Ajay Gupta vs TRAVEL CORPORATION (INDIA) LTD

WE have heard Mr. Krishna Mohan, Advocate, for the complainant and Mr. J. Chatterjee, Advocate, for opposite parties 1 and 2 in this complaint. Noonehasapeared on behalf of oppositeparty No.3 nor has any reply been filed on their behalf.

THE case of the complainant is that he is the Managing Director of Motor & General Sales Ltd. and had got arrangement made though opposite-party No. 2 (Travel Corporation (India) Ltd., 3 Shahnajaf Road, Hazratganj, Lucknow) for making a journey to Kathmandu and back and for making arrangement for hotel accommodation there. THE amount which the Travel Corporation asked for it, namely, Rs. 23,779/- was paid to the first two oppositeparties who issued a bill receipt dated 13.6.1991 of which a photo copy is Enclosure-2 to the complaint. THE complainant says that when he reached Kathmandu and contacted Hotel Soeltee Oberoi where the arrangement for stay had been assured by the first two opposite parties he was told that there was no booking in his name. As such, he had to make alternative arrangement for his stay in another hotel. A total sum of Rs. 23,758.60 had to be spent by him for the stay at that hotel along with his family. THE complainant proceeds to allege that whatever amount he had taken with him for holidaying in Nepal had to be spent for stay in another hotel and he was put to great mental agony and harassment. THE complainant says that there was deficiency in service on the part of the Travel Corporation of India resulting in not only inconvenience but also harassment and mental agony to him apart from resulting in extra expenditure to be incurred by him during his visit to Nepal THE prayer in the complaint is that the first two opposite-parties be directed to refund the sum of Rs. 23,779.00 paid to these opposite-parties by the complainant alongwith interest apart from a further sum of Rs. 23,758.60 spent by him alongwith interest. THE complainant also claims a sum of Rs. five lakhs by way of compensation for the mental agony and harassment and a sum of Rs. 5,000/- by way of costs of these preceedings. The first two opposite-parties have filed a written statement in which the stand taken is that all that they did was to transmit the amount to Holiday Nepal Agency on the insistence of the complainant and that they had not undertaken any obligation whatsoever for arranging for the journey of the complainant and his family to Kathmandu and back or their stay in Hotel Soeltee Oberoi. They had not offered any service to the complainant for consideration so as to be liable for any of the amounts claimed from them by thtj complainant. It has also been said that the State Commission had no jurisdiction to go into this matter because Holiday Nepal Agency had not been impleaded as a party in it and further that no part of the cause of action took place within the territorial jurisdiction of the State Commission. The complainant has filed some documents alongwith the complaint apart from filing an affidavit in reply to the affidavit filed on behalf of the first two opposite parties with which are appended two documents which have been brought on the record of these proceedings on behalf of the opposite-parties.

The objection relating to the jurisdiction of the Commission is only to be noticed to be rejected. From the averments made in the complaint and the documents appended to it, is clear that the first two opposite-parties had entered into some transaction with the complainant at Lucknow and had accepted a sum of Rs. 23,779/- from him at Lucknow. These, we feel, were enough to clothe the State Commission with jurisdiction to go into this matter on the ground that part of the cause of action had arisen within its territorial jurisdiction.

COMING to the merits of the dispute we find that apart from making a bald statement in the written statement of which the contents have been affirmed by the affidavit of Sri Shyam Saxena, the opposite parties have not brought any cogent material on the record of these proceedings to establish that the tour which was to be undertaken by the complainant and his family had been negotiated by them with Holiday Nepal at Lucknow. The two booklets which have been filed on behalf of the opposite parties only show that Holiday Nepal Agency was advertising some holiday package. There is nothing in these booklets to indicate that they had on their own been negotiating directly with the complainant about the tour. Besides, we find from Enclosure-2 to the complaint which is a bill submitted by the Travel Corporation (India) Ltd., represented by the first two opposite parties in this complaint that a sum of Rs. 23,704/- was to be charged as cost of 4 Packages of Hotel Oberoi Soeltee, Kathmandu @ Rs. 5,926/- for 4 nights 5 days. A further sum of Rs. 75.00 is shown in this bill as communication charges for confirmation of air tickets for Sector DelhiKathmandu making a total of Rs. 23,779/-. The complainant has asserted that the amount which he had paid to the first two opposite parties included the service charges. In the written statement of which the contents have been sworn to by means of the affidavit of Sri Shyam Saxena, it has been as-serted in paragraph-3 that whatever amount had been realised by the contesting opposite parties from the complainant had been forwarded to Holiday Nepal Agency on the insistence of the complainant after deducting therefrom an amount by way of service charges due to the answering oppositeparties. All these circum-stances unmistakably point to the fact that the first two opposite parties had offered their ser-vices for consideration to the complainant in the matter of arranging the package tour for the complainant and his family members of four persons for four nights and five days'' stay at Hotel Oberoi Soeltee and had also undertaken to ensure confirmation of air tickets for journey from Delhi to Kathmandu. We find, on the evidence on record, that the complainant had been extended service by the first two opposite-par-ties for consideration in which, according to the complainant, there was lapse on their part. Coming now to the question of deficiency in service on the part of the first two opposite-parties we find that in the written statement and the supporting affidavit it has been repeatedly said that the first two opposite parties had not undertaken to extend any service to the complainant and that they had only remitted the amount to Holiday Nepal on the insistence of the complainant. The written statement or the affidavit filed on behalf of the oppositeparties does not mention anything about the documents which have been filed by the complainant alongwith the complaint and re-affirmed by means of the affidavit of the complainant which he filed in reply to the affidavit filed on behalf of the first two opposite parties. A perusal of these documents together with the averments made on behalf of the complainant leave no doubt that apart from paying a sum of Rs. 23,779 /- to the first two opposite parties in connection with the package tour, the complainant had to incur expenditure for his stay at Hotel De L'' Annapurna in Kathmandu to an extent of Rs. 23,758.60. These also establish that it was on account of the failure on the part of the first two opposite parties to extend the services for which they had obtained payment from the complainant, alter-native arrangement for stay etc. had to be made by the complainant.

THE failure on the part of the first two opposite parties in ensuring proper arrangement for the stay of the complainant and his family members as per the obligation undertaken by them, for which they had charged a substantial amount from the complainant, amounts to deficiency in service on their part. The question of relief to which the complainant is entitled may now be considered. From the bill dated 13.6.91 (Enclosure-2 to the complaint) it is clear that a sum of Rs. 23,704/- was demanded from the complainant towards the cost of a package. Even according to the first two opposite parties the amount was paid to them by the complainant though according to them it ''.ad been remitted by them to Holiday Nepal Agency after deducting service charges. However, as far as the complainant is concerned he made payment of this amount to the first two opposite-parties for service which was never rendered to him. The complainant is clearly entitled to its refund. So far as the sum of Rs. 23,758.60 is concerned suffice it to say that the amount which has been spent by the complainant would in any case, have been spent by him in case the arrangement had been made by the first two opposite-parties as per their bill. It would be unfair to require the first two opposite-parties to refund this additional amount to the complainant. No evidence whatsoever has been brought on the record, apart from the Annual Report of Motor & General Sales Limited relating to the year 1986-87 showing that the complainant was the Managing Director of the Motor & General Sales Ltd., to establish that loss to an extent of Rs. 5 lakhs was suffered by the complainant on account of inaction on the part of the first two opposite-parties. We may add that in the complaint itself the amount of Rs. 5 lakhs has been claimed as ampensation for mental agony. While it is true that it is difficult to quantify, by specific evidence, the extent of damage said to have been occasioned to a person on account of mental agony, yet there has to be some material on the record to justify a claim for an amount of this extent. However, mental agony and harassment can be assumed in favour of the complainant from the circumstances in which he found himself placed during his visit to Kathmandu during the trip in question. Having regard to the fact that the complainant is the Managing Director of Motor & General Sales Limited of which Annual Report has been brought on the record we feel inclined to hold that the complainant would be entitled to a sum of Rs. 10,000/- (Rs. ten thousand) by way of compensation on this count. Coming now to the question of costs of these proceedings we find that in this regard as well no evidence has been brought on the record of these proceedings by the complainant. However, having regard to the nature of the controversy we would assess the costs at Rs. 1 thousand.

IN sum, the complaint is allowed. The complainant is held entitled to refund of a sum of Rs. 23,704/-, with interest at the rate of 18% per annum from the date of its payment by the complainant which we are informed is 13.6.1991 till the date of actual payment by the first two opposite parties apart from a sum of Rs. 10,000/- (Rs. ten thousand) by way of compensation for harassment and mental agony and a further sum of Rs. 1,000/-(Rs. one thousand) by way of costs of these proceedings. The amounts aforesaid shall be paid by the first two opposite parties to the complainant within a month from today failing which the complainant will be entitled to further interest on the amount due from the due date till the date of actual payment at 18% per annum. Let copies of this order be made available to parties as per Rules. Complaint allowed with costs.