NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2130 OF 2000 (From the order dated 25.9.2000 in SC Case No.603/A/98 of the State Commission, West Bengal) Arnab Kr. Sarkar Petitioner Vs. M/s. Seema Travels Respondent BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. Tour operator- deficiency in service - holiday maker is entitled to damages. For the petitioner : In Person For the respondent : NEMO ORDER
Dated the 21th December, 2001
PER JUSTICE D.P. WADHWA,
(PRESIDENT).
Petitioner
was the complainant before the
District Forum. He and 14 others
engaged services of the respondent, a tour operator to visit to
Kulu, Manali, and Delhi during
Puja holidays. All the necessary payments
for the services to be provided by the
respondent were made. Complaining
deficiency in service petitioner filed a complaint before the District forum
for himself and on behalf of 14
others. District Forum held that
complaint could be maintainable only in respect of the petitioner himself and not
for others as it was not a representative suit. Holding there was deficiency in service District Forum awarded a
sum of Rs.5,000/- as compensation to
the petitioner.
On appeal filed by the respondent before the
State Commission compensation was reduced to Rs.500/-. Now it is the petitioner who is aggrieved
and has filed this petition. District
Forum on the basis of the record held that respondent did not provide proper
accommodation to the petitioner in
hotel in Kulu rather petitioner and
others were huddled together and he
was not given a separate room.
Respondent was also to take the petitioner to Rhotang Pass but it
failed to do so on the ground that there was land slide and the road was not clear. Then the complaint was that the respondent
changed itinerary which he had agreed to follow. There were two other grounds alleged for deficiency in service
by the respondent with which District
forum did not agree. It was the case of
the respondent that accommodation for the petitioner and others was booked
in hotel New Vikrant on 20.10.96. But
since party reached their only on the
night of 20.10.96 and 21.10.96 hotel
could provide such rooms which were available.
It was the duty of the respondent
to provide proper accommodation and to take reasonable skill and care for the
party. It must have been a frustrating
experience when the petitioner along with others is crammed in a room when the respondent had
received full charges. In support of its contention that there
was a land slide on the road respondent produced a letter
dated 27.11.98 from the Himachal Pradesh Tourism Development Corporation. District Forum was of the view that this letter was not genuine and gave its reason for that. No reliance therefore could be placed on such a letter. It was
noticed that letter was produced much
after filing of the complaint and while
the complaint pertained to the year 1996,
the letter was of the date of more than 2-1/2 years later. District Forum also noticed that while the
arguments were being heard on 12.11.98 the letter produced before it was
dated 27.11.98. Thus holding that there
was certainly deficiency in service, District Forum awarded damages amounting to Rs.5000/- to the
petitioner.
State Commission, however, relied on the
letter of the Himachal Pradesh Tourism
Development Corporation. The impugned
order of the State Commission does not show
if at all it minutely examined
that letter. State Commission was,
therefore, not justified in relying on the letter. It however, found that petitioner and others were in fact
huddled together in the hotel rooms and
petitioner and others were not given separate rooms. For each members of the
family. Holding that compensation
awarded was on the higher side it reduced the same to Rs.500/-.
We do
not think State commission exercised
its jurisdiction properly. There was
certainly deficiency in service on account of insufficient accommodation to the petitioner and the tour to Rhotang Pass being aborted. Respondent spoiled the Puja holidays of the petitioner. It is with high expectation that a person
makes programme for holidays and expects that whole of the programme will come
through depending upon the promises of the tour operator and
when agreed payment is made to the tour operator. Holiday package of the petitioner has been spoiled by the
respondent who did not take reasonable skill and care to provide comfort to the
petitioner and to stick to the promised itinerary. A tour operator is
obliged to ensure that hotel facilities
are available as promised. It must have been frustrating experience for
the petitioner and others. If a holiday is ruined by virtue of breach of
contract on the part of the tour operator, damages can be recovered in
respect of the distress, disappointment
and inconvenience suffered by the
holiday maker. In Jarvis V. Swans Tours Ltd. [1973] 1 QB 233 it was observed that it was natural to expect a person to look forward to the enjoyment provided by
a holiday when it has booked far ahead.
An award of damages for breach of contract is intended to protect a person against expectation loss. In that case holiday proved to be disastrous for a number
of reasons.
In the circumstances before us, award of
Rs.5,000/- as compensation to the petitioner could not be said on higher
side. In fact, District Forum gave a very conservative award. State Commission committed an error in reducing the amount of compensation
without any apparent reason. We would therefore, allow the revision petition, set aside the order of
the State Commission and restore to that of the District Forum. Petitioner would be entitled to cost which we assess at Rs.1,000/-.
Before, however, concluding we may refer to
another decision of the English Court
in Jackson v. Horizon Holidays
Ltd. [1975] 1 WLR 1468 = (1975)
3 All ER 92. In this case complainant
was able to sue for damages
representing the distress
suffered by him, his wife and children.
It was the complainant who had contracted for a family holiday on behalf
of the whole group and was able to claim compensation on behalf of the whole
group for disappointment.
.J.
(D.P.
WADHWA)
PRESIDENT
..J.
(J.K.
MEHRA)
MEMBER
..
(
RAJYALAKSHMI RAO)
MEMBER