour the tour team departed from Kolkata station on 8th April, 2014 by Haldibari Express under the supervision of the OPs.
Fact remains, that the said team reached Darjeeling on 9th April, 2014 and stayed in a hotel that had been booked for them by the OPs and as per the tour itinerary it was mentioned that after finishing their breakfast, all were supposed to go out for local side seeing covering Tiger Hills Seven Points. As per the tour itinerary it was fixed that after returning from the tiger Hills the said team would have their lunch and set on for Gangtok. On the next day i.e. on 10th April, 2014, the OPs were supposed to take the said team for local site seen of Gangtok covering seven points with three Monasteries namely Hanuman Tak and others and also for spot visit of Changu Lake, Baba Mandir, Nathula Pass as included in the Tour Itinerary.
The main contention of the complainant/institute is that during the entire tour/trip deficiencies in rendering service by the OPs caused immense harassment, mental agony of the said team and also caused monetary loss since the OPs were supposed to book tickets in the sleeper class for the return journey but they bhooked tickets for chair cars which was not accepted by the students of the team and as such difference amount for booking seats in Bus an extra amount of Rs.30,000/- what the OPs did not return to the complainant.
The OPs/Simana Chariye Tour & Travel Company repudiated the claim of the complainant saying that as per request of the secretary, complainant/college to organize a tour for Hyderabad, they entered into a contact with the coordinator of the complainant/college on 29-03-2014 which had to start on 18-04-2014 and the date of return from Hyderabad to Kolkata was fixed on 23-04-2014 wherein it was agreed that the college would pay Rs.3,700/- per head to them for 75 Heads and also paid an advance of Rs.30,000/- by A/c. payee cheque to them. In accordance with the said contract, hotel booking for 75 persons were completed, vehicle were arranged, but due to shortage of time, train tickets in Falaknama Super Fast Express for said 75 heads were not confirmed but in waiting list and the complainant/college after knowing the same, suddenly cancelled the said tour and then requested them to organize for Darjeeling-Gangtok tour programme. For such cancellation, they had to pay Rs.15,000/- as tour cancellation charges to the Agent of the Hotel Authority of Hyderabad, while the complainant/College Authority assured to adjust the against the expenses for Darjeeling-Gangtok tour as train fare in Haldibari Express to go to New Jalpaiguri is cheaper than that of the sleeper class train fare of Hyderabad.
No doubt, as per request of the complainant/college, another contract of Darjeeling-Gangtok tour was signed by and between them on 29-03-2014, wherein it was agreed that per head expenses, of the tour team consisting of 68 members instead of 75 would be Rs.4,500/- each and 50 percent of the total expenses to be paid in advance by the complainant/college.
No, doubt as per the programme, the tour team visited the various local site scenes in Darjeeling on 09-09-2014 and thereafter left for Gangtok. On 10-04-2014 the team also visited local site scenes in Gangtok. As there was general election in Sikkim on that time, no permission was granted by the concerned Authority for visiting Changu Baba’s Mandir and Changu Lake, but somehow they managed to obtain permission for visiting Changu Baba’s Mandir as well as Changu Lake and for this they spent extra money for such permission for the sake of the students’ team. As per the tour contract, the OPs have stated that due to non-availability of seats in sleeper class, in Teesta-Torsha Express, they arranged Railway Tickets in Haldibary Express where the train fare was Rs.155/- per head and thus a total amount of Rs.13,940/- was saved, but after cancelling the return tickets on 11-04-2014 the OPs got Rs.8,000/- from the Railway Authority, and the OPs had Rs.13,940/- + Rs.8,000/- = Rs.21,940/- in their hand. Since, the college authority directly made payment of Rs.20,000/- to the Gangtok Hotel, thus after adjustment from the due balance amount of Rs.1560/- [Rs.43,500/- – (Rs.21,940/- + Rs.20,000/-)] to them.
We have gone through the details of the records and observed that it is true and admitted fact that the complainant/college undertook the journey under the OPs/Simana Charye to visit Darjeeling – Gangtok and a contract by both the parties was signed on 29-03-2014 and 01-04-2014 respectively but it is also a fact that one more such contract for a tour at Hyderabad was also signed by them on 29-03-2014, jointly on the same date. It is invariably true that due to non-availability of the reservation for the Hyderabad tour, the college authority asked the tour operator to conduct the tour at Darjeeling-Gangtok wherein 68 members participated and it is admitted position that the complainant/college paid to the OPs amounting to Rs.2,62,500/- directly and also Rs.20,000/- to the Hotel Ganhgtok i.e. in favour of OPs account. It is an astonishing fact that nowhere of the tour agreement the charge for each participant/student i.e. tour participant is not mentioned but from the records it is apparent that the OPs controverted the complainant’s statement that the amount of Rs.3,700/- per head was fixed for 75 heads to arrange a tour at Hyderabad and in its reply to question No.13 of the complainant/college wherein it is stated that the OPs agreed with the contract amount of Rs.2,77,500/- for the tour to Hyderabad and for the tour for Darjeeling-Gangtok it was Rs.3,06,000/- (Rs.4,500/- X 68 heads). Under this situation, it can be said that the complainant/college never raised any dispute against the reply of OPs as per questionnaire of the complainant rather they have demanded refund of Rs.30,000/- which was paid by their team in course of journey.
In reality it is found that since the students of the tour team who disagreed to return Kolkata by Haldibary Express and as per the consent of the tour supervisor, arrangements were made by the OPs to travel by Bus in sleeper class A/c Coach for the tour team. We also find that the OPs have in its evidence have submitted the total account wherein the said collected money which was drawn from the tour team were adjusted by them against the due amount to be paid by the complainant/college. So, we are convinced that since, the OPs had no alternative but to arrange the return journey for the team of students/tourists who did not agree to travel by Haldibari Express and for said 68 heads tour team reservation were not available within short time for the said journey.
But after considering the contract paper dated 01-04-2014 it is found that there is detail about tour programme (Tour ITINERARY) executed by both the parties and Menu is also mentioned and by granting four receipts No.0574 dated 10-04-2014, No.1939 Dated 08-04-2014, No.0572 Dated 06-04-2014 and No.0573 Dated 07-04-2014 in total Rs.2,62,000/- was received by the OP and it is fact that another amount of Rs.20,000/- has been paid in the OPs account No.91301005558247 by the complainant so payment of Rs.2,82,000/- by the complainant to the OP is well proved.
But most peculiar factor is that both the parties have miserably failed to prove what was the per head cost of the journey along with meal as per said contract. In fact, complainant has claimed that per head cost of said tour was fixed Rs.3,700/- whereas OP has alleged that it was at the rate of Rs.4,500/- but the support of their respective contention there is reliable material documents for which we cannot believe the above contention of the complainant and OP regarding per head cost of said excursion as fixed and for which we are convinced to hold that invariably the total cost of the excursion was Rs.2,72,000/- and that had already been paid by the complainant.
It is also proved that during return journey OP was compelled to proved A.C. Sleeper Coach bus for their journey from New Jalpaiguri to Kolkata when complainant and their students refused to return by train but fact remains OP that failed to book return journey ticket in Tista-Torsha Express. So, it was the responsibility on the part of the OP to arrange for their return journey by sleeper coach train and for which as alternative arrangement sleeper coach buses were hired by the OP and for that OP cannot claim any extra charge under any circumstances, but truth is that OP took extra Rs.30,000/- from the complainant which was/is not at all legal in view of the fact all arrangement for return journey should be made by OP as per contractual obligations and so OP arranged for sleeper coach buses when he failed to reserve tickets in Teesta-Torsha Express in Sleeper Coach and such a step as taken by the OP was not for complainant’s claim but it was arranged by the OP as per contract and for which OP cannot claim any extra money or charge or any extra charges from the complainant but it is proved that OP during tour took Rs.30,000/- from complainant expressing that in his hand no such available fund for return journey by sleeper coach bus so complainant handed over that amount but under any circumstances said amount of Rs.30,000/- was no doubt taken by the OP only to purchase sleeper coach bus tickets as in OP’s hand no such fund was available at such crucial moment.
Considering all the above fact and materials we are convinced to hold that OP took Rs.30,000/- as extra amount outside contractual amount and complainant in fact provided that amount of Rs.30,000/- to the OP to help OP in his extreme need on the way so no doubt OP is legally bound to refund that amount to the complainant as said amount cannot be treated as part payment of total contractual amount of the trip and for which complainant is entitled to get back that amount from the OP when complainant is no doubt the consumer of the OP and in view of the above fact material and finding the complainant succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with cost of Rs.10,000/-.
OP is directed to refund and pay Rs.30,000/- to the complainant within 15 days from the date of this order failing which OP shall pay penal interest of Rs.250/- per day till full payment of the decretal amount and if it is collected it shall be paid to this Forum Account. Even if it is not complied, in that case, penal action u/s.27 of the C.P. Act shall be started for which further fine and penalty shall be imposed.
