Abhishek Sarkar vs Cox And Kings Ltd

BOTH these revision petitions arise out of the common order of State Commission; hence, decided by common judgment.

R .P. No. 3366 of 2013 has been filed by the petitioners/complainants and R.P. No. 3533 of 2013 has been filed by the petitioner/opposite party against the order dated 31.07.2013 passed by the learned State Commission in S.C. Case No. FA/787/2012 - Abhishek Sarkar Vs. Cox & Kings Ltd. and Cox & Kings Ltd. Vs. Abhishek Sarkar & Anr. by which, while allowing appeal partly, order of District Forum allowing complaint was modified.

BRIEF facts of the case are that complainant No. 1 got from his employer - HSBC a gift of holiday voucher to the tune of Rs.92,000/ - endorsed in favour of OP so as to enable complainants to enjoy tour of Malaysia. Accordingly, complainants enjoyed trip and on their return journey from Malaysia, they were kept waiting at the hotel wherefrom representative of OP was to pick up the complainants and to drop them at airport for their return journey to Kolkatta. It was further submitted that inspite of reasonable waiting as representative of OP did not turn up, complainants availed taxi for reaching airport, but as they reached late, they could not board the flight and had to purchase tickets for return journey to Kolkatta via Delhi and incurred expenses of Rs.1,39,043/ -. Alleging deficiency on the part of OP, complainants filed complaint before District Forum. OP resisted complaint and submitted that complaint was not maintainable as per arbitration clause. It was further submitted that agent of OP did attend the hotel, but did not find complainants in lobby/room as they had left the hotel of their own for which, OP is not responsible and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.1,03,943/ - and further awarded compensation of Rs.25,000/ - and Rs.5,000/ - as cost of litigation. OP filed appeal before State Commission and learned State Commission vide impugned order reduced amount of Rs.1,03,943/ - to Rs.42,050/ - against which, both the parties have filed aforesaid revision petitions. Heard learned Counsel for the parties and perused record.

LEARNED Counsel for the complainant submitted that learned District Forum rightly awarded Rs.1,03,943/ - and learned State Commission committed error in reducing amount; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the OP submitted that inspite of no deficiency in service, learned State Commission has committed error in allowing appeal only partly and learned District Forum committed error in allowing complaint; hence, revision petition be allowed and complaint be dismissed.

IT is not disputed that complainants availed 7 days tour programme and problem cropped up only on the last day when complainants were to reach airport from the hotel. Complainant submitted in the complaint that complainant wanted to leave the hotel for airport at 11 a.m. on 11.12.2010 and they came down from their Room No.1911 with their luggage to the waiting lobby adjoining to reception counter at 11 a .m. in expectation of the representative of the OP ''s agent, who was to transport them from hotel to Kuala Lumpur Airport. It was further mentioned in the complaint that Complainant No. 1 had stomach upset with slight fever from the morning, he had to use rest room (toilet) frequently and after 11 a.m. he went to Room No. 1911 twice for few minutes to use the toilet, but Complainant No. 2 stayed at the lobby. It was further pleaded that as no one turned up to pick up them, complainants left hotel at 12.00 hours by taxi and paid 150 Malaysia Ringits (MYR) equivalent to Rs.2250/ -, but due to traffic signals, toll plaza, etc. they reached late to the airport and could not board the flight and ultimately had to purchase new tickets and returned back. OPs in their written statement denied this averment and submitted that taxicab of the supplier conducted by OP went to the hotel to receive the complainants at 11.00 a.m., but complainants were not found either in lobby or in their room and also enquired at the reception and ultimately left the hotel after sometime. It was further pleaded that local supplier also sent e -mail to the OP regarding not finding the complainants in the hotel.

LEARNED Counsel for the OP submitted that learned State Commission wrongly observed in its order that it was admitted position that agent of the OP did not attend the complainants at the hotel in Malaysia to take them to the airport. E -mail dated 11.12.2010 sent at 12.14 by local supplier reveals that driver went to the hotel to pick up complainant and other two couples, but complainant was not in the lobby and in the room and driver after leaving message at the reception, left the hotel without complainant.

NOW , the sole question to be decided is whether driver of OP reached to the hotel at 11 a.m. or not. As per complainant on account of stomach upset and slight fever, he went to rest room twice after 11 a.m. for few minutes whereas, he had come to lobby of the hotel at 11 a.m. after leaving Room No. 1911. If he had vacated the room at 11 a.m. then, there was no occasion to use toilet of that room twice after 11 a.m. Rather, he should have used rest room of lobby instead of going to room which he had already vacated and in such circumstances, his statement does not inspire confidence that he used rest room of Room No. 1911 twice after 11 a.m. after vacating the room. Even if his statement is relied upon, it is not clear for how many minutes he was not present at the lobby of the hotel and in such circumstances, it was not possible for the driver of the OP to locate complainant. No doubt, complainant has mentioned in the complaint that his wife Complainant No. 2 stayed at the lobby adjoining the reception counter, but in support of this statement, Complainant no. 2 has not filed any affidavit and in such circumstances, it cannot be inferred that when Complainant No. 1 was in rest room, Complainant No. 2 was present at the lobby. OP has placed on record e -mail communication by Prema to Tina dated 11.12.2010 at 12:14 in which it was stated that their driver went to hotel to pick up Mr. Abhishek and other two couples, but Mr. Abhishek was neither in the lobby, nor in the Room No. 1911 and driver after leaving message at the reception left the hotel without Mr. Abhishek.

PERUSAL of e -mail communication reveals that driver reached to the hotel at 11 a.m. to pick up Mr. Abhishek (complainant) and other couple, but as complainant was not found there, driver left the hotel after leaving message. Driver could not have waited as he was to drop other passengers also sitting in taxi to airport in time. Perusal of assignment order given by Tourland also reveals that driver was to pick up one couple at 10:45 a.m. and complainant at 11 a.m. and in such circumstances, it can be inferred that after picking another couple, driver of taxi reached to the hotel to pick up complainant, but as he was not found there, driver left the hotel. Learned Counsel for the complainant served questionnaire on the OP and put suggestion and reply to that which runs as under: ''''Q. Do you agree that it might be possible for the driver to have human failure, omissions or failings like not being able to recognize the complainants in a hurry or not looking for them with searching eyes but indifferently, or like faithlessness for the lure of easy money by secretly carrying other passengers for his personal gain after showing his face at the Hotel Reception to get the Assignment order signed. Ans. No. However it may be appreciated that I was not present at the spot ''''.

BY this suggestion it can be inferred that driver went to the hotel and returned back without collecting complainant. In such circumstances, no deficiency in service can be imputed on the part of OP for not collecting complainants from the hotel and dropping them to the airport.

EVEN if it is presumed that driver of OP did not reach to hotel, complainant should not have waited there for one hour right upto 12:00, as he was well aware that his international flight was to leave airport by 2:30 p.m. and he was supposed to reach to the airport well in time. He has admitted in the complaint that after taking any taxi his arrival at airport was delayed by traffic signals, toll plaza, etc. and by the time they reached to terminal, counter was closed and they were denied boarding. Complainants should not have waited for a long time for the taxi and should have proceeded to airport after hiring another taxi to avoid consequences of missing flight.

IN the light of aforesaid discussion, it becomes clear that there was no deficiency on the part of OP and learned District Forum committed error in allowing complaint and learned State Commission further committed error in allowing appeal partly and revision petition filed by the OP is to be allowed and complaint is to be dismissed and in such circumstances, revision petition filed by the complainant is to be dismissed.

CONSEQUENT LY , Revision Petition No. 3366 of 2013 filed by the petitioner -complainant is dismissed and Revision Petition No. 3533 of 2013 filed by the petitioner -OP is allowed and impugned order dated 31.7.2013 passed by learned State Commission in Appeal No., 787 of 2012 and order of District Forum dated 27.8.2012 passed in Complaint No. 141 of 2011 is set aside and complaint stands dismissed with no order as to costs.