Brief fact of this case:-  This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant stating that the opposite party run his business of travelling agency under the name and Style “Tozo Travels” in various ways and the complainant was willing to make a tour at Puri along with his family members and being aware about such travelling agency of the opposite party through publication made by the opposite party regarding travel/hotel booking at Puri and the complainant met with the proprietor for booking guest house at Puri for 4(four) days for a period from 19/05/2018 to 22/05/2018.

The complainant also states that the proprietor of the opposite party allured him by saying that he could make advance booking for the guest house at Puri for the complainant and his family members for the four days but it cost Rs. 2600/- i.e. Rs. 650/- per day for such booking room including kitchen facility and he made full payment immediately on 03/05/2018 and to that effect the opposite party has also issued one Advanced Booking slip in favour of the complainant acknowledgement the receipt of Rs. 2600/- for such booking.

The complainant also states that the opposite party has also mentioned the period of the Booking as well as arrival and departure date of the complainant.

The Complainant also states that the complainant along with his family members reached Puri at 7.00 a.m. on 19/05/2018 and went to the Guest House viz. Bani Bhaban as booked by the opposite party for the purpose of their stay but the complainant found that the said Guest House has no security, the main entrance door has been broken,  the room specified for the complainant and his family members is a dirty one full of cockroach and other insects, there was no sufficient light, no window or ventilator for air circulation in the said room, no proper maintenance and position of the said room was  like a dump/abandoned room and the said room was not at all fir for staying.

The complainant also states that being the father of a 1 ½ year child considering the ambience of the said room as not at all habitable for human being and the same could cause serious health hazards to his minor child, he immediately made phone call of the opposite party asking him to call the manager of the said Hotel for changing the said room with another one and in that occasion the proprietor of the opposite party refused to do anything in that regard and also misbehaved with the complainant.

The complainant also states that finding no other alternative, the complainant, keeping his wife and the minor child in the road, went for searching of a guest house or a room in any hotel and after a vigorous search for about 2 ½ hours he ultimately found a room for their stay at Puri Blue Sea Holiday Home and had to spend a further sum of Rs. 800/- per day for his staying at Puri.

The complainant also states that after getting shelter at Puri Blue Sea Holiday Home, the complainant again made phone calls as many as 10-15 times to the opposite party to refund the booking money in his favor from the said Guest House viz. Bani Bhaban at Puri as he had no sufficient money for booking of new rooms but in all occasion the opposite party denied to refund a single farthing in favor of the complainant.

The complainant also states that the opposite party took advance booking money for rendering service to the complainant but due to the deficiency in service and illegal trade practices on the part of the opposite party the complainant along with his family members had to suffer a lot and practically their pleasure trip converted to a panic stricken trip.

The complainant also states that then he sent a legal notice on 11/06/2018 to the opposite party through his Ld. Advocate for refunding the booking amount along with interest in his favor and the opposite party duly received the said legal notice and he made a reply on 26/06/2018 denying all the allegations made by the complainant and further stated as per term no. 2 mentioned in the slip as advance is not refundable and the complainant cannot claim refund of the booking amount and further stated that he would consider the prayer in case of withdrawal of the letter sent by his Ld. Advocate and such demand is very much illegal.

Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs.2600/- by the opposite party along with interest @18% interest per annum for advance booking and to pay RS.50,000/- towards compensation for causing severe mental agony, anxiety and harassment and to pay a sum of Rs. 20,000/- towards litigation cost and to pay all costs of the case and directing the opposite party  for other relief or reliefs as the Commission may deem fit in favor of the complainant.

Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him. It is the specific case of the opposite party side that this case is not maintainable in the eye of law and there is no cause of action and this case is barred by limitation and this Forum has no territorial or pecuniary jurisdiction to try this case. It has also been pointed out that the holiday home which was taken by the complainant at Puri was fully habitable and useable and the complainant had never visited the said holiday home and also had not sign in the register in respect of entry of the said room allotted to the complainant and the complainant had never complained to the manager about his problem. It is alleged that the complainant had not intentionally stayed at the holiday home namely, Bani Bhavan and as per terms and condition the complainant is not entitled to get refund of the advance money and for all these reasons the opposite party prayed to dismiss the case. 

            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 and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

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

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have been 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 after appearance in this case and after filing written version, have contested this case but no separate M.A. application has been filed due to the reason best known to him. Under this position this District Commission has passed the order of ex parte hearing of this case. On this background it is also mentionworthy 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 Mallick para, Serampore, 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 territorial and 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 party 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 party. 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 this 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 party 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 party. 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 party 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 question there is necessity of scanning the evidence on affidavit filed by the parties and also there is necessity of making scrutiny of the documents filed by the parties of this case. Regarding this matter after going through the evidence on affidavit on record and documents filed in this case it appears that on the following points, the parties of this case have not raised any objection;-

1. It is admitted fact that opposite party has been running the business of travelling agency under the name and style “Tozo travels”.
2. It is admitted fact that the complainant visited the office of the opposite party and he was willing to make a tour at Puri along with his family members and for that reason the complainant proposed to the opposite party for booking hotel/ holiday home at Puri for the period 19.5.2018 to 22.5.2018.
3. There is no controversy over the issue that the proposal of the complainant in the matter of booking holiday home/ guest house/ hotel at Puri was accepted by the opposite party and opposite party arranged room at the guest house namely, Bani Bhavan.
4. It is also admitted fact that the cost of the room booked by the opposite party for the complainant was Rs. 650/- per day for such booking room including kitchen facility and total cost of booking was Rs. 2600/-.
5. There is also not any controversy over the issue that the complainant has paid the entire amount of Rs. 2600/- to the opposite party and to that effect opposite party has also issued one advance booking slip in favour of the complainant showing acknowledgment the receipt of Rs. 2600/- for such booking.
6. There is also not any controversy over this issue that the complainant along with his family members reached Puri at 7 am on 19.5.2018 but the complainant had not stayed in the said guest house Bani Bhavan on the ground that the said room was totally inhabitable for human being.
7. There is also not any dispute that complainant went to Puri on 19.5.2018 along with his child aged about 1 ½ years and family members and complainant had stayed at the Blue Sea Holiday Home at Puri and had to pay a sum of Rs. 800/- per day for his staying at Puri.
8. It is admitted fact that the complainant has not yet received the advance money of Rs. 2600/- which he had given to the opposite party for the purpose of booking room at the holiday home at Puri.

In the background of above noted series of admitted facts, it is important to note that the point and/ or apple of discord between the parties is that opposite party is claiming that the advance booking amount was not refundable and the room of the guest house Bani Bhavan which was booked for the complainant and his family members was in workable and habitable condition but the complainant has not intentionally taken that room and no complaint was lodged but on the other hand the complainant side over this issue pointed out that the room allotted at Bani Bhavan for the complainant and his family members were not at all habitable and for that reason the complainant was compelled to take alternative guest house by incurring extra cost.

      Regarding the above noted question and/ or matters it is very important to note that the opposite party to prove their plea that the allotted room at Bani Bhavan for the complainant was habitable, no document has been filed and there was no prayer for holding any local inspection commission to substantiate this matter. Under this position the above noted plea of the opposite party is not acceptable. In this regard it is important to note that the opposite party has also not submitted any interrogatories against the evidence on affidavit of the complainant.  Moreover the opposite party has also not filed any supportive/ corroborative evidence although burden of proof is lying on him.

      On comparative studies of the evidence of the parties and pleading the parties it appears that complainant had proved his case beyond any reasonable doubt and it is crystal clear that the advance booking amount of Rs. 2600/- has not been refunded by the opposite party in favour of the complainant. This matter is clearly depicting that there is gross deviation of service and there is instance of unfair trade practice. When there is deficiency of service and there is instance of unfair trade practice on the part of the opposite party, the complainant is entitled to get the relief which has been sought for in this case.

      So, the above noted two points of consideration are also decided in favour of the complainant and it is held that the complainant is entitled to get back the advance booking amount of Rs. 2600/- along with simple interest @ 8.4% from the date of filing of this case and the complainant is also entitled to get Rs. 20,000/- as compensation for deficiency in service and unfair trade practice on the part of the opposite party and the complainant is further entitled to get litigation cost of Rs. 10,000/-.

In the result it is accordingly

ordered

that the complaint case being no. 130 of 2018 be and the same is allowed on contest but in part.

It is held that the complainant is entitled to get back the advance booking amount of Rs. 2600/- along with simple interest @ 8.4% from the date of filing of this case and the complainant is also entitled to get Rs. 20,000/- as compensation for deficiency in service and unfair trade practice on the part of the opposite party and the complainant is further entitled to get litigation cost of Rs. 10,000/-.

            Opposite party is directed to pay the said amount within 2 months from the date of this order otherwise complainant is given liberty to execute the order as per law.

In the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 60 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties or their ld. Advocates/Agents on record by hand under proper acknowledgement or 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.