AMARDEEP SINGH GILL vs PACK TRAVELS AND TOURS (P) LIMITED

THIS appeal has been filed against the order dated 22.7.2004 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [hereinafter, for short, referred to as District Forum-II] in Complaint Case No. 1117 of 2002.

THE contextual facts in brief are as under : THE complainants, went on a trip to Goa, in the end of December, 2000, to celebrate the New Year. As per averments, the appellants booked through respondent No. 1/O.P. No. 1 five AC double bed rooms in hotel Fidalgo, Panaji, Goa (O.P. Nos. 2 and 3) for the period from 27.12.2000 to 1.1.2001 at the tariff rate of Rs. 1,100/- per day and a sum of Rs. 12,500/- was paid in advance towards the booking. THE appellants/complainants have alleged that O.P. No. 1 at the time of booking had promised Three Star facilities at hotel Fidalgo, Goa but in the hotel they found services and facilities totally missing as the rooms were Non-AC and facilities like swimming pool, gymnasium, room service, geyser fitted bathrooms, coffee shop and restaurant were non-existing. THE appellants have also alleged that they were lodged in different blocks at different floors though at the time of booking the O.P. No. 1 had promised to provide them accommodation on the same floor. After staying the night of 27.12.2000 the appellants requested the O.P. hotel to provide the facilities as promised or return back the advance, consequent to which the Manager of Hotel Fidalgo (O.P. Nos. 2 and 3) reduced the room tariff from Rs. 1,100/- to Rs. 880/- per day. THE appellants have alleged that their stay was a nightmare as they were disturbed by the group of students, who were put up in the same hotel and had to suffer mental agony, inconvenience and harassment. THE appellants have also alleged that after coming back when they complained about deficiencies, the respondent No. 1/O.P. No. 1 assured them that he would look into the matter with O.P. Nos. 2 and 3 but nothing was done. For the above stated deficiency in service and inconvenience, the appellants/complainants have prayed for compensation of Rs. 4 lacs, in addition to Rs. 15,000/- towards refund of excess tariff and Rs. 10,000/- towards legal expenses. In the written statement filed by O.P. No. 1 the preliminary objection taken is that the booking was done by Mr. D.S. Nalwa hence Mr. Amardeep Singh has no legal right to file the complaint. The factum of booking of five AC double bedrooms for the period 27.12.2000 to 1.1.2001 at the rate of Rs. 1,100/- per day (inclusive of room charges and taxes) stands admitted. Respondent No. 1/O.P. No. 1 has submitted that tariff amount of Rs. 22,500/- was remitted by them to the O.P. Nos. 2 and 3 hotel after retaining 10% of authorised commission. The O.P. No. 1 has submitted that booking of the hotel was according to the choice of the complainants and they had only acted as a booking agent and if the facilities as promised were not made available, then the management of the hotel is responsible and not O.P. No. 1 as a booking agent. Further, it has been averred that O.P. No. 1 had never suggested that they were the authorised agent of hotel Fidalgo rather it was made clear to Mr. D.S. Nalwa that they were authorised agents for Goa Tourism Development Corporation, Mr. D.S. Nalwa had initially booked the same party at Old Goa Tourist Hotel on 23.10.2000 but later he changed his mind after referring to hotel and references guide and requested to change the booking to hotel Fidalgo i.e., O.P. Nos. 2 and 3. It has further been stated that Mr. D.S. Nalwa, complainant No. 5 appreciated their services as is demonstrated from the fact that after a gap of 11 months booked one of his friends through them at a hotel in Goa. Had there been any deficiency in service provided by them Mr. D.S. Nalwa would not have got any booking done for his friend subsequent to the one on which the cause of action of present complaint is based. It has further been stated that this complaint is aimed to harass the answering O.P. as the complainants have already been refunded Rs. 5,500/- each by the O.P. No. 2 on account of alleged deficient services.

Respondent Nos. 2 and 3/O.P. Nos. 2 and 3 filed reply stating, inter alia, that complaint is barred by limitation as rooms were booked on 30.10.2000 and complaint has been filed in December, 2002, after a lapse of more than two years. Further there was no privity of contract between the complainants and respondent Nos. 2 and 3/O.P. Nos. 2 and 3 as the booking was made by the O.P. No. 1 and answering O.Ps. (2 and 3) neither solicited nor represented or corresponded with the complainants/appellants regarding the facilities/amenities available in their hotel. Hence there is no misrepresentation or unfair trade practice on the part of O.P. Nos. 2 and 3 the complaint qua them is not maintainable as they are neither necessary nor proper party and this complaint is liable to be dismissed qua them on account of mis-joinder of parties.

IN reply on merit, it has been sated that answering O.Ps. have never applied for their names to be included in Travel INdia Guide (copy brought on record vide (Annexure D-1) and the material published/advertised is not binding upon them. The rates mentioned are also old and this travel guide is not in their knowledge. Further, it is nowhere stated in the travel guide itself that their hotel was a Three Star. Answering O.Ps. have averred that the appellants/complainants were satisfied with the facilities provided to them, which is proved from the fact that the complainants extended their stay in the hotel by one night. The reduction in the room tariff was given to encourage future references and as a marketing strategy and not on account of any deficient services. Further all the rooms of the hotel were centrally air-conditioned, double bed rooms having all the facilities of Three Star Hotel since they cater to the domestic and foreign tourists. The allegations of the complainants that they were lodged at different places have been refuted as rooms bearing Nos. 305, 307, 315, 317 and 319 were allotted to them. It has been stated that any promise regarding facilities made by booking agent is not binding on them. The allegations of any deficiency in service or unfair trade practice are denied. In evidence all the appellants/complainants have filed their affidavits along with Annexures C-1 to C-4 whereas on the other hand Sh. Anoop Singh, Managing Director of M/s. Pack Travels and Tours Private Limited-O.P. No. 1 and Sh. Jayant Sanjeeva Shetty, Director M/s. Maberest Hotels Private Limited owner of Hotel Fidalgo -O.P. Nos. 2 and 3 have filed their affidavits along with Annexures D-1 to D-5.

THE District Forum allowed the complaint partly and directed the O.Ps. to allow further a rebate of Rs. 200/- per room per night (in addition to Rs. 220/- per night given by O.P. Nos. 2 and 3) and the O.Ps. were directed to comply with the order within two months failing which the amounts would carray interest @ 6% per annum from the date of order till realisation. Aggrieved against the order of the District Forum present appeal has been filed by the complainants pleading, inter alia, that the impugned order is not sustainable in the eyes of law as the District Forum has not appreciated the facts of the case. The District Forum has committed an error in observing that contentions of respondent that the legal notice was sent after the delay of 15 months from the cause of action and complaint was filed at the fag end of limitation period, so the case of the complainant cannot be entirely true, hence the Forum has failed to appreciate the intention of Legislature in keeping the limitation of two years. Even if the complaint be filed on the last date of limitation period the same is valid and legal and at par with the case if the complaint is filed forthwith. The order of the District Forum has also been assailed on the ground that Mr. D.S. Nalwa, one of the complainant was not dissatisfied with the respondents as he has not denied that deposition of Mr. Anoop Singh stating that Mr. T.P.S. Chawla, friend of Mr. D.S. Nalwa was booked by Mr. D.S. Nalwa subsequent to his stay and documents proved that Mr. T.P.S. Chawla stayed at hotel Mandvi at Goa and the booking was done by Mr. D.S. Nalwa through M/s. Pack Travels and Tours Private Limited, impleaded as O.P. No. 1. The challenge to impugned order has also been made on the ground of observation of District Forum that the affidavit of complainants being contrary to each other, it is difficult to chose any one of them and deficiency in service cannot be verified at least on this point of time after a gap of years after the event. The Forum failed to appreciate the denial of deficiency in service has gone totally unrebutted and is a bald averment by the respondents/O.Ps. The appellants have also stated that the District Forum upheld the deficiency in service on account of allotment of rooms at different floors, however, the same was rejected by the Forum itself on account of complainant having failed to controvert the findings of O.P. No. 3 as rooms allotted were on the same floor. The appellants have submitted that same was done subsequently after protest by the appellants and the District Forum was not justified in denying relief to the complainants on this ground. The appellants are also aggrieved with the impugned order on the ground that the Forum after taking note of the fact that room tariff was reduced from Rs. 1,100/- per day to Rs. 880/- per day, which tantamounts to admission of respondent No. 3 regarding deficient services. Further, though the District Forum observed that the complainants did experience minor deficiencies in service and ordered for a further rebate of Rs. 200/- in room tariff, no compensation on this ground after holding the respondents deficient in service was granted to them. The appellants have alleged that the order of the District Forum suffers from material irregularity, as the District Froum has not appreciated the level of mental and physical sufferance and harassment undergone by the appellants. After hearing rival contentions of the parties on merit of appeal and perusing the record of the case, we are of the opinion that the observation of the District Forum that since the complaint was filed at the fag end of limitation and consequently to come to the conclusion that the deficiency in service rendered to the complainant/appellants was not serious is not justified in view of limitation period laid down by Consumer Protection Act, 1986. The contention of appellants on this observation of Forum has merit. The Forum set up under the Act have to come to finding of deficiency or otherwise on the basis of material on record and the District Forum was not justified in observing lesser deficiency as no explanation is required for not lodging the complaint promptly if it is within the period of limitation. Regarding the prime grievance of the appellants that the District Forum has not appreciated the deficiency suffered by them, we are of the considered opinion that whatever material has been placed by both the parties on record, the appellants have been suitably compensated as the hotel management admittedly had given them reduction in room tariff from Rs. 1,100/- to Rs. 880/- per night. The appellants stayed in the O.Ps. hotel for entire period of booking and did not cut short the trip rather extended their stay by one night. After perusal of evidence, the District Forum further granted a rebate of Rs. 200/- per night, which in our opinion is sufficient in the facts and circumstances of the case. The appellants have not placed any material on record, which can justify higher compensation than granted by the District Forum in the impugned order. It is pertinent to mention that none of the parties have placed any other material on record and the District Forum from the affidavits, pleadings and admitted facts came to this conclusion of deficiency. We hold that District Forum has granted adequate compensation and the impugned order does not call for any interference as the appellants have not been able to demonstrate from any evidence that they deserved higher compensation than the amount granted by the District Forum. Accordingly, the impugned order is upheld and the appeal since lacking in merit is dismissed. The O.Ps. are directed to comply with the order within two months from the date of receipt of the order. Copies of this order be sent to the parties free of charges. Appeal dismissed.