This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, Samiran Mitra that after going through the advertisement published in the printed brochures by the opposite party no. 1 in where the opposite party no. 1 promised to provide a delightful package tour and being attracted with the said advertisement he contacted with the opposite party no. 1 and he verbally assured him to keep their keen attention in the proposed tour and hearing this he paid entire package amount in advance amounting to Rs.14,000/- each i.e. 42,000/- approximately (excluding air fare) and opposite party no. 1 also issued receipt in favour of the complainant and on 12th October, 2016 he started journey from Kolkata Airport to Port Blair and after reaching to the Andaman the opposite party no. 1 arranged a below standard hotel namely Maya Hotel for lodging.
The complainant also states that one agent of opposite party no. 1 started to force them for tour to little Andaman besides from the other proposed location or spots mentioned in the said brochure and they decided to start their journey by cruise on 13th October 2016 and on 14th October, 2016 after having twelve hours journey the said ship was reached to the Little Andaman but after reaching to the place one agent of opposite party no. 1 put them into grave situation and started to demanding more money stating that no ships would be available for two day but he can manage the tickets if he paid him Rs. 500/- each for reserve the tickets and finding no other alternative he compelled to pay the said money and returning on 16th October 2016 at Maya Hotel the manager of the said hotel primarily refused him to stay over there and state that if he did not get any money from the opposite party no. 1 then in that event the complainant would face serious inconvenience and he will confine them until the dues amount credited to his account by the opposite party no. 1.
The complainant also states that thereafter he severally tried to contact with the opposite party no. 1 over telephone but the opposite party no. 1 was refused to make contact with him and finding no other alternative he started to inform the matter to his relatives and his office colleagues and with the help of them and by their several request the opposite party no. 1 finally send money to the manager of Maya Hotel and after receiving the dues amount and mail from the opposite party no. 1 and the manager of the said hotel finally released them and stating that if they tried to inform the matter to any local police or anybody else then they will face serious inconvenience and thereafter along with other tourists the complainant lodged a written FIR against the opposite party no. 1 before the local P.S. on 11.11.2016 and the said P.S. enquired the entire facts started a suo moto Criminal Case vide no. 494/16, u/s-342/420/406 of I.P.C. against the opposite party for which the Ld. ACJM Serampore after perusing the documents and written FIR on reliability of the facts passed an order for police custody against the opposite party no. 1 and the police officer also take initiative to settle the matter between them by returning the amount paid by the complainant for the purpose of said package tour but the opposite party did not heed to the request of the said police officer and challenged them stating it that “tora amar kicchu korte parbi na, toder kono court adalat thana police amar kicchu korte parbe na ami toder ek takao ferot debo na, tora ja paris kor.”
The complainant also states that on several occasion he verbally requested the opposite party no. 1 for return the amount and also sent him a demand notice through his Ld. Advocate but the opposite party no. 1 did not pay heed to the request to the him and the cause of action arose on 12.10.2016, 16.10.2016, 17.10.2016, 28.10.2016, 11.11.2016, 17.11.2016, 27.8.2018 and continuously thereon.
Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs.42,000/-illegally taken without providing any services and for negligence and to pay interest @ 18% per annum from the date of payment made by the complainant to the opposite party no. 1 till refund of the balance amount is refunded back to the complainant and to pay a sum of Rs. 50,000/- to the complainant for mental agony and harassment and to pay a sum of Rs.20,000/- which was unnecessary expensed due to the negligence and unfair trade practices on the part of the opposite party no. 1 and to pay a sum of Rs. 30,000/- to the complainant as the cost of the legal proceedings and to pass an order directing for any other relief or reliefs as may deem fit and proper.
The opposite party contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that the actual matter of fact is this complainant is a very dangerous and harmful person, he was interested with their advertisement of Andaman tour, he contacted with us for delightful package tour of Andaman. After that they are trying to give him their best attention and service because of with he always trying to create problem with their agent and without give us any information he was visited here and there during that tour period according to his will this complainant creating nuisance with the people of that tour.
The opposite party also submits after going through the advertisement published in the printed brochures by him to provide a delightful package for their customers for Port Blair/Andaman for ten nights and eleven days along with the others sites worth of Rs.14,000/- each and being attracted with the said advertisement published by him the complainant decided to go for the tour and the opposite party initially ensured him to provide a warm and delight holiday experiences during the tour and the complainant severally asked him regarding this services during the said tour but he did not verbally told and assured him that they will provide the best ancillary services to the complainant from the date of journey to till the tour and opposite party assured the complainant has nothing to spend apart from there sell purchases and marketing during the said tour.
The opposite party also states that the complainant started his journey along with his family members from Kolkata airport on 12th October, 2016 towards Port Blair and thereafter reaching to the Andaman on the same day. And in the said tour which allegations regarding deficiency of service the complainant leveled against the opposite party, the opposite party denies all the allegations and seeks appropriate order/orders before this Forum.
The complainant filed evidence on affidavit which is the replica of the complaint petition. Opposite party filed evidence on affidavit which is also the replica of written version.
Heard the complainant in full as opposite party was absent on calls & no written argument filed on his behalf.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Sri Samiran Mitra is a ‘Consumer’ of the Opposite Party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the opposite party carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
1).Whether the Complainant Sri Samiran Mitra is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the opposite party travelling agency paid money to have a tour so he is entitled to get service from the service provider i.e. opposite party travelling agency as consumer.
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The complainant Samiran Mitra being attracted by the advertisement published in the printed brochures of the opposite party no. 1 in where the opposite party no. 1 promised to provide a delightful package tour and hearing this he paid entire package amount in advance amounting to Rs.14,000/- each i.e.Rs.42,000/- approximately (excluding air fare) and opposite party no. 1 also issued receipt in favour of the complainant and on 12th October, 2016 he started journey from Kolkata Airport to Port Blair and after reaching to the Andaman the opposite party no. 1 arranged a below standard hotel namely Maya Hotel for lodging. The complainant further states that one agent of opposite party no. 1 started to force them for tour to little Andaman besides from the other proposed location or spots mentioned in the said brochure and they decided to start their journey by cruise on 13th October 2016 and on 14th October, 2016 after having twelve hours journey the said ship was reached to the Little Andaman but after reaching to the place one agent of opposite party no.1 put them into grave situation and started to demand more money stating that no ships would be available for two days but he can manage the tickets if he paid him Rs. 500/- each for reserve the tickets and finding no other alternative he compelled to pay the said money and returning on16th October, 2016 at Maya Hotel the manager of the said hotel primarily refused him to stay over there and state that if he did not get any money from the opposite party no.1 then in that event the complainant would face serious inconvenience and he will confine them until the dues amount credited to his account by the opposite party no.1. Then the complainant tried to contact with the opposite party no.1 over telephone but the opposite party no.1 refused to make contact with him and finding no other alternative he started to inform the matter to his relatives and his office colleagues and with the help of them and by their several request the opposite party no.1 finally send money to the manager of Maya Hotel and after receiving the dues amount and mail from the opposite party no.1, the manager of the said hotel finally released them and stating that if they tried to inform the matter to any local police or anybody else then they will face serious inconvenience and thereafter along with other tourists the complainant lodged a written FIR against the opposite party no.1 before the local P.S. on 11.11.2016 and the said P.S. enquired the entire facts and started a suo moto Criminal Case vide no. 494/16, u/s-342/420/406 I.P.C. against the opposite party for which the Ld. ACJM Serampore after perusing the documents and written FIR on reliability of the facts passed an order for police custody against the opposite party no. 1 and the police officer also take initiative to settle the matter between them by returning the amount paid by the complainant for the purpose of said package tour but the opposite party did not heed to the request of the said police officer and challenged them stating it that “tora amar kicchu korte parbi na, toder kono court adalat thana police amar kicchu korte parbe na ami toder ek takao ferot debo na, tora ja paris kor.” So the complainant filed the instant case before this Forum praying directions as incorporated in the prayer portion of the complaint petition.
The opposite party by filing written version submitted that the complainant is very dangerous and harmful person, he being interested with their advertisement of Andaman tour, contacted with them for delightful package tour of Andaman. After that opposite party tried their best attention and service. But the complainant created problem with their agent and without giving them any information he visited here and there during that tour period according to his will and he also created nuisance with the people of that tour. The complainant decided to go for the tour and the opposite party initially ensured him to provide a warm and delight holiday experiences during the tour and the complainant severally asked him regarding this services during the said tour but he did not verbally told and assured him that they will provide the best ancillary services to the complainant from the date of journey to till the tour and opposite party assured the complainant has nothing to spend apart from there sell purchases and marketing during the said tour. And in the said tour which allegations regarding deficiency of service the complainant leveled against the opposite party, the opposite party denied all the allegations and sought appropriate order/orders before this Forum.
After hearing the arguments advanced by the Ld. advocate of the complainant and perusing the case records it appears from the receipts of the opposite party that the complainant paid a sum of Rs.42,000/-through cheque on 3 dates and the opposite party admitted such payment. So the complainant became consumer within the definition of Consumer Protection Act, 1986. From the recitals of the complaint petition as well as averments in the evidence on affidavit it is transparent that there is deficiency of service on the part of the opposite party for which the complainant lodged an FIR before the Serampore P.S. and on the basis of that complaint Serampore P.S. lodged a P.S. case being No. 494/2016 dt. 11.11.2016, u/s- 342/420/406 IPC and charge sheet has been filed before ACJM Serampore u/s-342/420/406 IPC. So from the police investigation it is transparent that the opposite party cheated the complainant and confined this complainant in a hotel at Andaman for non-payment of fees for fooding and lodging of the complainant. With the intervention of administration the opposite party compelled to send money to the opposite party and subsequently the complainant became free from the hotel at Andaman. During the period of staying at Andaman due to act or omission on the part of the opposite party, the complainant along with others suffered mental pain and agony. They were subject to pray of unfair trade practice of this opposite party. For which the complainant after returning from the said tour compelled to lodge complaint before Police Station for investigation and subsequently lodged this complaint petition before this Forum praying directions for getting reliefs in the form of compensation, cost and other as incorporated in the prayer portion the complaint petition. The allegations of the complainant are being unchallenged as the opposite failed to file sufficient evidence in respect of his tour provided to the complainant smoothly. On the other hand, the complainant by adducing sufficient documents including paper publications and police report proved his case as such the complainant is entitled to get compensation and others as this Forum deems fit and proper.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party is liable to pay compensation for mental pain and agony of the complainant.
ORDER
Hence, it is ordered that the complaint case being No.148 of 2018 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.8,000/-.
The Opposite Party is directed to pay a sum of Rs.12,000/- for mental pain & agony of the complainant within 45 days from the date of this order.
At 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 45 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/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
