State Consumer Disputes Redressal Commission
Sunrise International Tours vs Dr. J.P. Arora on 3 May, 2024
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 2133 OF 2016 (Arising out of order dated 29.11.2016 passed in C.C.No.524/2015 by District Commission, Gwalior) 1. SUNRISE INTERNATIONAL TOURS THROUGH PROPRIETOR RAJKUMAR SINGH, S/O SHRI VISHWANATH SINGH BHADORIA, R/O 119, BALWANT NAGAR, THATIPUR, GWALIOR (M.P.) 2. SUNRISE INTERNATIONAL TOURS, OPPOSITE INCOME TAX OFFICE, CITY CENTRE, GWALIOR THROUGH CO-ORDINATOR AKANSHA JAIN ... APPELLANTS. Versus DR. J. P. ARORA, S/O LATE SHRI H. M. ARORA, R/O HARINIWAS JAMADAAR KHANA, DARZI OLI, LASHKAR, GWALIOR (M.P.) ... RESPONDENT. BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR.SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES : Shri Hemant Kumar Sharma, learned counsel for the appellants. Shri Deepesh Joshi, learned counsel for the respondent. O R D E R
(Passed On 03.05.2024) The following order of the Commission was delivered by A. K. Tiwari, Acting President:
The opposite parties/appellants being dissatisfied with the order dated 29.11.2016 passed by the District Consumer Disputes Redressal Commission, Gwalior (for short 'District Commission') in C.C.No.524/2015, whereby the complaint filed by the complainant/respondent has been allowed, has filed this appeal.-2-
2. Facts of the case in short as stated by the complainant are that the complainant had hired services of the opposite parties who are the travel and tour agency for a tour from Bangalore to Singapore. As per tour package the charges are Rs.61,000/- per person and Rs.41,000/- for the child including travel insurance. Later they were ready for Rs.40,000/- for the child. The tour package was for 5 nights and 6 days to be started from 24.12.2013 to 29.12.2013. The detailed itinerary of the places to be visited etc. was made available by the opposite parties to the complainant in which daily breakfast, 5 dinner, 5 night's accommodation in Singapore, Sentosa island tour with underwater world, dolphin lagoon show etc. Singapore Flyer, Night Safari, Singapore Zoo+Zerong World Park, Ocean Park, Half Day City Tour of Singapore, Universal Studio+ Laser Light Show. All transfers (Airport-Hotel-Airport). All transfers on SIC basis, Air Tickets & Airport Taxes, Visa fee and travel insurance.
3. It is further submitted that except tour package amount, the opposite parties had obtained two lakh rupees from the complainant for converting and providing the same in Singapore currency. It is alleged that no information was received from the opposite parties till 20.12.2013, thereafter the relatives of the complainant approached the opposite parties' Bangalore office from where they came to know the opposite parties made arrangement for tour from 27.12.2013 in place of -3- 24.12.2013. The oppsotie parties sent flight tickets for 28.12.2013 and on 28.12.2013, the complainant along with his wife, daughter, son-in-law and granddaughter proceeded to Singapore where the opposite parties made arrangement for one day stay in Hotel Fragrance Imperial. On making demand of foreign currency it was informed that they will get the same in Singapore. It is alleged that on 28.12.2013 when they reached Singapore, no agent or representative of the opposite parties reached at Airport to attend them. After waiting for a long time for two and half hours and repeatedly calling the opposite parties, the opposite parties arranged one taxi from airport to hotel. On reaching hotel, they found that only for one day the hotel was booked and as per tour package no breakfast and dinner was made available.
4. It is alleged that on the next day i.e. 29.12.2013 they were forced to vacate the hotel at 12.00 noon and till evening no alternative arrangement was made. In evening arrangement for stay was made in another hotel Summerview which was also forced to vacate on 30.12.2013. At 6.00 pm in the same hotel another accommodation was provided which was again forced to vacate on 31.12.2013. On the same day in evening arrangement for stay was made in Hotel Fortune which was again forced to vacate on 01.01.2014. Since the returning flight was in night, the complainant and his family members had to stay outside till -4- night. It is also alleged that for local transport, they themselves bear expenses. The amount of Rs.2,00,000/- received for foreign exchange was also not given in foreign currency. It is alleged that the facilities as promised in the tour package such as transport expenses, breakfast and dinner were not provided and the complainant along with his family members had to repeatedly change the accommodation. The complainant also made complaint against the opposite parties for the said Rs.2,00,000/- in police. The complainant therefore alleging deficiency in service against the opposite parties filed a complaint before the District Commission seeking relief.
5. The opposite parties did not file written statement/reply to the complaint within the specified time period, therefore the reply filed by them was not taken on record.
6. The District Commission partly allowing the complaint directed the opposite parties to pay jointly and severally Rs.3,36,000/- to the complainant with costs of Rs.1,500/- within 30 days failing which the amount shall carry interest @ 8% p.a.
5. We have heard learned counsel for the parties and perused the record as also the impugned order.
6. Learned counsel for the opposite parties/appellants argued that the impugned order passed by the District Commission is against the -5- facts and evidence available on record. The complainant has wrongly mentioned that the opposite parties had received Rs.4,84,000/- whereas the complainant had paid only Rs.3,20,000/- towards the entire tour. The District Commission did not consider this aspect that the facilities as promised were made available to the complainant. The complainant neither in his complaint nor in his affidavit has mentioned that from where they arrange funds to meet expenses in Singapore. The opposite parties made available foreign currency to the complainant during his tour. For want of sufficient evidence, it is not proved that the opposite parties did not made available foreign currency to the complainant. The complainant also did not produce any evidence regarding expenses incurred by him in Singapore. The District Commission without considering this aspect erroneously awarded Rs.1,36,000/- on this count. The complainant did not produce any evidence in support of their contention that the opposite parties did not provide the facilities to the complainant as promised. The District Commission without any basis has awarded compensation of Rs.2,00,000/- to the complainant. He therefore prayed for setting aside the impugned order.
7. Learned counsel for the complainant/respondent supporting the impugned order argued that at the very first there was change in tour programme without any intimation to the complainant, thereafter on every -6- day the complainant was forced to vacate the hotel and the opposite parties also did not make available the local transport facility and breakfast and dinner as assured was also not provided. Most of the time the complainant and his family members had to stay outside the hotel and they had to incur additional expenses which caused inconvenience and disappointment. He argued that the opposite parties charged large amount and also did not cooperate with the complainant. The opposite parties also did not make available foreign currency to the complainant as assured which caused hardships and inconvenience. This act of the opposite parties amounts to deficiency in service and the District Commission has rightly allowed the complaint. He argued that the appeal is having no merit and deserves to be dismissed. He placed reliance on the decisions of the Hon'ble National Commission in Cox And Kings (I) Pvt. Ltd. Vs Col. S. P. Putchala & Anr IV (2010) CPJ 65 (NC) and in Kuoni Travel (India) Pvt. Ltd. Vs Arun Sinha & Ors. I (2012) CPJ 513 (NC).
8. The complainant has filed his affidavit along with certain documents. Affidavits of Rajkumar Singh and Akansha Jain were filed on behalf of opposite parties.
9. We have carefully perused the record as also the impugned order. On perusal of the record, we find that the opposite parties were served through newspaper publication on 07.08.2016. For the first time -7- counsel for the opposite party no.2 appeared on 29.08.2016 and counsel for opposite party no.1 appeared on 14.09.2016 and sought time to file reply to the complaint but did not file the same till 26.09.2016. On 26.09.2016 the opposite parties filed reply to the complaint i.e. after 45 days, therefore, the District Commission vide order dated 26.09.2016 declined to take the reply on record holding that the same was not filed within 45 days the maximum time stipulated under the Consumer Protection Act, 1986 (hereinafter referred to as 'Act'). Thereafter the matter was fixed for evidence. On 15.11.2016 arguments of the parties were heard and on 29.11.2016 the impugned order was passed partly allowing the complaint filed by the complainant.
10. Feeling aggrieved by the impugned order, the opposite parties have filed this appeal on merits. Learned counsel for the appellants has taken various grounds as aforesaid in memo of appeal.
11. It is pertinent to mention here that the opposite parties have filed this appeal challenging the impugned order on merits of the case. In the memo of appeal, learned counsel for the appellants has not taken any ground for setting aside the order dated 26.09.2016 by which their reply was not taken on record. Against the said order dated 26.09.2016, earlier also the opposite parties have also not preferred any Revision Petition.
-8-12. Before going into the merits of the case, the question remains before us that when the right to file reply to the complaint of the opposite parties was closed and there is no reply on the record, whether the opposite parties company can challenge the impugned order on merits in appeal.
13. On due consideration of the provisions of the Act as also the Civil Procedure Code, we find that once when the written statement along with documents and affidavits has not been filed by the opposite parties before the District Commission within stipulated time period they have no right to file the appeal on merits or raise any ground on merits even when in appeal there is no prayer to set-aside the order dated 26.09.2016 of the District Commission regarding closure of their right to file reply to the complaint.
14. Hon'ble Supreme Court in New India Assurance Company Limited Vs Hilli Multipurpose Cold Storage Pvt. Ltd. II (2020) CPJ 1 (SC) has held that the "District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act." The District Commission has no inherent power except to follow the prescribed procedure for disposal of the case as per the Act.
-9-15. In view of the above discussion, we are of a considered view that when the reply/written statement of the opposite parties was not taken on record by the District Commission and that order has attained finality, the opposite parties have no right to file appeal on merits as it will be deemed that there was no defence or pleadings put forward by them before the District Commission.
16. Similar view has been taken by this Commission in First Appeal No.1234/2016 (Life Insurance Corporation of India & Anr Vs Satendra Singh Jat) decided on 17.07.2023.
17. If the general defence of the opposite parties without being filing of written statement is taken into consideration, we find that delay in tour programme has occurred on account of the fact that the passports of the complainant's daughter and her husband were of Bangalore. The complainant has alleged that he paid Rs.4,84,000/- towards tour including Rs.2,00,000/- for foreign exchange currency. On the other hand from the documents C-2 receipts, it is apparent that the complainant paid Rs.3,20,000/- and Rs.1,00,000/- by his son-in-law through bank transfer i.e. Rs.4,20,000/-. There is no receipt of Rs.64,000/- which is alleged to have been paid in cash.
18. From the document C-8, email dated 27.12.2013 we find that the opposite parties have informed the complainant's daughter that still we -10- are not manage your currency so please manage and give your account number so that we can refund your currency amount. It is thus clear that the opposite parties had obtained Rs.2,00,000/- for providing Singapore currency and they failed to provide the same. At the rate of Rs.61,000/- for four persons and Rs.40,000/- for child the amount comes to Rs.2,84,000/-. However, from the record it is proved that the complainant paid total Rs.4,20,000/- to the complainant. In this regard, the complainant has proved his case and the District Commission after appreciating the evidence available on record has rightly directed for refund of Rs.1,36,000/- (Rs.4,20,000-Rs.2,84,000).
19. However, from the record we find that the complainant availed the tour for the period w.e.f. 28.12.2013 to 02.01.2014. We find that though the complainant faced problem and hardship in changing the hotel again and again but it is clear that most part of the arrangement of the tour was successfully conducted by the opposite parties and the complainant and his family members availed the same. The judgments relied upon by learned counsel for the complainant/respondent are distinguishable on facts and are not applicable in the present facts and circumstances of this case.
20. Considering the aforesaid circumstances, we find that the amount of Rs.2,00,000/- awarded by the District Commission towards -11- compensation is on higher side which needs to be reduced appropriately and the ends of justice would meet if we reduce the same from Rs.2,00,000/- to Rs.50,000/-. Thus by modifying the impugned order we direct the opposite parties/appellants to pay jointly and severally to the complainant Rs.1,36,000/- + Rs.25,000/- total Rs.1,61,000/- within a period of two months failing which the amount shall carry interest @ 6% p.a. from the date of this order till payment. Rest of the order regarding costs of Rs.1,500/- shall remain unaltered.
21. In the result, with the modification in the impugned order to the extent indicated hereinabove, this appeal stands partly allowed. No order as to costs.
(A. K. Tiwari) (Dr. Srikant Pandey) Acting President Member