National Consumer Disputes Redressal
Cox & Kings Travel Ltd vs Dr. Tushar Kanti Paul on 31 May, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.
1082 OF 2010
(From the order dated 24.11.2009
in Appeal No. 306/2009
of the State Commission, West Bengal)
COX & KINGS TRAVEL LTD.
6, LITTLE RUSSEL STREET
KANKARIA ESTATE
P.S. SHAKESPEARE,
SARANI,
KOLKATTA-700017
ALSO AT :
COX & KINGS (I) LTD.
INDRA PLACE, H BLOCK
CONNAUGHT CIRCUS
NEW DELHI-110001
Petitioner
Versus
DR.
TUSHAR KANTI PAUL
576-A-19,
DIAMOND HARBOUR ROAD
ARCADIA,
P.S. THAKURPURKUR,
KOLKATTA-700034 Respondent
BEFORE:
HONBLE MR.JUSTICE V.B. GUPTA,
PRESIDING MEMBER
HONBLE MR.SURESH CHANDRA, MEMBER
For the Petitioner :
Mr. A.N. Haksar, Sr.
Advocate with
Ms. Swati Sinha, Advocate
Pronounced
on : 31st May, 2011
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Present revision petition has been filed by the petitioner against order dated 24.11.2009 passed by West Bengal State Consumer Disputes Redressal Commission, Kolkata (for short State Commission).
2. Brief facts of the case are that the respondent/complainant and his wife Dr. Swati Pal, medical practitioners by profession, booked a short holiday package (4 nights and 5 days) to Thailand from 25.11.2003 to 29.11.2003 through Kolkata Branch office of petitioner on 22.10.2003. Respondent complied with all the formalities and paid consideration money of Rs.43,806/-. The respondent and his wife were handed over two air tickets, one set for Kolkata to Bangkok and another set from Bangkok to Kolkata. The tickets revealed o.k. status, which meant that both ways traveling was confirmed.
Respondent and his wife took the flight from Kolkata to Bangkok on 25.11.2003 and reached Bangkok. At the Regional Office of Thai Airlines at Pattaya, when the respondent enquired about return journey, it was detected that their names were not in the list for the scheduled return journey. The respondent contacted Thai Airlines Officer who was surprised to see o.k sign printed on the tickets issued by the petitioner for the return journey. However, the officer concerned enquired into the matter and informed the petitioner, finally that petitioner had not put the names of the respondent and his wife and the ticket numbers in the passengers list prepared for the return journey. Respondent contacted one Mr. Suman Bhattacharjee over telephone in Kolkata who was representing the petitioner and Mr. Bhattacharjee assured the respondent that confirmation of tickets will be completed by the next morning.
3. On next morning on 28.11.2003, respondent came to know that tickets were not yet confirmed. Ultimately, in spite of all efforts those tickets were not confirmed and the officer of the Thai Airlines informed the respondent and his wife that they had only one alternative to go back to Kolkata by purchasing new tickets, as the tickets issued by petitioner for return journey could not be availed due to non-confirmation of the same. The respondent contacted the petitioner at Kolkata but could not find anybody to respond. Though, contact number and place at Bangkok of the respondent were intimated, but no response was made by the petitioner. Being frustrated and in the circumstances, respondent and his wife had to purchase fresh tickets in business class for returning to Kolkata by using Visa Credit Card for making payment of Rs.11,800/- for each ticket. After return to Kolkata efforts to negotiate with petitioner for redress failed and respondent filed the complaint seeking Rs.9,93,806/-, which included the tour expenditure of Rs.43,806/-.
4. District Forum vide its order dated 3.7.2009 directed the petitioner to refund the tour price of Rs.43,806/- (Rupees forty three thousand eight hundred six only) and to pay compensation of Rs.50,000/- and litigation cost of Rs.5,000/-.
5. Aggrieved by the order of District Forum, petitioner filed an appeal before State Commission. State Commission modified the order of District Forum and directed the petitioner to refund Rs.23,600/- as the price for tickets for the return journey, compensation of Rs.50,000/- and litigation cost of Rs.5,000/-.
6. It is contended by learned counsel for the petitioner that the tickets issued to the Respondent and his wife were never cancelled and eventually the tickets of both of them were confirmed and the copy of PNR shows that tickets of both of them were confirmed by 1713 hrs. on 29th November, 2003.
7. As per written statement of the petitioner, it is clearly stated that the return tickets of the Respondent and his wife were not confirmed. Thus, deficiency in services provided by the petitioner to the respondent is writ large in the written statement itself.
8. District Forum in its order observed as under:--
Annex-32 is very important with regard to the allegation of the complainant wherein the O.P. has admitted the delay of the flight causing inconvenience to the complainant and his wife and it has been specifically stated by them in their letter wherein they have said I hope you will bear with us for the delay and we will address all the points raised in your letter as soon as we are in a position to do so. If you have any more to add to your letter or wish to discuss any issue with me personally, please do not hesitate to contact me. Said in other words, the O.P. has admitted the delay and the inconvenience caused to the complainant and his grievances have been ventilated through his letter dated 2-12-2003, annex-26 & 27 and 08-12-2003, annex. 29.
It has inter alia been contended that in the morning of 29-11-2003 the complainant rushed to Thai Airways office and there he came to know that their tickets were not confirmed and they decided to buy fresh tickets of business class to return to Kolkata. Eventually and admittedly there was delay and it appears not only from the petition of complainant but also from the tickets that both the tickets from Kolkata to Bangkok and back to Kolkata were O.K. and the tickets were confirmed. But ultimately they came to learn that in the journey from Bangkok to Kolkata their names were not listed in the passengers list. And the Thai Airways officer was surprised to note the status of the tickets as O.K. It is no where mentioned in the way or no evidence has been adduced either orally or documentary from the side of the O.P. that the cancellation of return tickets of the complainant and his wife from Bangkok to Kolkata was duly communicated to them well in ahead. We do not find any fault in this regard on the part of the complainant who for getting assured moved from pillar to post and post to pillar at Bangkok for their return journey to Kolkata. On the other hand, it clearly appears to us that in this regard the O.P. is guilty of deficiency of service. We have also perused the Annexures of the O.P. viz. 1 to 18 including the tickets, cash memo, provisional receipt proposal cum insurance certificate etc. Therefore, considering the facts and circumstances, evidence on record both orally and documentary, we are of the opinion that the complainant has been able to prove his case.
9. The State Commission while confirming the findings of the District Forum has observed ;
On merit I find that the booking of tickets of the petitioner and his wife through the OP is admitted.
It is also admitted that tickets were bearing endorsement o.k. meaning confirmed tickets. Opposite party also has not disputed that return journey was not allowed by airlines. The OP tried to make out a case that confirmation was given subsequently to the said tickets of the petitioner and his wife. But no proof has been adduced showing that any such confirmation of the tickets of the petitioner and his wife was given or intimated to the petitioner. The OP's own case as made out in paragraph 4 and 13 of its written statement that the tickets were waitlisted though showed o.k. status, were confirmed eventually. These facts have been stated in paragraph 13 of the written statement with further details. But the very admission of the OP that the tickets were bearing o.k. status but were actually waitlisted is a glaring example of deficiency in service of O.P. The allegation of OP that such fact of wait listing was known to the petitioner and his wife, has not been proved. In the circumstances I find that allegation of the petitioner and his wife stood admitted by the OP.
Therefore, I find that there was deficiency in service by OP.
10. In the present case, there are concurrent findings of the fact by two Fora below, stating that there is deficiency in the service provided by the petitioner. We find no reason to disagree with the findings of the two fora below, which are based on cogent evidence and sound reasonings.
11. In Narsingh Singh through LRs & Ors. Vs. Shanti Devi through LRs & Ors.2010 (115) DRJ 601. Delhi High Court observed;
It is well settled that where two Courts below have given a concurrent findings of facts, this Court under Article 227 of the Constitution of India shall not disturb the findings even if there is some mistake committed in appreciation of some part of evidence. Under Article 227, this Court does not correct the mistakes of law or mistakes of facts. The intervention of the this Court under Article 227 has to be only in those exceptional cases where the fora below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law.
12. Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed;
It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.
13. Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.
14. Since two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition being not maintainable is hereby, dismissed with cost of Rs.20,000/- (Rupees twenty thousand only).
15. Petitioner is directed to deposit the costs by way of cross cheque in the name of Consumer Legal Aid Account within eight weeks from today.
16. In case, the costs are not deposited within prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization.
17. Pending applications stand dismissed.
18. List for compliance on 1st August, 2011.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER Sonia/