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Judgment
M. Shreesha, J
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") is to the order dated 12.11.2009 in First Appeal bearing No. 635/2001 passed by the Gujarat State Consumer Disputes Redressal Commission (for short "the State Commission"). By the impugned order, the State Commission has dismissed the Appeal preferred by the Petitioners herein and concurred with the findings of the District Consumer Disputes Redressal Forum, Ahmedabad City (for short "the District Forum"), which has dismissed the Complaint.
The facts in brief are that Veerjibhai Ukabhai Parmer, arrayed as Complainant No. 2, and his friends & relatives decided to tour Sourashtra and hired three luxury buses from First Opposite Party namely Khodiar Travels (hereinafter referred to as "the Travel Agency") owned by Second Opposite Party namely Bhimdev Singh (hereinafter referred to as "the Owner"). The buses were hired @ Rs. 9/- per k.m. On 15.05.1999 Complainant No. 2 paid a sum of Rs. 30,000/- in cash to the Owner. Thereafter additional Rs. 10,000/- was paid by the Second Complainant to the Travel Agency and thus in total Second Complainant paid a sum of Rs. 40,000/- to the Opposite Parties for which a receipt was also issued by the Travel Agency. The tour was to commence from 17.05.1999 and be completed by 26.05.1999. It is stated that the buses sent by the Travel Agency i.e. GJ-1-U-1544, 1724 and GJ-7-4085 on 17.05.1999 were old and scrapped buses. Second Complainant refused to take the said buses on tour. The Owner assured him that the buses were in good condition and that there would be no difficulty. On his such assurance, Second Complainant started his tour in the said buses. On 19.05.1999, at morning hours when the buses were going from Anjar to Bhuj, tyre of bus bearing No. GJ-1U-1544 got punctured and the gear was locked. The driver repaired the gear and replaced the tube of the tyre. The said repairing work continued till 1.30 noon. The said bus could not go to Narayan Sarovar as it became out-of-order. The condition of the said bus was very bad. It is stated that the driver of the said bus drove the bus rashly and negligently and hence it hit Bus No. 4085 and due to the impact of the same, Bus No. 4085 had gone down below the road and the said bus was totally destroyed. One passenger namely Geetaben sustained injury. The tour had been stopped and the bus hearing No. 1724 only had carried out the passengers at Somnath Temple. Second Complainant called the Owner who sent another Bus for their return. During the entire tour, the buses had in total 14 punctures and for rectifying one puncture it took almost two hours and thus totally 28 hours were lost. Apart from this, the tyre of Bus No. 1544 exploded due to which 6 hours were lost. No spare tyres were kept in the buses despite the fact that it was a long tour. Second Complainant and his associates paid a total sum of Rs. 33,865/- to the drivers of the buses during the tour and thus the total amount paid by them amounted to Rs. 73,865/-. At the start of journey the meter reading of bus No. 1544 was 4320 and at the end of the journey, it was found to be 6336 k.m. and thus in the entire tour the said bus covered 2016 kms. and @ Rs. 9/- per k.m. the total rent of the buses came to Rs. 18,144/- of one bus and thus the total rent of three buses came to Rs. 54,432/- and thus an amount of Rs. 19,433/- remained due against the Travel Agency. Apart from that a sum of Rs. 3200/- was also paid to the drivers and thus the total amount came to Rs. 22,633/-. It was demanded but was not paid. Thus the Complainants filed the Complaint seeking payment of the said amount along with Rs. 20,000/- towards compensation for mental agony, Rs. 10,000/- towards compensation and Rs. 10,000/- towards costs.
The District Forum issued notice to the Opposite Parties but despite service they neither appeared before the District Forum nor filed their Written Version or any written/oral evidence.
The District Forum dismissed the Complaint on merits.
Aggrieved by the Order of the District Forum, the Complainants preferred an Appeal before the State Commission which dismissed the same. Though the translation is poor, but for better understanding the relevant paragraphs are re-produced as hereunder:-
"Brief facts leading to the complaint of the complainant are that the original complainant had booked three buses of opponent's Khodiyar Travels and got service thereof and the opponent travels had shown deficiency in his services and the opponent had not acted according to the terms and conditions when the buses were booked on hire. So that, as the applicant as well as his passengers had to face harassment hence the applicant, therefore, had claimed for a compensation. Looking to the detailed judgment of the learned Forum, after observing the documentary evidence, has stated that, the complainant has not produced any type of written or oral evidences related to his stated facts in his complaint and as he prayed for the relief. The complainant also not presented any receipt or documents related to his so-called inconveniences and paid excessive rent. Thus, except oral submission no any document has been produced related to the allegations of complainant thereby complaint of the complainant would liable to be accepted and on that account the complaint of the complainant was rejected.
Continuous absence of the applicant before us and looking to the above produced documents, we do not find any error related to the matters of law or the matters of fact in statement and observation made by the learned Forum and thus, this Commission has no any necessity to interfere into the judgment pronounced by the learned Forum, hence, we pass the following order:-
-:Order:-
(1) The appeal No. 635/2001 is hereby rejected.
(2) Considering all the facts no order as to cost."
This Commission vide its Order dated 03.08.2017 proceeded ex-parte against the Respondent No. 1 i.e. the Travel Agency as none appeared on its behalf despite service. Respondent No. 2 i.e. the Owner was served through the Office of the District & Sessions Judge, Ahmedabad. However, none appeared for the Owner.
We have heard Ms. Surekha Raman, Amicus Curiae, on behalf of the Petitioners.
Learned Amicus Curiae has filed before us three documents, filed before the District Forum, which include the Affidavit filed by the Revision Petitioner, his Application seeking to pass an ex-parte order as the Respondent did not appear before the District Forum despite several adjournments and also a copy of the Application to produce the relevant documents before the District Forum. A perusal of the documents evidences that the Complainant had paid an amount of Rs. 40,000/- to the Respondent for the tour dated 17.05.1999 till 26.05.1999, the route of the tour being Kutch Saurashtra to Dedadara village. This document also evidences that the rate per k.m. was decided as Rs. 9/- per k.m. and an additional amount of Rs. 60,000/- was to be deposited in the Respondent's office by 10.05.1999. Learned Amicus Curiae argued that an amount of Rs. 33,865/- was paid to the drivers of the Buses and in total an amount of Rs. 73,865/-was paid for the tour. In the terms and conditions overleaf the receipt which was filed before the District Forum, it is stated that the hirer of the bus would be required to pay 30% of the amount in advance and rest of the amount was required to be paid before starting of the bus and that if any passenger would cause damage to the bus its amount would be paid by the hirer of the bus. It is stated that the booking amount would not be refunded and that the Respondent would not be responsible for any break down. It is the Complainant's case that three old buses were sent which had 14 punctures on the way thereby delaying the entire journey by more than 28 hours. It is also pleaded that the spare wheels in the buses were not available and that these three buses cannot be termed as luxury buses but as 'scrap' only. Learned Amicus Curiae contended that it was only because of the bad condition of the buses that the passengers could not enjoy their journey. She drew our attention to the Order of the District Forum wherein the Complaint was dismissed on the ground that there was no documentary evidence to establish the alleged deficiency of service. On an Appeal preferred by the Petitioner, herein, the State Commission concurred with the findings of the District Forum and decided the matter on 12.11.2009 ex-parte.
We observe from the impugned order that the Appeal No. 635/2001 was dismissed on the ground that the Complainant was continuously absent and that the Complainant did not produce any type of written or oral evidence relating to the said facts.
We of the considered view that the Complainant had filed his Affidavit by way of evidence together with receipt; that an amount of Rs. 40,000/- was paid as per terms and conditions and, therefore, both the Fora below have committed an error in dismissing the Complaint merely on the ground that there was no evidence filed. Since it is a matter pertaining to the year 1999, we do not wish to remand the matter back to the District Forum but instead find it a fit case to dispose of the matter on merits based on the material available on record.
It is pertinent to note that the Respondent did not file their Written Version or evidence by way of Affidavit before the District Forum. Despite the fact that there was no rebuttal to the Complainant's pleadings, the District Forum dismissed the Complaint without going into the Affidavit filed. We find it a fit case to observe that the terms and conditions written overleaf the receipt that only the hirer of the bus is responsible for any break-down or damage, amounts to unfair trade practice. As the documentary evidence substantiates that the Complainant did give a deposit of Rs. 40,000/- for a tour to be held from 17.05.1999 to 26.05.1999 payable @ Rs. 9/- per k.m. and since none appears for the Respondent despite service of notice and the averments of the Complainant are not controverted, we are of the considered view that there is deficiency of service on the part of Travel Agency in not sending road-worthy buses which had punctures and stalled on the way several times, thereby delaying the journey and also causing mental agony to the passengers therein, for which, we are of the opinion that an amount of Rs. 40,000/- has to be refunded to the Second Complainant along with interest @ 9% p.a. from the date of the filing of the Complaint till the date of realization together with costs of Rs. 20,000/-. There is no evidence that any amount is paid to the drivers of the buses. However, since the journey was admittedly completed and an amount of Rs. 9/- per k.m. was agreed upon, the amount of Rs. 22,633/- is also directed to be paid by the Travel Agency to the Second Complainant along with the same rate of interest i.e. 9% p.a. from the date of the filing of the Complaint till the date of realization.
In the result the present Revision Petition is allowed in the above terms and orders of both the Fora below are hereby set aside. Compliance is to be made within 4 weeks from the date of receipt of a copy of this Order, failing which it would carry interest @ 12% for the same period.
We appreciate the assistance rendered by the Learned Amicus Curiae and the office is directed to pay an amount of Rs. 25,000/- towards expenses, if not already paid.