BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 31^st day of May 2018

                                                                             Filed on : 19.04.2017

PRESENT:

Shri. Cherian K. Kuriakose,                                                 President.

Shri. Sheen Jose,                                                                 Member.

Smt. Beena Kumari V.K.                                                      Member.

                        C.C.No. 120/2016                     

   Between  

                                               O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The 3^rd year physics department students of the S.H College had planned a study tour. The 1^st complainant is the teacher-in charge of the class and the other complainants are the conveners of the tour.  The complainant is filed this complaint on behalf of the all the students and teachers who had participated in the tour programme.  The complainants contacted the opposite party to enquire about the tour. The opposite party offered to conduct the Tour to Wynadu, Coorg and Athirapilly and the tour cost was fixed at Rs.3800/- per head and the total tour cost was fixed at Rs.1,32,200/-. The opposite party had given the tour itinerary, containing the details of the journey including the places of food and accommodation, to the complainants. The opposite party had promised to provide all meals and accommodation in reputed Hotels including Hill view residency Wynadu, Castle International Hotel Coorg etc.  On believing the statements in the itinerary, the complainants paid Rs.72,200/- as advance on 04.01.2016 towards tour cost of the tour programme starting from 06.01.2016 and ending on 10.01.2016.  The balance amount Rs.60,000/- was paid on 06.01.2016.  It was also agreed to pay the balance amount Rs.16,000/- after the completion of the tour programme.  The tour commenced at about 8 p.m on 06.01.2015, after visiting Wynadu, the team proceeded to Coorg on 8^th January 2016.  They reached Coorg at about 9.30 p.m.  But instead of arranging the evening food at Hotel Castle International as mentioned in the itinerary, it was arranged at a substandard Hotel by name Food Court.  The food and water provided there was of very poor quality and was unhygienic. While so, after taking food, the team reached Hotel Castle International for taking rest.  After a few hours some students started vomiting, some others were defecating.  All the students and teachers affected by fever, head ache, body pain, dizziness, diarrhoea etc.  Their condition aggravated within few hours and they were taken to the local hospital.  Though the matter was intimated to the drivers and the tour operators nothing was done by them to solace the tour participants.  Due to the exertion of severe pressure on them by some students and teachers, they were taken to a nearby small clinic.  But the facilities available there were insufficient so as to provide proper medication and treatment to them. Since the health condition of the 23 students and 3 teachers further deteriorated, they were shifted with the help of a relative of a student to St.Mary’s hospital, Periyapatna.  The complainants spent Rs.10,000/- towards treatment expenses and taxi charges.  Two students had suffered severe suffocation and they were provided with oxygen mask.  10 students were administered glucose drip.  The return trip started by 10 p.m on 09.01.2016.  Some students continuously vomited and most of the students were again hospitalized after reaching their houses.  One student Deepa James was admitted in MAJ Hospital, Edappally as an in- patient for 7 days and she spent Rs.14,245/- towards treatment expenses.  Another student Sudil D was admitted in the Sree Sudheendra Hospital, Ernakulam as an inpatient for 4 days.  Some others are still continuing the treatment.  The complainants have consistently contacted the opposite party but in vain.  The complainants approached the opposite party on 11.01.2016 and sought for compensation for the monetary loss and mental agony suffered by the students and teachers who had participated in the tour programme in view of the purposeful omission on the part of the opposite party to take appropriate steps to redress the grievance of the complainants. Thereafter the complainants have lodged a complaint before the Thoppumpaddy Police Station, but which is still pending and no action has been taken by the concerned Police Officers. Thus the complainant is before us seeking directions of this Forum against the opposite party to refund the tour cost amounting to Rs. 1,32,000/- along with interest @ 12% p.a from the date of payment till the date of realization.  The complainants also sought for a direction from this Forum to the opposite party to pay an amount of Rs.3 lakh towards compensation for the mental agony, financial loss and hardships suffered by them due to the wrongful act/or inaction of the opposite party. Hence the complaint.

2)      Version filed by the opposite party is as follows:

The opposite party contended in their version that the petitioners will not come under the definition of ‘consumer’ as contemplated in the Consumer Protection Act, 1986.  Therefore, this complaint is not maintainable before this Forum. The entire incidents had happened at Coorg which will not come under the territorial jurisdiction of this Forum.  Therefore, this Forum has no territorial jurisdiction to entertain this complaint. The opposite party denied all the allegations raised by the complainant in his complaint. The allegation in complaint (para 4) is not fully correct.  Even though dinner was arranged at Hotel Castle International by the opposite party, they opted for hotel Food Court which is near to hotel Castle International.  The opposite parties never suggested or recommended or promised food at hotel by name Food Court and it was the complainants who opted hotel Food Court.  Moreover, during the journey the complainants insisted the opposite party to stop at various heat outs to take snacks and other eateries.  Food Court Hotel is not a party to this proceeding which is illegal. The opposite party is not liable to refund any amount as shown in the complaint and the opposite party also not inflicted any mental agony to the complainants.  Hence not liable to pay any compensation to the complainants in view of the reasons stated above.  The opposite party sought for the dismissal of this complaint.

3)      No oral evidence adduced by the complainants and the documentary evidences furnished were marked as Exbt.A1 to A9. No oral or documentary evidence adduced by the opposite party. The opposite party or their Counsel did not appear when the case was posted for hearing. The Counsel for the complainants was present.  Therefore, the Counsel for the complainant was heard.

4)      Issues came up for considerations are as follows:

1. Whether the complainants are ‘consumers’ coming under the purview of the Section 2 (1) (d) of the Consumer Protection Act, 1986?
2. Whether the Forum has Territorial Jurisdiction to entertain this complaint?
3. Whether the complainants have proved any deficiency in service on the part of the opposite party?
4. If so, whether the complainants are entitled to get refund of the tour cost of Rs.1,32,000/- along with interest from the opposite party?
5. Whether the opposite party is liable to pay compensation of Rs.3 lakh to the complainants for the mental agony, financial loss and hardships suffered if any by them due to the wrongful act of the opposite parties?

5)      Issue No. (i)

The 3^rd year students of physics department, S.H College had planned a study tour. The 1^st complainant is the teacher-in charge of the class and the other complainants are the conveners of the tour.  The complainant is on behalf of the other students and the teacher participating in the tour programme.  The complainants contacted the opposite party enquiring about the tour. The opposite party offered to conduct the Tour to Wynadu, Coorg and Athirapilly. The tour cost was fixed at Rs.3800/- per head and the total tour cost was fixed at Rs.1,32,200/- and this complaint is filed by the 3 complainants for and on behalf of other students and teachers also. The opposite party had given an itinerary containing the details of the journey including the places of food and accommodation to the complainants. The opposite party had promised to provide all meals and accommodation in reputed Hotels including Hill view residency Wynadu, Castle International Hotel Coorg etc.  On believing the statements in the itinerary, the complainants paid Rs.72,200/- as advance on 04.01.2016 for the tour programme to be conducted from 06.01.2016 to 10.01.2016.  The balance amount Rs.60000/- was paid on 06.01.2016.  It was also agreed to pay the balance amount Rs.16,000/- after the completion of the tour programme. From the above facts, it is evident that the opposite party had received the tour cost of Rs.1,32,200/- and the balance amount Rs.16,000/- as promised to be paid after the completion of the tour. The opposite parties are tour operators and they have no dispute regarding the payment of tour cost made by the complainants. Thus the opposite parties are providing their services on getting consideration from the complainants. Therefore, the complainants are ‘consumers’ as defined in Section 2(1) (d) of the Consumer Protection Act, 1986.  The contention of the opposite parties that the complainants are not ‘consumers’ is found incorrect hence the above contention is decided in favour of the complainant.  

6)      In the complaint, it is specifically stated by the complainants that they have filed this complaint before this Forum for themselves and for and on behalf of 39 students who had participated in the tour programme and the complainants have sought for the reliefs for and on behalf of all the students and teachers who had participated in the tour programme.  It is seen that the complainants had not filed any authorization from the 39 other students to contest this case for and on behalf of them or the complainants have also not made the 39 other students as parties to this complaint. Therefore, this complaint is filed without any authorization from other tour participants other than the 3 complainants in this case and the complaint also suffered from non-joinder of necessary parties to this complaint. For the above reasons we find that this complaint is not maintainable for non-joinder of necessary parties or for non- production of authorization from the tour participants who are not made party to this complaint. In view of this above reason, we find that this complaint is not maintainable and this complaint is found liable to be dismissed and hence dismissed.  

7)      Issue Nos. (ii) to (v)

Having found the issue No. (i) against the complaints we are not inclined  to consider and decide issue Nos. (ii) to (v).

In the result, the complaint is found liable to be dismissed.  Accordingly this complaint is dismissed.

Pronounced in the open Forum on this the 31^st day of May 2018.

Sd/-Sheen Jose, Member

Sd/-Cherian K. Kuriakose, President

Sd/-Beena Kumari V.K. , Member

                                                              Forwarded by Order

                                                              Senior Superintendent

APPENDIX

Opposite party’s Exhibits     ::    Nil

Date of Despatch   :

                   By Hand      ::

                   By Post       ::

                                      ………………………