Tripura

StateCommission

A/48/2016

Dr. Debmalya Majumder - Complainant(s)

Versus

The Executive Officer, Cox and Kings Ltd. - Opp.Party(s)

Mr. Koushik Roy , Mr. Suman Debbarma, Mr. Udai Sankar Singha

12 Jun 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

PRESENT

 

Hon’ble Mr. Justice U.B. Saha,

President,

State Commission

 

Mrs. Sobhana Datta,

Member,

State Commission.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission.

 

APPEAL CASE No.A/48/2016

 

 

1. Dr. Debmalya Majumder,

S/o Sri Bipul Majumder,

                                                           

 

 

 

2. Dr. Rimi Paul,

W/o Dr. Debmalya Majumder,

 

Both are the resident of

Ker Chowmuhani, Agartala,

P.O. Ramnagar, P.S. West Agartala,

District - West Tripura.

                                                  ….    ….    ….    ….   Appellant/Complainants.

                                                           

        Vs

 

 

 

 

1. The Executive Officer,

Cox & Kings Ltd.,

Turner Morrison Building, 1^st Floor,

16, Bank Street, Fort Mumbai-400001.

 

2. Mr. Pradyut Das,

Store Manager, Cox & Kings Ltd.,

Harish Thakur Road, Krishnanagar,

Near Magnet Club, Agartala,

West Tripura, Pin:799001.

          ….    ….    ….    ….   Respondent/Opposite Parties.

 

For the Appellants                                      : Mr. Udai Sankar Singha, Adv.

For the Respondents                                 : Mr. Rajib Saha, Adv.

 

 

 

 

 

 

APPEAL CASE No.A/53/2016

 

 

 

1. The Executive Officer,

Cox & Kings Ltd.,

Turner Morrison Building, 1^st Floor,

16, Bank Street, Fort Mumbai-400001.

 

2. Mr. Pradyut Das,

Store Manager, Cox & Kings Ltd.,

Harish Thakur Road, Krishnanagar,

Near Magnet Club, Agartala,

West Tripura, Pin:799001.

….    ….    ….    ….   Appellant/Opposite Parties.

 

 

              Vs

 

 

1. Dr. Debmalya Majumder,

S/o Sri Bipul Majumder,

                                                           

 

 

 

2. Dr. Rimi Paul,

W/o Dr. Debmalya Majumder,

 

Both are the resident of

Ker Chowmuhani, Agartala,

P.O. Ramnagar, P.S. West Agartala,

District - West Tripura.

                                                            ….    ….    ….    ….   Respondent/Complainants.

 

 

 

For the Appellants                                      : Mr. Rajib Saha, Adv.

For the Respondents                                 : Mr. Udai Sankar Singha, Adv.

Date of Hearing & Delivery of Judgment: 12.06.2017.

 

 

 

 

 

 

 

 

J U D G M E N T [O R A L]

 

 

U.B. Saha,J,

Both these appeals have been filed by the appellants, Dr. Debmalya Majumder and  Dr. Rimi Paul in Appeal Case No.A/48/2016 (hereinafter referred to as complainants) and appellants, The Executive Officer, Cox & Kings Ltd. and Mr. Pradyut Das, Store Manager, Cox & Kings Ltd. in Appeal Case No.A/53/2016 (hereinafter referred to as opposite parties) under Section 15 of the Consumer Protection Act, 1986 against the judgment dated 03.10.2016 passed by the Ld. District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C. 22 of 2016 whereby and whereunder the Ld. District Forum allowed the complaint petition filed by the complainants and held that the complainants are entitled to get back Rs.25,000/- from the opposite parties and both the opposite parties jointly and severally liable to refund the amount to the complainants and accordingly directed both the opposite parties to refund the aforesaid amount to the complainants. If the aforesaid amount is not paid, then it will carry interest @9% per annum.    

As the facts involved in both the appeals are similar and the same judgment is under challenge and the questions of law involved are also same, both the appeals are taken up together for disposal by this common judgment.

2. Heard Mr. Udai Sankar Singha, Ld. Counsel appearing for the appellant-complainants in Appeal Case No.A/48/2016 (the respondents in Appeal Case No.A/53/2016) as well as Mr. Rajib Saha, Ld. Counsel appearing on behalf of the appellant-opposite parties in Appeal Case No.A/53/2016 (the respondents in Appeal Case No.A/48/2016). 
3. The facts needed to be discussed are as follows:-

The appellant-complainants filed an application under Section 12 of the Consumers Protection Act 1986 against the opposite parties before the Ld. District Forum stating, inter alia, that they made contact with the opposite party no.2, Sri Pradyut Das, Store Manager of the Cox & Kings, Krishnanagar, Agartala and being service provider, the opposite party no.2 promised to arrange trip for Singapore and Malaysia on payment of Rs.1,59,200/- for travelling to the aforesaid places under the head ‘Twin Treats Singapore with Malaysia’ for 5 nights 6 days covering the cities of Singapore and Kuala Lumpur. The complainants had paid the aforesaid amount of Rs.1,59,200/- by two money receipts dated 25.05.2015 and 13.06.2015 vide Sl. No. 142 and 144 respectively. Thereafter, on 18.06.2015, the complainants boarded in Silk Air Airlines and landed at Singapore airport where they had to wait for 7 hours in the airport as no representative of the opposite parties contacted with them just after landing to the Singapore airport and even they were not provided any Singapore sim card to contact with the representative of the opposite parties, though they requested for sim in Kolkata office of their company. Ultimately, they somehow came to the hotel Grand Imperial. They were also not provided 3-star hotel as per the contract and they were not allowed to see inside of the Petronas Twin Tower at Singapore and no food was provided when went to Kuala Lumpur from Singapore. Bad accommodation was provided in hotel, which was not a 3-star hotel. They were not allowed to see Petronas Twin Tower at Singapore and no food was provided when went to Kuala Lumpur from Singapore. The Honeymoon trip of the complainants fell flat with such bitter experience. Opposite parties promised to arrange for stay in Singapore & Kuala Lumpur for 6 days 5 nights, but actually the tour was cut short before two days and they had to come back. So, they claimed refund of the amount and also Rs.55,000/- for harassment. The complainants also claimed Rs.1,71,000/- for deficiency of service by the opposite parties.

4. The opposite parties appeared and filed their written statement denying the claim of the complainants. It is stated that there is arbitration clause and all terms and conditions accepted by the complainants. It is further contended that the case before the Consumer Court is not maintainable as the claim is barred by territorial jurisdiction. As per terms and conditions, the decision of the Cox & Kings will be final in such disputes. Courts, Forums, Tribunals has no jurisdiction to entertain the matter. Complainants accepted the terms & conditions and thereafter, enjoyed the tour. It is also contended that the claim is baseless and thus, the complaint petition is liable to be dismissed.
5. On the basis of the pleadings and evidence on record, the Ld. District Forum allowed the complaint petition as stated (supra).
6. Complainants filed the Appeal being No.A/48/2016 for enhancement of the award, whereas, the opposite parties filed Appeal being No.A/53/2016 for setting aside the impugned judgment.
7. Mr. Singha, Ld. Counsel while urging for enhancement of the award passed by the Ld. District Forum would contend that the Ld. District Forum failed to appreciate the facts that the opposite party no.1, Executive Officer, Cox & Kings Ltd. did not turn up to adduce his evidence and the opposite party no.2 in his evidence stated that he also heard the matter of deficiency, but the Ld. District Forum had awarded a sum of Rs.10,000/- as compensation for deficiency of service and another Rs.10,000/- for sufferings of the complainants and Rs.5,000/- as cost of litigation, which is inadequate, as the honeymoon trips of the complainants were frustrated. More so, the Ld. District Forum did not give any specific time for refund of Rs.25,000/- to the complainants as awarded by it. He further submits that on third day of the tour though the opposite parties were supposed to take the complainants to Jamed Mosque and Petronas Twin Towers, but they were not taken to the inside of those places to see the mosque and twin towers.
8. Mr. Saha, Ld. Counsel appearing for the opposite parties while urging for setting aside the impugned judgment would submit that there was no deficiency of service on the part of the opposite parties as they acted as per the terms of contracts i.e. booking conditions along with ‘Tour Itinerary’. He further submits that the complainant no.1 after going to the booking conditions and the tour itinerary signed the booking conditions and tour itinerary and accepted the conditions made therein. Mr. Saha has taken us to the written statement as well as the tour itinerary and the booking conditions to show that both the place of Jamed Mosque and Petronas Twin Towers come with the ‘Panoramic City Tour’ and there was no promise on the part of the opposite parties that the complainants and the other tourists who availed the tour with the complainants will be taken to enter the Jamed Mosque and Petronas Twin Towers. He has shown the letter dated 30.05.2015, which was written to the complainant no.1 wherein it was specifically mentioned that ‘sightseeing and tour itinerary could be amended at any time’ and ‘Panoramic Tour’ means, view the sights and monuments as drive past from the coach, ‘Visit Tour’ means, enter the site/monuments and spend time at the place and ‘Orientation City Tour’ means, walk and see the sights at close quarters but from outside, which conditions were accepted by the complainant no.1. Thus, the question of depriving the complainants from entering into the Jamed Mosque and Petronas Twin Towers is false. He has also contended that the complainants were requested by the opposite parties at Kolkata airport for Singapore sim card, but the complainants vehemently refused to purchase the sim card or accept the same which would be evident even from the Paragraph-4 of the Affidavit-in-Chief submitted by the complainant no.1 wherein the said fact has been admitted by him. He has again contended that in the contract/booking conditions it is specifically mentioned that the check-in time in the hotel is usually 02.00 pm and check-out time is 10.00 am, in certain hotels though the check-in time is 02.00 pm and the tourist may have to wait for some hour till the rooms are cleared. Regarding the contention of the complainants that the opposite parties completed the tour programmes before the schedule date is not correct which will be evident from their boarding passes itself. Thus, there was no deficiency of service on the part of the opposite parties.
9. We have gone through the findings of the Ld. District Forum wherein it is mentioned that the opposite parties produced some documents and statements of affidavit-in-chief of opposite party no.2, Mr. Pradyut Das and in the statement of affidavit, nothing stated about the cause of delay and waiting for 7 hours in the Singapore Airport. It is only stated that contact number was given, but sim card at Singapore was not provided. So, without sim card it was not possible to communicate with the Tour Manager and the person who was supposed to receive the complainants at airport. For that, they had to wait for 7 hours and were thrown into inconvenience. As per terms and conditions, the opposite parties were not under obligation to show inside the James Mosque.  The tourist are to enjoy Photoshop only. So, the allegation that complainants failed to visit the Jamed Mosque because of deficiency of service is not correct as it was not enshrined in the terms and conditions. Another complaint is that the hotel was not of 3-star category, where the petitioners were allowed to stay at Singapore.  As per terms and conditions, the hotel should have facility like mini bar, pay television channel. It is not written that 3-star hotel is to be provided. So, it cannot be said that there was deficiency of service, but from the comments of other tourists it is revealed that hotel was not of good quality where they had to stay for 3 days 2 nights. The Ld. District Forum in its findings also stated that the staying in the airport for 7 hours is definitely harassment for which the District Forum has awarded Rs.10,000/- as compensation. As the good quality hotel was not provided at Singapore and the complainants had to stay 2 days there with pain, for these sufferings, the Ld. District Forum awarded Rs.10,000/- as compensation.
10. We have gone through the evidence on record as well as the terms and contracts, which was signed by the complainant no.1. In the terms and contract, it is specifically mentioned that visit of Jamed Mosque and Petronas Twin Towers come with the ‘Panoramic Tour’ i.e. tourists like the complainants would view the aforesaid both sights from their coach, but not entering into the sights itself. Thus, according to us, not allowing the complainants to enter into the Jamed Mosque and Petronas Twin Towers are in no way deficiency of service. Regarding poor conditions of hotel, no supporting evidence has been adduced by the complainants except the evidence of complainant no.1. We have gone through the documents submitted by the opposite parties wherein one tourist, namely, Romita Kohli in her remarks said “Hotels in Bangkok - Good. Hotels in Kuala Lumpur - Good. Hotels in Genting Highlands - Average. Overall - Good.” Another tourist, namely, Roy Debashis also remarks almost in the same manner. The Ld. District Forum noted in its findings that one Mahajan noted that ''Hotel in Singapore - Not good. Service - Very poor.'' It is also contended that as per contract/tour itinerary first day in the Twin trip, the world first ‘Nocturnal Zoo' was to be seen and the second day, Sentosa Island was to be seen. We have gone through the said remarks of Mr. Mahajan though he tick marked regarding hotel in Singapore is average, but in his comments, he has written that ‘hotel in Singapore was not good and the services were very poor’. Remarks of one tourist cannot be the basis for coming into the conclusion that the service as well as hotel accommodation was poor when other tourists in their remarks said, overall the service was good, but undoubtedly, waiting at Singapore airport for 7 hours is harassment on the part of a tourist like complainants even after the complainants did not accept the sim card offered by the opposite parties at Kolkata. That does not mean that the representative of the opposite parties will not receive the complainants at Singapore airport immediately after their arrival, being the complainants were foreigners there. This type of hospitality on the part of the opposite parties is undoubtedly deficiency of service.
11. We are unable to accept the contention of Mr. Saha, Ld. Counsel for the opposite parties that the Ld. District Forum had no jurisdiction to decide the complaint, as according to the contract, there is arbitration clause and also the territorial jurisdiction outside the Tripura. Admittedly, the Consumers’ Forum is an Additional Forum than the Forum prescribed for the normal loss. More so, the opposite party no.1 is doing their business through the opposite party no.2 at Agartala. Therefore, the District Forum has rightly held that it has the jurisdiction to decide the issue raised in the complaint petition.
12. Considering the entire facts and circumstances we affirm the award passed by the Ld. District Forum amounting to Rs.10,000/- for staying of the complainants in the Singapore airport for 7 hours. But we are unable to accept the findings of the District Forum that the complainants had to stay 2 days there at Singapore with pain, for which, the Ld. District Forum awarded compensation amounting to Rs.10,000/- as there is no specific evidence on that count except the contention of complainant no.1. Accordingly, the direction for getting compensation amounting to Rs.10,000/- for suffering is set aside. As the complainants had to approach the District Forum for the deficiency of service and other sufferings, the Ld. District Forum rightly awarded the cost of litigation. Thus, we do not interfere with the award of cost of litigation.

In view of the above, the order of the Ld. District Forum is modified to the extent that the opposite party-Insurance Company shall pay Rs.10,000/- for deficiency of service at Singapore airport and Rs.5,000/- as cost of litigation, in total Rs.15,000/- to the complainants which should be paid within six weeks from today. If the amount is not paid within the aforesaid stipulated period, then the same will carry interest @9% per annum.

In the result, Appeal No.A/48/2016 is dismissed and the Appeal No.A/53/2016 is partly allowed to the extent as indicated above.

Send down the records to the Ld. District Forum, West Tripura, Agartala.                
 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura