State Consumer Disputes Redressal Commission
Gupta Tour And Travels, vs Sh. Sham Lal on 27 March, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 682 of 2010
Date of institution: 27.4.2010
Date of Decision: 27.3.2014
Gupta Tour and Travels, Sadar Bazar, Barnala, through its Manager, Sh.
Sanjeev Gupta.
.....Appellant/OP No. 1
Versus
1. Sh. Sham Lal son of Sh. Sukhdev Ram, resident of Ward No.
3/254, Dharampura Mohalla, Dhuri, District Sangrur.
2. Smt. Savitra Devi wife of Shri Sham Lal son of Sh. Sukhdev Ram,
resident of Ward No. 3/254, Dharmpura Mohalla, Dhuri, District
Sangrur.
.....Respondent No. 1 & 2/Complainants
3. Himalayan Heli Services, 104, 7 L.S.C. Madangir, New Delhi - 110
062 through its Managing Director.
...Proforma Respondent
Argued By:-
For the appellant : Sh. Kanav Bansal, Advocate for
Sh. A.K. Garg, Advocate
For respondent Nos. 1&2: None.
For respondent No. 3 : Sh. A.S. Narang, Advocate
2nd Appeal
First Appeal No. 1468 of 2010
Date of institution: 19.8.2010
Himalayan Heli Services, 104, 7 L.S.C. Madangir, New Delhi - 110062
through its Director.
.....Appellant/OP No. 2
Versus
1. Sh. Sham Lal son of Sh. Sukhdev Ram, resident of Ward No. 3/254,
Dharampura Mohalla, Dhuri, District Sangrur.
2. Smt. Savitra Devi wife of Shri Sham Lal son of Sh. Sukhdev Ram,
resident of Ward No. 3/254, Dharmpura Mohalla, Dhuri, District
Sangrur.
.....Respondent No. 1 & 2/Complainants
3. Gupta Tour and Travels, Sadar Bazar, Barnala, through its Manager,
Sh. Sanjeev Gupta.
...Respondent No.3/OP No. 1
Argued By:-
For the appellant : Sh. A.S. Narang, Advocate
For respondent Nos. 1&2: None.
2
FIRST APPEAL NO. 682 OF 2010
For respondent No. 3 : Sh. Kanav Bansal, Advocate for
Sh. A.K. Garg, Advocate
First Appeal against the order dated 22.2.2010
passed by the District Consumer Disputes
Redressal Forum, Barnala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
Shri Harcharan Singh Guram, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member This order will dispose of above mentioned two appeals. Both the appeals are arising out of impugned order dated 22.2.2010 passed by the District Consumer Disputes Redressal Forum, Barnala(in short the "District Forum") vide which the complaint filed by respondent Nos.1&2/complainants(hereinafter referred to as 'complainants') was allowed with the direction to the Ops to pay consolidated amount of compensation to the tune of Rs. 25,000/- each alongwith 9% interest from the date of filing the complaint till realization.
2. The complaint was filed by the complainants against the Ops on the allegations that on the basis of advertisement given by OP No. 1 for offering Helicopter services to visit Holy Cave of Shri Amarnath as the Helicopter will land near the Holy Cave Shri Amarnath. At that time complainant No. 1 had also told to OP No. 1 to book two tickets and that his wife complainant No. 2 was having physical problems The complainant had booked two tickets for himself and his wife with OP No. 1 and paid Rs. 12,800/- on 19.6.2009 to board the flight from Baltal on 29.7.2009. However, 3 FIRST APPEAL NO. 682 OF 2010 when they travelled they were surprised when the Helicopter landed at Panchtarni and told that it will not go ahead and they will have to travel on foot to reach the Holy Cave. Complainants requested OP No. 2 to make arrangements for reaching the passengers to Holy Cave to which OP No. 2 refused. Complainant No. 2 was unable to walk, therefore, they had to hire Horses by paying Rs. 1,000/- per person. From Panchtarni to Holy Cave was about 6 Kms.. It has been alleged that the complainant was cheated and harassed by the Ops and then have used unfair trade practice as they accepted the fare but did not take them to Holy Cave, accordingly, a sum of Rs. 1 lac has been demanded on account of compensation and Rs. 5,500/- on account of litigation expenses.
3. The complaint was contested by the Ops. OP No. 1 in its written statement has taken the legal objection that the complainants are not the consumers of the opposite party rather they are the consumers of OP No. 2; OP No. 1 had been rendered pious/religious services free of charge; the complainants are barred by their act and conduct to file the complaint and the Hon'ble District Forum did not have the jurisdiction to entertain this complaint. On merits, it has been admitted that two tickets in the name of Sham Lal and Savtri Devi were booked by Op No. 1 with OP No. 2 and a sum of Rs. 12,800/- was paid to OP No. 1 and this amount was paid to OP No. 2. It has been further alleged that on or before 10.7.2009 one Sanjeev Kumar had approached Op No. 1 for cancellation of the above mentioned tickets booked in the name of Ashok Sharma and Manju Sharma that they had anticipated regarding the change of the venue and 4 FIRST APPEAL NO. 682 OF 2010 accordingly, the tickets of these two passengers were cancelled and payments were given to them. It was denied that it was told to the complainants that Helicopter will land to Holy Cave Amarnath Ji. It was also denied that health problem of wife of the complainant was intimated to OP No. 1. In fact on 29.7.2009, the complainants boarded the flight from Baltal and it landed at Panchtarni and the complainants were told by OP No. 2 that the Helicopter will not land near the Holycave in view of the instructions given by the Government. It was denied that the complainants spent Rs. 1,000/- each to hire horses to reach the Holy Cave, accordingly, it was submitted that there is no deficiency in services on the part of OP No. 1, the complaint against him is without merit and be dismissed.
4. OP No. 2 in its written statement have taken the legal objections that the complainants are not the consumers qua the answering OP as no services rendered by this OP to the complainants; the learned District Forum does not have the territorial jurisdiction; the complainants have not come to the Forum with clean hands and suppressed the material facts. On merits, it was submitted that the allegations against OP No. 2 are incorrect. OP No. 1 had never been the agent or authorised person of OP No. 2 to book Helicopter tickets to visit Holy Cave of Amarnath Ji; Shri Amarnath Ji Shrine Board (in short 'SASB") was constituted by an Act of Jammu and Kashmir State Legislature in 2000 and Government of State is Ex-Officio Chairman of the Board and the Board is responsible for smooth conduct of the annual Yatra and also responsible for safety and convenience of the Yatris. Helicopters are selected through 5 FIRST APPEAL NO. 682 OF 2010 Public notice by inviting tenders. Two operators were selected in the year March, 2007 for the period of three years i.e. M/s Deccan Charters and OP No. 2. After Sh. N.N. Vohra took over the charge of Government of Jammu & Kashmir, the old Board was dissolved and new Board was constituted for the safety of the passengers and causing noise pollution, it was decided to shift the Helipad from near Holycave and it was intimated that the Helipad will be shifted to Panchtarni by the end of Yatra, 2009. They requested to change the Helipad from 2010 as they had already made the advance booking for the year 2009. The Yatra to the Holy Cave started on 15.6.2009. On 10.7.2009, the Chief Executive Officer, SASB informed OP No. 2 that w.e.f. 16.7.2009, the helipad will be shifted from Holy Cave to Panchtarni. OP No. 2 objected it that it was not possible to change the helipad at such a short notice and then it was changed from 22.7.2009 and its wide publicity and coverage was given in all National Daily TV Channels, National Dailies and was carried out on the website of OP No. 2. The OP did not appoint any Agent or Distributor. 50% of the tickets were sold through 'online' and 50% on the spot through current bookings. The booking of the complainant for 29.7.2009 was made by OP No. 1 after the change of Helipad. OP No. 2 informed Sanjiv Gupta at [email protected] alongwith 51 other parties about the re-location of Helipad and publication in various newspapers. Notice Boards were also displayed at their office at Baltal and 100% cash refund was offered alongwith the permission accorded by DGCA, therefore, there is no harassment from this OP 6 FIRST APPEAL NO. 682 OF 2010 or any deficiency in services of them, therefore, it was requested that complaint qua them is without merit and the same be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, affidavit of Savitry Devi Ex. C-2, passenger copy Ex. C-3, news copies Ex. C-4 and C-5. On the other hand, opposite party No. 2 had tendered into evidence letters Ex. R-1 to R-4, advertisements Ex. R-5 to R-7, copy of tickets Ex. R-8, copy of e-mail Exs. R-9 & 10, letters Ex. R-11 to R-13, terms and conditions Ex. R-14, affidavit Ex. R-15. OP No. 1 had tendered into evidence affidavit of Sanjeev Gupta Ex. OP-1/D, affidavit of Sanjeev Kumar Ex. OP-1/E, affidavit of Hemant Bhushan Ex. OP-1/F, affidavit of Ravinder Kumar Ex. OP-1/G, affidavit of Abhilash Kumar Ex. OP-1/H, ticket Ex. OP-1/A, letter dt. 22.3.09 Ex. OP-1/B, Ex. OP- 1/C cheque dt. 10.7.09.
7. After going through the allegations in the complaint, written statement filed by the OPs, evidence and documents brought on the record, the complaint was allowed by the learned District Forum as stated above.
8. Aggrieved with the order passed by the learned District Forum, both the opposite parties have filed the present appeals. First Appeal No. 682 of 2010
9. This appeal has been filed by OP No. 1. In the grounds of appeal, it has been contended that the order passed by the learned District Forum is illegal, null and void and liable to be set-aside as the 7 FIRST APPEAL NO. 682 OF 2010 learned District Forum has failed to take into consideration that there is no deficiency in services on the part of this appellant and this appellant has offered the services without any consideration. There is no relationship of 'consumer' or 'service provider'. Even OP No. 2 in their written statement has also taken the plea that OP No. 2 is not their agent, therefore, the liability of the appellant/OP No. 1 has been wrongly fixed.
10. With regard to the factum whether there is relationship of 'consumer' or 'service provider' between the complainant and OP No. 1. We go through the written statement filed by OP No. 1. It has been admitted that the complainants booked two tickets for Helicopter/helipad Services being offered by OP No. 2 and they had paid Rs. 12,800/- to OP No. 1, therefore, appellant/OP No. 1 cannot deny that he did not issue the tickets. OP No. 2 has taken a plea that 50% of the seats were sold by them on 'online' and 50% were to be booked at the spot, therefore, there is possibility that OP No. 1 had purchased these tickets 'online' from OP No. 2 and further sold to complainants otherwise, OP No. 1 has not been able to establish on the record that he is agent of OP No. 2 and OP No. 2 also denied this version. Therefore, in case directly payment has been made by the complainant to this appellant then this appellant was responsible for providing the services as offered by them through OP No. 2. Lateron the place of the Helipad was shifted from Holycave. It was decided that the flight will land at Panchtarni. It was so decided by SASB. There is letter Ex. R-2 issued by SASB to Op No. 2 to shift your Helicopter operations w.e.f. 16.7.2009 to the newly constructed 8 FIRST APPEAL NO. 682 OF 2010 Helipad site at Panchtarni and a letter was sent by OP No. 2 to Chief Executive Officer of SASB that they be allowed atleast 10 days time to their Helicopters and vide letter dated 14.7.2009 that the Helipad Services from Panchtarni shall commence from 22.7.2009. Then there is press release in 'Daily Excelsior Correspondent' Ex. R-5, Ex. R-6 'Kashmir News', Ex. R-7 'Tribune News Service' and intimation was also given to '[email protected]' vide email Exs. R-9 & R-10. In case intimation was duly issued by OP No. 2 to OP No. 1 because otherwise there was no direct online booking by the complainant from Op No. 2, therefore, they did not have any proper email address or telephone number of the complainants. These were with OP No. 1, therefore, OP No. 1 was under obligation to intimate the change in the location of Helipad and that in case they are unable to travel they could get back their money so paid for booking of the Helicopter services but OP No. 1 has failed to bring on the record any information, which has been given by Op No. 1 to the complainants. Since OP No. 1 has paid the money to OP No. 2, it is a different matter whether OP No. 1 had availed any profit or that of not but in case he has taken the money to afford the service, he was under
obligation to give facilities of these services through Op No. 2 and in case he had come to know that the place of Helipad has been changed from Holycave to Panchtarni then he was required to give required information to the complainant, which he did not give and certainly, there is deficiency in services on the part of OP No. 1 as they had to avail the service i.e. to hire Horses and had also undergone mental and physical dis-comfort and for that 9 FIRST APPEAL NO. 682 OF 2010 compensation of Rs. 25,000/- ordered against this appellant/OP No. 1 is more than reasonable. We do not agree with the proposition raised by the learned counsel for the appellant. The order so passed by the learned District Forum against OP No. 1 is justified; the same is hereby affirmed.
11. In view of the above discussion, we do not find any merit in First Appeal No. 682 of 2010 and the same is dismissed with no order as to costs.
12. The appellant-Gupta Tour and Travels had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to respondents No. 1 & 2 in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant. Remaining amount shall be paid by the appellant to respondents No. 1 & 2 within 30 days from the receipt of the copy of the order.
FIRST APPEAL NO. 1468 OF 2010
13. The appellant/OP No. 2 in his grounds of appeal have contended that there is no privity of contract between the complainants and this appellant/OP No. 2 because the payment was made to M/s Gupta Travel and Tours. He is not agent of OP No. 2. The decision of the SASB to relocate the Helipad from Holycave to Panchtarni w.e.f. 22.7.2009 was duly intimated to OP No. 1 and accordingly, due intimation was given through TV Channels, through Newspapers, by placing Notice Boards at Baltal with assurance of 10 FIRST APPEAL NO. 682 OF 2010 100% cash return. Since the address of complainants was with OP No. 1 and no intimation was given to the complainants and this was the duty of OP No. 1. In case OP No. 1 has not given such information to the complainants then deficiency in services is on the part of OP No. 1 and not OP No. 2, whereas, the learned District Forum has wrongly made OP No. 2 also liable to pay compensation of Rs. 25,000/- alongwith interest to the complainants; it is against the fact and law and the order so passed by the learned District Forum is liable to be set-aside.
14. As discussed in First Appeal No. 682 of 2010, the complainants had booked two tickets for 29.7.2009 from Baltal to Holycave for availing Helicopter Services but lateron as per the decision of SASB, Helipad was relocated from Holycave to Panchtarni w.e.f. 22.7.2009 and its information was given to the general public through press. Ex. R-5 is Excelsior Correspondent, Ex. R-6 is 'Kashmir News' and Ex. R-7 'Tribune News Service' and intimation was given to '[email protected]' by email Ex. R-9, therefore, the venue of the Helipad has not been changed by the appellant/OP No. 2 of his own choice but according to the decision of the SASB, which the appellant(OP No. 2) was under legal obligation to obeyed.
15. Certainly, there is no privity of contract between this appellant / OP No. 2 and the complainants because there was no booking of the tickets directly by the complainants from Op No. 2. He has purchased the tickets from OP No. 1 as stated by OP No. 2 in their written statement. They were selected by the State of Jammu & 11 FIRST APPEAL NO. 682 OF 2010 Kashimir for Helicopter Services to Holycave Shri Amarnath Ji and as per their advertisement the Helicopter Services was upto Holycave and lateron as per the decision of SASB, the Helipad was relocated from Holycave to Panchtarni. Its due intimation was given to the customers through TV, Newspapers and to the persons, who directly got its bookings. Therefore, firstly, there is no privity of contract between the complainants and this OP because there was no direct booking with OP No. 2 by the complainants. The Hon'ble National Commission in Revision Petition No. 394 of 1995 "The Chief Commercial Officer, Indian Airlines & Anr. Versus P. Lalchand and another", decided on 23.4.1996 observed that 'Airline tickets purchased on 9.5.1991 from travel agent for the journey of 17.5.1991, who noted departure time as 2045 but flight scheduled changed on 8.5.1991. Schedule communicated to all agent of Indian Air Lines etc. and also published in newspapers, as such, no negligence established on the part of Indian Airlines.'
16. With regard to the vicarious liability, since this appellant was offering the services, it would have been in case due notice has not been given by OP No. 2 to its customers and through email Ex. R-9 and R-10/ Ex/ R-9 intimation was given to Op No. 1 from whom the complainants had purchased the tickets then it was the duty of OP No. 1 to give further information with regard to the change of the Helipad and offer given to OP No. 1 to get 100% cash back. Due to non information given by OP No. 1, the complainants undertook the journey to visit Holycave from Baltal. They took the Helicopter but instead of going to Holy Cave it landed at Panchtarni, which is 6 Kms 12 FIRST APPEAL NO. 682 OF 2010 away to Holy Cave. Certainly, the Helicopter did not travel upto Holy Cave and they have saved the fuel and other services for 6 KM. It would have been gracious upon them to refund atleast those charges to the complainants by OP No. 1 but it was not done. To that extent they are deficient in services. Therefore, the compensation so awarded against this appellant is required to be reduced and it is ordered to be reduced from Rs. 25,000/- to Rs. 5,000/-.
17. In view of the above discussion, First Appeal No. 1468 of 2010 filed by the appellant(OP No. 2) is partly accepted with the modification that the appellant/OP No. 2 will be liable to pay Rs. 5,000/- to the complainants alongwith interest @ 9% per annum from the date of filing the complaint till payment.
18. The appellant-Himalayan Heli Services had deposited an amount of Rs. 10,000/- with this Commission at the time of filing the appeal. Out of this amount of Rs. 10,000/-, registry is directed to calculate the interest on Rs. 5,000/- from the date of filing of the complaint i.e. 11.9.2009 and remitted to respondents No. 1 & 2 (complainants) in equal share by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant. If any excess amount remains, then the same be remitted to the appellant-Himalayan Heli Services with interest accrued thereon by way of a crossed cheque/demand draft.
19. The arguments in these appeals were heard on 19.3.2014 and the orders were reserved. Now the orders be communicated to the parties as per rules.
13FIRST APPEAL NO. 682 OF 2010
20. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
21. Copy of this order be placed on F.A. No. 1468 of 2010.
(Gurcharan Singh Saran) Presiding Judicial Member (Vinod Kumar Gupta) Member March 27, 2014. (Harcharan Singh Guram) as Member