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Judgment
PETITIONER /Opposite Party being aggrieved by order dated 27.2.2013, passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, ''State Commission'') has filed this revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act'').
THE facts in brief are that both the Respondents/Complainants accepted the offer of the petitioner to participate in Orbit Tour Programme in China during the period from 25.4.2005 to 30.4.2005. The agreed consideration of Rs. 77,700/ - (US $ 1468) was paid at that time by the respondents to participate in the tour which was branded as "Canton Fair 2005" where about 7500 stalls of different displays were displayed with modern technology. The respondents were interested to know the latest technique of furniture and interior. Therefore, they participated in the said tour programme. Both parties have relied on the brochure of the said tour programme printed and published by the petitioner as an organizer, received from the original event manager in China namely, Canton Fair organizers. The said brochure was with certain terms and conditions. The respondents were not satisfied with the visit as the required display of furniture and interior was already concluded prior to their visit to the said fair. Further, the class accommodation as promised was not provided and also the air conditioning at the lodging arrangement went out of order for more than 24 hours causing great inconvenience and uncomfort to the respondents. Being dissatisfied with the tour, respondents on return to India sent notice for refund of the amount paid on account of said tour trade fair. The petitioner refused to entertain the claim. Therefore, consumer complaint filed by the respondents was decided by the District Forum, holding deficiency of service against the petitioner, with direction to pay an amount of Rs. 77,700/ - (US $ 1468) together with Rs. 2000/ - as costs of the litigation.
BEING aggrieved, petitioner filed an appeal before the State Commission. During the course of hearing it was noticed by the State Commission that the Complainant (Respondent No. 1) had expired and no legal heirs were brought on record. Hence, State Commission passed order dated 13.2.2013, observing that appeal filed against Respondent no. 1 stood abated.
IT would be pertinent to point out, that neither petitioner (who was appellant before the State Commission) nor his counsel appeared before the State Commission. Therefore, State Commission vide impugned order, decided the appeal in the absence of the petitioner and dismissed the same. Hence, the present petition.
AS per impugned order, it is manifestly clear that Respondent No. 1 had died during pendency of the appeal, but his legal heirs were not brought on record. Therefore, the appeal stood abated against him.
WE are really surprised as to how the petitioner has filed the present petition against a dead person. Though later on, petitioner has filed an application for deletion of the name of the Respondent No. 1 (since deceased). Be that as it may, after filing the appeal petitioner did not appear before the State Commission. Therefore, the State Commission decided the appeal in the absence of the petitioner. These facts goes on to show that petitioner had been very callous and careless in pursuing the litigation before the State Commission as well as before this Commission.
ON merits, it has been submitted by the learned counsel for the petitioner that agreement between M/s. Marlaw Designs Co. Pvt. Ltd. and the petitioner was limited for providing Hotel Accommodation and transportation only for attending the "Canton fair 2005". Petitioner was not at all responsible for alleged mismanagement at the fair, if any. There is not even a single allegation in the complaint with regard to deficiency in services by the petitioner, as per the terms of the agreement.
THE District Forum, while partly allowing the complaint has held; "The Complainants'' interest was only towards the furniture. Out of 7500 booths, there should have been at least 100 booths for each type of furniture item mentioned in the brochure but Complainants found children toys and some furniture such as stationary material and were made to understand that the exhibition for furniture was concluded before 25 days. Complainants wanted to see and learn new things, new materials, new designs of international standards which they could not due to deficiency in services by Opponent.
The tour organizers are not supposed to give false and misleading advertisement in order to lure the customers if they do so, it certainly amounts to unfair trade practice. Opponent could have checked and verified about the said fair from the Manager at fair in China. Opponent has not produced any evidence to show that there were sufficient booths for furniture as advertised. At the time of oral arguments on allegation about the Air Condition, the Opponent''s Advocate stated that due to power failure, electricity was put off for some time. Otherwise, there is no reason that only the Complainants room''s A.C. was switched off. This fair was from 25th to 30th April that was in the middle of summer. Complainants therefore must have suffered due to non availability of A.C. As there was no booths for furniture the purpose for the tour was not served. Complainant could not consider it as a pleasure trip as accommodation made available was without A.C. from 4 a.m. in the morning for which the tour organizers cannot put blame on the complainants. Opponents therefore are liable for not providing services as promised in the brochure. Tour organizers published brochures promising the services which they could not offer is not only deficiency in services but also unfair trade practice and therefore liable to refund the full amount charged for the tour to the Complainants which is sufficient to recompense. "
The State Commission, while affirming the order of the District Forum observed; "District Forum has rightly observed that it is humanly impossible to take round in or about 7500 stalls in the said fair and there is no conclusive proof to show that the complainants were taken to the stalls of their choice for which they have participated namely, furniture, fixture and interior designs, which were not in existence at the time of visit of the complainant. The grievance made out by the complainants appears to be very genuine as the purpose for which the tour was undertaken was not fulfilled. There is no satisfactory explanation on record on behalf of the appellant/opponent to counter the claim of the complainants. District Forum has appreciated the facts and circumstances and evidence led down by both the parties and arrived at a correct conclusion to uphold the contention of the complainants. Therefore, impugned order does not require any interference and we cannot take a different view than what has been taken by the District Forum."
IT is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under this section, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, : 2011(3) Scale 654 has observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."
As per Para No. 5 of the written statement, petitioner''s defence is; "Opposite Party submits that the trade fair details and contents of the said brochure were exactly as per the information and details provided by the Canton Fair organisers. The said brochure below the detail category of Phase I & II, at the bottom of the page 2 clearly mention...Please Note: The above information is taken from the available sources. We suggest you to check the fair''s website for verification. ORBIT does not stand guarantee and will not be responsible for any replacement or shifting of product profile."
THUS , by way of the above defence, petitioner has shifted the entire burden upon the complainants to check the fair''s website for verification. Further, petitioner has taken another plea that it does not stand guarantee at all.
UNDER such circumstances, the deficiency on the part of the petitioner is writ large in this case. Moreover, there are concurrent findings of fact given by both the fora below with regard to the deficiency on the part of the petitioner. Therefore, under these circumstances we do not find any infirmity or illegality in the impugned order. Hence, there is no merit in this petition and the same is hereby dismissed, with cost of Rs. 5,000/ - (Rupees Five Thousand only). Petitioner is directed to deposit the cost by way of demand draft in the name ''Consumer Legal Aid Account'' of this Commission, within four weeks from today.
IN case, petitioner fails to deposit the cost within the prescribed period, then he shall be liable to pay interest @ 9% p.a., till realization.
LIST for compliance on 28.11.2014.