DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 29th day of May 2023.
Filed on: 30.04.2021
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member C.C.No. 194/2021
COMPLAINANT
C Krishna Kumar, aged 48 years, S/o K.C.S. Nair Sreekrishna 33/659 C, Thykkavu Road, Near Thykkavu Mosque, Thykkavu Junction, Vennala, Pin- 682028
(By Adv.P.Sathisan, Patel Complex, Basin Road, Ernakulam, Kochi-682 031)
VS
OPPOSITE PARTIES
1. Jerry Alias, S/o Alias, Co-owner Marina Tours and Travels, Kottanath Tower, Kolenchery.P.O., Kolenchery, Pin-682311. Residing at opposite Mother and Child Foundation, Kalloorkad -Thodupuzha Road, Kumaramangalam-685608
2. Alias, Owner Marina Tours and Travels Kottanath Tower, Kolenchery.P.O., Kolenchery, Pin-682311
Residing at opposite Mother and Child Foundation, Kalloorkad -Thodupuzha Road, Kumaramangalam-685608
F I N A L O R D E R
D.B. Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant is a VP Operations Consultant and presently working in a Star Hotel as Operations Manager. The complainant had worked in a Star Hotel as Operations Manager. He had been rendering consultancy services to various overseas clients as well. The same had been based on his reliability and dependability in the realm of Consulting services which had been amassed through committed long-term services in the realm of Hospitality services. The complainant came in acquaintance with 1st opposite party sometime during 2018 for his personal travel from Cochin to Delhi and thereafter on one or two instances 1st opposite had arranged tickets for travel from Cochin to Chennai as well. Thereafter on one occasion, a travel from Cochin to Dubai had been organized by 1st opposite party by booking tickets, arranging accommodation and further concluding processing of visa which developed confidence in 1st opposite party as an experienced travel operator. The 2nd opposite party is the father of the 1st opposite party and he is recordically the owner of the travel and tour agency run by 1st opposite party. The complainant being a VIP Operations consultant and a professional trainer of corporate candidates as well, had to travel different places and mostly to Dubai for recruitment of suitable candidates coming from across the globe and further had to provide training for my candidates there in Dubai. While so in relation to an assignment from M/s. Seven Wonders Hotels and Resorts based in Italy, run by foreign nationals’ the complainant had to travel to Dubai. For the above purpose, the complainant had to recruit around 300 persons and had to give training on suitable realm up to the satisfaction of the company. The services were to be provided in a time bound manner. All these are with specific consultation charges and reimbursement of his expenses including that of his family as well including travel, accommodation, food and the like. Further the complainant was entitled for consultancy charge of Rs. 50,000/- per day. The complainant had been reporting to his resident head in Dubai namely, Mr. Julian Rose, an Italian national based in Dubai. The recruitment was to a company in Italy and Dubai was chosen as the hub, convenient for reaching for interview and the like by candidates across the globe. It is submitted that he had to travel down to Dubai on 20.01.2019 for which on account of my acquaintance with 1st opposite party, requested him to book his travel flight tickets and further to arrange his accommodation in Dubai which essentially required arrangement of due tourist visa by 1st opposite party. However, pursuant to the same, he paid the 1st opposite party in advance an amount of Rs.34,200/- and waited for his travel to Dubai. The amount had been paid as per the dates scheduled in November 2018 itself by the client to him. In spite of after repeated contacts as well complainant did not get the visa. On 19.01.2019 during midnight, on the previous day for travel, it was told by 1st opposite party and his associate that the visa was not arranged till then. The Complainant was egregiously immobile hearing about the same. Believing his presence in Dubai on 20.01.2019 about 22 candidates was arriving from different destinations to Dubai. Though the complainant informed his delay and reasons for the delay to Client Company and to his Resident Head stated above, they were least pleased about that. However, the complainant managed to get ticket for travel to Dubai on 21.01.2019 and the visa was processed by the complainant himself through another. For this he had spent around Rs.13,600/- which had been on a higher side due to the emergent situation and short demand for the same. The same was attributable to opposite parties. The complainant reached Dubai on 22.01.2019 early morning and was told by the client and Resident Head that the complainant had to meet the entire expenses of the 22 candidates for the extended stay of 2 days in Dubai and further the change in air ticket charges for these candidates since their previous tickets were to be postponed or got cancelled due to the delay. These amounts were paid on his behalf by the above said resident head which itself came to nearly Rs.4,00,000/- The consultation charges and other reimbursement entitled by complainant were all set off against the above expenses met by resident head stated above. On returning back to India on 27.01.2019 the complainant personally met opposite parties, the 2nd opposite party who is the father of the 1st opposite party who was the owner of the travel agency run by 1st opposite party and the opposite parties paid the complainant an amount of Rs.40,000/- towards part refund of the damages and losses incurred by him as stated above due to the lapses of opposite parties. Apart from the above, 2 cheques of Rs. 85,000/- each dated 15.02.2019 and 25.02.2019 were handed over to the complainant assuring of encashment towards part payment of damages stated above. However, as per the request of opposite parties the, presentation of cheques was not affected. However, they assured that all the expenses of the complainant on the complainant future travels to foreign countries shall be duly met by the opposite parties so as to clear the compensation entitled by the complainant on account of the deception played by them stated above. Further assuring encashment, the opposite party had issued another Cheque as well for a sum of Rs.27,400/- which had returned on presentation. On 15.02.2019 as per the request of the opposite parties, he had paid Rs. 20,000/- since 1st opposite informed of their difficulties in arranging funds for the tickets at that point of time. Considering the situation and complainant's urgency to reach the destination promptly, he had paid the said amount as well. The refund of all these amounts and compensation payment were all agreed by opposite parties which are self-speaking as about the improprieties by the opposite parties. On 05.04.2019 on the request of 1" opposite party another Rs. 50,000/- had been paid again, projecting shortage of funds by 1st opposite party. Apart from the above, further amounts were also collected from the complainant by the 1st opposite party and as an acknowledgement a voucher for Rs. 1,02,000/- had been issued to him by 1st opposite party. Thereafter on 06.04.2019 complainant received the flight tickets for himself and his family. However, on 07.04.2019 when complainant checked the above tickets online it was found that these tickets were fake. In the meanwhile, through email complainant provided the copies of these tickets and the accommodation voucher to his client stated above in Dubai. Thereafter, when the complainant detected the forgery and fabrication of Emirate tickets by opposite parties, he had genuinely intimated the same to his company in Dubai. However, the company had already found out that the tickets as fake which created a real havoc and created an imbroglios situation in the relationship between himself and the company. The hotel vouchers issued by the opposite parties were also fake. In the midst of the above, the complainant managed to get tickets for Dubai from the 1st opposite party himself which he arranged through another agency. It is sufficed to say that the complainant somehow managed to reach Dubai and completed the assignment there. Due to the above discord in the relationship between the company and himself, the company and the resident head informed the complainant that all his future assignments to the company as called back and further informed him about the detention of all his consultations with the company and withholding of reimbursement of expenses as well. On reaching back to India complainant made a police complaint before the Hill Palace police station Tripunithura where the concerned police officer called upon the opposite parties and they assured of refunding and compensating the complainant in full of all his losses and damages within 2 months therefrom. The assurance was made on 08.04.2019and the amounts to the tune of Rs.9,50,000/-on a rough estimate, the damages and loss sustained by the complainant were to be refunded by June 2019. The details of the periodic losses incurred to the complainant including the amounts expended rather lost by the complainant as setoff against his consultation charges and reimbursements are enumerated hereunder.
Rs.34,200/- flight charges for 20.01.2019
• Rs.27.500/- Accommodation charges for 20 to 25 January 2019
Rs.10,176/ Accommodation charges for 25 to 27 January 2010(Extended stay)
Rs.13,600/- Visa Rebooked
Rs. 3,40626/- For accommodation provided for 22 candidates (20th and 21" January 2019)
Rs. 16,759 for Training of candidates at Olive Downtown. Rs. 2,50,000/-(20" to 25th January 2019) consultation charges, Rs. 2,50,000/-(12th to 17th April 2019) consultation charges, on account of complainant delayed travel and further on account of the strained relationship with the company, the candidates short listed by the complainant were all rejected by the vendor company stated above and he lost service charges heavily thereby apart from the damages stated above. The loss on account of rejection of his short-listed candidates comes to Rs.26,000/-. The complainant had approached the Commission seeking an order directing the opposite parties to pay Rs. 15,00,000/- towards payment for losses incurred by the complainant towards non disbursement of consultation charges, travel expenses, to pay Rs.5,00,000/- towards compensation and damages on account of mental pain and agony and other losses and damages sustained by the complainant due to the deceptive and unfair trade practice of opposite parties and the cost of the litigation.
2) . Notice
Notices were issued from the Commission to the opposite parties. The opposite parties received the notice but did not file their versions within the statutory period. Consequently, the opposite parties are set ex-parte.
4) . Evidence
The complainant had filed a proof affidavit and 13 documents that were marked as Exhibits-A-1- to A-13.
Exhibit A1: True copy of relevant extracts of statement of Accounts of the complainant for the period of 2018 and 2019.
Exhibit A2: The cheque dated 15.02.2019 for an amount of Rs. 85,0004.
Exhibit A3: The cheque dated 25.02.2019 for an amount of Rs. 85,000/-.
Exhibit A4: The Cheque having no. 581085 dated 22.01.2020 for an amount of Rs. 27,400/-.
Exhibit A5: The bouncing memorandum dated 24.01.2019 for cheque no. 581085.
Exhibit A6: The written assurance of opposite parties dated 22.01.2019 in relation to compensation.
Exhibit A7: True copies of email communications between opposite party regarding arrangement of tickets and accommodation for complainant in Dubai including his family dated 24.02.2021.
Exhibit A8: The voucher dated 01.03.2019.
Exhibit A9: True copy of forged tickets dated 12.04.2019.
Exhibit A10: The forged voucher having invoice number 130256217.
Exhibit A11: The true copy of the police complaint made before Hill Palace Police Station Tripunithura dated 02.04.2019.
Exhibit A12: The true copy of the E mail communication with the overseas company dated 28,02.2021.
Exhibit A13: The true copy of the E mail communication with the overseas company dated 07.04.2019.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the copy of relevant extracts of statement of Accounts of the complainant for the period of 2018 and 2019 issued by the opposite parties. (Exhibit A-1). This document revealed that the complainant had paid the requisite consideration for the product to the opposite parties. Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, of 1986 (Point No. i) goes against the opposite parties.
Learned counsel for the complainant submitted that the complainant had to afford to bitter hardship and sufferings due to the fraudulent acts of the opposite parties and can be seen from the mail communications between himself and the company. The rejection of 22 short listed candidates, stalemate in the relationship on the prosperous and lucrative contract with the company namely M/s Seven Wonders hotels and resorts Italy, were all pinnacle of mental pain and agony to the complainant apart from huge monetary loss incurred to the complainant. The opposite parties gave the complainant a written undertaking and assurances in this regard and the copies of these assurances are produced along with this complaint. For the complainant next scheduled date during 12.04.2019, he asked the opposite parties to fulfil their promises. They assured of handing over the tickets of Emirates Airlines for himself and his family comprising of his wife and daughter.
The complainant has filed the Proof Affidavit and 13 documents all in support of his case. But the opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to file their versions.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notices to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the first and third opposite parties. We have no reason to disbelieve the words of the complainant. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The opposite parties have inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the first and third opposite parties in failing to provide the complainant’s desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We found the issue Nos. (II), (III) and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Since the complainant had already claimed and received an amount of Rs.950000/- from the opposite party and since there is no reliable proof to substantiate that the complainant had spent the amount claimed and ought to have received such an exorbitant amount as claimed for, the Commission limited the claim of the complainant to compensaton which is fixed at rs.5,00,000/- (Rupees Five lakh only) along with cost of proceedings of Rs. 10000/- and issue orders as follows:
- The opposite parties shall pay Rs 4,00,000/- as compensation on account of mental pain and agony and other losses and damages sustained by the complainant due to the deceptive and unfair trade practice of opposite parties
- The first and second opposite parties shall also pay the complainant Rs.10,000/- towards the cost of the proceedings.
The opposite parties be jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order failing which the amount ordered vide (ii) above also shall attract interest @9 % from the date of receipt of a copy of this order till the date of realization.
Pronounced in the Open Commission this 29th day of May 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit A1: True copy of relevant extracts of statement of Accounts of the complainant for the period of 2018 and 2019.
Exhibit A2: The cheque dated 15.02.2019 for an amount of Rs. 85,0004.
Exhibit A3: The cheque dated 25.02.2019 for an amount of Rs. 85,000/-.
Exhibit A4: The Cheque having no. 581085 dated 22.01.2020 for an amount of Rs. 27,400/-.
Exhibit A5: The bouncing memorandum dated 24.01.2019 for cheque no. 581085.
Exhibit A6: The written assurance of opposite parties dated 22.01.2019 in relation to compensation.
Exhibit A7: True copies of email communications between opposite party regarding arrangement of tickets and accommodation for complainant in Dubai including his family dated 24.02.2021.
Exhibit A8: The voucher dated 01.03.2019.
Exhibit A9: True copy of forged tickets dated 12.04.2019.
Exhibit A10: The forged voucher having invoice number 130256217.
Exhibit A11: The true copy of the police complaint made before Hill Palace Police Station Tripunithura dated 02.04.2019.
Exhibit A12: The true copy of the E mail communication with the overseas company dated 28,02.2021.
Exhibit A13: The true copy of the E mail communication with the overseas company dated 07.04.2019.
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C.C. No.194/2021
Order dated 29.05.2023
