DATE OF FILING : 23-12-2011.
DATE OF S/R : 27-01-2012.
DATE OF FINAL ORDER : 26-06-2012.
1. Sri Sisir Kumar Hati,
s/o. late Biswanath Hati.
2. Smt. Manju Hati,
w/o. Sisir Kr. Hati,
rsiding at 29/8/1/3, Narasingha Dutta Road,
P.S. Bantra, District – Howrah,
PIN – 711 101.------------------------------------------------------- COMPLAINANTS.
- Versus -
1. SOTC Howrah Division
Travel Company having its
Howrah Branch at 9/1, Harduttrai Chamaria Road,
Howrah – 711 101 having its Kolkata Office
at 10, Wood Street ( 2nd floor ),
Kolkata – 700 016.
2. Sri Jayanta Biswas,
Branch In-Charge of SOTC Howrah Division
at 9/1, Harduttrai Chamaria Road, P.S. Howrah,
Howrah – 711 101.-------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
F I N A L O R D E R
1. The instant case was filed by complainants U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainants have prayed for direction upon the O.Ps. to award a compensation of Rs. 50,000/- on different counts.
2. The complainant for participating in a foreign tour to America at the behest of the o.ps. paid a total sum of Rs. 3,18,474/-to the o.ps. who issued receipts thereto and undertook the journey on 28-05-2011 and came back to India on 2nd June, 2011. But in the midst of the tour while visiting Nu York on 30-05-2011 the luxury coach meant for the tourists left Time Square ( Nu York ) before 7 p.m. leaving behind the complainants in most perilous and helpless condition though the said bus was to leave Time Square after 7.15 p.m. In such extremely adverse and unknown situation the complainants were at a loss how to get back to their hotel Crown Plaza. Ultimately with the help of the local police they hired a taxi expending 200 dollars from their own pocket and returned to the same hotel at about 9 p.m. For such unexpected incident the complainants, senior citizens, became ill for extreme mental tension and agony and expressed their grievances to Mr. Sharma , the agent of the O.P. no. 1. The o.ps. also realized Rs. 6,000/- for fuel charge though the said surcharge was withdrawn by Emirates due to the fall of fuel price in the world market. The complainants flew to America by Emirates Flight. On their return to India they intimated the O.P. no. 2 for refund of the extra money charged upon them ( Rs. 6,000/- ) and for compensation for their inconvenience and suffering during the foreign tour. As the o.ps. did not pay heed to their request, they have filed this complaint for proper relief.
3. In their written version the o.ps. challenged the maintainability of the instant complaint as the o.p. is not a legal entity ; that the complainants have not come before the Forum in clean hands but with malafide intention ; that this Forum has no jurisdiction to entertain this complaint and the proper jurisdiction is Mumbai ; that the claim of Rs. 6,000/- realized as surcharge is baseless ; that no other tourists except the complainants made any complaint with regard to the early departure of the coach ; that the coach services in U.S. are regulated by strict timing ; that in case of missing the coach the complainants could have easily contacted the tour escort for assistance ; that the complainants deliberately deviated from the group and spent additional time at the Time Square and wrongly laid blame on the coach service ; that the complainants first raised this complaint on 10-10-2011 i.e., after 28 days from the completion of the tour ; that the newspaper report over dropping of the extra fuel charge by Emirates published in Ananda Bazar Patrika on 10-05-2011 is baseless and disputed ; that the complainants satisfactorily completed the tour and came back to India safely. So the baseless complaint should be dismissed.
4. Upon pleadings of both parties three points arose for determination :
i) Whether the complaint is maintainable in its present form ?
ii) Is there any deficiency in service on the part of the O.Ps. ?
iii) Whether the complainants are entitled to get any relief as prayed for ?
DECISION WITH REASONS :
5. POINT No. 1
Ld. Lawyer for the O.P. company argued that the case is not maintainable in this Forum as the proper jurisdiction would have been Mumbai District Forum vide the terms of agreement. In support of his contention ld. Lawyer cited decisions reported in AIR 1989 Supreme Court 1239, AIR 1995 Supreme Court 1766 and AIR 1971 Supreme Court 740. We have gone through the photo copies of the cited decisions and it is undisputable in view of the decisions of the Hon’ble Apex Court that the settled principle of law is that the parties are bound by the contract and that Court shall have jurisdiction to entertain disputes between the parties which is embodied in the contract. Ultimately the plea of jurisdiction of the Court is governed in accordance with Ss 16 to 20 of the C.P.C. Section 20 provides every suit shall be instituted in a Court within the legal limits of whose jurisdiction the defendants resides or carries on business. It is also settled principle of law that the parties are bound by the contract if it is clear and unambiguous. The cited decisions are not identical with respect to the nature of contract of the case at hand. In the instant case the terms of agreement as relied upon the O.Ps. is unilateral in nature unlike the cases of the citied decisions. We are to bear in mind that the complainants when deposited the requisite money for their upcoming tour to United States, they were offered the printed terms of agreement for obtaining the signatures of the complainants. The print is so illegible that we cannot smoothly read out the words and realize the purport of the clauses. The parties were never explained of the terms when they recorded their signatures in such illegible agreement sheet. In such cases the O.P. companies takes upper hand and they are eager to obtain the signatures only to give the legal shape i.e. an agreement out of contract. Naturally principle over entertainment of jurisdiction as laid by the Hon’ble Apex Court cannot be applicable here in the instant case as the complainants never had the opportunity to go in between the lines for the hazy and illegible nature of the terms and conditions. That apart the complainants entered into a contract for their upcoming tour through the O.P. no. 2 i.e. the Branch In-Charge, S.O.T.C., Howrah Division, having its registered office at Howrah. Naturally the complainants did not commit any egregious blunder in filing the complaint before this Forum. That apart the Consumer Protection Act, 1986 is a beneficial legislation and Section 11 of this Act describes the jurisdiction for entertainment of the complaints. Section 11( 2 ) ( c ) of the C.P. Act, 1986 deals with the cause of action. Though the real cause of action arose in Nu York Time Square, the same cause of action continued till their arrival to India. Furthermore Section 3 of the C.P. Act, 1986 is an unique section empowering this Forum to entertain the complaint as it is not in derogation with other existing laws of the land. It cannot be expected that a resident of Kolkata was travel to Bombay for filing a consumer complaint against the O.P. company covering a long distance and incurring huge expenditure. Be it mentioned that the consumer complaint is unlike the other suits of pure civil nature. To ensure speedy relief to the consumers this statute has been enacted. With this observation the dispute over jurisdiction is set at rest. This point is accordingly disposed of.
6. POINT NOS. 2 & 3
Both the points are taken up together for consideration. The complainants never disputed that they returned to India unsafely. Their grievance is on two counts – (a) extremely careless behaviour on the part of the o.ps. / tour conductor on 30-05-2011 when visiting Time Square and ( b ) refund of Rs. 6,000/- extracted from the complainants towards fuel charge for their tour by Emirates from Kolkata to Dubai. That the complainants were left on their fate on 30-05-2011 in almost unknown situation in Nu York, cannot be denied by the o.ps. The explanation on the part of the o.ps. that the complainants could seek the assistance of the tour escorts for reaching to their hotel Crown Plaza cannot be supported from the point of view of humanity. We are to bear in mind that the complainants, senior citizens left India for foreign tour completely relying upon the assurance of the o.ps. It is the foremost duty of the O.P. company to ensure the safe return of each tourist to their hotel. In stead the coach service leaving behind the two senior citizens ( complainants ) started for the hotel before the schedule time of 7.15 p.m. Whatever be the strict timing of the U.S. coach service, the team manager had ample opportunity to give the tourists a time frame to ensure their safe return to the spot. It is the persistent claim of the complainants that they reached the schedule spot sufficiently ahead of the given time and found that the luxury coach left the spot with other tourists much earlier of the time schedule. If we place ourselves in such perilous situation, we can fathom the depth of agony, anxiety and utter helplessness in an awkward situation which is far far away from India. We come across the news that for last couple of years the Asian tourists visiting America specially, after the American World Trade Centre disaster, are to face strict and humiliating scrutiny. The two complainants who are senior citizens when deserted by their co-tourists in the collection spot, could have faced a totally unexpected and adverse fate, being either heckled by hooligans or security personnel. But by the grace of God they could reach the Crown Plaza in the same night by hiring a taxi.
7. This plight of the complainants cannot be minimized by preaching sermons in the written version by the o.ps. company. Whatever be the reputation of the O.P. company for conducting foreign tours, immeasurable sufferings of the two senior citizens on 30th May, 2011 in utter incongenial situation cannot be brushed aside as a minor lapse. We express our deep anguish and serious concern to the cavalier attitude demonstrated by the O.P. company towards the mental pain and agony suffered by the complainants though it was for only 2/3 hours, in stead of expressing deep feeling for their unexpected harassment. Therefore, we are of the view that the O.P. company cannot have any respite from payment of compensation towards the mental pain and agony suffered by the complainants.
8. With respect to the realization of fuel charge of Rs. 6,000/- extra from the complainants, we are precisely, of the view that the news report published in Ananda Bazar Patrika cannot be relied upon as a basis of calculation. For the lack of other credible and authenticated document, we are unable to accept the proposition of the ld. Lawyer for the complainants with respect to the refund of the same.
In the result, the complaint succeeds.
Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 117 of 2011 ( HDF 117 of 2011 ) be allowed on contest with costs against the O.Ps.
The complainants are entitled to a compensation of Rs. 34,000/- towards mental agony and sufferings and to a further sum of Rs. 9,450/- towards expenditure of the taxi fare in Nu York and litigation costs of Rs. 10,000/-.
The o.ps. be directed to pay the total amount aggregating Rs. 53,950/- ( Rs. 34,500 + 9,450 + 10,000) to the complainants within one month from the date of this order failing the amount shall carry interest @ 12% per annum.
The complainants are at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
