ARADHANA TRAVEL SERVICES, BOMBAY vs RAMCHANDRA C. KALE

BEING aggrieved by the Order of District Forum Bombay in complaint No. BOM/85/90 dated 6.6.1990, the appellant has preferred this appeal. A joint complaint was filed by a group of 40 Travellers from Bombay, alleging that they had hired the services of appellant for a conducted tour of 15 days to Amamath-Leh-Ladakh-Kashmir-Vaishnovdevi. The Travelling charges per person for Amarnath-Kashmir-Vaishnodevi were Rs. 3,176/- and for Leh-Ladakh additional Rs. 1,400/- per person. The tour commenced on 28.7.1989 as scheduled and when they reached Srinagar they were informed on behalf of appellant that they could not proceed to Leh-Ladakh as there were land-slides on the road. Hence Leh-Ladakh tour was cancelled. However, the rest of the tour schedule was adhered to. According to the complainants they had no means to verify the truthfulness or otherwise and hence requested the partner of Appellant company to show Uler lake and hot springs in lieu of Leh-Ladakh. But the appellant refused to accept the alternative tour. However the appellant agreed to refund the amount of Rs. 1,400/- to each person due to cancellation of Leh-Ladakh Tour.

AFTER their return to Bombay complainants made enquiries about the refund of Rs. 1.400/- per person which the appellant had agreed to return. But the appellant informed that their tour accounts are not yet settled and hence refund will be worked out Despite repeated attempts by complainants, appellant did not return the amount. Ultimately the appellant informed the complainants in writing that the Travelling Company is not legally bound to refund the amount of cancelled tour but in order to maintain goodwill, Rs. 250/- are being paid to each traveller as against the demand of Rs. 1,200/- per person. The complainants therefore filed a joint complaint in the District Forum Bombay claiming refund of Rs. 1,400/- per person. In response to the notice u/s.13 of the Consumer Protection Act. 1986 (referred as the Act). Appellant opposite party filed its reply and opposed the claim on various grounds. Apart from technical objection about maintainability of the complainant, opposite party submitted that they are not bound to return the amount of Rs. 1,400/- and that they have shown additional places at Srinagar which were not covered in the tour programme. Both sides filed documents, affidavits and were heard. The District Forum allowed the complainant and directed the opposite party to return Rs. 1,600/- to each complainant with interest at Rs. 18% p.a.

We heard Shri R.S. Apte, Advocate for appellant and Shri N.V. Kulkarni for the respondent. The First contention raised by Shri Apte was that the District Forum had no jurisdiction to decide the dispute as it was a contract of personal service as defined in Sub- section (o) of Section 2 of the Act and hence the complaint is liable to be rejected. We find from the facts and circumstances of this case that it is not a case of personal service under a contract but the complainants hired the services of appellant as a Travelling Company who undertakes the arranging tours at various places in India on payment from travellers. The appellant Company also undertakes to do the travelling arrangements, reservation, lodging, boarding and sight-seeing to the people on payment of their charges. The printed literature published by appellant makes it abundantly clear that it is travelling company and its services are available for hire on payment. Thus in our view the District Forum has the jurisdiction to decide a consumer dispute when the complainants alleged that the service rendered by appellant was deficient within the meaning of Sub-section (g) of Section 2 of the Act in as much as that there was shortcoming in the schedule tour programme as was undertaken to be performed by the appellant in pursuance of the contract. The tour was not conducted as scheduled and thus there was shortcoming in the service of appellant in pursuance of the contract undertaken by the appellant travelling Company. Under these circumstance? failure to discharge the contractual obligation in the conducted tour as scheduled for which monetary consideration was accepted by appellant company amounts to "deficiency" under the provisions Sub-section (g) of Section 2 of the Act. In our view therefore, the objection of appellant on the point of jurisdiction must fail. It was further tried to submit that the cancellation of Leh-Ladakh Tour was an act of V.S. Major and therefore the Appellant Company is not legally bound to compensate the loss caused to the complainants. Unfortunately there is nothing on record to show that the Leh-Ladakh road was closed. According to complainants when the partner of appellant company told that the Leh-Ladakh Road was closed they had not way to verify the truth or otherwise about the said news. In any case this contention of the appellant can not be accepted.

THE next point on which the appellant heavily relied is that according to the Company rule if the tour is cancelled the amount paid by the traveller is not refundable. It is therefore submitted that the appellant is not bound to refund the fare of Rs. 1,400/- per person paid for Leh-Ladakh tour. According to the appellant to retain the goodwill Rs. 250/- per person was agreed to be refunded. In our view such a rule is unreasonable, unjust and unequitable. If such a rule is allowed to be imposed on the travellers it would provide a tool to the Travelling Company to use it against the tourist to exploit them. THE Travelling Company is likely to indulge in unfair trade practice and may cancel the tours for fake reasons and appropriate the expenses of a cancelled trip. THE travellers in such a situation will be totally at the mercy of a Travelling Company. In the instant case, it is alleged that at Srinagar it was informed to the complainants that the tour could not be undertaken to Leh and Ladakh however the fare for the part of the tour will be returned to the complainants. It is also alleged that the complainants several times contacted the office of appellant and demanded the refund and it was assured that after setting the account amount will be refunded. These allegations made by complainants are supported by the contents of affidavits made by Dr. Suresh Khekale, Shri Jaywant Kothare, Mrs. Anuradha Khekale, Shri Vishnupant Baporikar, Mrs. Lata Baporikar, Shri Pradip Chavan and Smt. Vidya Kirtikar. In addition to the above material in letters dated 30.1.1990 on behalf of appellant addressed to Shri N.Y. Kulkarni, there is no denial about the refund of Leh-Ladakh tour in other letter dated 1.9.1989 addressed to Dr. Khekale, it is clearly admitted by appellant that the unspent amount of Leh-Ladakh trip could be adjusted in further trip and in another letter undated but received on 7.2.1990 addressed to N.V. Kulkarni, the appellant informed to return Rs. 250/- per person. In none of these letters the appellant disclosed the actual amount spent by them on account of any expenses towards Leh-Ladakh tour. It is therefore evident that although no expenses were incurred by appellant for Leh-Ladakh trip yet appellant wanted to deduct Rs. 450/- per person. The appellant at the appellate stage filed an unaudited and unsigned statement of expenses incurred in the aforesaid trip. Shri N.V. Kulkarni pointed out to us as to how the accounts are false. Although one Shri Joshi amongst the forty, tourists-died at Srinagar yet in Total expenses his return railway fare is shown. At any rate, when out of 40, one person admittedly died, how the same 40 persons could return? The total worked out at Sr. No. 14, Rs. 17,500/- is not supported by any receipts. Assuming the said advance is paid then what about its return? Because the advance is returned if actual occupation is not made. We are therefore astonished to find as to how Rs. 24,850/- advertisement expenses could be part of Leh-Ladakh tour expenses. Similarly there is no force in the submission of the appellant that due to cancellation of Leh-Ladakh tour local sight-seeing around Srinagar was arranged. But according to us when Kashmir was one of the items of conducted tour then no additional expenses can be claimed by appellant for local sight-seeing. However, the District Forum has allowed same expenses to appellant. Thus the appellants miserably failed in their attempt to justify any expenses for the Leh-Ladakh tour. Thus, we come to the conclusion that the rule if any of the appellant company not to refund the money for cancelled tour is totally unreasonable, unjust, unequitable and therefore cannot be allowed to frustrate the justified refund of complainants.

THE complainants are thus entitled to claim the refund for their cancelled Leh-Ladakh tour. In our view, he learned Member of the District Forum are correct in directing the refund of Rs. 1,160/- to each member with Rs. 18% p.a. interest. We, therefore, see no substance in this Appeal and hence it is dismissed with no costs. A copy of this order is sent to appellant and Shri Ramchandra C. Kale for complainants free of costs. Appeal dismissed.