Per Shri P.N. Kashalkar – Hon’ble Psresiding Judicial Member:
(1) This complaint has been filed by Jain Jagruti Centre – Juhu, a Charitable Trust having its office at A-113, Zalawad Nagar, C.D. Barfiwala Lane, Andheri (West), Mumbai – 400 058. This complaint has been filed against M/s.Gem Tours & Travels Pvt. Ltd. and its Directors, the Opponent Nos.2 and 3 and Mr.Sushil Kothari (Franchisee), who was employed by the Opponent No.1 was also made party as Opponent No.4. According to Complainant Opponent No.1 is the travelling agency having its office at Dhobi Talao and Huges Road. Opponent Nos.2 and 3 are Directors of Opponent No.1 and Opponent No.4 throughout the programme was representing Opponent No.1 along with Opponent Nos.2 and 3. Complainant No.1 is a Charitable Trust. Complainant submits that in April, 2002 it decided to arrange tour “monsoon Kerala Tours” for its members on actual costs basis. The Opponents came to know about the programme of Complainants. They approached Complainant for getting contract to arrange said tour. Number of meetings were held between the Complainant and the Opponents and ultimately on 18th April, 2002 terms and conditions were finalized and Opponents agreed to the same. As per arrangement dated 18th April, 2002 Complainant booked five tours i.e. on 10th August, 12th August, 14th August, 16th August and 18th August with the Opponents. The Complainant agreed to pay sum of `1,25,000/- as initial booking amount to the Opponents and at the request of Opponent Nos.2 and 3 the Complainant made further payment of `5,50,000/- to the Opponents as an advance payment. On 18th May, 2002 Complainant addressed letter to Opponents, interalia, placed on record various terms and conditions of the agreement about booking of hotels and then the departure and the rates of the said tour. According to Complainant, Opponent confirmed the same. Complainant then issued circular to all its members intimating details of the said tour regarding hotel booking, rates payable by each of the member of the said tour. There were in all five tours.
(2) The Opponent had agreed that on first night their members would be lodged in Hotel Casino Cochin, on second and third nights at Munnar-Club Mahindra-Resorts, on fourth night in Thekkady-Hotel Spice Village, on fifth and sixth nights at Kumarakom – Hotel Coconut-Lagoon and on seventh night at Marrari Beach Resort – Marrarikulum. Complainant states that this was circulated to all members. The Club Mahindra Resorts then changed to Sterling Resorts by the Opponents. Complainant pleaded that Opponents shown willingness to arrange their stay in Mahindra Resorts provided every member agreed to pay additional sum of `1,000/- per person. The members resisted for payment of `1,000/- extra, since said demand was in breach of the solemn agreement entered between the Complainant and the Opponents. According to Complainant contrary to the rosy picture painted by the Opponents under compulsion and undue pressure the Complainants were compelled to pay `500/- per head extra for the said tour. The Complainant pleaded that instead of agreed accommodation, quality of food, hotel services, transportation, the Opponents committed number of breaches and provided in all respects absolutely sub-standard and unsatisfactory services and they had simply deceived the Complainant’s members. Conduct of Opponents amounted to a great deficiency in service. Complainant pleaded that the Opponents had agreed to provide a full boarding at Club Mahindra inclusive of breakfast, lunch, afternoon tea-coffee, dinner at the kitchen of Club Mahindra and stay for two nights at Club Mahindra Resort only. But contrary to that assurance, the Opponent got served to the members of the Complainant. The conduct of the Opponent for providing sub-standard food and other services was contrary to the terms of contract. The food prepared and served by the Opponent staff was absolutely below standard and against the terms and representation made by the Opponent. The Complainant pleaded that first tour commenced on 10th August, 2002, second on 12th August, 2002. The Complainant pleaded that after commencement of second tour the Opponent raised unlawful, illegal and unreasonable demand of additional amount of `45,000/- for railway booking which was supposed to be done by Opponent long back. No circular or information was provided by Opponent as to when the railway ticket fare came to be increased as the tickets were booked by the Opponents in the month of June, 2002 itself. The Complainant pleaded that the demand for additional amount of `45,000/- was illegal and should be refunded back to the Complainant.
(3) It also pleaded that through Mr.Sushil Kothari, the Opponent No.4 it was revealed to the Complainant that the Casino Group had only confirmed booking of 25 rooms in each group. Mr.Sushil Kothari, did not produce any written confirmation from Casino Groups. The Opponent had agreed to provide full accommodation in each tour but due to gross misconduct of Opponent the Complainant’s members were compelled to adjust within 25 rooms that also without any proper management and below their dignity. The Complainant pleaded that there were five tours arranged and in all the five tours the Complainants was either not given good food or lodging was not proper or drinking water was not supplied or proper accommodation was not provided as per agreement and therefore, the Complainants pleaded that the Opponent was guilty of deficiency in service for all the five tours they had booked with the Opponents. It therefore prayed that the Opponent be directed to pay a sum of `75,000/- towards deliberate changes effected by Opponents in respect of tour of 10th, 12th, 16th and 18th August by not providing food from the kitchen of Club Mahindra Resort. Opponent be directed to refund `45,000/- towards the differential amount of ticket and Opponent be directed to pay to the Complainant a sum of `23,000/- in respect of 10th August tour as only one night was provided at Hotel Coconut Lagoon instead of two nights as confirmed by the Opponent. Opponent be also directed to pay `23,000/- in respect of 12th August tour wherein the Opponent provided only one night at Hotel Coconut Lagoon instead of two nights as confirmed by the Opponent. They also claimed `46,000/- in respect of 14th August tour whereby instead of Sterling Resort as confirmed, the Opponent provided booking at Hotel Siena Village and provided only 30 rooms as against 46 room in two days. They also prayed that the Opponent should be directed to pay a sum of `1,50,000/- for mental torture and inconvenience and for putting depression upon the members of the Complainant. They also claimed `5,00,000/- for damage and compensation due to conduct of Opponent which substantially lost credibility of the members.
(4) Complainant relied upon the affidavit of one Ashok Chandrakant Doshi, Secretary of the Complainant Trust and filed certain documents.
(5) Notices were issued to the Opponents but notices came back with the endorsement ‘unclaimed’. Hence, matter is proceeded without contest from the Opponents.
(6) We are finding that the complaint has been filed by Jain Jagruti Centre-Juhu, a Charitable Trust and it is signed by Ashok Chandrakant Doshi, Secretary of the Complainant Trust. Complainant has filed Affidavit of Shri Ashok Chandrakant Doshi. But, question is whether a Public Trust can be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. The word ‘person’ is defined in section 2(1)(m) includes every other association of persons whether registered under the Societies Registration Act or not. So public trust can be said to be a consumer within a meaning of Section 2(1)(d) of the Consumer Protection Act. It had availed services from the Opponent – M/s.Gem Tours and Travels. However, question is whether there was deficient service on the nature alleged by the Complainant in respect of five tours for its members. No agreement as to what would be the amenities made available is produced on record. M/s.Jain Jagruti Centre – Juhu had simply written one letter dated 31.08.2002 and delivered it by hand delivery to Gem Tours & Travels Pvt. Ltd., Mumbai another letter dated 18.05.2002 was sent by Shri Kishor S.Sheth, Hon.Secretary of Jain Jagruti Centre – Juhu and it was sent to Gem Tours & Tours Pvt. Ltd., Ghatkopar (East), Mumbai, wherein certain conditions and rates have been mentioned by Jain Jagruti Centre – Juhu, as agreed by M/s.Gem Tours & Travels Pvt. Ltd. However, other than this letter there is no agreement executed by Jain Jagruti Centre on the one hand and M/s.Gem Tours & Travels Pvt. Ltd. on the other hand incorporating the tours programme of five tours undertaken by M/s.Gem Tours & Travels Pvt. Ltd. We therefore cannot hold that these were the terms and conditions agreed to between the parties as are reflected in the letter dated 18.05.2002, Exhibit-‘B’ to the complaint. No Affidavit evidence in support of complaint has been filed by Mr.Doshi. There is one page affidavit reiterating what is mentioned in the complaint itself. We do not know whether the person who had sworn affidavit was in the tour conducted by M/s.Gem Tours & Travels Pvt.Ltd. The list of five tours does not reveal that deponent of the affidavit for the Complainant was one of the tourists who had joined five tours conducted by Opponent. That apart, M/s.Jain Jagruti Centre – Juhu itself is a service provider for its members and it had availed services of M/s.Gem Tours & Travels Pvt. Ltd., so Jain Jagruti Centre, being a service provider, it cannot file complaint against its members vis-à-vis Gems Tours and Travels Pvt. Ltd.
(7) Moreover, it is pertinent to note that the allegations made in the complaint are of general nature. When five conducted tours were arranged in which more than 50 to 60 participants joined, some sort of inconvenience is bound to be there. The consumer complaint is filed on behalf of all these tourists by the Trust stating that inconvenience and hardships was caused to the members because of supply of substandard food , improper accommodation etc. No such particulars are given by the Complainant and only sweeping and general statement has been made that all those members were not provided with proper accommodation as per contract, they were not given food, drinking water, standard quality of food etc. Such general statement cannot be acted upon to hold that there was deficiency in service on the part of Gem Tours & Travels Pvt. Ltd. We had asked Complainant, whether they are willing to file affidavit of some persons who were participants of tours conducted by Jain Jagruti Centre. The Complainant’s Advocate expressed inability to produce affidavit of some persons who had participated in the said tours. In the circumstances, we are of the view on the basis of simple one page affidavit filed by Ashok Chandrakant Doshi, Secretary of the Complainant’s Trust, we cannot hold Opponent deficient in service without any supporting affidavits on record sworn by affected persons. In the totality of the circumstances, we are finding that on the basis of general statement, we cannot allow this complaint filed at the behest of Jain Jagruti Centre, who is Charitable Trust for its members. The members themselves should have come forward to make complaint of deficient service against the tour operators, but, none of the members nor passengers who had undertaken journey had sworn affidavit in support of the Complainant’s claim and therefore, we are not inclined to allow this complaint holding that there has been deficiency in service on the part of the Opponents in not giving proper food, proper accommodation, lodging, boarding etc. in the course of tour and that those persons who had undertaken tour had suffered inconvenience to a great extent. In the circumstances, we find that there is no merit in the complaint (for want of proof) and complaint is liable to be dismissed. Hence, we pass the following order:
O R D E R
(i) Complaint stands dismissed.
(ii) No order as to costs.
(iii) Inform the parties accordingly.
Pronounced on 15th November, 2011.
