TC- 24

TC- 24
TC-24

IN THE

SCINDIA DISTRICT CONSUMER REDRESSAL COMMISSION

IN THEINMTATTER
HE OF

SCINDIA DISTRICT CONSUMER REDRESSAL COMMISSION

SECOND INNINGS OLD AGE CHARITABLE TRUST ………………………...COMPLAINANT

IN THE MV.
ATTER OF

TRIP MAKERS PVT. LTD. .................................................................................. RESPONDENT

SECOND INNINGS OLD AGE CHARITABLE TRUST …………………………COMPLAINANT

CIVIL PETITIONV.
NO. ……..OF 2022

TRIP MAKERS PVT. LTD. .................................................................................. RESPONDENT

CIVIL PETITION
INTRA DEPARTMENT MOOT NCO. ……..OF
OURT 2022
COMPETITION -2022

INTRA DEPARTMENT MOOT COURT COMPETITION-2022

-WRITTEN
-WRITTENSUBMISSION for the
SUBMISSIONS for the RESPONDENT-
COMPLAINANT-
INTRA DEPARTMENT MOOT COURT COMPETITION-2022 MEMORIAL for COMPLAINANT

TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................I

LIST OF ABBREVIATIONS................................................................................................II

INDEX OF AUTHORITIES.................................................................................................IV

STATEMENT OF JURISDICTION....................................................................................VI

STATEMENT OF FACTS..................................................................................................VII

ISSUES RAISED................................................................................................................VIII

SUMMARY OF ARGUMENTS..........................................................................................IX

ARGUMENTS ADVANCED..................................................................................................1

1. THAT THE COMPLAINT FILED BY SECOND INNINGS OLD AGE

CHARITABLE TRUST IS MAINTAINABLE.................................................................1

1.1 PASSENGERS ARE THE BENEFICIARY..................................................................1

1.2 TRUST IS A PERSON....................................................................................................1
1.3 TRUST IS A CONSUMER.............................................................................................2
1.4 NO COMMERCIAL PURPOSE..........................................................................................3
1.5 TECHNICALITIES.........................................................................................................4
2. THE ACT OF TRIP MAKERS CHARGING AN ADDITIONAL INR 500 PER
PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR TRADE PRACTICE..............5

1.1 LATE INFORMATION..................................................................................................5

1.2 LATE INFORMATION IS DIFFERENT FROM CANCELLATION TIME............6
1.3 MISLEADING ADVERTISEMENT.............................................................................6
1.4 AWARENESS OF THE FACT THAT HOTEL HOSTS PARTIES...........................9
3. DEFICIENCY IN SERVICE ON THE PART OF TRIP MAKERS.......................9

PRAYER.................................................................................................................................12

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LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

& And

¶ Paragraph

% Percent

§ Section

Acc. According

Ad Advertisement

Art. Article

Anr. Another

CDRC Consumer Dispute Redressal Commission

Const. Constitution

CPA Consumer Protection Act

CPC Civil Procedure Code

DG Director General

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EUCD European Union Council Director

Govt. Government

Hon’ble Honourable

i.e. Id est (that is)

INR Indian National Rupee

Ltd. Limited

NCDRC National Consumer Dispute Redressal

Commission

Pvt. Private

SA South Africa

SC Supreme Court

SCC Supreme Court Cases

UOI Union of India

v. versus

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INDEX OF AUTHORITIES

-INDIAN CASE LAWS-

1. Amazon Seller Services Private Limited v. Gopal Krishan 2017 SCC OnLine SCDRC
234……………………………………………………………………………………10
2. Awdhesh Singh Bhadoria v. UOI, 2013 SCC OnLine MP
936………………………...7
3. Chandigarh Housing Board v. Avtar Singh, (2010) 10 SCC
194……………………….1

4. Dinesh Bhagat v. Bajaj Auto Ltd. (1992) III CPJ 272…………………………………

2
5. GDA v. Balbir Singh, (2004) 5 SCC
65………………………………………………..1
6. LDA v. M.K. Gupta, (1994) 1 SCC 243……………………………………….
……….1

7. Girikands Travels (P) Ltd v. Arun N Pujari 1993 CCJ 55……………………………

10
8. Havells India Ltd. v. Amritanshu Khaitan, 2015 SCC OnLine Del 8115………………
7

9. Hello Travel v. Harish C. Jain, 2020 SCC OnLine NCDRC 615……………… ……

10
10. KLM Royal Dutch Airlines v. DG of Investigation and Registration (2009) 1 SCC
230……………………………………………………………………………………..9

11. Leelavati Kirti Lal Medical Trust v. M/S Unique Shanti Developers and Ors. (2020) 2
Supreme Court Cases
265……………………………………………………………...3
12. M/s. Cox & Kings v. Joseph A. Fernanes 2005 SCC OnLine NCDRC
41……………..8

13. Maharashtra State Financial Corpu. v. Sanjay Shankarsa Mamarde, (2010) 7 SCC
489……………………………………………………………………………………10

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14. Paramount Digital Colour Lab v. Agfa India Private Limited, (2018) 14 SCC 81……3
15. Punjab University v. Unit Trust of India (2015) 2 SCC 669……………………………
3
16. Spring Meadows Hospital v. Hurjol Ahluwalia through KS Ahluwalia, I (1998) CPJ 1
(SC) …………………………………………………………………………………1,
2
17. Tata Press Ltd. v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC
139………...7

-CONSTITUTIONAL PROVISIONS-

1. INDIAN CONST. ARTICLE 19(2)……………………………………………….7

-STATUTES-

1. Civil Procedure Code, 1908…………………………………………………………VI

2. Consumer Protection Act, 1986…………………………………………………..…2,
7
3. Consumer Protection Act, 2019……………………………………………………..1,
2

-FOREIGN CASE LAWS-

1. See Lidi SNC v. Vierzon Distribution SA [2011] E.T.M.R. 6…………………………

8

-BOOKS AND JOURNALS-

1. SUPREME COURT ON CONSUMER PROTECTION Since 1950 to date BY

SURENDRA MALIK, SUDEEP MALIK VOL. 1,2,3
2. INTERNATIONAL JOURNAL ON CONSUMER LAW AND PRACTICE VOl. 8 2020

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3. CONSUMER PROTECTION ACT A commentary BY G.B. REDDY & BAGLEKAR

AKASH KUMAR
4. CONSUMER CLAIMS BY AKANKSHA RANA
5. CONSUMER PROTECTION LAW & PRACTICE BY AVTAR SINGH

-ONLINE SOURCES-

1. Hanumant, On Beneficial Construction available at http://hanumant.com/IOS-Unit7-

BeneficialAndStrictConstruction.html (last visited on 3rd May, 2022).

2. Ankoosh Mehta, Maitrayi Jain and Anushka Shah, Advertisement to Misleading

Advertisement | Horlicks Ltd. v. Zydus Wellness Products
https://www.scconline.com/blog/post/2020/07/30/advertisement-to-misleading-
advertisement-horlicks-ltd-v-zydus-wellness-products/ (last visited on 3rd May, 2022)

-OTHER AUTHORITIES-

Moot Proposition………………………………………………………………Passim

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STATEMENT OF JURISDICTION

With reference to the circumstances that have been presented in the instant case the
complainant file a complaint in Hon’ble Scindia District Consumer Redressal Commission
under Sec 9 of CPC 1809.

Sec 9 of CPC 1809

Courts to try all civil suits unless barred—The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.

[Explanation I]—A suit in which the right to property or to an office is contested is a suit of
a civil nature, notwithstanding that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.

[Explanation I]—For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I or whether or not such office is
attached to a particular place.]

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STATEMENT OF FACTS

-BACKGROUND-

The state of Bindia is a sovereign, socialist, secular, democratic and republic which gained
independence in 1947. People in Bindia belong to different religions and ethnicities. Majority
of people follow Bindoo religion and this constitutes 80% of the population. A pilgrimage,
called the Prathnath Yatra is dedicated to the supreme god of Bindoos . Various travel
agencies launch the yatra package every year.

-DISPUTE-

Trip Makers is one of the travel agencies which launched the Prathnath Yatra Package on
01.12.2021. The seats of 30 tourists got filled in 15 days i.e., 15.12.2021. The whole package
was purchased by Second Innings Old Age Charitable Trust. On 19.01.2022, the trust
received an email stating that the district police have revised the VIP entry fees from INR 500
to INR 1500 on 16.01.2022. So, the travel agency demanded the trust to pay INR 500 per
person and decided to bear 50% of the liability pertaining the increase in prices.

The yatra commenced on 01.02.2022. The pilgrims were accommodated to a subsidiary hotel
of Maddison group called Blu Maddison rather than the advertised Le Maddison Hotel.
During the stay, the pilgrims were surprised to see cocktail and reception parties going on at
night rather than the comfortable stay with calm and serene environment as advertised. When
the pilgrims complained about the same to the hotel manager, they were told that the due to
COVID 19, one third of the staff has been laid off and to keep the hotel running they had to
arrange parties. Furthermore, they confirmed that the travel agency was aware of this fact and
also have a kiosk in the hotel.

01.12.2021 Prathnath package launched

15.12.2021 Seats filled
16.01.2022 Notification on change in VIP entry rates by
District police
19.01.2022 Email sent by travel agency about the change
01.02.2022 Yatra commenced
25.03.2022 Trust filed the complaint
01.04.2022 Complaint admitted by SDCRC
21.04.2022 Trip Makers filed written reply

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ISSUES RAISED

-ISSUE I-

Whether the complaint filed by Second Innings Old Age Charitable Trust is maintainable or
not?

-ISSUE II-

Whether the act of Trip Makers charging an additional INR 500/- per person for VIP entry
amounts to unfair trade practice?

-ISSUE III-

Whether the act of Trip Makers to provide pilgrims accommodation in a subsidiary hotel
rather than a 3-star hotel and disturbance caused due to the partying and loud music makes
the Trip Makers liable for deficiency in service?

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SUMMARY OF ARGUMENTS

1. THAT THE COMPLAINT FILED BY SECOND INNINGS OLD AGE

CHARITABLE TRUST IS MAINTAINABLE

The complaint filed is maintainable in all actuality and instrumentalities of the Govt. of
Bindia, under the consumer rights provided by the Consumer Protection Act, 2019
(Hereinafter, CPA).

Firstly, the trust bought the travel package and the services were availed by the pilgrims.
Secondly, there was no commercial purpose on the part of the trust as it acted as an
intermediary. Thirdly, there are plethora of judgements stating that trust is a consumer.

2. THE ACT OF TRIP MAKERS CHARGING AN ADDITIONAL INR 500 PER

PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR TRADE PRACTICE

The additional amount demanded from individual consumers regarding the VIP entry tickets
rates falls under Unfair Trade practices. The travel agency did not intimate about the price
elevation at the desired time rather it gave the information after the full cancellation period
was lapsed. The agency also misled the trust regarding the property of the stay. It despite
having the knowledge that the hotel hosts parties concealed this fact from the trust which
amounts to unfair trade practice on the part of Trip Makers.

Ads. shall neither distort facts nor mislead the consumer by means of implications or
omissions. The facts were buckled by the travel agency and clear information regarding the
hotel were not provided.

They were already tired when they reached the hotel and acc. to the ad. It was their specific
duty at the time to destress them. However, they did the exact opposite. As a result, the sole
object of the trip was defeated. Nothing was done as per the ad. And thus, the ad. Was
misleading

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3. DEFICIENCY IN SERVICE ON THE PART OF TRIP MAKERS

The travel agency in the ad. claimed that the stay would be at a 3-star hotel i.e., Le Maddison.
Instead, they took the pilgrims to a subsidiary hotel where the stay was not comfortable as
promised. Wilful and deliberate concealment of important information, omission or
negligence of acts by seller which may lead to injury or loss to the consumer(s), also comes
under the ambit of deficiency of service.

With a kiosk present in the premises of the hotel, the travel agency should have been aware
about the fact that disturbances might occur to the passengers. The agency should not have
concealed this fact. The stay at the hotel was not as comfortable as claimed.

The Hotel Manager and the Manager at the Head Office of the travel agency showed
indifference to the complaints made by the passengers. Considering, it was the bounden duty
and responsibility of the Agency (appellant) to assist the passengers (complainant) and
provide them alternative arrangement but they tried to escape their liability one way or the
other.

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ARGUMENTS ADVANCED

1. THAT THE COMPLAINT FILED BY SECOND INNINGS OLD AGE

CHARITABLE TRUST IS MAINTAINABLE

¶ 1. It is beseeched humbly before the Hon’ble court that the complaint filed is maintainable
in all actuality and instrumentalities of the Govt. of Bindia, under the consumer rights
provided by the Consumer Protection Act, 2019 (Hereinafter, CPA).

¶ 2. This contention is substantiated by the way of a five-fold argument: [A] Passengers are
the beneficiary, [B] Trust is a person, [C] Trust is a consumer, [D] No commercial purpose
and [E] Technicalities.

1.1 PASSENGERS ARE THE BENEFICIARY

¶ 3. The trust bought the travel package for the pilgrims, for the sole purpose of making the
passengers the direct beneficiary to the services given by the travel agency. The services were
availed by the passengers, and not the trust. Moreover, relief cannot be denied to a person just
because the charitable trust organized the trip. As held earlier by the Apex court that the
beneficiary of the service even though not being the one to buy or avail it, is considered a
consumer.1

1.2 TRUST IS A PERSON

¶ 4. Trust is a "person". By including any "artificial juridical person" under the definition of
word "person", the legislature has diluted the decision of the Supreme Court in Pratibha
Pratisthan v. Canara Bank. In an appeal from the decision of NCDRC, it held that a "trust",
being an "artificial juridical person", does not come under the definition of "person" under
1
Spring Meadows Hospital v. Hurjol Ahluwalia through KS Ahluwalia, I (1998) CPJ 1 (SC); See also:
Chandigarh Housing Board v. Avtar Singh, (2010) 10 SCC 194; GDA v. Balbir Singh, (2004) 5 SCC 65; LDA
v. M.K. Gupta, (1994) 1 SCC 243

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Section 2(1)(m) of the old CP Act, 1986. Now, even a "trust" is a person for the purposes of
the CP Act, 2019.

1.3 TRUST IS A CONSUMER

¶ 5. The trust is a consumer and hence can file this plea before the Hon’ble Court. § 2 (7)(ii)
of the CPA2 states that a "consumer" means any person who—hires or avails of any service
for a consideration which has been paid or promised or partly paid and partly promised, or
under any system of deferred payment and includes any beneficiary of such service other
than the person who hires or avails of the services for consideration paid or promised, or
partly paid and partly promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned person, but does not include a
person who avails of such service for any commercial purpose. This makes trust the buyer of
the services and hence, a consumer, the passengers being the beneficiary.

¶ 6. In Dinesh Bhagat v. Bajaj Auto Ltd.3, the word ‘consumer’ has been defined in § 2(1)(d)
(ii) of the Act4, acc. to which if a person uses the goods with the approval of the person who
bought them for consideration, or he avails of the services with the approval of the person
who hired them, he is a consumer. In accordance with the present case, the pilgrims availed
the services of the yatra with the approval of the trust. This puts the trust on a valid stand to
be a consumer.

¶ 7. All the services were bought by the trust. All the amounts were paid to the Travel
Agency in advance. Since, the package bought by the Trust was given to the Old Age people
and hence there was no commercial intent.

¶ 8. On the authority of the Hon’ble SC in the Spring Meadows5 judgement, it was held that a
trust purchasing services can be included under the definition of a consumer as the hiring of
the services was for the ‘benefit’ of others. This being analogous to the facts the ‘Second
Innings Old Age Charitable Trust’ hired the services for the pilgrims 6, which makes the trust
a ‘consumer’.
2
Consumer Protection Act 2019, § 2(7)(ii)
3
(1992) III CPJ 272
4
Consumer Protection Act 2019, § 2 (1)(d)(ii)
5
Spring Meadows Hospital v. Hurjol Ahluwalia through KS Ahluwalia, I (1998) CPJ 1 (SC)
6
The moot proposition, ¶ 3

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¶ 9. The package was in the interest of the residents of the trust without any secondary
monetary motive of the trust. As observed by the SC, the act of a trust in purchasing services
for the welfare of its residents or members can’t be called as the act of commercial purpose.
Hence, a trust would come under the definition of word consumer.7

¶10. In OXFORD Dictionary, a consumer is defined as “purchaser of goods or service”. 8 The

trust thus, fundamentally comes under the definition of consumer from the above-mentioned
laws and judgements.

1.4 NO COMMERCIAL PURPOSE

¶11. The Apex Court states that words 'commercial purpose’9 would cover an undertaking the
object of which is to make a profit of the undertakings. 10 With the decision of the SC, it is
evident that, a person might be doing a business which has a commercial purpose, but if the
goods purchased or services obtained are not in the furtherance of that commercial purpose,
then he can be called as a consumer for the purposes of the consumer protection legislation. 11
In context with the instant case the investment in the package by the trust was a commercial
exchange but did not have a budgetary ground. The trip was for the benefit of its residents
and the trust was not being benefitted in any way. Hence the trust can be called a ‘consumer’.

¶12. The main purpose of the Trust was to send the old age people on pilgrimage. The trust
did not have any other motive behind the act. Also, the Court has to look at the dominant
purpose for which the purchase is made in order to decide whether it was for a ‘commercial
purpose.’12

1.5 TECHNICALITIES

7
Leelavati Kirti Lal Medical Trust v. M/S Unique Shanti Developers and Ors. (2020) 2 Supreme Court Cases
265
8
Avtar Singh, Consumer Protection- Law and Practice 5 th Edition (Eastern Book Company)
9
Consumer Protection Act 2019, Sec 2(7) Explanation(a)
10
Punjab University v. Unit Trust of India (2015) 2 SCC 669
11
Ibid
12
Paramount Digital Colour Lab v. Agfa India
Private Limited, (2018) 14 SCC 81

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¶13. Since CPA is a welfare legislation, it should be interpreted in a broad manner and not in
a narrow manner. It is not in the interest of the consumer, if the legislation is interpreted in a
very strict manner.

¶14. A beneficial legislation is a statute which purports to confer a benefit on individuals or a

class of persons. The nature of such benefit is to relieve said persons of onerous obligations
under contracts entered into by them. Further individuals with whom they stand in certain
relations may attempt to perpetrate oppressive acts upon the vulnerable party and a beneficial
legislation tends to protect them in such instances. 13 When a statute is interpreted liberally
and is given the widest possible meaning which the language permits it is known as
Beneficial Interpretation. When a statute is meant for the benefit of a particular class and if a
word in the statute is capable of two meanings i.e., one which would preserve the benefits
and one which would not, then the meaning that preserves the benefit must be
adopted.14Beneficial construction is an interpretation to secure remedy to the victim who is
unjustly denied of relief. The interpretation of a statue should be done in such a way that
mischief is suppressed and remedy is advanced.15

¶15. In the instant case, the definition of ‘consumer’ should be interpreted in a broader
meaning and not in a narrow one.

¶16. In order to interpret a statute beneficially three important principles should be followed:

A. Words in the statute should be interpreted in its widest form but only to the extent which
the language permits or contains.

B. The most complete remedy which a particular provision intends should be given.

C. A statute should always purport to confer benefits on particular class or category for which
the beneficial legislation is intended.

¶17. The welfare statues are aimed at protection and promotion of social and economic well-
being of its citizen they should be construed widely and liberally. Such statutes should be
interpreted in such a way that the power conferred by them is achieved and benefits the
13
M.N Rao, N S Bindra’s Interpretation of Statutes, pg. 341(10th ed, 2007), Lexis Nexis Butterworths, New
Delhi
14
Hanumant, On Beneficial Construction available at http://hanumant.com/IOS-Unit7-
BeneficialAndStrictConstruction.html last visited on May 2, 2022

15
G. Granville Sharp, Maxwell on interpretation of statutes, pg 68 (10th ed. 1953), Sweet & Maxwell Limited,
London

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particular class or category of people for whom it was intended by the legislature. 16
Therefore, it becomes the duty of the court to interpret a provision, especially a welfare
statute by giving it a wider meaning rather than a restrictive meaning.

2. THE ACT OF TRIP MAKERS CHARGING AN ADDITIONAL INR 500 PER

PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR TRADE PRACTICE

¶18. It is humbly submitted that the additional amount demanded from individual consumers
falls under Unfair Trade practices17.

¶19. This contention is corroborated by 3 arguments: [A] The information was provided late,
[B] the advertisement was misleading, [C] Late information is different from cancellation
time and [D] Hotel was aware of the parties being hosted

1.1 LATE INFORMATION

¶20. The information provided by the Travel agency was late as the guidelines by the district
police came on 16.01.202218 and the email sent by the travel agency to the trust was on
19.01.202219.20 The trust, due to the provisions in the Prathnath Yatra package 21 had crossed
the 14 days bar and now the complete cancellation was impossible. Also, the travel agency
could have informed about the guidelines on 17.01.2022, when the 14 days 22 period was not
over. The trust lost its opportunity to cancel the whole package and get full refund. So, this
misguidance by the travel agency leads to unfair trade practice.

1.2 LATE INFORMATION IS DIFFERENT FROM CANCELLATION TIME

16
5 G.P.Singh, Principle of Statutory Interpretation, (12th ed.2010), Lexis Nexis Butterworths Whadwa, Nagpur
17
Consumer Protection Act 2019, § 2(47)
18
Moot Proposition, ¶ 4, Line 2
19
Moot Proposition, ¶ 4, Line 1
20
Moot Proposition, ¶ 4
21
Moot Proposition, Annexure A1
22
Moot Proposition, Annexure A1

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¶21. Since they knew that the time period to cancel the contract has been passed so the
consumer, who have already invested so much money into the services, would be hesitant in
cancelling because they will neither get a refund nor they would get to avail the services.

Thus, the agency had a guilty and malafide intention in mind. It would lead to unfair trade
practices because it would have been resulted into a gain for the agency. The agency did not
complete their duty earlier.

¶22. The tickets should’ve been bought beforehand when the full payment was made by the
trust in advance and when the travel agency had an idea that the prices might change, they
shouldn't have delayed it.

1.3 MISLEADING ADVERTISEMENT

¶23. Acc. To the Act23 "misleading advertisement"24 in relation to any product or service,
means an advertisement, which

(i) falsely describes such product or service; or

(ii) gives a false guarantee to, or is likely to mislead the consumers as to the nature,
substance, quantity or quality of such product or service; or
(iii) conveys an express or implied representation which, if made by the manufacturer
or seller or service provider thereof, would constitute an unfair trade practice; or
(iv) deliberately conceals important information

¶24. As evident from the name, a misleading advertisement is one that deceives, manipulates
or is likely to deceive or manipulate the consumer. These advertisements have the ability to
cause damage to the consumers, as well as competitors and hence are required to be
restrained. The courts, while deciding various cases, have tried to strike a balance between
protecting the right to commercial speech and the interest of consumers and competitors.25

¶25. The SC has held that ‘The “commercial speech” which is deceptive, unfair, misleading
and untruthful would be hit by Art. 19(2)26 of the Const. and can be regulated/prohibited by

23
Consumer Protection Act 2019
24
Consumer Protection Act 2019, § 2(28)
25
https://www.scconline.com/blog/post/2020/07/30/advertisement-to-misleading-advertisement-horlicks-ltd-
v-zydus-wellness-products/
26
Constitution of Bindia, Art.19(2)

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the State.27 The Ad mentioned Le Madison, which is a 3-star hotel of the Madison Group but
the pilgrims were made to stay in a subsidiary property of the group. Also, the Ad mentioned
about the calm and serene environment, the passengers would be offered, which they could
not avail due to the parties. The statement being untruthful, unfair and deceptive, shall not be
covered under the bar of commercial speech.

¶26. The Hon’ble court, in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. 28 if an
advertisement contains a false representation or an incorrect representation or a warranty or
guarantee or a false or misleading representation or fact, then an action may lie.29

¶27. A declaration by the M.P. High Court can be understood as a view that the courts accept
cases relating to false, frivolous or misleading advertisements under CPA, 1986.30 Similarly,
the consumer in the present case was deceived into a false ad, thus the case would be
acceptable in court.

¶28. Art. 19(2)31 permits the govt. to impose reasonable restrictions upon the freedom of
speech and expression “in the interests of public order”.

¶29. Furthermore, Trip makers advertised that the pilgrims would be taken to a hotel called
Le Maddison which would provide calm and serene surroundings. But they were taken into a
subsidiary property of Maddison group called Blu Maddison which also did not provide with
natural surroundings and comfortable stay because of the cocktail and reception parties at
night. Various complaints made by the pilgrims to the hotel manager and the travel agency
were in vain.32

¶30. Ads. shall neither distort facts nor mislead the consumer by means of implications or
omissions. The facts were buckled by the travel agency and clear information regarding the
hotel were not provided.

¶31. Misleading advertising has also been defined in Art. 2(2) of the EUCD 84/450 as “any
advertising which is in any way, including its presentation, deceives or is likely to deceive the
persons to whom it is addressed or whom it reaches and which, by reason of its deceptive

27
Tata Press Ltd. v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139, Havells India Ltd. v. Amritanshu
Khaitan, 2015 SCC OnLine Del 8115
28
(1999) 7 SCC 1
29
Consumer Protection Act 2019, § 2(47)
30
Awdhesh Singh Bhadoria v. UOI, 2013 SCC OnLine MP 936
31
Constitution of Bindia, Art. 19(2)
32
Moot Proposition, Annexure A2

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nature, is likely to affect their economic behavior or which, for those reasons, injures or is
likely to injure a competitor.”33

¶32. This Court is also of the view that for any advertisement to be considered misleading,
two essential elements must be satisfied.34

¶33. Firstly, misleading advertising must deceive the persons to whom it is addressed or at
least, must have the potential to deceive them. This was fulfilled by the actions of the Travel
Agency because clarity about the hotel was not given and the information was deceiving.
Secondly, as a consequence of its deceptive nature, misleading advertising must be likely to
affect the economic behaviour of the public to whom it is addressed, or harm a competitor of
the advertiser. Even after paying the hiked fees, the promised quality services were not
provided which caused economic unsatisfaction to the pilgrims.

¶34. The ultimate object of the particular trip was to provide calm and serene environment
especially to the old age people. Since the trip was organized for a specified age group, the
old people, who wished for a soothing atmosphere outside the city, it was supposed to be the
main duty of the travel agency and hotel.

They were already tired when they reached the hotel and acc. to the ad. It was their specific
duty at the time to destress them. However, they did the exact opposite. As a result, the sole
object of the trip was defeated. Nothing was done as per the ad. And thus, the ad. Was
misleading.

¶35. CDRC in a judgement affirmed “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 CPA.”35

¶36. Supreme Court in Hamdard Dawakhana v. Union of India. There, the Court held that an
ad which has an element of trade or commerce does not fall within the concept of freedom of
speech for the reason that the object of speech is nor propagation of ideas in any sphere of
human thought. The Court said that although ad is a form of speech, its true character is
reflected in the object for the promotion of which it is employed. Acc. to the Court the right
to publish and distribute commercial ad advertising personal business is not part of freedom
of speech.
33
European Union Council Directive, Art. 2(2)
34
See Lidi SNC v. Vierzon Distribution SA [2011] E.T.M.R. 6
35
M/s. Cox & Kings v. Joseph A. Fernanes 2005 SCC OnLine NCDRC 41

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1.4 AWARENESS OF THE FACT THAT HOTEL HOSTS PARTIES

¶37. Apex Court in KLM Royal Dutch Airlines v. DG of Investigation and Registration 36
clarified the position. It was held that it is not possible to provide an exclusive list of
statements which may constitute misleading representation nor there can be any strait jacket
formula evolved thereof for the said purpose. However, the statements of the nature which are
wilfully made knowingly false, or made recklessly without belief in its truth, and made with
the purpose to mislead or deceive will definitely constitute a false or misleading
representation. In addition, a failure to disclose a material fact when a duty to disclose that
fact has arisen will also constitute a misleading representation.

¶38. The travel agency was aware about the fact that Maddison Hotels organise parties in
their lawns.37 Hiding the facts regarding the same, and giving false claims of providing
peaceful environment would lead to unfair trade practices.

3. DEFICIENCY IN SERVICE ON THE PART OF TRIP MAKERS

¶39. According to CPA any sort of imperfection, or defect in the feature, quality, amount,
worth, authenticity, its capacity or potential, and standard which is obligatory to be
maintained and regulated as per the laws and statutes in function or any agreement/contract
claimed by the seller, with respect to the products and goods, is known as deficiency.

Wilful and deliberate concealment of important information, omission or negligence of acts

by seller which may lead to injury or loss to the consumer(s), also comes under the ambit of
deficiency of service.

Any act(s), which a prudent seller is supposed to do or is supposed to omit, but deliberately
does the contrast, such actions amount to 'deficiency of service'38.

36
(2009) 1 SCC 230
37
Moot Proposition, ¶ 8
38
Consumer Protection Act 2019, § 2(11)

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INTRA DEPARTMENT MOOT COURT COMPETITION-2022 MEMORIAL for COMPLAINANT

¶40. It was held that it is the travel agent’s duty to visualise and anticipate the eventualities
which may occur during the tour.39 With a kiosk present in the premises of the hotel40, the
travel agency should have been aware about the fact that disturbances might occur to the
passengers.

¶41. The Hotel Manager and the Manager at the Head Office of the travel agency showed
indifference to the complaints made by the passengers. Considering, it was the bounden duty
and responsibility of the Agency (appellant) to assist the passengers (complainant) and
provide them alternative arrangement but they tried to escape their liability one way or the
other.41

¶42. Test to determine deficiency held, there can be no single decisive test. Extent of
deficiency has to be decided on facts of the particular case, having regard to the nature of
service to be provided CPA, Section 2(11)(i) and (ii).

¶43. The scope of § 2(11)42 defining "deficiency is also very wide but no single test as
decisive in the determination of the extent of fault, imperfection, nature and manner of
performance. etc. required to be maintained can be laid down. It must depend on the facts of
the particular case, having regard to the nature of the "service" to be provided.43

¶44. However, in events of travel and tourism services, the fault lies in providing poor quality
services and discomfort to the consumers.

39
Girikands Travels (P) Ltd v. Arun N Pujari 1993 CCJ 55
40
Moot Proposition, ¶ 8, Line 6
41
Hello Travel v. Harish C. Jain, 2020 SCC OnLine NCDRC 615; Amazon Seller Services Private Limited v. Gopal
Krishan 2017 SCC OnLine SCDRC 234
42
CPA 2019, § 2(11)

43
Maharashtra State Financial Corpu. v. Sanjay Shankarsa Mamarde, (2010) 7 SCC 489

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INTRA DEPARTMENT MOOT COURT COMPETITION-2022 MEMORIAL for COMPLAINANT

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INTRA DEPARTMENT MOOT COURT COMPETITION-2022 MEMORIAL for COMPLAINANT

PRAYER

IT IS HEREBY MOST HUMBLY PRAYED BEFORE THE HON’BLE SCINDIA

DISTRICT CONSUMER REDRESSAL COMMISSION THAT, IN THE LIGHT OF
FACTS MENTIONED, ARGUMENTS ADVANCED, AND AUTHORITIES CITED, THE
HON’BLE COURT MAY BE PLEASED TO ADJUDICATE AND DECLARE THAT:

I. THE ACT OF TRIP MAKERS CHARGING AN ADDITIONAL INR 500/- PER

PERSON FOR VIP ENRTY AMOUNTS TO UNFAIR TRADE PRACTICE. THEREFORE,
ASKS FOR REFUND OF INR 15000/-.

II. TRIP MAKERS IS LIABLE FOR DEFICIENCY IN SERVICE AND THEREFORE

SEEKS A COMPENSATION OF INR 500000/-.

AND ANY OTHER RELIEF THAT THE HON’BLE COURT MAY BE PLEASED TO
GRANT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is humbly submitted.

Sd/-

~COUNSELS ON BEHALF OF THE RESPONDENT~

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