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Biplab Kumar Das & Others v/s Dolphin Travels Domestic Tour Operators & Hotelier & Others

    First Appeal No. A/1315/2017

    Decided On, 04 July 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Appellant: Amit Kumar Biswas, Lipabeethi Basak, Advocates. For the Respondents: Barun Prasad, Subrata Mandal, Sovanlal Bera, Advocates.



Judgment Text

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of the complainants to impeach the final order/judgment dated 28.04.2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit - I (in short, ‘Ld. District Forum’) in Consumer Complaint No. 174 of 2016 whereby the complaint lodged by the complainants under Section 12 of the Act was dismissed on contest without any order as to costs.

The appellants herein being complainants lodged the complaint before the Ld. District Forum asserting that in order to avail a trip with ‘Dolphin Travels Domestic Tour Operators and Hotelier’ at Bhutan, the appellants started their journey in a group tour on 23.12.2015 accompanied with 36 members from Sealdah Railway Station. After arrival at Thimpu and spending two days and three nights all on a sudden the appellant no. 1 Shri Biplab Kumar Das was feeling uneasy for breathing trouble. He informed the same to the tour Manager Shri Anjan Bagal, who admitted appellant no. 1 at Thimpu General Hospital on 28.12.2015 where doctors of the said hospital immediately referred the patient to I.C.U. However, appellant nos. 2 & 3 discharged appellant no. 1 by furnishing bond on 30.12.2015 at 8:30 p.m. when the condition of the patient was somehow stable. The hospital authority and the tour manager advised the appellants to travel with the patient towards Kolkata by air but they decided to travel by road transport to Alipurduar. At Alipurduar the tour manager accompanied with the appellants for admission of appellant no. 1 dropped the appellants at Alipurduar State General Hospital. During the course of admission few relatives of the complainant had arrived from Kolkata and joined with the appellants in the said hospital. After examination in the said hospital, the patient was referred to North Bengal Medical College or any other better hospital at Siliguri for better treatment. The appellants have alleged that the tour Manager or any other authorised person of the respondent did not attend. Thereafter the appellant nos. 2 & 3 have made several phone calls to the tour manager as well as opposite parties. Finally on 30.12.2015 at about 11:15 p.m. they started through I.C.U facility Ambulance from Alipurduar for admission of appellant no. 1 at Paramount Hospital Private Limited at Siliguri. The appellant no. 1 underwent treatment at Siliguri and came to Kolkata on 06.01.2016 with the help of life support ambulance. The appellants have alleged that the opposite parties have failed to render services and fulfill their commitment. Hence, the appellants approached the Ld. District Forum with prayer for several reliefs, viz.- (a) a prayer upon the respondents to refund Rs. 48,914/- along with 18% interest thereon; (b) to pay compensation of Rs. 9,00,000/- only to the appellants for harassment and mental agony; (c) to direct the respondents to pay compensation of Rs. 3,00,000/- for unfair trade practice; (d) to direct the opposite parties to pay litigation cost of Rs. 50,000. Etc.

The respondent nos. 1, 2 & 4 being opposite party nos. 1, 2 & 4 by filing a joint written version have stated that during the tour, appellant no. 1 became seriously ill on 28.12.2015 and he has been immediately shifted at Thimpu General Hospital by the tour Manager along with other tourists where the doctors of the said hospital immediately referred the patient in I.C.U. Unfortunately, without the consent of the doctor and tour Manager, appellant nos. 2 & 3, who are wife and daughter of appellant no. 1 respectively discharged the appellant no. 1 by furnishing Bond on 30.12.2015 at 8:30 p.m. The hospital authority and the tour Manager advised the appellants to travel with the patient towards Kolkata by air under their special arrangement offering some discounted air fare but unfortunately they decided to travel through road transport and that too without the consent of the tour Manager. The contesting respondents have alleged that the tour Manager was solely responsible for the tour programme to conduct safely, smoothly and sincerely and to see that tourists will not suffer and face any difficulty during the tour and for which the tour Manager Shri Anjan Bagal though arrived in life facility ambulance but could not accompanied the appellants by leaving the other tourist parties at Alipurduar. Therefore, as there was no deficiency on the part of them, according to respondents, the complaint should be dismissed.

After assessing the materials on record, Ld. District Forum by the impugned judgment/final order dismissed the complaint. To challenge the said order, the complainants have come up in this Commission with the present appeal.

Ld. Advocate for the appellants has submitted that the Ld. District Forum has failed to consider the facts contained in the petition against the written version in its true purport and thereby arrived in holding the respondents were not deficient in rendering services to the appellants. The Ld. Advocate for the appellants has also submitted that the Ld. District Forum without applying judicial mind that respondents had no capacity or has no knowledge or possession to provide a person to give proper service to any ailing traveller who had suddenly fallen on ill during tour, there is no question of deficiency in services on the part of respondent who is a tour Manager.

On the contrary, Ld. Advocate for the respondent has submitted that the appellants after arrival at Thimpu and after spending two days and three nights and all on a sudden, the appellant no. 1 was fallen on ill due to his breathing trouble. However, immediately, appellant no. 1 was admitted in the Thimpu General Hospital on the behest of tour Manager Shri Anjan Bagal and with the assistance of other tourists. Thereafter, immediately, the doctors shifted appellant no. 1 in I.C.U. unit where appellant no. 1 was undergoing treatment. Ultimately, at the instance of appellant nos. 2 & 3, who are wife and daughter of appellant no. 1 respectively, released appellant no. 1 from the hospital on their own bond. Ld. Advocate for the respondents has drawn my attention to the Agreement Form of the respondent travel agency where some necessary information were given. He has further submitted that unfortunately, due to breathing trouble in a Hill area like Thimpu (Bhutan), the appellant no. 1 has fallen on ill but there is no allegation whatsoever that there was any deficiency on the part of the tour Manager in this regard. He has further contended that the appellant nos. 2 & 3 released appellant no. 1 from the Hospital after putting their signatures in the discharge bond and in this regard the requests of hospital authority and tour Manager to the appellant to travel with the patient towards Kolkata by air went in vain and as such there was no deficiency on the part of the respondents for which the Ld. District Forum was quite justified in dismissing the complaint.

I have given due consideration to the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the materials on record.

It remains undisputed that the appellants decided to travel with ‘Dolphin Travels Domestic Tour Operators and Hotelier’ at Bhutan during Christmas Holidays of 2015 and the tour was scheduled to be held from 23.12.2015 to 31.12.2015 against a consideration of Rs. 50,466/- for three persons. Accordingly, on payment of consideration the appellants started their journey on 23.12.2015 in a group tour from Sealdah Railway Station accompanied with 36 members. After arrival at Thimpu and spending two days and three nights the appellant no. 1 was feeling uneasy due to breathing trouble. Immediately, he informed the same to the tour Manager Shri Anjan Bagal. The said tour Manager immediately made arrangement for admission of appellant no. 1 at Thimpu General Hospital with the assistance of other tourists and the doctors of the said hospital immediately transferred the appellant no. 1in I.C.U. unit. All these are admitted facts.

The startling event is that the appellants did not blame for deficiency regarding the tour arrangement or regarding treatment of appellant no. 1 or behaviour of the tour Manager during stay at Thimpu but they simply took the plea that due to language problem the appellant nos. 2 & 3 facing difficulties to deal with the situation regarding treatment of appellant no. 1. Evidently, appellant no. 3 who is an Advocate in profession and as such I fail to understand what was the language problem for which the appellant nos. 2 & 3 were facing difficulties and could not make contact with the doctor for the purpose of treatment of appellant no. 1, who was under treatment in Thimpu General Hospital in I.C.U. unit. In any case, the appellant nos. 2 & 3 on their own bond discharged the appellant no. 1 from the Hospital and in this regard they did not bother to listen the advice of the doctors or tour Manager for shifting appellant no. 1 to Kolkata by air.

Ultimately, appellant no. 1 was brought to Alipurduar State General Hospital on 30.12.2015 at 8:15 p.m. It is alleged by the appellants that either the tour Manger or any other authorised person of the respondent did not attend thereafter. The appellant nos. 2 & 3 have alleged that they have have made frantic attempt to get in touch with the tour Manager as well as the tour Operator Company.

Now, the question comes whether there was any deficiency in services on the part of respondents? The definition of ‘deficiency’ has been defined in Section 2(1)(g) of the Act which reproduced below:

(g) 'deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service'

In the process of deciding the complaint, the Ld. District Forum has observed –

'At the material point of time, opposite party had no capacity to provide a person of humanitarianism or for help and there was no provision in the demand of the tourist as well as in the provisions of the opposite parties. If there was no provision of such arrangement beforehand how one could demand it subsequently, Therefore, the provision of doctor, companion cannot be demanded all on a sudden. Again the complainants had to abandon their return journey for their own cause.'

On perusal of entire petition of the complaint, I do not find any allegation whatsoever by the appellants that there was any deficiency on the part of the respondent travel agency in conducting the tour. Unfortunately, appellant no. 1 had fallen on ill on 28.12.2015 in course of the trip for which the tour Manager admitted appellant no. 1 at Thimpu General Hospital along with other tourists where the doctors of the said hospital immediately referred appellant

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no. 1 in I.C.U. The appellant nos. 2 & 3 discharged the patient on bond not on the allegation of deficiency in services on the part of the hospital authority or tour Manager in providing treatment to appellant no. 1 but they withdrawn appellant no. 1 from the hospital only on the ground of language problem. Language cannot be a ground to stand in a way for treatment of a patient. Even the appellant nos. 2 & 3 did not bother to listen the advice of the doctors and tour Manager to travel with the patient towards Kolkata by air under special arrangement with some discounted air fare. Considering all the above, I do not find any reason to differ with the view of the Ld. Advocate that there was any deficiency in services on the part of opposite parties. In view of the above, the appeal being devoid of merits is liable to be dismissed. Consequently, the appeal is dismissed on contest. However, there will be no order as to costs. The impugned order/final judgment is hereby affirmed. The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit - I for information with reference to CC/174/2016.
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