State Consumer Disputes Redressal Commission
Mr Sanjay Worlikar, Proprietor ... vs Seema Marathe & Ors. on 22 March, 2011
Per Shri P
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal
No. A/10/493
(Arisen out
of Order Dated 31/03/2010
in Case No. 85/2002 of District Additional DCF, Mumbai(Suburban))
1. MR SANJAY WORLIKAR, PROPRIETOR
RAJSHREE TRAVEL N TOURS, 2, NADANVAN NIWAS ROAD,
SANTACRUZ(WEST), MUMBAI - 400 054.
...........Appellant(s)
Versus
1. SEEMA MARATHE
D/2, BHARTIYA BHAVAN, 17 TH
ROAD, KHAR, MUMBAI - 400 052.
2. Mrs. Prabha J. Magdum
Shivaji Housing Society, Lane No. 13, Jaysingpur,
Dist. Kolhapur 416 101.
3. Mrs. Sampada B. Ghate
Through Jayprabha
English School,
Post Jaisinghpur, Tal Shirol, Dist. Kolhapur
- 416 101.
4. Shri. Kundan Chavan
64, Vikrant Society, MIDC Kodali, Satara - 415 004
5. Mrs. Sucheta G. Sabnis
42, Budhwar, KrIshna Sahakari
Griha Rachana Sanstha, Ganpati Chowk, Pune - 411 002
...........Respondent(s)
BEFORE:
Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member
Hon'ble Mr. Dhanraj Khamatkar Member
PRESENT:
Mr.S. B. PRABHAVALKAR , Advocate for the Appellant
None present for the respondents.
ORDER
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member
1. This is an appeal filed by the org. opponent against the judgement and award passed by Addl. District Consumer Disputes Redressal Forum, Mumbai Suburban delivered in consumer complaint No.85/2002 decided on 31/03/2010.
While allowing the complaint partly, District Consumer Forum directed the opponent to give refund of `8,000/- to each of the complainants as compensation for deficiency in service and also directed payment of `3,000/- to the complainants.
2. Case of the parties in the District Consumer Forum was that the five complainants filed joint complaint alleging deficiency in service and unfair trade practice on the part of opponent, who is proprietor of Rajashree Travels & Tours. According to the complainants, opponent organized various tours to the pilgrimage Centers. In 2001 he had organized pilgrimage to Manas Sarovar. Complainants alleged that in that year there was Kumbhamela at Tibet and they were assured that the travellers/tourists would be taken to Kumbhamela on the day of Buddha Poornima day i.e. 07/05/2001 and tourists would be in a position to witness the Kumbhamela.
They had also told the complainants that they would be taken to Kailash Parikrama and to the Tirthpuri, another pilgrimage centre of Tibet and they would be given cruise trip and in every cruise there would be four passengers only. According to the complainants, they booked the said tour by paying `68,000/- per complainant to the opponent. They had participated in the tour programme and ultimately when they returned, they found that there was no Kumbhamela at Tibet as alleged by the opponent. They also found that they were also not taken to Kailash Parikrama though that was the promise given by the tour operator. The complainants alleged that they were not taken to Tirthpuri though in their Booklet, opponent had specifically mentioned that Kailash Yatra would not be over unless the tourists or passengers visited the Tirthpuri. They also alleged that there was deficiency in service in as much as in the cruise trip, five passengers were accommodated in every boat in place of four passengers as was promised by the tour operator and thereby, they were greatly inconvenienced. The complainants also alleged that tour programme was from 28/04/2001 to 17/05/2001 covering 20 days. However, opponent reduced the tour by three days and brought them back on 14/05/2001 instead of 17/05/2001. Therefore, they alleged deficiency in service on the part of tour operator/opponent-appellant herein.
As such, they filed consumer complaint alleging deficiency in service on the part of opponent and they claimed refund of whole of the amount and also claimed `31,000/- per complainant as compensation for deficiency in service.
3. Opponent filed written version and pleaded that all the five complainants could not file one single complaint under the Consumer Protection Act, 1986. He also pleaded that the tour programme was subject to terms & conditions and terms and conditions specifically stipulated that in case of calamity because of snowfall, he would not be in a position to take passengers to Kailash Yatra. He also reserved his rights to change tour programme. He told everybody that tour programme would be subject to the directions given by the Chinese Authority or Tibetian Authority and it would also depend upon the climatic changes. He denied that he had assured the complainants that he would take complainants on 07/05/2001 for Kumbhamela in Tibet on the day of Buddha Poornima. According to him, Hindu people organized Kumbhamela and not Tibetian people. He admitted that Shri R.K. Pradhan was the Group Leader of said tour.
However, the complainants were not prepared to give undertaking that they would undertake Kailash Parikrama at their own risk which was the condition insisted upon by the Police Superintendent of Tibet. There was bad weather at that time in Tibet and therefore, only those tourists were allowed to go further by the Police Superintendent, if they gave undertaking in writing to the Police that they would be undertaking Kailash Parikrama on their own risk.
According to the opponent, complainants were not prepared to give undertaking as sought for by the Police Superintendent, Tibet and therefore, complainants were not allowed to go with the tourists who were going to Kailash Parikrama. Opponent also pleaded that he had not taken complainants to Tirthpuri since because of military movement tourists were not allowed to take dip of Tirthpuri which was beyond his control. Opponent pleaded that tour was conducted subject to terms and conditions and he had every rights to curtail duration of the tour or to make necessary changes depending upon the various contingencies.
He asserted that all the complainants enjoyed the trip to the fullest possible extent and there was no need to give refund to them. He pleaded that complaint filed by the complainants is absolutely false and should be dismissed.
4. On the basis of affidavits and documents placed on record, District Consumer Forum after hearing both the parties allowed the complaint partly and on finding that there was some deficiency in service on the part of the tour operator, District Consumer Forum directed refund of `8,000/- each to all the complainants and also directed payment of `8,000/- each as compensation for deficient service and directed `3,000/- to be paid as cost to the complainants. As such opponent filed this appeal.
5. We heard Mr.S.B. Prabhawalkar, Advocate for the appellant. None is present for the respondents though on previous dates, one Mr.Rananaware had appeared for respondents.
6. We are finding that the complainants were not taken to Kailash Parikrama on flimsy grounds.
Persons who are going to Kailash Parikrama tour always desired to go to Kailash Parikrama and whatever conditions prescribed by the local authority, complainants would have complied with the same. There is nothing on record to suggest that as directed by the Superintendent of Police, Tibet, the complainants had not executed the undertakings that they were going for Kailash Parikrama at their own risk since there was bad weather.
Opponent has failed to establish that there was bad weather at that time and that condition was imposed by the Tibet police that each tourist should execute undertaking that he would be going further for Kailash Parikrama at his own risk. No such proof had been adduced on behalf of the opponent.
Therefore, District Consumer Forum rightly held that not taking the complainants to Kailash Parikrama amounted to deficiency in service on the part of tour operator.
7. Secondly, District Consumer Forum also noted rightly that near Manas Sarovar there was Tirthpuri.
It was a pilgrimage centre and everybody has to go to Tirthpuri and take a bathe in hot water pond.
Manas Sarovar pilgrimage is not completed unless every tourist goes to Tirthpuri and takes a holly dip in the hot water. What is pertinent to note is that the complainants were not allowed to take bath and to take darshan at Tirthpuri though they were taken to Tirthpuri.
The contention of the opponent was that he had taken permission of the authority at Zhangmu, but because of movement of army, tourists were not allowed to take holly dip in hot spring water and to make visit to Tirthpuri. No proof is adduced in the District Consumer Forum on behalf of the appellant in that behalf that he had taken permission of the authorities at Zhangmu, but because of movement of army, they were not permitted to visit Tirthpuri or to take holly dip in hot spring water.
8. Thirdly, it was grievance of the respondents that while taking cruise in a boat, 5 passengers of the group adjusted in one boat whereas in the booklet, they had mentioned that in every cruise only 4 passengers would be taken. So, by taking 5 passengers, respondents were greatly inconvenienced and they could not enjoy the cruise trip properly.
So, there was certainly deficiency in service on the part of the appellant. It is further observed by the District Consumer Forum that tour programme was reduced by three days though they were supposed to return on 17/05/2001, the tour operator brought them in Mumbai on 14/05/2001.
Despite the fact that there was no reason or circumstance beyond the control of tour operator, curtaining 2-3 days of the tour amounted to deficiency in service on the part of tour operator. In the circumstances, District Consumer Forum appears to have rightly passed the order directing refund of `8,000/- to all the complainants and also directing payment of `8,000/- as compensation for deficiency in service and inconvenience suffered by the complainants/respondents herein.
9. It was tried to be contended by the Advocate for the appellant that the law does not contemplate filing of joint complaint by all the five affected persons. They should have filed five separate complaints.
However, Consumer Protection Act, 1986 permits filing of complaint jointly under Section 2(1)(b)(iv) of the Consumer Protection Act,1986. Under this clause, one or more consumers having same interest can file joint consumer complaint and only requirement is that in such a case permission of the District Consumer Forum is required to be taken for filing such complaint and it has come in the judgement itself that District Consumer Forum had given permission under Section 12(1)(c) of the Consumer Protection Act,1986 to the complainants to file joint complaint. In the circumstances, the arguments of Advocate Mr.Prabhawalkar, Learned Counsel for the appellant is appearing to be devoid of any substance.
We are of the view that Rule 2(b) of the Maharashtra Consumer Protection Rules permitted Authorised Representative to file consumer complaint and this complaint can be said to have been duly filed covering provisions of Rule 2(b) of the Maharashtra Consumer Protection Rules. Moreover, this is a very technical objection which cannot be allowed to defeat ends of justice. We are therefore finding that there is no merit in the objection taken by Advocate Mr.Prabhawalkar in this behalf.
10. On the whole, we are finding that the award passed by the District Consumer Forum is appearing to be just and proper and the District Consumer Forum has rightly decided the complaint and had granted some reliefs to the complainants who were sore with inconvenience caused during the tour and were not satisfied with the deficient service meted out to them by the appellant herein. In the circumstances, we are finding no substance in the appeal. Hence, we pass the following order :-
-:
ORDER :-
1.
Appeal stands dismissed.
2. Appellant is directed to pay cost of `5,000/- jointly to the complainants and bear his own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 22nd March 2011 [Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member [Hon'ble Mr. Dhanraj Khamatkar] Member dd