State Consumer Disputes Redressal Commission
Major Satnam Singh Proprietor. vs Dalhousie Hill Top School on 6 May, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 95/2018
Date of Presentation: 01.03.2018
Order Reserved on : 18.12.2018
Date of Order : 06.05.2019
......
Major Satnam Singh Proprietor Torna Holidays 214-316
Krishna Mall Plot No.5 Sector 12 Dwarka New Delhi-110 075.
...... Appellant/Opposite Party
Versus
Dalhousie Hill Top School Dalhousie Upper Bakrota Khajjiar
Road P.O and Tehsil Dalhousie District Chamba H.P through its
President namely Smt. Poonam Dhawan.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Ms. Divya Sood Advocate.
For Respondent : Ms. Megha Kapur Gautam
Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 11.01.2018 passed by Learned District Forum in consumer complaint No.18/2017 titled Dalhousie Hill Top School District Chamba (H.P) Versus Major Satnam Singh Proprietor 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 Torna Holidays Krishna Mall Plot No.5 Sector 12 Dwarka New Delhi.
Brief facts of consumer complaint:
2. Complainant Dalhousie Hill Top School Dalhousie filed consumer complaint against Proprietor Torna Holidays under section 12 of Consumer Protection Act 1986 pleaded therein that complainant school organized an international educational trip for its 19 students to National Aeronautics and Space Administration (NASA) in united states of America (USA). It is pleaded that opposite party is into the business of organizing international tours and travels and complainant school contacted opposite party for organizing international educational trip for 19 students in USA. It is pleaded that complainant school collected the payments from parents of interested students and remitted the same in the account of opposite party on dated 07.09.2015, 28.09.2015 and 29.09.2015 respectively. It is pleaded that complainant school paid total amount of Rs.1600000/-(Sixteen lac) to opposite party for organizing the entire trip to foreign country.
3. It is further pleaded that despite payment of entire consideration amount opposite party failed to procure visa in time and as a consequences international educational trip of students could not be materialized. It is pleaded that trip could not be materialized due to fault of opposite party. 2
Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 It is pleaded that opposite party was under legal obligation to refund the entire payment paid to opposite party. It is pleaded that opposite party told the complainant that he would deduct an amount of Rs.25000/-(Twenty five thousand) for each student as booking confirmed amount. It is pleaded that complainant agreed to the proposal of opposite party and requested the opposite party to refund the remaining amount but opposite party did not refund the remaining amount despite several requests. It is pleaded that opposite party committed deficiency in service. Complainant sought relief of payment of Rs.1600000/-(Sixteen lac) alongwith interest @ 12% per annum w.e.f. 01.12.2015 till actual payment. In addition complainant sought relief of payment of Rs.200000/- (Two lac) as punitive damages. In addition complainant sought litigation costs from opposite party. Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite party pleaded therein that complainant has no cause of action to file the present consumer complaint. It is pleaded that complainant has not come to Forum with clean hands. It is pleaded that complainant is estopped to file present consumer complaint by his own act and conduct. It is further pleaded that learned District Forum has no territorial jurisdiction to entertain and dispose of present consumer complaint. It is 3 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 pleaded that as a matter of fact 19 students plus one person from school administration as facilitator/escort/companion proposed to visit in NASA situated at USA. It is admitted that opposite party is in the business of organizing international Tours and Travels. It is pleaded that for international tour personal information of all ward and their parents and information regarding profession alongwith documentary proof were necessary for visa. It is admitted that opposite party has received an amount of Rs.1600000/-(Sixteen lac) from complainant. It is pleaded that necessary information was not provided by complainant to opposite party for procurement of visa in time. It is pleaded that consent of facilitator/companion/escort was not given to opposite party. It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Complainant filed rejoinder pleaded therein that Mrs. Poonam Dhawan President of complainant school is a US citizen and is holding U.S. Passport and she did not require any special visa to travel to U.S. It is pleaded that when opposite party approached the school at Dalhousie then it was informed that Mrs. Poonam Dhawan would perform duty of facilitator/companion/escort. It is further pleaded that on dated 04.09.2015 opposite party received booking 4 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 amount and also told that non refundable amount would be only Rs.25000/-(Twenty five thousand) for each student.
6. Learned District Forum partly allowed the complaint and ordered opposite party to refund an amount of Rs.1600000/-(Sixteen lac) to complainant alongwith interest @ 9% per annum from the date of filing of complaint till actual payment. In addition learned District Forum ordered that opposite party would pay an amount of Rs.150000/-(One lac fifty thousand) as compensation to complainant for mental harassment. In addition learned District Forum ordered that opposite party would pay litigation costs to complainant to the tune of Rs.3000/-(Three thousand). Feeling aggrieved against order passed by Learned District Forum opposite party filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether opposite party is legally liable to refund entire amount after deducting booking charges to the tune of Rs.25000/-(Twenty five thousand) per student? 5 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit of Mrs. Poonam Dhawan Ext.CW-1 President of Dalhousie Hill Top School Dalhousie in evidence. There is recital in affidavit that deponent is President cum Manager of Dalhousie Hill Top School Dalhousie District Chamba (H.P). There is recital in affidavit that deponent school organized an international educational trip for its 19 students to NASA in USA. There is recital in affidavit that opposite party is into the business of organizing international tours and travels and therefore opposite party offered to organize tour to USA. There is recital in affidavit that deponent school collected payment from ward of interested children and remitted the amount in the account of opposite party on dated 07.09.2015, 28.09.2015 and 29.09.2015.
10. There is recital in affidavit that an amount of Rs.1600000/-(Sixteen lac) was paid to opposite party as consideration amount for entire foreign country trip. There is further recital in affidavit that despite payment of entire consideration amount opposite party failed to procure visa for the students and consequently foreign country trip could not be materialized. There is recital in affidavit that deponent requested opposite party to refund the amount but opposite 6 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 party did not refund the amount and told that opposite party would deduct an amount of Rs.25000/-(Twenty five thousand) for each student as booking amount. There is recital in affidavit that deponent school acting in good faith agreed to proposal of opposite party on the condition that opposite party would immediately refund the remaining amount.
There is recital in affidavit that deponent is citizen of USA holding U.S Passport and she did not require any visa for travelling to USA. There is recital in affidavit that onus was upon opposite party to procure visa for students for USA but opposite party did not procure visa for USA and committed deficiency in service. State Commission has carefully perused all annexures filed by the complainant.
11. Opposite party also filed affidavit Ext.OPW-1 in evidence. There is recital in affidavit that deponent is proprietor of Torna Holidays. There is recital in affidavit that complainant contacted opposite party for organizing international educational trip to USA for 19 students plus one tour companion/escort. There is recital in affidavit that complainant did not provide relevant documents in time for visa. There is recital in affidavit that visa could not be procured due to fault of complainant. State Commission has carefully perused all the annexures filed by opposite party. 7
Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018
12. Submission of learned Advocate appearing on behalf of appellant that order of learned District Forum directing opposite party to refund an amount of Rs.1600000/- (Sixteen lac) to complainant alongwith interest @ 9% per annum from the date of filing complaint till actual payment warrants interference by State Commission is decided accordingly. It is proved on record that school organized international educational trip for 19 students for NASA situated in USA and obtained the services of opposite party who fails in organizing international tour. It is proved on record that complainant has paid an amount of Rs.1600000/- (Sixteen lac) to opposite party as expenditure of entire tour. It is also proved on record that tour could not be materialized due to non-issuance of visa to foreign country. It is also proved on record that as per annexure-OP-1 placed on record that opposite party was legally competent to retain booking charges to the tune of Rs.25000/-(Twenty five thousand) only per person. It is proved on record that complainant agreed for relinquishment of Rs.25000/-(Twenty five thousand) booking charges per student but despite this fact opposite party did not refund the remaining amount to complainant till date and has retained the entire amount till date. State Commission is of the opinion that opposite party was not legally competent to retain entire amount because international tour of students to NASA at USA was not operated due to want of visa. All 8 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 formalities required for obtaining visa were completed by the complainant.
13. Submission of learned Advocate appearing on behalf of appellant that due to non-furnishing name of facilitator/escort/companion visa could not be obtained in time is decided accordingly. It is proved on record that Smt. Poonam Dhawan is the President of Dalhousie Hill Top School Dalhousie Chamba (H.P) and it is also proved on record that Smt. Poonam Dhawan is already holding passport for USA as she is citizen of USA. It is also proved on record that Smt. Poonam Dhawan informed opposite party that she would perform the duty of escort/ companion/facilitator alongwith students but despite this fact opposite party did not procure visa in time despite receiving all consideration amount. It is held that deficiency on the part of opposite party is writ large in the present matter. State Commission is of the opinion that opposite party could not be allowed to retain the money of minor students who are wealth of a nation in an illegal manner. It is proved on record that international educational trip was organized for students who were minors in age. It is well settled law that courts, commissions and tribunals are the custodian of minor's interest as per law. In the present matter interest of minor is involved and it is held that paramount consideration of State Commission is interest of 9 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 minors only. State Commission is of the opinion that opposite party is under legal obligation to return the received amount after retaining booking charges to the tune of Rs.25000/-(Twenty five thousand) per student only.
14. Submission of learned Advocate appearing on behalf of appellant that excessive compensation to the tune of Rs.150000/-(One lac fifty thousand) has been granted by learned District Forum to complainant and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission is of the opinion that excessive compensation for mental harassment to the tune of Rs.150000/-(One lac fifty thousand) has been granted by learned District Forum and same deserves reduction in the ends of justice and on the principle of natural justice.
15. Submission of learned Advocate appearing on behalf of appellant that excessive litigation costs ordered by learned District Forum and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission is of the opinion that complainant has filed present consumer complaint for interest of minor students. It is proved on record that complainant engaged Advocate before learned District Forum and also paid other litigation costs. State Commission is of the opinion that it is not expedient in 10 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 the ends of justice and on the principle of natural justice to reduce the litigation costs ordered by learned District Forum.
16. Submission of learned Advocate appearing on behalf of appellant that complainant has no cause of action against opposite party is decided accordingly. It is proved on record that opposite party has received consideration amount of Rs.1600000/-(Sixteen lac) from complainant for arranging international tour of students to NASA at USA. It is proved on record that international trip could not be operated for want of visa. State Commission is of the opinion that onus was upon opposite party to obtain visa because opposite party deals in international tours and travels business. Hence it is held that complainant has cause of action to file the present consumer complaint against opposite party.
17. Submission of learned Advocate appearing on behalf of appellant that learned District Forum Kangra at Dharamshala (H.P) has no territorial jurisdiction to entertain and dispose of consumer complaint and on this ground appeal filed by appellant be allowed is decided accordingly. It is proved on record that consideration amount of international educational trip of students was paid to complainant from Dalhousie District Chamba H.P which falls within territorial jurisdiction of learned District Forum Kangra at Dharamshala (H.P) as per notification issued by competent 11 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 authority of law. As per section 11 of Consumer Protection Act 1986 consumer complaint could be filed at a place where cause of action wholly arises or partly arises. It is held that in the present matter part of cause of action arises within the territorial jurisdiction of District Chamba H.P from where consideration amount was transmitted to opposite party. Even opposite party has sent several letters to complainant as per address of Dalhousie (District) Chamba (H.P).
18. Submission of learned Advocate appearing on behalf of appellant that opposite party is legally entitled for advance paid booking charges of air flight, advance booking charges of hotels and advance booking charges of transport is decided accordingly. Opposite party did not file affidavit of officials of air flight, officials of hotels and officials of transport authority in order to prove actual expenditure incurred by opposite party. In view of the above stated facts other charges are denied to opposite party except booking charges of Rs.25000/-(Twenty five thousand) per student.
19. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum does not warrants interference by State Commission is decided accordingly. It is proved on record that complainant has issued legal notice to opposite party on dated 01.11.2016 annexure-C10 and in the legal notice complainant himself 12 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 agreed for relinquishment of Rs.25000/-(Twenty five thousand) per student as booking charges in favour of opposite party. State Commission is of the opinion that once complainant has agreed for relinquishment of Rs.25000/- (Twenty five thousand) for each student qua booking charges it is not expedient in the ends of justice and on the principle of natural justice to allow complainant to approbate and reprobate at the same time. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi judicial proceedings and in quasi judicial proceedings concept of approbate and reprobate is not permissible in quasi judicial proceedings. See AIR 1993 SC 352 R.N. Gosain Versus Yashpal Dhir. In view of above stated facts it is held that order of learned District Forum partly warrants interference by State Commission relating to amount of booking charges already paid and relating to compensation amount ordered by learned District Forum to complainant for mental harassment. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
20. In view of findings upon point No.1 above appeal filed by appellant is partly allowed. It is ordered that opposite party shall refund received amount from complainant for organizing international educational trip to NASA at USA after 13 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 deducting booking charges to the tune of Rs.25000/-(Twenty five thousand) per student alongwith interest @ 9% per annum from the date of institution of complaint till actual payment within one month after receipt of certified copy of order of State Commission.
21. Order of learned District Forum that opposite party would pay compensation to the tune of Rs.150000/- (One lac fifty thousand) to complainant for mental harassment is reduced to Rs.50000/-(Fifty thousand). Order of learned District Forum that opposite party would pay litigation costs to complainant to the tune of Rs.3000/-(Three thousand) is affirmed. Opposite party shall pay the amount of mental compensation and litigation costs to complainant within one month from the date of receipt of certified copy of order of State Commission. Parties are left to bear their own litigation costs before State Commission. Order of learned District Forum is modified accordingly.
22. Legal notice issued by complainant to opposite party on dated 01.11.2016 annexure-C10 shall form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to 14 Major Satnam Singh Proprietor Versus Dalhousie Hill Top School F.A. No.95/2018 parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 06.05.2019 KD* 15