State Consumer Disputes Redressal Commission
Mr. Gourab Chatterjee vs M/S. Journeyy Mart on 29 January, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1235/2013 (Arisen out of Order Dated 22/10/2013 in Case No. CC/07/2012 of District Kolkata-II(Central)) 1. Mr. Gourab Chatterjee S/o Mr. Gouranga Chatterjee, 96/1/B, S.P. Institute Lane, Ravindravilla, Flat No.202, P.O. & P.S. - Baranagar, Kolkata -700 036, W.B. ...........Appellant(s) Versus 1. M/s. Journeyy Mart 3, Barretto Lane, Ground Floor, (near 4, Mangoe Lane), P.S. Hare Street, Kolkata - 700 069, W.B. 2. Ms.Susmita Mukherjee 3, Barretto Lane, Ground Floor, (near 4, Mangoe Lane), P.S. Hare Street, Kolkata - 700 069, W.B. 3. Mr. Rajiv Mukherjee 3, Barretto Lane, Ground Floor, (near 4, Mangoe Lane), P.S. Hare Street, Kolkata - 700 069, W.B. 4. Hotel Polynia @ Polinia 12/1, Robertson Road, near Bank of Baroda, Darjeeling - 734 101, West Bengal. 5. Mr. Lakhani @ Mr. Lakhotia 12/1, Robertson Road, near Bank of Baroda, Darjeeling - 734 101, West Bengal. 6. Luk Lodge Bank, Darjeeling Branch, near Darjeeling Railway Station, Darjeeling - 734 101, West Bengal. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Ms. Tina Biswas, Advocate For the Respondent: Ms. Manjari Ghosh, Advocate Ms. Manjari Ghosh, Advocate Ms. Manjari Ghosh, Advocate Mr. Amar Kr. Bhoumik, Advocate ORDER MR. UTPAL KUMAR BHATTACHARYA, HON'BLE MEMBER.
29.01.2016 The instant appeal has been filed by the Appellant/Complainant challenging the impugned judgment and order dated 22.10.2013 passed by the Ld. District Forum, Kolkata, Unit - I in CC Case No. 7 of 2012 dismissing the complaint without cost.
The facts of the case, in a nutshell, are that the Appellant/Complainant booked hotel accommodation along with other facilities and services at places like Rishyap, Lava, Kalimpong and Darjeeling on 01.07.2012 for a six day trip for the period from 01.10.2011 to 07.10.2011. The Appellant/Complainant who got aforesaid booking done by the Respondent/O.P. No. 1 after being persuaded by the Respondents /O.P. Nos. 2 & 3 being the agents of Respondent/O.P. No. 1, paid an amount of Rs.10,800/- as advance when extra cot charges were to be paid in addition on the spot.
The Appellant/Complainant, in its effort to confirm uninterrupted accommodation of its team members at the hotel of Respondent/O.P. No. 4, talked over telephone to the Respondent/O.P. No. 5, being representative of the Respondent/O.P. No. 4, on the eve of the opening day of the trip and came to be assured of their hassle free accommodation and allied services.
On 5th October, 2011, that is, at the concluding part of the trip when the Appellant/Complainant consisting of 13 members which include three ladies, two children and four senior citizens reached Darjeeling bus stand where a representative of Respondent/O.P. No. 5 came to receive the team and informed that due to the earthquake in recent past, the hotel of Respondent/O.P. No. 4 where the accommodation was booked, has been severely damaged rendering the same not habitable at the relevant point of time. The Appellant/Complainant, in a confused state of mind, contacted the Respondent Nos. 2 & 3 and passed over the information soliciting help from them at that critical juncture. Respondents/O.P. Nos. 1 & 2, as alleged, completed their job offering one suggestion for obtaining police help. The Appellant/Complainant contacted the Respondent/O.P. No. 5, who allegedly, prevented him from not reporting anything to the police, as alleged in a threatening voice and offered him an alternative accommodation at "Luk Lodge". It was also informed by him that cancellation of all accommodation in view of the damage caused to the hotel by the recent earthquake was conveyed to the Respondent/O.P. No. 1. The information, however, was not conveyed to the Appellant/Complainant by the said Respondents/O.P. Nos. 1, 2 & 3.
There being no immediate suitable solution forthcoming and the journey also being at a concluding stage, leaving for the Appellant/Complainant no scope for finding any alternative accommodation, the Appellant/Complainant was compelled to avail himself of the proposed alternative accommodation and services of much inferior quality at, as alleged, in the guest house of Respondent/O.P. No. 6, namely "Luk Lodge".
The Respondent/Complainant passed the concluding two days of the journey period in extreme miseries and on return, claimed a refund of the booking fee from the Respondents/O.P. Nos. 1, 2 & 3 communicating them through letters and legal notice the details of the distress that it and its family members had to pass through because of the deficiency in service done upon them by the said Respondents/O.P. Nos. 1, 2 & 3. Unfortunately, the letters and legal notice evoked no response from the Respondents/O.P. Nos. 1, 2 & 3. Thereafter, the aggrieved Appellant/Complainant filed before the Ld. District Forum the complaint case which the impugned judgment and order relates to.
Heard the Ld. Advocates on behalf of both sides. The Ld. Advocate on behalf of the Appellant/Complainant submitted that the Respondents/O.P. Nos. 1, 2 & 3, as the authorized agent of Respondent No. 4, booked the accommodation. The Ld. Advocate continued to submit that huge earthquake that took place on 18.09.2011 damaged the hotel where the accommodation was booked from 05.10.2011 to 07.10.2011. There was enough time for sending information about the damage that the hotel had sustained in the said earthquake but, Respondents/O.P. Nos. 1, 2 & 3 did not convey the said information to the Appellant/Complainant. They, rather, on enquiry, assured the Appellant/Complainant a hassle free accommodation. It is only after reaching Darjeeling that the Appellant/Complainant came to know that the hotel of the Respondent/O.P. No. 4 was not in a habitable condition.
The Ld. Advocate informed further that the Respondent Nos. 1, 2 & 3 did not take any corrective measure to mitigate the distress even after being reported over telephone about the adverse situation that the Appellant/Complainant along with its family members was put into because of the deficiency done by the said Respondents/O.Ps.
"Luk Lodge", the alternate accommodation, was in fact not a hotel. The accommodation provided therein was of less spacious and of inferior quality. There was almost no satisfactory service, as the Appellant/Complainant had to go outside for having dinner in chilly cold. It was also informed by the Ld. Advocate that one of the elderly members caught cold and suffered from stomach upset which was ultimately diagnosed to be hill diarrhoea.
The Ld. Advocate drew the notice of the Bench to clause 6 of the Rules and Regulations detailed in Booking Confirmation Vouchers of Respondent/O.P. No. 4 (running page 27) whrein a provision has been laid down towards refund of booking money after deduction of 20% of the sum as service tax in case the accommodation cannot be availed of by any person due to 'Bandh' or natural calamities. The Appellant/Complainant, as the Ld. Advocate contended, could not avail himself of the said provision as he was not made aware of the damage of the hotel leading to cancellation of reservation by the Respondent/O.P. Nos. 1, 2 & 3.
In the light of the above, as the Ld. Advocate submitted, the appeal should be allowed setting aside the impugned judgment and order.
The Ld. Advocate on behalf of the Respondents/O.P. Nos. 1, 2 & 3 submitted that there was no complaint against booking of accommodation at Lava and Rishyap. The booked accommodation at Respondent/O.P. No. 4 could not be provided as the hotel became unfit for human habitation due to severe damage by the earthquake that took place on 18.09.2011.
It was told that Mr. Lakhotia was given a telephone call to know the condition of the hotel immediately after the earthquake, in fact, Mr. Lakhotia, the Respondent No. 5, the representative of the Respondent No. 4 was never called.
There is no record as to the topic of discussion with the Respondent/O.P. Nos. 1, 2 & 3. It is possible that the Appellant/Complainant discussed on some other issues with the said Respondents/O.Ps.
The Respondents/O.P. Nos. 4 & 5 saved the situation by arranging for the team of the Appellant/Complainant an alternative accommodation at Hotel 'Luk Lodge'. Appellant/Complainant stayed there, paid the bill without any complaint against quality of accommodation and services offered to them. They received the service and lodged the complaint afterwards to derive undue compensation.
The Ld. Advocate referred to Section 230 of Indian Contract Act and submitted that the Respondent/O.P. No. 1, being the agent of Resondent/O.P. No. 4 cannot personally enforce the order nor is he bound by contract on behalf of the principal. It was further pointed out that the hill diarrhoea, as the Appellant/Complainant submitted as one of tour members had suffered from is an effort to build up a story as the prescription that has been annexed is of date 21.10.11, that is, long after the completion of the journey. The Ld. Advocate, in consideration of the stated circumstances, submitted that the impugned order of the Ld. District Forum should be affirmed.
Perused the papers on record. The main point to be considered here is whether the information about cancellation of booking of accommodation at Respondent/O.P. No. 4 hotel was at all conveyed to the Appellant/Complainant. We have gone through the list of telephone calls. It is evident that the Appellant/Complainant contacted Respondent/O.P. Nos. 1, 2 & 3 on the eve of the journey and also from the spot where and when the Appellant/Complainant along with its family members was landed up in trouble on receipt of information about non-availability of accommodation at Respondent/O.P. No. 4 hotel.
There was no evidence to confirm the facts, as claimed, towards conveying the information as to cancellation of reservation due to the damage of the hotel to the Respondent/O.P. No. 1 by the Respondents/O.P. Nos. 4 & 5, nor was there any evidence towards conveying the information regarding cancellation of reservation at the own initiative of Respondents/O.P. Nos. 4 & 5 to the Appellant/Complainant direct.
The Respondents/O.P. Nos. 1, 2 & 3 also failed to convey the same information to the Appellant/Complainant even on enquiry made by the Appellant/Complainant over telephone on the eve of the commencement of the journey. Had the information been percolated in right time, the Appellant/Complainant might have cancelled the journey or taken steps for arranging alternative accommodation. There was, therefore, deficiency done upon the Appellant/Complainant by Respondents/O.P. Nos. 1 to 5.
Further, the Respondent/O.P. Nos. 1, 2 & 3 had shown indifferent attitude when it received the information from the spot as to the serious trouble that the Appellant/Complainant with his family members has been landed up but, took no initiative to redress their miseries. Fact remains, the Appellant/Complainant was not provided with quality of accommodation and services which he was entitled to and the responsibility of the deficiency of the services devolves solely on the Respondents/O.P. Nos. 1, 2 & 3.
'Luk Lodge', being the Respondent/O.P. No. 6, prima facie, had no deficiency as it had charged its own cost, whatever high it may be, after offering accommodation available with the lodge to the Appellant/Complainant on approach at a very critical situation.
In consideration of the narrated circumstances, we are of the considered view that there was deficiency of services done to the Appellant/Complainant by the Respondents/O.P. Nos. 1 to 5.
It is, therefore, ordered that the appeal is allowed in part setting aside the impugned judgment and order with cost of Rs.2,000/- to be paid to the Appellant/Complainant by the Respondent/O.P. Nos. 1 to 5 jointly and severally. The said Respondents/O.Ps shall further pay a compensation of Rs.5,000/- to the Appellant/Complainant for the agony and harassment sustained by the Appellant/Complainant due to the deficiencies done upon him by the said Respondents/O.Ps. The entire amount of Rs.7,000/- has to be paid within 45 days from the date of this order, failing which, simple interest @ 9% shall accrue on the said entire amount from the date of default till full realization. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER