DALIA ROY AND ORS. Vs. ANINDYA MUKHERJEE

JUDGEMENT

(1.) This revision petition has been filed by petitioners against order dated 30.3.2010 passed by State Commission in FA No. 2009/484, Anindya Mukherjee, Sole Proprietor of Adventure Mania Vs. Dr. (Mrs.) Dalia Roy , by which appeal was allowed.

(2.) Brief facts of the case are that in the month of Feb., 2007 the opposite party/respondent representing himself to be a travel agent of repute, made an appointment with the complainants/petitioners in a coffee shop and told that he had considerable experience in conducting trips, expeditions and excursions to Mount Kailash and Mans Sarovar. Thereafter, the opposite party met complainants for discussion the modalities of the trip. Pursuant to such representations and believing the same to be true and being convinced that superior facilities would be provided and adequate precautions would be taken to make the trip memorable and exciting, keeping in mind the age and physical ailments of the complainants they booked a trip to the aforesaid destination. Initially the complainants paid advance of Rs. 30,000 and subsequently, they paid the full cost of the trip i.e. Rs. 2,16,000 including the costs for stay, travel, oxygen cylinders, guide charges, etc. The trip was scheduled to commence in or around the third week of June, 2007. It is alleged by the complainants that in spite of payment of full cost for the trip the opposite party failed to disclose the detailed particulars namely, names of the hotels where the complainants were supposed to stay, list of places which were proposed to visit. The opposite party promised to give a detailed itinerary of the places which were proposed to be visited before departing for the trip. But despite repeated demands the opposite party failed to give detailed particulars of the trip. During the course of the trip, the complainants had to suffer great hardship, both mental and physical, due to callous and reckless attitude of the opposite party. In course of the meeting, it was falsely assured by the opposite party that he would accompany the complainants from Kolkata. But on receipt of the entire sum, the opposite party changed his plans at the last moment stating that his representative namely, Loben Sherpa would receive the complainants at Kathmandu on 25.6.2007 and also accompany them throughout the trip. However, on reaching Kathmandu, the complainants were shocked and surprised to find that no one was present to receive them at Kathmandu Airport. Further, Loben Sherpa did not accompany the complainants on the trip to Mount Kailash and Mans Sarovar. On the contrary without making any consultation the complainants were handed over to another local travel group carrying on business under the name and style of Kailash Treks Private Limited represented by a person named Neemah who had very little experience of mountain trekking. Further, since he was managing a group of 70 people who were originally booked by the said Kailash Treks Private Limited, it became extremely difficult for him to manage to many pilgrims together. Having no other alternative the complainants had to join Neemah for the expedition to Mount Kailash and Manas Sarovar. Since they were not originally booked under him, they were meted out inferior treatment at all the places they visited and priority was given to the 70 other pilgrims. The complainants had to wait needlessly for hours before being allotted a room in a hotel and rooms provided were shabby, sub-standard quality and lack of basic sanitation facilities and water supply. As a result the complainants suffered mental agony and harassment. During the stay overnight in a tent, even the tents supplied to them were of inferior and sub-standard quality. The plastic tents provided to them were not at all waterproof. Opposite party also not made necessary arrangements for carrying oxygen cylinders and they had to purchase oxygen cylinders from local shop at higher price. Alleging deficiency on the part of opposite party, complainants filed complaint before District Forum. Opposite party resisted complaint and submitted that opposite party made an appointment with the complainant No. 3 at a coffee shop where he explained about the trip of Kailash and Mans Sarovar. Thereafter, the complainant No. 3 sent one e-mail to the opposite party stating that his two friends i.e. complainant Nos. 1 & 2 were willing to visit the said trip. The opposite party replied by e-mail and attached standard itinerary for the said trip where the cost of the trip, date and time schedule of the expedition has been mentioned. In the said e-mail the details of the packages which includes Kolkata to Kathmandu flights to and fro, all hotels and transfers, full service trek, three star accommodation in Kathmandu and half day city tour, Chinese visa, support crew, guide, cook, etc., oxygen cylinder, gamov bags, group camping gears including sleeping bags and mattresses, group kitchen and dining gears for all major meals, snacks, hot drink etc. were mentioned. It was also mentioned that package excludes any expenses of personal nature of insurance, emergency costs of evacuation due to accident, illness, tips, personal clothing etc. The flight for the complainants from Kolkata to Kathmandu has been arranged by the opposite party through an agency who took a sum of Rs. 34,525. After that asper the terms and conditions with the Loben Expeditions, the opposite party had to hand over the complainants to the Loben expeditions, who have taken the sole responsibilities of the trip and arranged for hotel, Sherpa and porters for carrying all the materials and bag and baggage. It has been contended by the opposite party that as per rules of the Tibetan that without contacting tire local guides and agents, the expeditions of the pilgrims are not entitled to go to Kailash and it is purely under the Rules and Regulations of the agreement of China-India Pilgrim Service Centre of TAR, trek in Tibet, Tibet Guide Jeeps, Yaks during the Parikarma, permits are totally under the control of the Tibet agent which is mentioned in the Agreement and Chinese visa clearance from Lhasa is mandatory. It has been mentioned in the said China-India agreement that the issuance of visa clearance does not mean approval of visa, it is finally obtained from the Chinese Embassy at Kathmandu after submitting the original passport and visa clearance from Lhasa and as such the opposite party could not attend the complainants. The complainants stayed at a three-star hotel at Kathmandu. They were informed about the difficulties and distance of the trip in the early every morning before starting the journey The Loben at the last moment could not join the team as the Chinese Embassy did not issue the visa, therefore Neemah, the senior and experienced guide in that region leaded the team along with his pre-fixed team and no complaint ever been lodged against him so far, The trip was going on as per the schedule. It was not mentioned in the same e-mail that doctor will be there in the group for abundant precaution, on the contrary it was mentioned that the persons suffering from cardiac or respiratory problem should consult a doctor before undertaking the trip as all the time of the trip to be spent at the very high altitude. The opposite party has further mentioned in the written statement that the complainants have been given best quality tents throughout the trekking trip. Denying any deficiency on their part, prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed opposite party to pay Rs. 36,000 to each of the complainants along with total cost of Rs. 5,000. Appeal filed by opposite party was allowed by learned State Commission vide impugned order against which this revision petition has been filed.

(3.) Heard learned Counsel for the parties and perused record.