COMPLAINT REMANDED ON: 02.08.2010

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

07^th JANUARY 2011

       PRESENT :- SRI. B.S.REDDY                   PRESIDENT                         

                          SMT. M. YASHODHAMMA    MEMBER   

                          SRI.A.MUNIYAPPA              MEMBER               

O R D E R

SMT. M. YASHODHAMMA, MEMBER

         This is a complaint filed U/s.12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.23,000/- and for such other reliefs on an allegations of deficiency in service. 

The brief averments, as could be seen from the contents of the complaint, are as under:

On 28.06.2008 OP organized the 19 days package tour to Amarnath-Vaishnavi Devi-Srinagar. Complainant No.1 and 2 joined the said tour with their elder sister Smt.Kausalya and paid Rs.15,000/- each to the OP on 24.06.2008 and booked the ticket. The receipts issued by OP dated 24.06.2008 is produced. Complainant No.1, her elder sister Smt. Kausalya and her niece Kavya boarded the train on 28.06.2008 so as to join the OP. Complainant and her niece Kavya participated in the said tour hardly for four days. As Kavya got fever she decided to return back. Complainant has also thought of joining her niece as she thought it not advisable to send her alone to Bangalore. Inspite of request OP failed to make arrangement. Within a day or two Kavya recovered from the fever. Complainant expressed their willingness to continue with the said batch to complete the tour but the concerned manager of OP did not allow them. Without any option complainants returned to Bangalore by flight because train tickets were not available. Though complainants paid Rs.30,000/-. OP extended the service for only 4 days. OP is liable to refund the balance amount of Rs.23,000/-.  Inspite of repeated requests and demands OP failed to refund the amount. Hence complainant felt deficiency in service. Under the circumstances they are advised to file this complaint and sought for the reliefs accordingly.

2.      This complaint was allowed by this forum vide its exparte order dated 20.10.2008 directing OP to refund Rs.13,300/- along with litigation cost of Rs.200/- within four weeks.  OP preferred Appeal No.2484/2008 before the Hon’ble Karnataka State Consumer Disputes Redressal Commission seeking for to set aside the exparte order.  The said appeal allowed on payment of cost of Rs.2500/- to the respondent/complainant and matter remanded to this Forum for fresh disposal.  OP filed its version and affidavit evidence and documents.  After hearing the matter complaint allowed by this Forum vide its order dated 01.08.2009 directing OP to refund Rs.13,300/- along with litigation cost of Rs.200/- to the complainant within 30 days. Challenging the said order OP again preferred Appeal No.3663/2009 before the Hon’ble Karnataka State Consumer Disputes Redressal Commission on the ground that Kavya is not a party in the complaint she has not filed the separate complaint.  Hence order in respect of Kavya is not correct.  Hon’ble State Commission vide its order dated 30.06.2010 allowed the said Appeal and remanded the matter to reconsider and to give an opportunity to the complainant to implead Kavya as a party to the proceedings and for fresh disposal of the matter.

3.      After remand of the matter the complainant filed special power of Attorney of her niece Kavya along with memo to implead Kavya as complainant No.2. Memo allowed, Kavya impleaded as complainant No.2.  Complainant amended the cause title. OP filed additional Version denying all the allegations made by the complainant. According to OP complainant 1 & 2 booked two seats and paid Rs.15,000/- each for a tour conducted by the OP for 19 days commencing from 06.06.2008.  Complainant 1 & 2 agreed to join the tour on 30.06.2008 at Delhi on their own. Accordingly joined the other tourists and stayed at Delhi and thereafter traveled to Amritsar. OP denied the allegation that on 03.07.2008. One Kavya got fever and decided to return to Bangalore on 04.07.2008. Complainant intimated the manager that she along with Kavya wanted to return to Bangalore and again the said Kavya was comfortable to continue the tour, the manager flatly refused to take them for the rest of the tour and left to Katra as utterly false.  Complainant No.1 & 2 did not get adjusted with Smt. P. Kausalaya the elder sister of the complainant No.1 in the tour, they were uncomfortable to travel with her as such they have decided to discontinue the tour on 03.07.2008. Complainant No.1 & 2 quarreled with Smt.P.Kausalya for the reasons best known to them and discontinued the tour.  The manager requested the complainants 1 & 2 to accompany other tourists and continue their tour but complainants 1 & 2 refused to do so. Complainants informed that they will go to Bangalore by air, the Manager as a last resort gave proper directions to reach Delhi and to get the air tickets. The complainant discontinued tour on their own, caused inconvenience to the other tourists and OP.

4.      OP has conducted the tour in a systematic way.  All the tourists appreciated the manner the tour was conducted. Complainant approached OP at Bangalore after the tour and demanded to return at least the train fare.  OP on humanitarian grounds returned the train fare to the complainants.  Complainants suppressed the facts with an intention to have personal gains to defame the OP. Among other grounds OP prayed for dismissal of the complaint.

5.      After remand of the matter both the parties not lead any further evidence. Heard arguments from both the sides.

6.      In view of the above said facts, the points now that arise for our consideration in this complaint are as under:

Point No.1 :- Whether the complainant has proved           

                             the deficiency in service on the part of

   the OP?

Point No.2 :- If so, whether the complainant is

                    entitled for the relief now claimed?

        Point No.3 :- To what Order?

7.      We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

8.      It is the case of the complainant that herself and her niece Kavya joined the tour organized by the OP for Amarnath-Vaishnavi Devi-Srinagar commencing from 28.06.2008 and each one of them paid Rs.15,000/- to OP. The receipts passed by the OP are produced.  They left Bangalore on 28.06.2008 by train to Delhi. On 30.06.2008 they joined the OP to Amritsar. On 03.07.2008 complainant’s niece Kavya fell ill and she decided to return back to Bangalore. As Kavya is an youngster of 23 years complainant thought to accompany her.

9.      It is further contended that within a day or two Kavya recovered from fever and they expressed their willingness to join the remaining tour programe, but the manager did not allow them.  So without finding any other way they returned back to Delhi.  From Delhi they intended to travel by train to Bangalore but they could not get the reservation ticket.  Hence they took the Flight to Bangalore and reached the Bangalore.

10.    It is further contended by the complainants that for no fault of theirs they were made to suffer both monetary loss and mental agony. As the OP has extended its service only for four days they are entitled for refund of the rest of the amount out of Rs.30,000/- paid. On going through the total number of days for which the tour is arranged it appears per day Rs.750/- is collected, so for four days it will come to Rs.3,000/- for two persons it will be Rs.6,000/-. On demand made by the complainant, OP returned the railway fare of Rs.1,700/- but for the rest of amount OP did not respond.

11.    As against this unimpeachable evidence of the complainant, OP has come with a defence that the complainant and her relative Kavya could not adjust with one Smt. Kousalya the elder sister of the complainant No.1. There used to be frequent quarrel and they were aways uncomfortable with each other. Thus Kavya and the complainant voluntarily decided to discontinue the tour. For that OP cannot be blamed. For this defence basically there is no proof. OP has not got filed the affidavit evidence of Smt.Kousalya; leave apart the evidence of other tourists to sustain their defence. Under such circumstances we find the defence of the OP appears to be just an eye wash, may be to avoid their responsibilities and obligations.

12.    When OP has not extended its service for the remaining 15 days tour, in our view it is not fair on the part of the OP to retain the said amount. This act of OP amounts to deficiency in service. Having taken note of these facts and circumstances of the case we are of the opinion, that justice will be met by directing the OP to refund 50% of the tour amount minus the railway ticket charges paid, which will come to Rs.13,300/-. After the matter has been remanded the complainant No.1 has already received Rs.4,250/- on 13.10.2009 out of the amount deposited by OP before the Hon’ble State Commission. Hence complainant No.1 is entitled for only balance amount of Rs.2,500/- and complainant No.2 is entitled for Rs.6,750/- from OP. The repeated requests and demands made by the complainant to OP went in futile. OP having retained the said amount without extending the service accrued wrongful gain to self there by caused wrongful loss to the complainant that too with no fault of them. We are satisfied, that the complainants are able to prove deficiency in service on the part of the OP. Under the circumstances they are entitled for certain relief. Accordingly we answer Point No.1 and 2 and proceed to pass the following:

O R D E R

The complaint is allowed in part. OP is directed to refund Rs.2,500/- to complainant No.1 and Rs.6,750/- to Complainant No.2. Under the circumstances parties to bear their own costs.

This order is to be complied within 30 days from the date of its communication.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 07^th day of January 2011.)

                                            PRESIDENT

               MEMBER                                         MEMBER                         

gm.