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State Consumer Disputes Redressal Commission

Jai Mata Di Holidays vs Shri Vijay Bhagwan Shardhul on 3 May, 2019

A/15/1259                                                             1




     STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
                 MAHARASHTRA, MUMBAI

                            Appeal No.A/15/1259
     (Arisen out of order dtd.28/08/2015 in Complaint No.113 of 2014 of
       District Consumer Disputes Redressal Forum, Central Mumbai)

Jai Mata Di Holidays,
Sughandha Palace,
S.S. Wagh Marg,
Naigaon, Dadar (E),                          .....Appellant/
Mumbai -400014.                            (Original Complainant)

            Versus

Shri. Vijay Bhagwan Shardhul,
Asmita Jyoti Co-op HSC Soc. Ltd.,
Flat No.D/2/66, Marve Road,                   .....Respondent/
Malad (W), Mumbai- 400 095.                  (Original Complainant)


BEFORE: P.B. Joshi, Presiding Judicial Member
        A.K. Zade, Member

PRESENT: Advocate Mr.Sanjeev Mishra for Appellant.
         None present for Respondent.

                                   ORDER

Per Hon'ble Mr.A.K. Zade - Member:

1) This appeal is filed by the appellant/original opponent against the order dtd.28/08/2015 passed by District Consumer Disputes Redressal Forum, Central Mumbai by which opponent was directed to pay Rs.1,49,512/- to the complainant with interest @ 9% p.a. from the date of filing of complaint i.e. from 16/04/2014 till realization. By the said order, the opponent was also directed to pay Rs.25,000/- towards compensation for mental agony and Rs.10,000/- towards cost to the complainant with direction to comply the order within a period of one month from the date of order.

2) As per complainant, facts of the case are as follows -

Complainant visited office of opponent on 29/11/2012 after reading the advertisement. He was informed about tour of Simla and Manali which was booked by a group of 30-35 people who were planning to travel in first week of May, 2013 and that an expert guide will be provided from Chandigarh for said tour. Complainant was handed over "Enchanting Himachal Tour Itinerary for 10 days tour program." As per the said tour itinerary, discounted rate for 2 Adults and 2 children was Rs,72,000/- which included railway travel by 3 rd AC from Mumbai to Chandigarh and return journey from Amritsar to Mumbai, lodging and boarding and sightseeing by tour bus. Complainant negotiated with the representative of opponent on 29/11/2012 and finalized cost of tour package at Rs.55,000/- for total 4 passengers, i.e. 2 adults and 2 children. Complainant issued cheque of Rs.60,000/- for which opponent issued receipt mentioning tour package cost of Rs.55,000/-. On the same day complainant paid additional Rs.3,000/- in cash to opponent to cover full payment for return railway reservation ticket for 2 adults and 2 children as above, for which also opponent issued receipt on 29/11/2012. Thereafter, on 03/12/2012, complainant met representative of opponent in its office informing that he and his family members would prefer to travel one way by Air from Mumbai to Chandigarh instead of railway 3 AC for which opponent asked complainant to pay additional amount of Rs.13,000/-. The same was paid by complainant by cheque and receipt was issued by opponent. On 30/04/2013, when complainant visited opponent's office for collecting his air-ticket for travel from Mumbai to Chandigarh, he was informed that the said group of about 20 to 25 people had cancelled their tour programme of Himachal Pradesh at eleventh hour and instead decided to go on tour programme of Jammu and Kashmir and had already left for it and as such, complainant had to travel and tour alone with his family members. Complainant was not ready to travel alone with his family members for the said tour and wanted to cancel his entire tour, A/15/1259 3 but he was told that the entire amount of Rs.76,000/- would be forfeited as arrangements for air-tickets, hotel bookings and transportation had already been done as per tour itinerary. Complainant therefore, agreed to travel to Chandigarh on 02/05/2013 as per air-ticket booked by opponent and to go on said tour with his wife and two daughters. He was told by opponent at that time, that one Mr.Gurucharan is opponent's agent in Chandigarh and will arrange the entire tour programme for complainant and his phone numbers were written on the tour itinerary dtd.29/11/2012. Complainant was also told that said Shri.Gurucharan or his representative will come to Chandigarh Airport for pick-up.

3) Accordingly, complainant and his family members travelled from Mumbai to Chandigarh on 02/05/2013 by the said flight and as per instructions of opponent, abovesaid Mr.Guruchanran deputed one representative of opponent namely Ravi Dutt driver with one old Tata- Indica Car for pick up. As per complainant, he objected to the said old car and contacted opponent, but he refused to do anything further. The said driver took complainant and his family members to hotel for overnight stay in Chandigarh as per tour itinerary. However, complainant, his wife and two daughters were compelled to sleep on one double bed and no extra bed was provided for two minor daughters as hotel management was demanding extra charges for extra bed. The Complainant contended that when the tour programme was finalized on 29/11/2012, opponent had agreed to arrange one separate bed for two minor daughters in all the hotels. Next day, said driver took complainant and his family members to Shimla by the same car and put complainant and his family members in "Hotel Sirhind" which was ordinary 3 rd grade hotel instead of "Hotel Sukh Sagar" or "Hotel Rajdoot"

mentioned in the itinerary. When complained to opponent, opponent did not take any cognizance of the same and complainant and his family members were required to suffer too much inconvenience in the said hotel where also A/15/1259 4 no extra bed was provided for two daughters of the complainant. Complainant spent two nights there alongwith his family members after which they were taken to Manali for three nights stay. Here again they were put in ordinary third class hotel namely "Hotel Mukesh" instead of "Hotel Monal Manali" mentioned in the tour itinerary. Also no extra bed was provided for two daughters of complainant and the hotel food was also not good and tasty and when he complained to opponent on mobile, opponent again refused to do anything in the matter. Thereafter, on 08/05/2013, when said driver Ravi Dutt took complainant and his family members from Manali to Dharamshala in the same old car, it had some technical problem and complainant and his family members were stranded on road. Complainant was required to pay Rs.2,500/- to driver for getting the said car repaired, as opponent had told complainant when contacted on phone, to pay the said amount promising him that the same will be paid back to complainant after reaching back to Mumbai.

4) At Dharamshala also, driver wanted to put complainant and his family members in ordinary third class hotel namely "Hotel Kumar" instead of "Hotel Trident" mentioned in the tour itinerary. While traveling by said car to said 'Hotel Kumar', the car met with an accident and fell down in Nullah on roadside and major accident took place and all the four persons were thrown out of the car. Complainant and his family members got injured. The backbone of complainant's wife was badly damaged and there were some minor injuries on backside of complainant also. Complainant's wife was admitted in local hospital at Dharmashala namely "Dr.Rajendra Prasad Government Hospital, Kangra, Tanda(H.P.)" on the same night and as there was nobody else to take care of his wife and two daughters, he avoided to get himself admitted in the said hospital and got discharged after some treatment the same night. Complainant's wife was in the above hospital from 08/05/2013 to 05/06/2013 for treatment, but opponent refused to give any financial help to complainant for medical treatment of his wife, A/15/1259 5 two daughters and complainant. The said accident was reported to police and FIR was lodged against the driver and the case was pending in the Criminal Court. Complainant, thereafter, sent his two daughters to his distant relative at New Delhi, who were required to travel alone from Dharmashala to New Delhi. Complainant in the first week of June, 2013 asked brother and sister of his wife in Mumbai to come down to Dharmashala to help him for taking care of his wife, who travelled by air to Dharmashala and stayed in hotel there. Thereafter, complainant shifted his wife back to Mumbai for further medical treatment on 05/06/2013 by travelling alongwith his wife and two daughters by Swaraj Express Train.

During the said travel his wife was required to be taken by Ambulance from hospital to railway station and after reaching Mumbai, from railway station to Bombay Hospital where she was again admitted on 06/06/2013.

When complainant contacted opponent and communicated all the above details and asked for monetary help, Opponent refused. Complainant thereafter got his wife discharged from Bombay Hospital and got her admitted in Government G.T. Hospital from 10/06/2013 from where she was discharged on 20/06/2013 with advice of complete bed rest for about two months and to visit the hospital again on 25/07/2013 for MRI Test and other tests. Complainant was thereafter required to appoint a maid servant to take care of his wife for about six months. Complainant therefore alleged deficiency in service against the opponent in respect of cancellation of the tour alongwith group, requiring complainant to travel alongwith his family members alone, providing transportation by old car, putting him in ordinary hotels and not in the hotels mentioned in the tour itinerary and for not being able to visit the remaining tour places including Amritsar, Shimla, Golden Temple, Wagha Border and also was required to spend huge amounts leaving 50% tour incomplete because of the said accident. Complainant therefore, filed consumer complaint before the District Forum praying for direction to opponent to pay total amount of Rs.7,85,035/-, interest @ 16% A/15/1259 6 p.a. on the 50% amount of tour cost i.e. on Rs.38,000/- from 29/11/2012 i.e. date of booking of tour programme till 11/04/2014 and further till its actual payment and compensation of Rs.2,50,000/- for mental torture, agony, physical informity, etc. and the costs.

5) Opponent resisted the complaint by filing written statement. The main contention of opponent was that vehicle and driver were chosen by complainant himself at his own and opponent was not responsible for the said accident and had not earned a single paisa from complainant. Opponent had given the best services to the complainant by arranging air-travel as per his request although the tour was to be conducted by railway AC three tier for Mumbai-Chandigarh and sightseeing was to be done by tour bus. However, complainant had undertaken the said tour by car and the said driver Ravi Dutt was not appointed by opponent and the hotels offered were as per discussions with the complainant and no evidence was given by complainant to prove that they were substandard hotels and also that the opponent was not responsible for the said accident. As per opponent, complainant had already enjoyed 80% of the tour and had initiated criminal proceedings against the driver and therefore, opponent was not liable to pay any amount to complainant and hence, the complaint was liable to be dismissed. After hearing the parties and after going through the record, the Ld.District Forum passed the impugned order which is subject matter of this appeal.

6) Appellant mentioned in the memo of appeal that appellant provided service in respect of booking and had also arranged air travel tickets for complainant and his family members for travelling from Mumbai to Chandigarh, although as per tour itinerary, service was to be provided for train journey by AC III tier. Thus, opponent provided the best possible service to respondent/ complainant although it was not liable for the same. Appellant also contended that the agent namely Mr.Gurucharan of opponent A/15/1259 7 at Chandigarh had deputed driver namely Mr.Ravi Dutt with private car to pick up complainant and his family members from Chandigarh airport and to drop them at the hotel only, as assured in the Tour Itinerary and appellant/opponent had no connection with any arrangement or contract for sightseeing made by respondent/complainant himself other than that assured in Tour Itinerary. Appellant enjoyed facilities of stay and made grievances about them only thereafter. Appellant further contended that on 7th day of tour, it is the complainant who hired the private car of said Mr.Ravi Dutt for sightseeing on which day the alleged accident took place. Appellant therefore contended that appellant was not liable for alleged accident and for damages arising out of it and for the reliefs claimed by complainant, as said Mr.Ravi Dutt was not an employee of appellant/opponent and as it was already made clear in the beginning itself that appellant did not own any tour vehicle for any sightseeing or picking,. However, Ld.District Forum passed impugned order granting reliefs in favour of complainant as mentioned above. Appellant therefore filed this appeal on the ground that contract between appellant and respondent in respect of the said tour was absolute in terms of the conditions mentioned in the reservation form which had been accepted by the complainant alongwith rules and regulations mentioned in the Itinerary Form. However, the Ld.District Forum passed the impugned order without appreciating the same and without going through the terms and conditions and rules and regulations governing the said tour, which were duly signed and agreed upon by complainant at the time of booking. Another ground of appeal is that the claims arising out of the said accident is required to be decided by MACT and not by the Consumer Forum and also that complainant had already filed criminal complaint against said Mr.Ravi Dutt which was pending before Additional Sessions Judge, Kangra, Himachal Pradesh. Appellant therefore prayed for setting aside the impugned order with cost.

7) Perused record. Heard arguments on behalf of appellant. Nobody was present for argument on behalf of respondent in spite of repeated chances and therefore the appeal was reserved for order.

8) We have gone through the tour itinerary in respect of the said tour programme. The tour itinerary shows pick-up from airport or railway station and travel to the places Shimla, Manali, Dharmashala- Dalhousie, Amritsar including Wagha boarder and thereafter, drop at Airport or railway station. In the said itinerary, it is mentioned that the package includes all sightseeing on above mentioned places by bus, night stays at Hotel Sukh Sagar-Raj Doot at Shimla, Hotel Monal Manali, Hotel Sun-Star in Chandigarh, hotel Asiana Regency in Dalhousie, Hotel R.V. Continental at Amritsar and one night stay at Dharamshala Hotel Trivnd is handwritten there on the said itinerary without any initial or authentication. Thus, it is clear from the record and admissions that some of the hotel stays were arranged in hotels different than those mentioned in the tour itinerary. We have gone through terms and conditions of the tour which provide for change in places of stay and transport depending on circumstances. However, no such compelling reasons/circumstances are shown by opponent in respect of change of hotels. Although it is true that complainant had not given any evidence to prove that changed hotels were of substandard level, we are not convinced that there was any reason to change those hotels, in the absence of any evidence in support of it and therefore, in our opinion, opponent is guilty of deficiency in service in this respect.

As regards non-provision of bed for his two minor daughters, we find in the terms and conditions that the same required additional charges to be paid by complainant and as complainant booked the said tour at price of Rs.63,000/- (Rs.60,000/- + Rs.3,000/-) after negotiations, which is lower than the discounted tour cost of Rs.72,000/- question of providing extra bed for his daughters without any extra charge does not arise when it is not A/15/1259 9 otherwise mentioned by opponent in receipt or on booking form. Hence, we do not accept contentions of complainant in that respect.

Opponent had denied in his written statement the contention of complainant that there was group of 30 to 35 people traveling to Shimla- Manali in May, 2013 and that the said contention was totally false and no such representation was made to complainant and also no representation to provide a guide during the entire tour was made by opponent to complainant. Complainant has not adduced any evidence in support of the said contention and nothing about it is mentioned in tour itinerary. It is an admitted fact that traveling form Mumbai to Chandigarh and back form Amritsar to Mumbai was by AC III tier and entire sightseeing in the said tour was by bus for which complainant had paid an amount of Rs.55,000/- towards tour cost and Rs.5000/- + Rs.3,000/- i.e. Rs.8,000/- towards abovesaid railway travel and additional Rs.13,000/- for air travel i.e. total Rs.21,000/- over and above the tour cost of Rs.55,000/-. However, air tickets arranged by Opponent and filed by complainant himself shows that opponent had paid Rs.22,216/- towards above said air fare which is more than the amount of Rs.21,000/- actually paid by complainant for above travel expenses which show the bonafides of opponent. It is also an admitted fact that the said driver was appointed by the agent of opponent to drop the complainant and his family members from Chandigarh Airport to the hotel. As per opponent, it was clearly mentioned in the terms and conditions of the said tour that the opponent does not own any tour vehicle for sightseeing or any pick-up and the same was done by local people and said Ravi Datt was not employee of opponent. Opponent also submitted in written statement that the complainant himself had booked the said car for sightseeing during rest of the days and therefore opponent was not responsible for any communication or any acts of said driver Mr.Ravi Dutt. We find the said contention of opponent acceptable, as it is hard to believe that any tour operator will arrange car for sightseeing of consumer after charging A/15/1259 10 consumer for sightseeing by tour bus as mentioned in tour itinerary without charging any extra amount for arranging car for the same.

As regards repairs to the vehicle on way from Manali to Dharamshala, and payment of Rs.2,500/- by complainant and assurance of opponent of repaying it to complainant, opponent denied all allegations being false, as no such incident occurred. In view of the contention of opponent that it is the complainant who booked the said car for entire sightseeing instead of tour bus and in view of the above discussion, we do not accept this contention also of complainant.

9) As regards the alleged accident, opponent contended that opponent is not responsible for the said accident as opponent had no control on the said driver as he was not employee of opponent and also had no control on his driving or machinery of the vehicle and also as complainant had already initiated criminal proceedings in the said matter against the said driver - not against opponent by lodging F.I.R. against said driver with in intention to extract compensation from driver and owner of car. Opponent therefore, denied any responsibility for the expenses made by complainant because of the said accident including medical expenses, hotel stays and travelling expenses incurred by complainant and for other subsequent events. In our opinion, opponent cannot be held responsible for the said accident and cannot be held liable to pay any expenses arising out of the said accident including medical expenses for treatment to complainant and his family members, their subsequent hotel stays, travelling including travelling of his relatives and other expenditure on them. We also observe that this is not the Forum for claiming any motor accident claim and also that this is not a suit for damages arising out of the said accident. We therefore do not agree with this part of impugned order awarding medical expenses incurred by complainant of Rs.31,512/- at Kangda, of Rs.60,000/- for hotel stay at Kangra from 09/05/2013 to 05/06/2013 and medical expenses of Rs.40,000/- at Mumbai.

The Ld.District Forum had granted refund of Rs.18,000/- for the balance tour of 3 days i.e. 30% of Rs.60,000/- which actually should be 30% of tour cost of Rs.55,000/- (excluding railway fare for complainant and his family members) i.e. Rs.16,500/- for not being able to enjoy three days of tour out of ten days' tour programme because of the said accident. We, therefore, find it necessary to modify the same at Rs.16,500/-. We therefore, find it necessary to partly allow the instant appeal and modify the impugned order by replacing clause 2 of the order by new Clause 2 as follows -

The opponent is directed to pay Rs.16,500/- to the complainant alongwith interest @ 9% p.a. from the date of filing complaint i.e. 16/04/2014 till realization.

We also find that for a tour package cost of Rs.55,000/-, granting compensation of Rs.25,000/- towards mental agony and Rs.10,000/- towards cost to complainant are excessive and not justified especially in view of the fact that complainant and his family members had completed 70% of the tour package. However, in view of the deficiency in service in respect of places of stay as discussed above on the part of opponent, we find it necessary to modify the same to Rs.10,000/- and Rs.5,000/- respectively in light of the above facts and discussion. We therefore pass the following order -

ORDER

1. Appeal No.A/15/1259 is partly allowed.

2. Clause no.2 of the order dated 28/08/2015 passed by Ld.District Forum, Central Mumbai in Consumer Complaint No.CC/14/113 is replaced by new Clause 2 as given below -

The opponent is directed to pay Rs.16,500/- (Rupees Sixteen Thousand Five Hundred Only) to the complainant with interest @ 9 % p.a. from the date of filing of complaint i.e. 16/04/2014 till realization.

3. Clause No.3 of the impugned order is modified as under :

Opponent is also directed to pay to complainant an amount of Rs.10,000/- (Rupees Ten Thousand Only) towards compensation for mental agony.

4. Clause No.4 of the impugned order is modified as under :

Opponent is directed to pay Rs.5,000/- (Rupees Five Thousand Only) to complainant towards cost of the complaint.

5. Remaining part of the impugned order remains unchanged.

6. The amounts paid/deposited by opponent against the impugned order while filing this appeal or to comply the interim order of stay be adjusted while complying the above directions.

7. No order as to costs of this appeal.

8. Copy of this order be furnished to both the parties.

Pronounced on 03rd May, 2019.

[P.B. Joshi] Presiding Judicial Member [A.K.Zade] Member aj