JESUWIL TRAVEL And TOURS vs FELIX FRANK D'SOUZA

-THIS appeal filed by appellant/Org. O.P. No. 2 in Consumer Complaint No. 1088/99 is directed against the order dated 30.7.05 passed by District Consumer Forum, Mumbai Suburban, whereby the Forum below directed the present appellant to refund the excess amount collected from the complainants. Appellant is also directed to refund the sum of Rs. 1,283.50 to each of the complainants except complainant Mrs. Dorothy Lewis. Forum below exonerated O.P. No. 1 from the liability. O.P. No. 2 has taken exception to this order and has come up in appeal.

WE heard Mr. S. B. Prabhawalkar, Advocate @ Mrs. D.K. Juvekar, Advocate for the appellant, Mr. Tushar Kale, Advocate h/f. Mr. U.P. Warunjikar, Advocate for the respondent Nos. 1-24. None for respondent No. 25. We carefully perused the impugned order under challenge. In para 4 of the order, it is specifically stated that O.P. No. 2 has not filed an affidavit. It is also observed in the body of the judgment that O.P. No. 2 has not filed any affidavit and saying so, the Forum directly came to the conclusion that O.P. No. 2 is liable to refund the difference of air fare to the extent of Rs. 3,600/- to each of the complainants, except complainant No. 18, who is not signatory to the complaint. On close scrutiny of the documentary evidence, it is revealed that O.P. No. 2 has filed affidavit. Matter does not rest here. One Wilfred Fernandes-proprietor of M/s Jesuwil Travel & Tours has also filed an additional affidavit for and on behalf of opponent No. 2. In spite of sufficient evidence in the form of affidavit, Forum below observed in the body of the order that O.P. No. 2 has not placed on record affidavit, nor documentary evidence. Observations made by the Forum below are contrary to the material placed on record. Findings recorded and the conclusions drawn by the Forum below are not at all supported by the material placed on record.

There is serious infirmity in the order. Forum below has not properly digested the case made out by the complainants in the complaint itself. Paragraph Nos. 1, 2 and 5 would clearly go to show that the opponent No. 1 was the Promoter & Organizer of ''Holy Land Tour'' for a Senior Citizen Group including complainant Nos. 1-25. A specific case is made out in the complaint that all the complainants paid an amount of Rs. 21,000/- each for air ticket (Mumbai-Cairo-Tel Aviv-Cairo-Mumbai), plus 295 dollars equivalent in rupees as consideration for the over land journey, boarding and lodging to O.P. No. 1. Complainants have also made out a case that O.P. No. 1 engaged services of opponent No. 2. Complainants have made serious grievance in para 5 of the complaint that O.P. No. 1 without taking consent of the complainants changed the tour programme and postponed the tour from 8.5.1999 to 17.5.1999. Egypt Airline was also changed to Qatar Airways by O.P. No. 1 and because of this unilateral change by O.P. No. 1, complainants could not see Sphinx and Pyramids in Cairo. It is specifically averred in para 5 of the complaint that O.P. No. 1refused to entertain any cancellation of booking already made by each of the complainants for the tour as per the first itinerary and also refused to refund excess difference in fares amounting to Rs. 3,600/-. Complainants blamed O.P. No. 1 and claimed refund from O.P. No. 1. It is interesting to note that complainant No. 1 has reiterated in his rejoinder affidavit that entire consideration was paid to O.P. No. 1 and not to O.P. No. 2. It is specifically stated that O.P. No. 2 was invisible and notified in picture only on departure day of 17.5.1999. In para 5 of the rejoinder affidavit complainant No. 1 has specifically denied that O.P. No. 1 was merely Sales Representative of Senior Citizen Group. Forum below did not take into consideration the affidavit filed on behalf of O.P. No. 1. Forum below did not at all consider change of itinerary by O.P. No. 1 i.e., Exhibit B and Exhibit C and Exhibit D. The entire change was made by O.P. No. 1. Cairo was dropped by O.P. No. 1. The Documentary evidence placed on record would clearly go to show that O.P. No. 2 was not at fault. There was no deficiency in service of any kind on the part of O.P. No. 2. Therefore foisting of liability on O.P. No. 2 is wrong and contrary to the case made out by the complainants. Forum below did not take pains to go through the earlier remand order and the observations made by the State Commission. The order under challenge suffers from illegality. In the result, we pass following order : ORDER 1. Appeal is allowed. 2. Impugned order under challenge is quashed and set aside. 3. Matter is remanded back to the Forum below to consider the complaint afresh in the light of observations made above. 4. District Consumer Forum is directed to hear and dispose of the complaint as against O.P. No. 1 only as early as possible preferably within a period of one month from the receipt of the order. 5.Liberty is granted to the appellant to withdraw the amounts deposited by the appellant in Appeal No. 1489/05 pursuant to order dated 22.9.05 and in Appeal No. 1143/01 pursuant to order dated 10.8.2001 for obtaining stay. 6. Copies of the order herein be furnished to the parties.

Appeal allowed.