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Uttarakhand High Court · body

2005 DIGILAW 534 (UTT)

COX & KINGS (I) PVT. LTD. v. JOSEPH A. FERNANDES

2005-12-20

K.S.GUPTA, RAJYALAKSHMI RAO

body2005
ORDER Mrs. Rajyalakshmi Rao, Member—The present petition is being filed against the order dated 24.11.2004 passed by the State Commission, Bangalore in F.A. No. 66 of 2004 against O.C. No. 430/2003 whereby the Hon’ble State Commission has awarded compensation of Rs. 25,000 towards compensation along with interest @ 25% p.a. from the date of the order of the District Forum till realization. The only issue involved in this Revision Petition is whether the revision petitions resorted to in unfair trade practice in falsely advertising details about the “Star Cruise”. Facts relevant to this issue are as follows: 2. The respondents Mr. and Mrs. Fernandes had booked for a tour from Bangalore to Singapore-Malaysia and back with the revision petitioner’s company, Cox and Kings. So far as the tour from Singapore to Malaysia and back is concerned, it is by cruise, Star Cruise Services for which the respondents have been charged has called the Cruise as “Two rights/three days cruise”. The Star Cruise’s confirmation voucher given to the respondents however mentioned the embarkation and disembarkation timings as “Leave Singapore at 23:59 hours on 17.4.2002 and arrive at Singapore on 19.4.2002”. 3. The case of the respondents, who are the original complainants, is that according to the timings given by the revision petitioner, the cruise trip is only for two nights and one and a half days whereas it was advertised as 2 nights/3 days cruise. There was, therefore, a shortage of one and a half days cruise service according to the complainants. This view was upheld by the District Forum which ordered the tour operator to pay compensation of Rs. 50,000. The appeal by the tour operator was dismissed by the Karnataka State Commission which however reduced the compensation to Rs. 25,000 with 25% interest p.a. from the date of the order of the District Forum till the realization. The State Commission’s order also states that the complainant has no objection to dispose of the appeal by awarding Rs. 25,000 as compensation. It is against this order that the Revision Petition has been filed. But it is also admitted by the revision petitioner that the amount as awarded by the State Commission has already been paid to the respondents. 4. The revision petitioner concedes that the cruise lasted only for 2 nights and 1½ days. 25,000 as compensation. It is against this order that the Revision Petition has been filed. But it is also admitted by the revision petitioner that the amount as awarded by the State Commission has already been paid to the respondents. 4. The revision petitioner concedes that the cruise lasted only for 2 nights and 1½ days. He, however, argues that they have at no time told the respondents that the cruise would be for two nights and three days. At the same time, they agreed that the Star Cruise Services for which the respondents have been charged are called as “Two nights/three days cruise”. It is argued that this nomenclature is used by the Star Cruise Company and is in vogue throughout. Their further argument is that irrespective of the nomenclature used, the respondents clearly knew before taking up the cruise, the exact timings of embarkation and disembarkation and there was no question of their having been given incorrect information as alleged. 5. It is further argued that the respondents are highly qualified persons and have signed the booking form after careful reading and understanding the contents of the said documents and contents of the terms and conditions and booking conditions. Having completed the journey without any protest, the respondents cannot later argue that there was deficiency in service. It is argued that there is a contract between the parties and that the terms of the contract are binding on both the parties. 6. As against this, the argument of the respondents is that the revision petitioner fully well knew that the cruise actually last only for one and a half days but they had falsely represented that the cruise is for 3 days. They have thus been cheated out of one and a half days of the cruise. 7. We have carefully considered the arguments and find no substance in the pleas of the revision petitioner. There is a deliberate misleading thought in issuing the advertisement that the cruise is for two nights/three days. Actually what has happened was that the cruise was only for one and a half days. The revision petitioner cannot take shelter under the argument that it is a trade practice to use the nomenclature “Cruise for two nights/three days”. There is a deliberate misleading thought in issuing the advertisement that the cruise is for two nights/three days. Actually what has happened was that the cruise was only for one and a half days. The revision petitioner cannot take shelter under the argument that it is a trade practice to use the nomenclature “Cruise for two nights/three days”. The revision petitioner deliberately timed the departure of the cruise at 11.59 p.m. i.e., one minute short of midnight and counted that one minute as one full day. This is nothing short of outright cheating by the Cruise Company and by the revision petitioner. 8. The revision petitioner’s argument that the respondents cannot object after having completed the cruise is meaningless. Let us examine what options are open to the respondents even if they were aware before-hand that the cruise last only one and a half days as against the advertisement of 3 days. The choices of respondents are limited to the following: (a) Not to take the cruise in view of the misleading advertisement; (b) Argue with the tour operator that the advertisement is misleading and thus ask them to reduce the price; (c) Protest against the practice and still take a cruise because they have no other alternative, especially in view of the argument that this is a widespread practice. 9. All the above options are only theoretical options and the only real option available to the respondents and the other tourists like them, is to mutely suffer the false and misleading advertisement given by the tour operators. 10. 9. All the above options are only theoretical options and the only real option available to the respondents and the other tourists like them, is to mutely suffer the false and misleading advertisement given by the tour operators. 10. The practice followed by the revision petitioner falls squarely under the unfair trade practice as defined in Section 2(r) of Consumer Protection Act, 1986 which reads as under: “(r) Unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: (1) The practice of making any statement, whether orally or in writing or by visible representation which makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services; (2) Permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.” 11. In the circumstances of the case, we feel that the State Commission has taken a lenient view in reducing the compensation awarded by the District Forum and we would have liked to restore the order of the District Forum in full. However, the scope of the Revision Petition is limited under Sections 14(1)(f) and 14(1)(hc) of Consumer Protection Act empowers the fora to issue an order directing the petitioner to discontinue unfair trade practice and to issue corrective advertisement and we produce them hereunder: “14(1)(f): to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them. 14(1)(hc): to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement.” 12. We direct the petitioner to discontinue advertisement misleading people to believe it is as 3 days but in reality it is only two days and one minute. 13. 14(1)(hc): to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement.” 12. We direct the petitioner to discontinue advertisement misleading people to believe it is as 3 days but in reality it is only two days and one minute. 13. It is only a rare tourist/consumer who is vigilant and conscious of his rights under the Consumer Protection Act and who prepared to take the route of legal proceedings, that knocks at the Consumer Fora. What the petitioner did amounts to equating one minute of service with service of 23.59 hrs. Can one minute service ever be construed as a full day service? The claim of the revision petitioner that issuance of such advertisement is a universal practice compels us to condemn the practice even in stronger terms and we hold it does not make any difference as far as the Consumer Protection Act is concerned. In our view, this practice by the petitioner is not only a case of misrepresentation through misleading advertisement but also an unfair trade practice in the eyes of Consumer Protection Act. 14. We dismiss the Revision Petition and confirm the order of the State Commission with cost of Rs. 5,000 to be paid to the respondents by the petitioner and direct the petitioner to withdraw the misleading advertisement under Section 14(1)(f) and to give corrected advertisement under Section 14(1)(hc) of Consumer Protection Act, 1986. The order is to be complied with within four weeks from the date of the receipt of the same or else it would attract 9% interest p.a. Ordered accordingly. –