Order No. -35 Dt.-22/04/2015
Sri Prabin Chettri, Member
The record is placed before me for passing final order.
The complainant’s case in short is that the O.P. M/S Dolphin Travels, Jalpaiguri, whose manager is Sri Bishwadeb Gupta are domestic tour operator and hotelier and they used to organize domestic tours for their customers in different parts of India for specific periods and places. The complainant came in touch with O.Ps.(M/S Dolphin Travels) for the tour of his family consisting of himself, his wife and his minor daughter for Mumbai and Goa which started on 24/12/2012 for 16 days. The complainant was assured sufficient comfort and reasonable care by the O.Ps. for the said tour. Complainant paid a sum of Rs.52,000/- in advance to the O.P. on receipt before the commencement of the said tour under “Dolphin Travels”. Complainant and his family members began their tour on 24/12/2012 from Howrah Railway station to Bhusaval by Train no. 12860(Gitanjali Express) at 13:50 hrs. in standing condition for non-availability of reservation of seats and the railway tickets supplied were on waiting status vide PNR No. 6112686480 W.I No. 16, 17 and 18. Complainant and his family members were accommodate in a substandard hotel after reaching at Goa by the O.P. on the plea that no better hotel accommodation was readily available. Complainant decided to reside in another hotel (Hotel, Solmar) situated at Miramar Panaji, Goa for safety and better accommodation and for which the complainant had to pay Rs.7,200/- from his pocket.
The said amount of Rs.7,200/- which the complainant paid for accommodation in another hotel was not paid back by the respondants (O.P.) inspite of his demand. In this regard the complainant issued a Legal Notice to Respondants (O.P.) through his Lawyer on 30/01/2013 for payment but no fruitful result came out.
Hence this case.
The complainant has prayed for Rs.7,200/- which he had paid for accommodation in another hotel alongwith damages to the extent of Rs.20,000/- for the deficiency of service and another sum of Rs.10,000/- for his mental agony, Harassment and sufferings and a sum of Rs.5,000/-for litigation cost on the part of the O.P. The total amount of compensation claimed is Rs.42,200/-
The O.P. has contested the case by filing W/V denying and disputing the claims and contention of the complainant. The O.P. in his written version states that the case is not maintainable in the eye of law and facts. Complainant has not come with clean hand to file this case as the complainant had suppressed the material facts. The O.Ps./respondants, in the name and style “Dolphin Travels” have been organizing tour programme since the date of its inception with an unblemished record of integrity and reputation. The complainant was satisfied and accept the tour plan which O.Ps. offers through brochure and that was accepted by the complainant as per terms and conditions of the brochure. The O.Ps./(Dolphin Travels) in its W/V paragraph no.9 had stated that the complainant was assured sufficient comfort and reasonable care by the O.P. for the said tour and there was no breach on the part of the O.P. The O.Ps. further submit that there were in total 32 members in the tour including respondant no.1(Sri. Biswadeb Gupta, Manager, Dolphin Travels) and his family, and that the complainant, for his own benefits pressurized the respondants/O.Ps. for purchase of through A/C tickets from NJP-Sealdah-Howrah-Bhusawal Junction which was very difficult in the season time, and this act of the complainant is beyond terms and conditions of the brochure, on the other hand it was well known to the complainant that the tickets of the tour were of sleeper class up and down as per brochure but the complainant availed of the A/C accomodation tickets. The O.Ps. provide the A/C accomodation to the complainant tickets 3 days before the date of journey because of non-availability of the A/C accomodation reservation as the status of complainant’s tickets was RAC 4, 5 and 6. The complainant enjoyed 2 confirmed berths and 1 RAC which confirmed later on by the T.T. In the W.V O.Ps. have stated that they provided a hotel which named as “Hotel Shell Top” for accommodation to the complainant and his family members as per terms and condition of the brochure, like others tour customers, but the complainant left “Hotel Shell Top” at his own accord and stayed in luxury A.C Room which was not a part of the contract. The services provided to the complainant by the respondant O.P. was as per terms of the contract and there was no breach of contract at any point of time during whole touron the part of the O.Ps. None of the other customers raised any claim of deficiency of service against the respondants/O.Ps. The complainant is vexatious and that is filed for harassing the respondant and to malign the unblemished reputation of the respondants and with oblique motive. There was no deficiency in service on the part os the O.Ps. and for this the complaint is liable to be dismissed.
POINTS FOR CONSIDERATION.
- Whether the case is maintainable under the C.P.Act 1986?
- Whether the complainant is a consumer?
- Whether there is any deficiency in service as alleged in the complaint?
- Is the complainant entitled to get any award or relief as prayed for?
DECISION WITH REASONS
All points are taken up together for consideration and decision.
Seen and perused the pleadings of both parties which are supported by affidavits and the documents annexed and filed by both the parties.
Now after due consideration of the arguments of Ld. Lawyers of both sides, the written arguments filed by the parties and the materials on record, we find that admittedly the complainant purchased a packaged tour programme operated by the opposite parties from Kolkata-Mumbai-Goa-Kolkata, for 16 days tour starting from Howrah(Kolkata) on 24/12/2012 with considerableamount of Rs.52,000 which was paid in advance as Tour Tariff. So, we found that the complainant is a consumer under C.P.Act 1986. The complainant paid a sum of Rs. 52,000/- in advance to the respondants (O.P.) on receipt before the commencements of the said tour under “Dolphin Travels” vide money receipts (i)serial no J2554 dt.28/07/2012, amount Rs.1000, (ii) serial no. J2577, dt. 24/08/2012 amount Rs.5000/- and (iii) Serial no. J2832, dt.19/12/2012 amount Rs.46,000/- at their branch office at Jalpaiguri , C/O Bishwadeb Gupta, Mohanta para. Extn. Pin 734401. Complaint was filed on 11/04/2013 and the cause of action arose on 28/07/2012, i.e. within statutory period. So this Forum has no hesitation to say that the case is well maintainable under law and facts.
The complainant being satisfied with the terms of the brochure for visiting Mumbai and Goa, agreed and booked three seats for the tour. The complainant from the very beginning of the journey was not complying the terms and conditions as per brochure. As because the complainant pressurized the opposite party to get through tickets for him and his family from new Jalpaiguri- Sealdah- Howrah-Bhasawal in upper class A.C., but it was mentioned in the brochure that the said tour price includes sleeper class up and down tickets and that if any customer wished to avail upper class A.C. then the same should depend on the availability of the tickets and at the customer’s own risk and the difference in fare from the sleeper class will be payable by the customer. In this case the complainant for his own benefits pressurized the O.P. for purchase of through tickets of upper class A.C. from NJP-Sealdah-Howrah-Bhawasal. Besides this the O.P. provided the upper class A.C. tickets to the complainant. However the complainant didn’t pray for any relief regarding the train fair. It is also alleged that the complainant and his family members were put in a substandard hotel after reaching at Goa on the plea that no better hotel accomodation is readily available and the complainant had decided to reside in Hotel Slomar, for safety and for better accomodation and for which the complainant has paid Rs.7,200/- from his pocket, but it is specific stand of the O.P that it was categorically mentioned in the brochure that during the tour complainant will be accomodated in standard hotels and accordingly a list of hotels was supplied thereinto the customers including the complainant . The complainant once again in breach of the terms and conditions of the brochure checked out of “Hotel Shell Top” which was provided by the O.Ps. to all the tour customers on his own wish to stay on the sea side Hotel Solmar in the luxury A.C. room which was not the part of the contract. The services provided by the O.Ps.were as per terms of the contract and there was no breach of contract at any point of time during whole tour on the part of O.Ps. So there was no deficiency in service from the side of the O.Ps. as alleged by the complainant.
In view of this above discussion we find and hold that there is no deficiency in service on the part of the O.Ps. as alleged by the complainant, so the complainant is not entitled to get relief as prayed for.
All points are disposed of accordingly.
In the result the case/application fails.
Hence, it is
O R D E R E D
that the case/application fails on contest but in the circumstances we make no order as to cost.
Let plain copy of this final order be supplied to the parties free of cost forthwith in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.
