Per Justice Mr. S.B. Mhase, Hon’ble President :
Heard Ld. Counsel for the appellant and respondent. This appeal is directed against the order passed by the Consumer Disputes Redressal Forum, South Mumbai in consumer complaint No. 02/2008 decided on 18.4.2011. By this order, the original opponent/appellant is directed to pay an amount of `5,50,000/- with interest @ 9% p.a. from 18.6.2007. The appellant is further directed to pay the cost of the litigation `5000/-. This amount was directed to pay within the period of one month.
The appellant before State Commission is original opponent and respondents in this appeal are the original complainant. The appellant is arranging tours in India and abroad and thus provides service to their customers by arranging various tours. The appellant had arranged the tour for Russia Scandinavia with Nord Cap in the year 2007 for 20 nights and 21 days and the period of the tour was 29.5.2007 to 18.6.2007 and accordingly, brochure was published. The participant in the said tour was to pay `2,25,000/- if he happens to be a major person and for minor children, the cost of the tour was `1,58,000/-. This amount includes the air fare, residence in hotel in one room with two tourists and visits to the various places as stated in the said brochure. For the site seeing , the opponents were supposed to provide Super Delux Luxury Coach. Visa was to be taken by the appellant and therefore, passports were given by the complainants to the appellants. However, grievances of the complainant is that before commencement of the said tour, tickets and passports were not given to the complainants and therefore, all the complainants were worried till they came to Air Port. In order to complete the formalities of the air travel and clearance at the Air Port, the appellant was supposed to provide guide. However, no guide was provided. Initially, it was represented to the complainants that there shall be group of only 25 tourists. However, after coming to the Air Port, complainants realized that the group is of 45 persons. When the group traveled to Masco, there was no one to receive the group on behalf of the appellant and all the complainants were required to find out as to what arrangement has been made by the appellant for taking them to the hotels or other places. On enquiry, it was found that only one travel bus was sent and driver was not knowing language of the complainants and equally the English and therefore, there were difficulties and difficulties in communication with the driver and the complainants’ group. On reaching hotel, it was revealed that there was no reservation made by the appellant in the said hotel for the complainants/respondents and therefore, all the complainants were under confusion as to what decision should be taken under these circumstances and they were required to wait for pretty long time. They contacted from the said hotel on telephone at Mumbai Office and it was reported that the opponents had gone outside the country and therefore, all the complainants were required to wait in the lobby of the hotel for more than 7 hour4s. They were not provided with water also by hotel management. After making several efforts, the opponents made arrangement for some rooms in the said hotel but instead of giving one room for one pair, the said hotel provided one room for 4 persons. It was contrary to the representation made in the brochure. Even in the said hotel, bed and other facilities were not satisfactory. The services rendered at hotel at Copenhagen were also absolutely sub-standard. The complainant were taken to the motel which is 30 kl.mt. away from the city Trondhelm. Since the strength of the group was large, the complainants were required to suffer so many inconveniences including insufficient accommodation in the hotels. The places where they were accommodated and the food which was provided to them was not of the standard quality and it was not sufficient. As a result, inconvenience caused in the hotels, the time which was required to be spent for the purpose of site visiting, was not available and therefore, several places could not be visited. It is further grievances of the complainants that one Mr. Jignesh who was alongwith group as representative of the appellant had arranged the said tour for the first time and he was not expert to arrange group of 45 persons and therefore, he was unable to provide required service to the group. Not only that but Mr. Jignesh was not knowing Russian language and therefore, he was also facing several problems which ultimately caused inconvenience to the complainants. As a result, instead of getting guidance and support from Mr. Jignesh proved to be a nuisance to the group. He could not arrange the tour properly. Certain places of interest were not shown. Representative of the appellant could not arrange visits through Metro as a result of which one day was wasted and the visit to the Article, circular could not be completed. There was no arrangement for the tourists at Oslo. However, complainants were taken to Oslo without making visit to the places of interest at Oslo. They were taken to the distance of 250 kl.mtrs. for halt. At several places before the complainants entered into the market, markets were closed. Cook which was sent with the group was alone and there were no helpers provided to him and therefore, he was unable to prepare food for the group. As assured in the brochure, guide was not provided. In the group, there were several senior citizens and aged persons and therefore, to transport their luggage, helpers should have been provided by the appellant. However, no arrangement to that effect was also made. These are the complaints. Since these services were not provided, consumer complaint was filed claiming the damages of `16,50,000/- with interest @ 18% p.a. and claiming `25,000/- by way of cost of litigation.
After filing of the complaint, notice was issued to the opponent/appellant and in view of the said notice, the appellant appeared before the District Consumer Disputes Redressal Forum on 20.8.2008 through advocate Mr. Dinesh Nag. However, on that day, Vakalatnama was not filed and the written version was also not filed. It appears from the order-sheet that the advocate represented to the District Consumer Disputes Redressal Forum that due to his personal difficulty, he is unable to file Vakalatnama and requested for the time to file written version. It further appears from the Roznama that on 18.9.2008, advocate Mr. Dinesh Nag was present but he again prayed for time to file Vakalatnama and written version. Thereafter, the complaint was adjourned to 6.10.2008. On that day, neither the appellant nor the advocate of the appellant was present before the District Consumer Disputes Redressal Forum. They also failed to file Vakalatnama and written version. However, the complaint was adjourned to 22.1.2010 and on that day, it has been found that the appellant and his counsel have not taken any step to file Vakalatnama and written version since 20.8.2008. The District Consumer Disputes Redressal Forum passed an order to proceed exparte as against the appellant on 22.1.2010. Thereafter, also the appellant have not taken any step and therefore, the complaint was decided on the basis of the affidavit in evidence produced by the complainant on 18.4.2011.
Now the grievance of the appellant is that the mistake or the fault of the advocate cannot be used as against the party and therefore, it is submitted that the exparte order may be set aside and the appeal be remanded back. What we find that the appellant was served long back and the first date of the appearance w3as 20.8.2008. On that day, Vakalatnama was not filed nor written version was filed. Thereafter, the time was taken by the advocate upto 6.10.2008. On the said date, appellant and his advocate remained absent. What we find that more than two months’ time was granted to file Vakalatnama and written by the District Consumer Disputes Redressal Forum. It is further interesting to note that till 22.1.2010, the District Consumer Disputes Redressal Forum has not passed an order to proceed exparte as against the appellant. Thus, the District Consumer Disputes Redressal Forum has found that for the period of two years after the serviced, the appellant has failed to take appropriate step viz. to file Vakalatnama and written version and therefore, an exparte order was passed. In fact, the law desires that the District Consumer Disputes Redressal Forum shall make a endeavor to dispose of the complaint as far as possible within 90 days. The law also expects that in case the complaint cannot be disposed of within 90 days, the District Consumer Disputes Redressal Forum shall state the reasons for not deciding the said complaint within 90 days. These are the statutory provisions which are known and expected to be known by the appellant and his advocate and therefore, they should have immediately participated in the proceedings and filed written version. No reasons are being pointed out in the appeal memo as to why the appellant cannot give instructions to his advocate to file reply version. At least, Vakalatnama could have been signed by the appellant but the same has not been signed by the appellant. In the absence of Vakalatnama, advocate cannot work for the party. Therefore, ultimately he remained absent. All these facts are admitted facts on record and in appeal memo, there is no explanation given by the appellant in respect of his conduct. This is only because the appellant then and then only decided not to participate in the proceedings because he has no answer to the grievance made by the complainant. He desires to get the order exparte and thereafter, to get the matter remanded from the State Commission and thus to harass the complainant. There are no reasons which in capacitated the appellant to participate in the proceedings before the District Consumer Disputes Redressal Forum and therefore, the contention raise3d that advocate was at fault is not correct. It is the appellant who has not participated and instructed the advocate which has ultimately resulted into deciding the complaint exparte. But we find that the decision to proceed exparte taken in the circumstances of the present case by the District Consumer Disputes Redressal Forum is just and proper which requires no inference.
It is further to be noted that the complainant have filed their affidavit alleging the deficiency in service as alleged in the complaint. In order to show the terms and conditions of the tours, the brochure in which the total programme day-by-day was stated has been produced on record. That brochure is not in dispute. Apart from that, there is a communication from the complainant through the Internet to the opponents which were sent on 25.6.2007 and 27.6.2007 wherein all these grievances have been reflected and communicated to the opponents. Apart from that, there are notes produced on record which were made by the complainant when they were holding in tour at a Comfort Hotel Holberg. Those notings show that the deficiencies which were enumerated by the complainant. Those notings have been signed by all the complainants. Thus the hotels where the complainant had stayed, informed that the services were sub-standard and the inconvenience provided as assured in the brochure. The Internet communications were never replied by the appellant. Not only that but the respondents/complainants had given notice through the advocate Mr. Harshad Trivedi on 17.8.2007. Such notice also was not replied by the opponent. In order to contravene that the services as assured with the brochure were provided, the appellant has not produced single document in the appeal memo alongwith appeal except making ground that the service was rendered. What we find under these circumstances as a result of not filing reply statements made in the complaint stands accepted and quashed by the appellants when the party is called upon to answer and party prefers to keep a mum. The only inference is that the party accepts allegations made against the said party. Whenever, the notice is issued calling upon the explanation which is not given, it amounts to quash all allegations. Thus in the present matter, as a result not filing written version, all the contentions raised in the complaint stands accepted by the opponent. Apart from this, there is evidence filed by the appellant by way of affidavit in support of all documents to show that the rooms as provided were not given, food was not supplied as assured and sight seeing as shown in the programme was not carried out. All the allegations to substantiate all the allegations made in the complaint, there is evidence on record. Therefore, the District Consumer Disputes Redressal Forum has rightly come to the conclusion that there is deficiency in service on the part of the opponents and said averments requires no inference at the hands of the State Commission.
To each of the complainant, `50,000/- has been given by way of compensation. We find that the said compensation has been rightly given. It is to be noted that these respondents have suffered deficient services and therefore, compensation has been given. The District Consumer Disputes Redressal Forum has not directed to return the travel money. It is a compensation for the deficient service which are rendered by the appellant. In fact, the people like complainants spent so much money so as to have sight seeing. This person is middle-class person. Further it is usual experience that the tourists companies makes a high claim when they publishes brochure so as to attract the tourists. But once the tourists are taken to the foreign country, they became helpless and then the tourists companies tried to expedite them as per their own choice. Instead of giving single room for pair, they have provided one room for 4 persons and several sight seeing programmes were cancelled. Not only that the complainants were required to help at motels which are far away from the cities which resulted into not visiting the market places. It is very surprising to note that the balley dance is very important dance in Russia. Further, the complainant cannot see the dance because of the deficient service given by the opponent. Hence compensation which has been given by the District Consumer Disputes Redressal Forum is just and proper which requires no inference. Hence the order:
O R D E R
The appeal is not admitted and is hereby stands rejected.
No order as to costs.
Pronounced dated 19th July 2011.
