State Consumer Disputes Redressal Commission
Cox & Kings Ltd. & Anr. vs Dr.Vishnu Narayan & Anr. on 23 April, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/990
Instituted on : 03.02.2018
1. Cox and Kings,
R/o : Shop No.108, 109, First Floor,
Lal Ganga Commercial Mall, G.E. Road,
Raipur, District Raipur (C.G.).
2. Cox and Kings,
Through : Its Authorized Representative,
R/o : Turner Morrison Building,
16, Bank Street Fort,
Mumbai .... Appellants (OPs)
Vs.
1. Dr. Vishnu Narayan Mishra,
Aged about 59 years,
S/o Late Shri P.N. Mishra,
Professor Medicine Department,
Pandit J.N.M. Medical College,
Raipur, District Raipur (C.G.)
2. Dr. Smt. Nalini Mishra,
Aged about 53 years, W/o Dr. Vishnu Narayan Mishra,
Professor at Pandit J.N.M. Medical College,
Raipur, District Raipur (C.G.)
(Both are resident of 27/272, New Shanti Nagar,
Raipur (C.G.) ) .... Respondents (Complainants)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri S.A. Ashirgarhe, Advocate for the appellants (OPs.).
Shri S.S. Agrawal, Advocate with respondent No.1 (complainant No.1) and on
behalf of the respondent No.2 (complainant No.2).
ORDER
DATED : 23April/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 29th November, 2017, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.01/2016. By the // 2 // impugned order, learned District Forum, has allowed the complaint of the complainants and directed that :-
(a) The OPs will jointly and severally pay Rs.1,00,000/- (One Lakh)to each complainant total Rs.2,00,000/- (Rupees Two lakhs) for deficiency in service, within a period of one month from the date of the order.
(b) The OPs will jointly and severally pay Rs.25,000/- (Rupees Twenty Five Thousand) to each complainant i.e. total Rs.50,000/- (Rupees Fifty Thousand) towards compensation because the complainant could not provide air balloon riding in Temekula and without any reason one day of the complainant was wasted. The O.P. will also pay Rs.25,000/- plus Rs.25,000/- total Rs.50,000/- (Rupees Fifty Thousand) towards compensation for not making arrangement of dinner and for incapability of the tour manager.
(c) The OPs will jointly and severally pay Rs.1,00,000/- (Rupees One Lakh) to the each complainant i.e. total Rs.2,00,000/- (Rupees Two Laknhs) towards compensation for physical and mental agony, to the complainants.
(d) The OPs will jointly and severally pay a sum of Rs.2,000/- (Rupees Two Thousand) towards advocate fees and cost of litigation to the complainants.
2. Briefly stated the facts of the complaint of the complainants are that the American Splendor (ASCBC), which was most expensive premium American Tour for the period from 23.05.2015 to 13.06.2015, which was booked by the complainants by paying Rs.4,42,409/-. After receiving the above amount on // 3 // 15.05.2015, the OPs sent final booking letter along with tour programme to the complainants. The information regarding four star category hotel facility, which was to be provided in premium tour category was given in the Tour Book of Cox and Kings for the year 2015. The information given before two days of journey regarding the hotel in which the complainants were to stay, was different from the above four star hotels. The hotel in which arrangement for stay of the complainants were made was not four star hotels which were shown in the list and some of the hotels are situated at the distance of 60-80 kms from main city, which takes 1 ½ to 2 hours. The OPs did not provide premium luxury tour services and according to the tour programme, it was essential for the OPs to provide the same to the complainants. The services were provides to the complainants as general passengers. Due to above, the complainants suffered financial loss, mental and physical agony. On 23.05.2015, the Tour Manager Shri Thomas Mathew was required to meet with the complainants at the airport. When the complainants came outside the airport, then the tour manager was not there and there was no facility to sit outside the airport. The complainant were stood near about two hours after tiring journey of twenty four hours, at Newyork and thereafter Shri Thomas Mathew appeared and he informed that the cause of becoming late is that he had to attend other tourists. The OPs were to make all arrangements, but there was deficiency in service on the part of the OPs. The complainants waited for near about 30 minutes for bus and thereafter about 07:40 the complainants reached the hotel of Newyork city. The OPs told the complainants to come at 08.30 for dinner at lobby of hotel, thereafter the complainant reached to the lobby, but the OPs without giving any information to the complainants left the // 4 // restaurant due to which the complainants did not take dinner and they suffered mental and physical agony, for which the OPs are responsible. For next air journey to go Baffelo, the aeroplane was to be got from Baltimore air port, but according to tour manager the same was to be got from Newyork airport. The driver of the OPs informed that near about 1 ½ will be taken for reaching the airport. The Tour Manager instructed the driver to drive the vehicle speedily, due to which accident can be occurred. The complainants suffered mental agony. The OPs did not make arrangement of stay of the complainant in the hotels of Toronto, Montriya and Otawa, which were mentioned in the brochure and the complainants were stayed at the hotels near sub-city, which are situated at a distance of travel of 1 to 1 ½ hour, therefore, every day two-three hours was lapsed. The complainant were deprived to use above time for visiting the city. The OPs make arrangement for stay of the complainants in such type of hotel where the dinner was provided like the same standard which was provided to the passengers low rate tour packages "Super Saver" and "Budget Tour" because along with the complainants, other passengers were also provided serviced whereas the complainants had taken premium tour package which was costly to the tune of Rs.1,00,000/- from the other packages. The arrangement for dinner of the passengers of Premium Tour was required to be made separately in Premium Restaurant, which was not made by the OPs for taking pecuniary benefit. The Tour Guide of the OPs was not aware of Sanfransisco Air Port and and he was searching the group of 44-45 person in the basement to label 1 and lable 2 of the Air Port twice for taking articles, due to which time of 2-3 hours was wasted. The Tour Manager of the OPs did not take the complainants to // 5 // Temekula for Hot Air Baloon Ride. In the tour information given by the OPs, it has been shown as star attraction. The reason for not taking for Hot Air Baloon has been told that there was not sufficient numbers of the passengers, whereas the other 15 members of the group of the complainant were also desirous to go and were ready to make payment. In the Los Angeles, there was no arrangement of stay of the complainants in four star hotel, which were near airport and arrangement of their stay was made in sub-town Pamona which was situated at the distance of 1 ½ to 2 hours. The complainant sent email on 30.07.2015 to the OPs after returning from U.S.A. which was received by the OPs on 31.07.2015. The assurance was given to send reply and ultimately on 16.10.2015, the OPs sent detailed reply in which the OPs accepted the deficiency mentioned by the complainants. The OPs committed deficiency in service and unfair trade practice. Hence, the complainants filed instant complaint and prayed for granting reliefs, as prayed by them in the relief clause of the complaint.
3. The written statement was not filed by the appellant (O.P.) within prescribed period, therefore, the right of the OPs. to file written statement was closed vide order dated 22.04.2016. On 16.11.2017 at about 4.00 PM, when the case was fixed for order, without appeal memo or vakalatnama, the OPs filed written statement and affidavit, which is not readable in the case.
4. The complainants have filed documents. Annexure 1 is brochure, Annexure 5 are receipts, Annexure 6 is letter dated 15.05.2015 sent by the OPs to the complainant No.1, Annexure 7 is General Information, Annexure 7 is list of hotels, Annexure 9 is Comparative Statement of list of promised four // 6 // star hotels and hotels provided during tour, Annexure 10 is Brochure, Annexure 11 is letter written by Mathew Thomas, Tour Manager, Annexure 12 is complaint regarding American Splendours tour mady by V.M. Mishra, Annexure 13 is email sent by OPs to the complainants, Annexure 14 is email sent by the OPs to DR. V.N. Mishra, Annexure 15 is PAN card of Vishnu Narayan Mishra, Annexure 16 is PAN Card of Smt. Nalini Mishra.
5. After having considered the material placed before it, learned District Forum allowed the complaint of the complainant and directed to pay the amount, as mentioned in para 1 of this order.
6. Shri S.A. Ashirgarhe, learned counsel appearing for the appellants (OPs) has argued that the OPs had filed written statement before the District Forum, but it was not taken on record and the case was adjourned for filing written arguments. The case was fixed for filing written statement on 29.11.2017 and on the same day learned District Forum, had passed order and allowed the complaint, therefore, the learned District Forum erroneously did not take written statement filed by the OPs, on record, therefore, the OPs were deprived to defend their case. Therefore, it is essential that the case be remanded back to the District Forum with direction that written statement, which has already been filed by the OPs, be taken on record and after taking written statement, documents and affidavits on record and after hearing both the parties, the case be decided on its own merits.
7. Shri S.S. Agrawal, learned counsel appearing for the respondents (complainants) have argued that the learned District Forum had afforded // 7 // proper opportunity to the OPs filing their written statement. On 22.04.2016, the right of OPs to file written statement was closed because 45 days was expired. Therefore, learned District Forum, did not take the written statement of the OPs on record. The written statement was not filed by the OPs, therefore, it is presumed that non filing of written statement amounts admission of the case of the complainant by the OPs, therefore, the impugned order passed by the District Forum, does not suffer from any infirmity, irregularity or illegality. The appeal filed by the appellants (OPs) is liable to be dismissed.
8. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
9. On perusal of the record of the District Forum, it appears that on 08.03.2016, Shri Santosh Tiwari, learned counsel for the OPs appeared before the District Forum and pray for granting time for filing written statement and documents, thereafter the case was fixed for 11.04.2016 for filing written statement and on 11.04.2016, the case was adjourned for 22.04.2016. On 11.04.2016 and 22.04.2016, the OPs did not file their written statement, then on 22.04.2016, the District Forum closed right of the OPs to file written statement holding that 45 days had expired, but the OPs did not filed their written statement, therefore, right of the OPs to file written statement was closed. The case was fixed for filing documents and affidavit on 24.06.2016. On 24.06.2016, due to sad demise of Advocate (Shri Umesh Dixit) the case was adjourned for 09.09.2016.
// 8 //
10. On 09.09.2016 for want of quorum, the case was adjourned and was fixed on 26.10.2016. On 26.10.2016, due to sad demise of Advocate (Shri Prashant Sharma), the case was adjourned for 28.12.2016 and thereafter the case was adjourned for final arguments several times.
11. On 16.11.2017 at about 4.00 P.M., Shri Santosh Tiwari, counsel for the OPs appeared before the District Forum and filed written statement and documents along with affidavit. Learned District Forum held that the counsel for the OPs had not filed his vakalatnama, therefore, the written statement was not taken in record.
12. In Civil Appeal No.D.No..2365 of 2017 - Reliance General Insurance Co. Ltd. and Another Vs. M/s Mampee Timbers And Hardwares Pvt. Ltd. and Another, the Hon'ble Supreme Court, vide order dated 10.02.2017 has observed thus :-
"........ It will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of cost."
13. In V. Trans India Ltd. Vs. M/s S.K. International & Others, 2017 (4) CLT 250, Hon'ble National Commission has observed that "That pending decision of the larger Bench of the Hon'ble Supreme Court, it is open to the consumer fora to accept the written statement filed beyond the stipulated period on suitable terms including the payment f cost etc."
14. In Ocus Skyscrapers Reality Ltd. Vs. Renu Madan, 2018 (1) CPR 86 (NC), Hon'ble National Commission has observed that "Written Versions // 9 // already filed shall be taken on record subject to appellant paying to each of Complainants costs."
15. In M/s. Singla Builders & Promoters Ltd. Vs. Aman Kumar Garg, 2018 (1) CPR 314 (NC), Hon'ble National Commission has observed that "Non-filing of written version to complaint before State Commission, amounts to admission of allegations leveled against them in consumer complaint."
16. Looking to the facts and circumstances of the case, the written statement filed by the OPs be taken on record subject to payment of some cost and the case is remanded back to the District Forum to decide the case afresh on its merits.
17. Therefore, the written statement, documents and affidavit filed by the OPs are taken on record subject to payment of cost of Rs.15,000/- (Rupees Fifteen Thousand).
18. Therefore, we allow the appeal filed by the appellants (OPs) subject to payment of cost of Rs.15,000/- and the impugned order dated 29.11.2017, is set aside. The case is remanded back to the District Forum, with a direction that the written statement, documents and affidavit, filed by the appellants (OPs) be taken on record. Thereafter, providing opportunity of hearing to both the parties, to decide the matter afresh on merits. It is a condition precedent that appellants (OPs) will first of all deposit the amount of cost Rs.15,000/- and thereafter only the District Forum will take the written statement, documents and affidavits on record. The above cost would be // 10 // payable to the respondents (complainants). The parties are directed to appear before the District Forum, Raipur (C.G.) on 10.05.2018. The office is directed to send back the record of the District Forum forthwith to District Forum, Raipur (C.G.).
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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