FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35(1)(a) of the Consumer Protection Act, 2019 by the complainant stating that on 24^th December, 2021, the complainants joined the seven days tour along with their minor daughter and also  with the family of cousin brother as they were impressed by the description given by the business Manager, the Op no.2.  They desired to spend their time on a fancy vacation.  However, their enjoyment of the trip was spoiled and shattered by a number of problems and consequently the tour did not live upto the claims made by said the Op no.2.  They initially paid Rs. 20,000.00 only to the OP no.2 in his Punjab National Bank Account vide Paytm on November 3, 2021 under reference no.130764572815 and paid another amount of Rs. 20,000/- only to the OP no.2 in his Punjab National Bank Account vide Paytm on December 21, 2021 under reference no.135536777132 and lastly on December 22, 2021 paid Rs.24,500/- only to the OP no.2 in his Punjab National Bank Account vide Paytm under reference no.135675484484.  The complainant paid Rs.64,500/- only for the entire seven days tour exclusive of lodging and fooding at Dharamshala.  The tour was supposed to originate from Noida on 24^th December, 2021 evening with a night half at Ludhiana and on 25^th December, 2021 morning to start from Ludhiana for Dalhousie via Pathankot and to stay at Dalhousie for two nights with local sightseeing and to move for Dharamshala and Mclyodgunge on 27^th December, 2021 morning and to stay for two nights at sterling Resort, Dharamshala and to conclude the tour on 29^th December, 2021 night.  Be it mentioned that lodging and fooding at Ludhiana and Dharamshala to be borne by us only.  The Paytm receipt dated 03.11.2021, Paytm receipt dated 21.12.2021 and Paytm receipt dated 22.12.2021 are annexed herewith.  The entire communication made with the OP no.2 over Whatsapp is annexed herewith and they were provided with a Renault Lodgy car with Private no. DL 3CCL 8764in lieu of TyotaInnova Crysta with Commercial no. and just the day before the journey, the Business Manager the OP no.2 shared some photographs of the said vehicle and forced us to travel in that vehicle.  As they paid the entire tour amount, we were not in a position to cancel the said tour and faced a lot of problems due to the private number car is being used for the commercial purpose and had to wait a long period of time at the entry and exit point of Himachal Pradesh territory for not having the commercial No. and the Driver paid the penalty imposed by the competent authority and on 26.12.2021 they went to Khajjiar via Kalatope from Dalhousie and when we reached Kalatope, snow fall began and the driver who was driving the said Renault Lodgy, was not at all conversant with the driving in the snowy area and drived them to Khajjiar through heavy snow fall.  On returning to Dalhousie from Khajjiar, the vehicle started skidding and the said driver without any reaction was busy in making reel view of snow fall.  As a consequence, they were forced to leave the said vehicle at about 5.00 p.m. and started walking through heavy snow fall over the snowy path with their 8 year old minor daughter and reached Lakkar Mandi at about 9 p.m and reached Dalhousie at about 12.00 mid-night by hiring a vehicle from said Lakkar Bazar at Rs.5000/- and they were supposed to move to Dharamshala on the very next day morning i.e. 27.12.2021 as we had bookings at Sterling Dharamshala but the said driver with the vehicle returned to Dalhousie at about 5.00 p.m and as a consequence, they had to abandon our tour rest tour schedule and had to vacate the Hotel rooms and the OP no.2 came as a rescuer and made alternative arrangement in the same Hotel but this time the rooms provided to them were actually used by the Hotel Staffs and for one night staying they charged Rs.14264/- for two rooms and  he had ;no other option but to pay the bill.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 64,500/- towards the entire cost of the tour and to pay a sum of Rs. 64,500/- with interest at the penal rate of 18% with effect from 22.12.2021 till payment of such amount and to pay an interest amount ofRs.14,264/- towards the payment of lodging only for 27^th- 28^th December, 2021 from January 2022 till disposal of this case and to pay a sum of Rs. 50,000/- as compensation and to an interest at the penal rate of 18% on the sum of Rs. 50,000/- with effect from 28.12.2021 till payment of such amount and to pay a sum of Rs. 10,000/- as litigation cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the ld. Lawyers of the parties

Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

            Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainants has given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even by receiving notice have not entered their appearance in this case and have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the complainant of this case.

            In connection with the point of consideration nos. 4 and 5 this District Commission finds that the complainants in their evidence on affidavit have categorically described all the facts which have been narrated in the petition of complaint and no stone has been remained unturned. In this regard it is important to note that as the opposite parties have not contested this case and no interrogatories has been filed, the evidence given by complainant side remains unchallenged and/ or uncontroverted. This District Commission finds no reason to disbelieve the unchallenged and uncontroverted testimony of the complainants. Thus, it is crystal clear that the complainants have proved their case by way of filing factual evidence and the complainants also have filed documents in support of their point of contention and no counter document has been filed by the opposite parties. This matter is also clearly indicating that the complainants have also proved their case by filing documents.

In the result it is accordingly

ordered

that the complaint case being no. 51 of 2022 be and the same is allowed ex parte but in part.

It is held that complainant is entitled to get refund of Rs. 64,500/- toward the entire cost of the tour along with interest @ 9% per annum from the date of filing of this case. It is also held that the complainant is also entitled to get compensation of Rs. 10,000/- and litigation cost of Rs. 5000/- from the opposite parties.

The Opposite parties are directed to pay the above noted amount equally to the complainants within 45 days from the date of this order otherwise complainantsare given liberty to execute this order as per law.

            In the event of nonpayment/ noncompliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.