BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

 Date of filing :  24.03.2015

                                                                                            Date of Order : 03.04.2018

PRESENT:

 Shri. Cherian K. Kuraikose,                                   President

 Shri. Sheen Jose,                                                 Member  
Smt. Beena Kumari V.K.                                        Member.

                            CC.No.210/2015

                                   Between

O R D E R

Beena Kumari V.K.   Member 

1)     A brief statement of facts of this complaint is as stated below:

         The complainants are the permanent residents in the address shown above.  The present complaint is filed alleging unfair trade practice and deficiency in service on the part of the opposite parties, which had resulted in monetary loss in addition to the mental agony, pain and suffering to the complainants and their family members.  It is submitted that the complainants were persuaded in the advertisement and consequential offer made by the opposite parties for 5 nights/6 days holidays trip to Kashmir commenced from 6^th September 2014, which allured the complainants to be a part of such holiday’s trip.  The complainants had agreed to pay the entire amount quoted by the opposite parties towards Tour cost and had paid the amount in full before commencement of their journey from Kochi on 6^th September, 2014.  The complainants had remitted an amount of Rs.1,36,000/- and Rs.1,19,500/- respectively to the account of opposite parties through Banks and the opposite parties had also encashed the said amount in full.  The opposite parties had taken the complainants and their family members from Kochi to Delhi when they reached at Delhi to the dismay of complainants it was noticed that the circumstances in Kashmir was not fit for travel due to heavy flood there at Kashmir and the opposite parties had knowledge regarding the flood situation even prior to the commencement of their journey from Kochi.  It is submitted that being a “reputed travel arranger”, the opposite parties ought to have foreseen the after effect of heavy flood in a State like Kashmir but they negated such circumstances and persuaded the complainants and their family to proceed further with the trip to Kashmir from New Delhi on 06.09.2014 itself, assuring that the agent of the opposite parties located at Kashmir had made all arrangements for the journey.  In fact, all the leading English and Vernacular dailies of 5^th September, 2015 (one day prior to the journey) had specifically pointed out that the flood waters have already ravaged parts of Srinagar City, including Lal Chowk, the nerve centre of Srinagar.  Both Malayala Manorama and Indian Express had carried visuals as well, that revealed the gravity of the situation.    It is submitted that believing the assurance of the opposite parties the complainants and their family members had reached at Kashimir, but it was noticed that the tourist already there were wedged for the past 2 days due to heavy flood and the complainants had realized the situation as worse to even move in the valley state rather a holiday trip.  In fact from 6^th September to 15^th September 2014, virtually the complainants and their family members were lived like cattle in a hotel without drinking water and much less food for their survival.  The ‘tour manager’ deputed by the opposite parties had acted like a spectator to all these events as he did not even know the Hindi language to seek assistance of any one there and also he was travelling to Kashmir for the first time in his life.   The complainants and their family members were wedged in the hotel for 9 days as aforesaid and at last with the assistance of the Hotel Manager, somehow they managed to reach at Leh and from there to their home town, by grace. It is submitted that the opposite parties failed to give the offered ‘holiday trip’ to the complainants and their family members, after accepting the tour cost in full from them.  It amounted to breach of trust. The misleading assurances and persuasion by the opposite parties amounted to unfair trade practice which ought not to have been occurred.  Further, the deliberate acts to unload the complainants and their family members into the flood affected State, even after the notice of worse condition as reported in major vernacular dailies throughout the country amounted to deficiency in service on the part of the opposite parties. The opposite parties ought to have diverted the trip to other places. It is submitted that the pain and suffering of the complainants and their family members from 6^th September to 15^th September 2014 are beyond description.  It is submitted that inspite of repeated requests and despite lawyer notice, the opposite parties did not even show the courtesy to refund the amount collected from the complainants and to pay compensation for the pain and sufferings.  Therefore this complaint is filed seeking direction of this Forum to the opposite parties to refund to both the complainants the tour cost of Rs.2,55,500/- for travel from Cochin to Kashmir, and to pay Rs.2,35,000/- towards compensation for the deficiency in service and unfair trade practice committed by the opposite parties along with costs of this proceedings. 

2)     Notices were issued to the opposite parties from this Forum and the opposite parties appeared through their Counsel and filed their version.

3)     Version of the opposite parties.

        It is submitted that the opposite parties had not done any unfair trade practice as alleged by the complainants, that the opposite parties had not offered any deficient services to the complainants.  It is submitted that M/s. Riya Holidays had made an advertisement in leading Malayalam Daily about the tour programme from Kochi to Kashmir and the 1^st and 2^nd complainants had paid Rs.1,36,000/- and 119,500/- respectively towards tour cost of the trip to M/s.Riya Holidays Pvt. Ltd. and the complainants along with other tour members were taken from Kochi to Delhi on 06.09.2014. On seeing a news in Malayala Manorama daily on 05.09.2014 with regard to the bad weather in Rajouri and Jammu, the opposite parties had contacted their supplier Mr.Aboobacker, Perfect Holidays, Srinagar about the situation there and it was informed that there was no problem at Srinagar.  The verification of the official website of Jammu & Kashmir also showed that there were no problems at Srinagar and all possible enquires were made by the opposite parties and thereafter a tour manager was also sent along with the tour group.  It was also informed to the opposite party that the news item appeared in Newspapers was at Jammu which place was not included in the tour programme.  It is submitted that the Government had allowed air traffic to Srinagar from Delhi and back which shows that at the time of travel from Delhi there was no alarming situation at Srinagar.  There was flood at Srinagar on 07.09.2014.  From 07.09.2014 the opposite parties were in constant contact with their tour manager till there was telecommunication connection.  The opposite parties knew that the tour group including the complainants were in Hotel Royal Batoo for more than a week and the opposite parties had done all possible things to bring the tour group including the complainants back to Kerala.  Therefore, the opposite parties sought for the dismissal of the case.

4)     The issues to be decided in this case are as follows:

1)      Whether the complainants have proved deficiency in service on the part of the opposite parties? If so, whether the opposite parties are liable to refund the tour cost to the complainants

2)      Whether the opposite parties are liable to pay Rs.50,000/- each to the  complainants towards compensation for the inconvenience and for the mental agony, if any, suffered by the complainants along with costs of this proceedings?

5)     The evidence in this case consisted of the oral evidence adduced by the complainants as PW1 and that adduced by the opposite parties as DW1.  The documentary evidences furnished by the complainants were marked as Exbt.A1 to A5 & A6 series and that furnished by the opposite parties were marked as B1, B2 series B3 to B5 and B6 series. 

6)     Issue Nos. (i) and (ii)

The complainants, lured by the advertisement of the opposite party – Riya Holidays Pvt. Ltd. in a leading Malayalam Daily Newspaper booked the tour trip from Cochin to Kashmir which was scheduled to commence on 06.09.2014 and to end on 15.09.2014.  The entire tour cost was also paid by the complainants.  There is no dispute regarding payment of tour cost of Rs.136,000/- by the 1^st complainant and Rs.119,500/- by the 2^nd complainant.  Exbt.A1 (a) is a copy of the Bank receipt voucher No.000759 dated 01.09.2014 evidencing that the opposite party had received Rs.99,500/- from Sri.Raphi Davis, the 2^nd complainant.  An amount of Rs.20,000/- was also received by the opposite party as evidenced by Exbt. A1 (b) Collection book No.3617 dated 06.09.2014 from the 2^nd complainant –Sri.Raphi Davis, thus a total amount of Rs.119,500/- was received by the opposite party from the 2^nd complainant and the opposite party admitted in their version that an amount of rs.136,000 was received by them from the 1^st complainant Sri.K.B.Ninan.  Exbt.A2 is a copy of the letter dated nil to the MD of M/s.Riya Holidays stating that on 05.09.2014 (ie. one day before the trip) there were alarming reports about the raging floods in Kashmir, that on 04.09.2014 there were news reports in Malayala Manorama daily about the waist –deep flood waters in Srinagar, that the opposite party should have cancelled the tour, that the complainants were put to untold miseries, mental stress, and in convenience since they were trapped in a Hotel by name “Royal Batoo” for more than a week without sufficient food and water, due to the flood situation there in Kashmir, that the opposite parties are liable to compensate the complainants for the same.  Exbt.A4 is the copy of the Advocates Notice dated 20.11.2014 to the MD and Senior Manager of M/s.Riya Holidays demanding refund of the cost of the trip and to pay Rs.235,000/- towards compensation with interest for the mental agony and hardship suffered by the complainants.  Exbt.A5 is the reply notice dated 11.12.2014 of the opposite party M/s.Riya Holidays stating that the opposite parties had done all possible things to bring back the complainants from the flood affected area, that their supplier Sri.Aboobacker of Perfect Holidays reached the hotel and it was with his support the complainant could travel to Leh and accommodation in Sonmarg and Leh was also arranged by him, that the complainants were arranged seats in flight to Delhi and received at Delhi by the Delhi Manager Sri.Pankaj Gaur and the lunch was arranged at Kerala House, Delhi, that the flood situation in Kashmir was due to natural calamity for which the opposite parties are not liable to compensate the complainants.  Exbt.A6 (a) related to newspaper publication in Malalyala Manorama dated 05.09.2014 regarding flood in Kashmir and Exbt.A6 (b) related to newspaper publication in Indian Express dated 05.09.2014 stating that 66 feared dead in Jammu & Kashir Flash Floods and 46 missing and a bus carrying 50 people was washed away. Despite the above news, on 06.09.2014 the tour group had flown from Delhi to Kashmir. The complainants alleged that the opposite party persuaded them to proceed further from Delhi to Kashmir.  In the Exbt.A6 (b) Indian Express news revealed that there was incessant rains in both Jammu & Kashmir that the water level in most rivers in the State had risen above danger level due to the incessant rain, that the central Kashmir’s Srinagar and Budgam districts had also been flooded.  Thus it is evident that both Srinagar and Kashmir were flood affected.  In that case the opposite party M/s.Riya Travels should have cancelled the trip to Kashmir or to divert the trip to safer places.  This was not done.  The above act on the part of the opposite parties amounted to deficiency in service.

From the facts of the case, it is evident that no tour programme could be conducted by the opposite party during the period from 06.09.2014 to 15.09.2014.  Hence the opposite parties had no opportunity to spend the tour cost except the preliminary expenses.  Here the opposite parties had simply washed their hands by taking a plea that the mishap of flood at Srinagar was an Act of God. The facts of the case show that both the complainants and the opposite parties had prior knowledge about the flood situation at Srinagar. The opposite parties as a tour operator did not take reasonable care and caution to cancel the Kashmir trip to Srinagar or to divert the trip to safer places and the complainants did not apply their prudence to take a decision to dispense with the tour to the flood affected area. The opposite parties could not give the assured service to the complainants due to the flood situation in Jammu and Kashmir even though they had received the complete tour cost from the complainants. There were many places in Kashmir which were free from flood or Natural Calamity at the relevant time.  But the opposite parties even after the notice of worse conditions reported in Dailies ventured to conduct the tour. Considering the facts and circumstances, we find that there is deficiency in service on the part of the opposite parties.  However, considering the preliminary expenses 25% of the tour cost can be retained by the opposite parties.

7)      In the result the complaint is partly allowed and we direct as follows:

1)      The opposite parties shall refund 75% of the tour cost to each of the complainants ie., Rs.102,000/- to the 1^st complainant and Rs.89,625/- to the 2^nd complainant.

2)      The opposite parties shall pay Rs.50,000/- each to the complainants towards compensation for the deficient service offered to the complainants.

3)      The opposite parties shall also pay Rs.5,000/- each to the complainants towards costs of this proceedings.

The above orders shall be complied with, within 30 days from the date of receipt of this order.

Pronounced in the open Forum on this the 3^rd day of April 2018.

 Sd/-Beena Kumari V.K. , Member

 Sd/-Cherian K. Kuriakose, President

Sd/-Sheen Jose, Member

Forwarded by Order

Senior Superintendent

                                                          APPENDIX

Complainants Exhibits

Opposite party's Exhibits:         

Depositions:      

          PW1  :         K.B. Ninan

          DW1  :         Joseph George

Date of Despatch   :

          By Hand      :

          By Post       :                 

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