State Consumer Disputes Redressal Commission
M/S. Tratou Consultants & Anr. vs Sri Amitava Mallik on 6 February, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/666/2018 ( Date of Filing : 19 Jul 2018 ) (Arisen out of Order Dated 31/05/2018 in Case No. cc/467/2017 of District Kolkata-III(South)) 1. M/s. Tratou Consultants & Anr. 6B, Sultan Alam Road, P.S. - Charu Market, Kolkata - 700 033. 2. Sri Debangshu Bhattacharya Managing Director, M/s. Tratou Consultants, 1/2, Dr. Amiya Bose Sarani Road, P.S. - Gariahat, Kolkata - 700 019. ...........Appellant(s) Versus 1. Sri Amitava Mallik S/o Lt. Rajendra Nath Mallik, 6/47, Bijoygarh, P.S. - Jadavpur, Kolkata - 700 032. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Appellant: Mr. Suvendu Das, Advocate For the Respondent: Mr. Shrijeeb Biswas, Ms. Krittika Roy Chowdhury, Mr. Swapan Kr. Bera, Advocate Dated : 06 Feb 2020 Final Order / Judgement PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of Opposite Parties to impeach the final order/judgment dated 31st May, 2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit- III (in short, Ld. District Forum) in Consumer Complaint No. 467/2017. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent under Section 12 of the Act with directions upon the appellants to refund Rs. 1,80,000/- to the respondent/complainant, to pay compensation of Rs. 15,000/- and litigation costs of Rs. 5,000/- within 30 days from the date of order in default, the amount shall carry interest @ 7% p.a. from the date of order till its realisation.
The respondent herein being complainant lodged the complaint before the Ld. District Forum stating that in order to avail a trip at Kailash and Manas Sarobar via Kathmandu to be conducted by M/s. Tratou Consultant (OP No. 1) represented by its Managing Director(OP No. 2), which was scheduled to be started on 05.07.2014, the complainant has paid a total sum of Rs. 1,80,000/- to OP No. 2 as the tour costs. However, on 04.07.2014 the complainant was suddenly intimated by OP No. 2 through SMS that the trip was got cancelled due to non-availability of Visa. Then OP No. 2 by a letter dated 07.07.2014 informed the complainant that they will refund the amount within 30-45 days from the date of letter. The complainant has stated that only an amount of Rs. 1,00,000/- has been refunded but despite repeated assurances the amount of Rs. 1,80,000/- along with interest thereon is yet to be paid. The complainant has further stated that on 07.03.2016 in a joint meeting OP No. 2 has made a written commitment that the balance amount will be refunded within 31.05.2016 and he undertook that if he failed to pay the sum of money taken as advance within that date, he may be prosecuted. However, the OP No. 2 did not keep his word. Finding no other alternative, the complainant approached Central Consumer Grievances Redressal Cell, Consumer Affairs Department, Government of West Bengal to mediate the matter. In the mediation the OPs promised to refund the amount but did not do so. Hence, the respondent approached the Ld. District Forum with prayer for following reliefs, viz.- (a) for refund the amount of Rs. 1,80,000/- along with interest @9% from the date of cancellation of journey i.e. from 04.07.2017; (b) to pay Rs. 2,00,000/- as compensation for deficiency of services/unfair trade practice, harassment and mental agony; (c) to pay litigation costs etc. The appellants being Opposite Parties by filing a written version have stated that on the request of Vice President of Bharat Sevasram Sangha he organised a tour programme containing the names of 24 persons including the complainant at Rs. 1,40,000/-each as tour costs. However, 16 persons from the said list was agreed to participate in the said tour programme and out of those 16 persons including Vice President Swami Purnatnandji having U.S. passports. The OPs have stated that they started to arrange the said programme through its Nepal agent namely Sri Narendra Bhatta for obtaining Visa of all the persons and in pursuance of the said arrangement, they have paid Rs. 3,00,000/- only to the said person and also paid Rs. 5,00,000/- only to the person of Nepal for making payment of Rs. 500/- U.S. Dollar towards the Visa Fee for of the said 16 persons. It is specifically mentioned that ultimately 6 persons were agreed to travel including Swamiji and two others U.S. passport holders. However, the Chinese Authority refused to grant Visa to the U.S. passport holders including the Swamiji and as such the date of travel was shifted for two times. Ultimately owing to non-availability of Visa of the said U.S. passport holders including Swamiji, the Nepal Agent failed to refund the money for which they incurred a loss of Rs. 8,00,000/-. The OPs have stated that they had to pay Rs. 17,200/- for each person for cancellation of air tickets and other incidental charges. On the other hand, they have received only Rs. 8,40,000/- for six persons of Rs. 1,40,000/- each. The OPs have stated that they have already refunded to the complainant a sum of Rs. 75,000/- and the said sum is more than the necessary refund after deduction of some portion of the amount of visa fees and air ticket cancellation charges and, therefore, the complainant is not entitled to receive any more amount from the OPs. Accordingly, the complaint should be dismissed.
After assessing the materials on record, the Ld. District Forum by impugned order allowed the complaint lodged by the respondent with certain directions upon the OPs, as recorded above. To assail the said order, the OPs have come up in this commission with the present appeal.
Mr. Subhendu Das, Ld. Advocate for the appellants has submitted that the appellant No. 2 being Managing Director of appellant No. 1 tour operator and being one member of Bharat Sevasram Sangha, on the requests of Vice President of Bharat Sevasram Sangha namly, Swami Purnatnandji agreed to organise the tour programme of Kailash and Manas Sarobar for 24 persons at the costs of Rs. 1,40,000/- each. However, excepting 6 persons, the others declined to visit and out of those six persons who agreed to travel three persons including Swamiji were U.S. passport holders and as such visa for them could not be obtained. The Ld. Advocate for the appellants has submitted that as the Nepal agent has failed to obtain visa of the said U.S. passport holders including Swamiji, all the efforts of appellants were frustrated. Ld. Advocate for the appellants inviting our attention to an e-mail dated 04.07.2014 has contended that the air tickets purchased for the journey on 05.07.2014 was cancelled and as such the appellant company had to bear costs of Rs. 17,200/- for each person for cancellation of such air ticket and further they had to bear the expenses of Nepal agent of Rs. 8,00,000/-. In that perspective, the Ld. Advocate for the appellants has submitted that the impugned order being not equitable, it is liable to be set aside and the appellants may be exonerated from making payment any further amount.
Mr. Shrijeeb Biswas, Ld. Advocate for the respondent, on the other hand, has contended that in order to show bona fide, the appellants could have shown the documents regarding purchase and cancellation of air tickets. When no such document has been produced an e-mail cannot take place of such proof. Moreover, there is no document whatsoever that the appellants had incurred any expenses towards Chinese agent etc for visa or for other purposes. Ld. Advocate for the respondent has further submitted that when the appellant No. 2 had promised to pay the amount even by writing, the doctrine of 'promissory estoppel' will be applicable in the facts and circumstances of the case. In support of his contention, Ld. Advocate for the respondent placed reliance to paragraph 55 of a decision of Hon'ble Supreme Court reported in AIR 1996 SC 149 (State of Himachal Pradesh and Ors etc -vs- Ganesh Wood Products and Ors.) and also another decision of the Apex Court reported in 2017 (2) CHN (SC 115) (Denyandeo Sabaji Nayek -vs- Pradnya Prakash Khadekar) has submitted that considering the facts and circumstances and in view of the authority as referred above, the appeal should be dismissed with exemplary costs.
We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
The facts and circumstances of the case and the materials on record indicate that the appellants/OPs had arranged for a tour to Kailash and Manas Sarobar for 12 nights and 13 days commencing from 07.06.2014 to 21.06.2014 and collected money. Ultimately, the tour programme was deferred and it was re-scheduled from 05.07.2014. Admittedly, the respondent has paid the entire tour costs of Rs.2,80,000/-. However, the tour programme was ultimately cancelled and the said cancellation was done by appellant No. 2 through SMS on 04.07.2014.
The evidence on record clearly speaks that on account of failure on the part of appellants to conduct the tour programme, on 07.07.2014 the appellant No. 2 wrote a letter to the respondent informing her that he will make the necessary refund within 30/45 days from the date of the letter. However, no such refund was made as promised by the appellants. Thereafter, by a letter dated 13.11.2014 the appellants refunded the amount of Rs. 1,00,000/- by cheques. The respondent approached the Central Grievances Redressal Cell of Consumer Affairs Department and Fair Business Practices. It appears that the respondent/appellant by an under taking dated 07.03.2016 has committed to make payment taken by him as an advance within 31.05.2016. However, the appellants did not keep their promise which prompted the respondent to approach the Consumer Affairs Department for Redressal of Grievances. From the disposal note of Central Consumer Grievances Redressal Cell, Consumer Affairs Department dated 23.06.2017 it would appear that the appellants did not want to co-operate with the Mediatory Authority and stealing away time for his own benefit.
In that perspective, the Ld. District Forum has observed that the appellants/OPs gave assurances but failed to keep their commitment which is gross deficiency of services on the part of them. We do not find any reason to differ with the view of the Ld. District Forum. In the case of State of Himachal Pradesh and Ors (supra) the Hon'ble Supreme Court while discussing on the doctrine 'promissory estoppel' has observed thus:
"The rule of promissory estoppel being an equitable doctrine has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. If it is more just from the point of view of both promisor and promisee that the latter is compensated appropriatey and allow the promisor to go back on his promise, that should be done; but if the Court is of the opinion that the interests of justice and equity demand that the promisor should not be allowed to resile from his representation in the facts and circumstances of that case, it will do so. This is the proper way of understanding the words "promisee altering his position". Altering his position should mean such alteration in the position of the promisee as it makes it appear to the Court that holding the promisor to his representation is necessary to do justice between the parties. The doctrine should not be reduced to a rule of thumb. Being an equitable doctrine is should be kept elastic enough in the hands of the Court to do complete justice between the parties.
Anything and everything done by the promisee on the faith of the representation does not necessarily amount to altering his position so as to preclude the pormisor from resiling from his representation. If the equity demands that the promisor is allowed to resile and the promise is compensated appropriate demands, in the light of the things done by the promisee on the faith of the representation, that the promisor should be precluded form resiling and that he should be held fast to his representation, that should be done. It is a matter of holding the scales even between the parties to do justice between them. This is the equity implicit in the doctrine."
In the decision of Dnyandeo Sabaji Nayek (supra) the Hon'ble Supreme Court has observed that the courts of justice will not be allowed to be disrupted by litigative strategies designed to provide from the delays of the law. In the case before hand, when it is quite apparent that the appellants promised to refund the entire amount, they cannot absolve their responsibility in paying the amount agreed by them and as such there was hardly any reason to prefer this appeal, which has been filed just to cause unnecessary delay to execute the order and when the said act of the appellants are harassing in nature, the appeal is liable to be dismissed with costs of Rs. 5,000/-.
For the reasons aforesaid, the appeal is dismissed on contest with costs of Rs. 5,000/- to be paid by the appellants to the respondent within 30 days from the date.
The impugned judgment/final order is hereby affirmed.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER