Bimalkumar Bhattacharya vs Thomas Cook (India) Limited

Subhash Chandra, Presiding Member

This revision petition assails the order of the State Consumer Dispute Redressal Commission, Gujarat (in short, ‘State Commission’) in Appeal No. 51/2019 dated 02.07.2019 dismissing the appeal against the order of the Consumer Disputes Redressal Forum, Vadodara (in short, ‘District Forum’) in Complaint No. 541 of 2016 dated 05.01.2019.

The facts of the case in brief are that the petitioner approached the respondent who is in the travel and tourism business to book a tour to Europe, including sight-seeing trip in London in 2015. He booked a sightseeing tour in London for one person on 26th & 27th August, 2015 and for two persons on 29th August, 2015 and a holiday package for Europe of 14 nights and 15 days from 30th August 2015 to 13th September, 2015 through the respondent at a cost of Rs 5,94,232/- which was paid in installments by cheques. It is averred by the petitioner that the petitioner had also paid £90 for booking file for European tour. The petitioner alleged that while he had asked for a package tour for one person for sightseeing in London on 26th and 27th August 2015, the respondent booked for two persons. The petitioner alleged that the respondent resorted to cheating by charging huge amount of Rs.30,366/-The respondent refunded Rs.12,365/- and retained Rs.17,988.96. The petitioner alleged that the respondent refunded £134 considering the exchange value of the Pound at Rs.93.10 without consent of the petitioner. The petitioner further alleged that he paid £90 for two persons for 15 days @ £3 per day for which no receipt was issued. This was justified by the respondent as a tip for the bus driver in Europe for the 15 days road journey. The petitioner filed a complaint before the District Forum and sought direction to the respondent to issue a receipt for £90, Rs.2,00,000/- by way of compensation for mental agony and harassment and Rs.1,00,000/- by way of cost of litigation with interest @ 24% per annum.

The District Forum partially allowed the appeal of the respondent and ordered as under:

(i)  The complaint of the complainant is hereby partly allowed;

(ii)  The opponent to pay Rs.4,000/- by way of compensation to the complainant and shall pay Rs.1,000/- towards the costs of litigation; and

(iii) Rest of the prayer is denied.

The petitioner approached the State Commission in appeal against this order. The State Commission heard the petitioner at length and proceeded to dismiss the appeal at the admission stage after considering the documents and evidence on record as below:

“11.    The District Forum has rightly held that the opponent is found liable and deficient in arranging the tour programme for two persons for 26th and 27th August 2015 instead of one person. It is to be noted that subsequently opponent has refunded the difference amount. The District Forum has rightly awarded compensation to the complainant to ensure effective service by opponent in future. Order passed by the District Forum is legal, proper and does not need any interference in appeal. We, therefore, pass the following order:

Appeal no. 51 of 2019 is rejected at the stage of admission”.

The petitioner is now before this Commission by way of a revision petitioner alleging that the State Commission has erred in dismissing his appeal no. 51/2019. It has been alleged that the State Commission has not considered certain documents or absence of receipts such as those relating to amounts of £90 or £584 and refund of £134.

The respondent remained unrepresented. Heard the petitioner in person and perused the records carefully. In the instant case the findings on facts by the District Forum and the State Commission are concurrent. The lower fora have considered the evidences on record. However, it is the petitioner’s case that certain amounts charged did not have valid receipts or invoices and therefore these have been unlawfully charged to him and he shall be refunded the same.

This Commission in exercise of its revisional jurisdiction Commission is not required to re-assess and re-appreciate the evidence on record and substitute its own conclusion on facts especially when the findings on the facts of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the foras below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 (b) of the Consumer Protection Act, 1986 is therefore, limited to cases where some prima facie error appears in the impugned order and different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Co. Ltd., (2011) 11 SCC 269, has held as under:

“23. 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 than 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 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 findings of two Fora.”

The Hon’ble Supreme Court has reiterated this principle in the case of Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors – (2016) 8 Supreme Court Case 286 and held as under:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

The Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 has again held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

It is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in the appeal. Concurrent findings of facts of these two foras are based on evidences and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess and re-appreciate the evidence which cannot be done in revisional jurisdiction.

It is a settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction. It is apparent that foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. These orders are based on evidence on record. The petitioner has failed to show that the findings in the impugned order are perverse.  I therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is found to be without merits and is accordingly dismissed.