State Consumer Disputes Redressal Commission
Amar Parwani vs National Aviation Co Of India Ltd. on 31 December, 2010
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.378/2010
Instituted on 10.06.10
Amar Parwani,
S/o. Late Shri G. K. Parwani,
R/o. Civil Lines, Raipur,
Dist. RAIPUR (C.G.) ... Appellant.
Vs.
1. National Aviation Co. of India Ltd.,
Through: Executive Director (Commercial),
Gurudwara, Rakabganj Road,
NEW DELHI
2. National Aviation Co. of India Ltd.,
Through: Authorized Representative, Mana Airport,
Dist. RAIPUR (C.G.) ... Respondents.
Appeal No.384/2010
Instituted on 11.06.10
1. National Aviation Co. of India Ltd.,
Formerly Indian Airlines,
Through: Executive Director (Commercial),
Gurudwara, Rakabganj Road,
NEW DELHI
2. National Aviation Co. of India Ltd.,
Formerly Indian Airlines
Through: Authorized Signatory, Office at LIC Building,
Jeewan Bima Marg, Pandri, Raipur,
Dist. RAIPUR (C.G.) ... Appellants.
Vs.
Amar Parwani
R/o. Civil Lines, Raipur,
Dist. RAIPUR (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES IN BOTH APPEALS: -
Shri R.K. Bhawnani, for Jaspal Singh Oberai.
Shri M. Rajshekhar, for National Aviation Co.
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ORDER
Dated: 31/12/2010 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This order will govern disposal of appeal No.378/10 and 384/10, which have been preferred respectively by the complainant and OP of complaint case No.293/07, decided by District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum"
for short), vide order dated 11.05.10, directing the OP of that complaint case to pay Rs.45,000/- along with interest @ 6% p.a. w.e.f. 24.07.07, on account of deficiency in service, committed by it in arranging the package tour and also to pay Rs.700/- by way of cost of litigation. Both parties felt aggrieved by that order and preferred these appeals. For the purpose of convenience, hereinafter parties will be referred in this order as per their capacity before District Forum. This order be retained in appeal No.378/10 and its copy be placed in appeal No.384/10.
2. It is not in dispute that the complainant and his two friends availed services of the OP in respect of package tour organized by them for Bangkok and Pattaya and traveled to the aforesaid destination by Indian Airlines. As per conditions of the package tour, arrangements were to be made by the OP at the destination for stay and sightseeing. Complainant paid Rs.24,291/- and booked for that package tour through Dev Travels, Raipur. The tour was to be // 3 // performed from 02.08.05 to 06.08.05. Case of the complainant before District Forum was that as per terms and conditions of the package tour, the OP was required to arrange for to and fro journey for a comfortable stay, breakfast and for sightseeing at both the Stations. The complainant and his friends commenced their journey on 02.08.05 and reached Bangkok as per their tour program. It was found there that no accommodation was booked for them in any Hotel and when grievances were made then after three hours rooms were provided in a Hotel, but it was observed that rooms were not as per the standard, as promised. It was found that in the rooms of that Hotel at Bangkok, there were cockroaches everywhere in the bed, toilet and walls of the room. Photographs were taken by the complainant and his friends. Complaints were made to the Hotel Management, but no heed was paid by the management. As the entire tour cost was paid in advance so the complainant and his friends were having no other option, but to stay in such rooms where hygienic conditions were not proper and which was in shabby condition. Complainant and his friends were very much disturbed and were doubting whether other arrangements of the tour would be of proper standard or not. It was again found by them that against the promise of local journey by A.C. coach, they were asked to avail services of local transport which was non-A.C. bus and sightseeing was performed by that non-A.C. bus. At Pattaya room provided to the complainant and his friends, was full of cockroaches // 4 // and lizards, their also photographs were taken by them and complaint was made to the Management. But the incharge of Management, abused the complainant and his friends and called them bloody Indians and shit Indians, which was very much disturbing to the complainant and his friends and they could not tolerate insult of their country and therefore immediately made complaint in writing to Senior Manager of the Hotel. Their whole mood of having a pleasure trip was spoiled because of these incidents and because of unhygienic conditions in Hotel rooms, therefore complaints were made to the OP and the OP assured to action against Management of those Hotels. But, later on nothing was informed to the complainant therefore alleging deficiency in service during the package tour, compensation of Rs.19,00,000/- was sought and consumer complaint was filed before District Forum.
3. The OP in reply has taken, firstly, this technical objection that the complaint itself is not maintainable and is liable to be dismissed at the threshold for want of complete description of the complainant in cause title of the complaint. It has been averred that apart from name and address of Civil Lines, no other information regarding complainant has been given in the complaint. It has also been averred that no complaint was ever made by the complainant to the OP in respect of any arrangement of the package tour, though his friend // 5 // Sanjeev Sunderam had made a complaint and the complainant has relied on letters written by said Sanjeev Sunderam only, for which he cannot be permitted. On merits also the allegation of the complainant were totally denied and it has been emphasized that the tour opted by the complainant and his friends was a package of economic and least expenditure which can be termed as budget or economy package and in such economy package facilities cannot be equated with those, offered to the persons opting for higher packages. It has also been denied that proper arrangements were not made during the tour. It has been categorically stated in the written version that rooms were arranged, transport was arranged for sightseeing as per terms of the agreement and proper care was taken.
4. District Forum in the impugned order held that the OP failed to provide services of good quality during the tour and therefore it is liable to pay compensation to the complainant. On this finding the impugned order has been passed. The complainant felt dissatisfied by the impugned award passed by the District Forum and preferred appeal for enhancement of the sum, whereas the OP has challenged the impugned order on the ground that the complaint itself was not maintainable and no deficiency in service has been established by the complainant, so the complaint was liable to be dismissed.
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5. We have heard arguments advanced by both parties and perused the record of the District Forum.
6. Learned counsel for the OP Mr. M. Rajshekhar has categorized his arguments in three parts; firstly contended that the complaint filed by the complainant is not maintainable, as no description of the complainant is given in the complaint, in full. His second contention is that in support of the complaint, affidavit of the complainant has been filed, but in that affidavit also full name and address of the complainant has not been given. Stamps of required amounts and required description are not available on such affidavit, so the statement in the affidavit also cannot be read as evidence. His third contention is that on merits also, the complaint fails and is liable to be dismissed.
7. Whereas the contention of counsel for the complainant is that it is merely a consumer complaint and therefore requirements of Civil Procedure Code in respect of plaint in a Civil Suit are not to be followed for a complaint filed before Consumer Fora. It has also been argued that affidavit filed by the complainant has been duly attested by a notary and his statement is on oath therefore it is liable to be considered. It has also been argued that by filing documents, right from the booking of the tour till notice given by the complainant to the // 7 // OP, deficiency in service on the part of the OP has been established, but the amount awarded by the District Forum is on lower side, looking to the fact that entire mood of the complainant for a pleasure trip was spoiled and therefore more amount was required to be awarded as compensation.
8. We have taken into consideration rival contentions raised by both parties in the light of the material available in the record of the District Forum. As per section 2 (1) (b) of the Consumer Protection Act, 1986 (hereinafter referred as "the Act" for convenience) „complainant‟ means "(i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or (iii) the Central Government or any State Government; or (iv) one or more consumers, where there are numerous consumers having the same interest; (v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;". This definition clearly shows that for the purpose of being „complainant‟ before District Forum one is needs to be a „person‟ of any of the aforesaid category. If a complaint is filed as a „consumer‟ then the definition of „consumer‟ under section 2 (1) (d) of the Act is to be considered, which starts with words "consumer‟ means any person who -
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(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose."
[Explanation.-For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment] Thus a „consumer‟ should be a „person‟ who buys any goods for a consideration or hires or avails any service for consideration. The word „person‟ has also been defined under section 2 (1) (m) of the Act, which includes-
"(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;".
// 9 // Thus if any individual wants to file a complaint, then he should be a natural „person‟ to become a „consumer‟. As per Black‟s Law Dictionary „person‟ means "1. A human being. 2. An entity (such as a corporation) that is recognized by law as having the rights and duties of a human being. 3. The living body of a human being". A natural person has been defined as a human being and is distinct from an artificial person created by law, as a fictitious person is an artificial person. In the Bakshi‟s Law Lexicon the meaning of the person has been given as "the term „person includes (i) an individual, (ii) A Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not, (vi) every artificial jurisdiction person, not falling within any of the preceding sub-clauses, and (vii) any agency, office or branch owned or controlled by such person". Thus for becoming a „person‟ one must be an individual and for becoming individual identity of the person should be described completely, so that he can be distinguished from others and then only he can be said to be a „person‟ and thus can become a „consumer‟, who can file a complaint.
9. In the facts of the present case, in the cause title of the complaint, the complainant has been described as "Amar Parwani, R/o. Civil Lines, Raipur, Dist. Raipur". Neither name of his father has been given nor his age and complete postal address has been given.
// 10 // These were necessary requirements to identify a individual natural person. In absence of these descriptions, merely a name cannot describe a natural person.
10. Not only in the cause title of the complaint, but in the verification of the complaint also complainant has given his description as "Amar Parwani, R/o. Civil Lines, Raipur, Dist. Raipur". In the affidavit also he has given his description as "Amar Parwani, R/o. Civil Lines, Raipur, Dist. Raipur" and he has not even stated the facts on oath, but has simply verified those facts.
11. Thus, we find that complete description of the complainant has not been given in the complaint, which is a defect, goes to the root of the case. For want of complete details, the District Forum was required to instruct the complainant to amend the complaint and to describe the complainant in full, so that his identity could be established and his complete address should be also such, on which he can be sued or he can file a Suit. It is not a mere technicality, but was a necessary requirement, even for filing a complaint, under the Act in view of definition of „consumer‟ and „complainant‟ given under the Act.
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12. We find that the complaint as well as the affidavit of the complainant filed, were defective and opportunity should be given to the complainant to amend the complaint and to file a fresh affidavit. As it is a consumer complaint and the matter was required to be decided on the principle of natural justice, so we are not inclined to dismiss the complaint on this technical ground and prefer to remand the case back to the District Forum for providing such opportunity to the complainant.
13. It has also been canvassed by counsel for the complainant before us that a friend of the complainant who took pains for making grievances to the appellant, Mr. Sanjeev Sunderam had also filed complaint before Consumer Forum at Delhi and an award has been passed in favour of that person. If it is so, then the complainant can very well file copy of that award before District Forum, so that on similar facts such award can also be considered in the present proceedings.
14. As we are of the view that complete description of the complainant was not given in the complaint and the complaint cannot be proceeded further for want of such description, therefore without expressing any opinion on merits of the case, we allow this appeal and set aside the impugned award. The case is remanded back to the // 12 // District Forum for providing opportunity as aforesaid. District Forum is directed to decide the matter afresh after providing aforesaid opportunity and one more opportunity of hearing to both parties. Such exercise be completed within a period of two months, from the date of receipt of record of the case. Parties are directed to appear before District Forum on 31.01.2011. No order as to cost.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/12/2010 /12/2010