INTRA DEPARTMENT MOOT COURT COMPETITION, 2022

TC-08

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE

REDRESSAL COMMISSION, SCINDIA

SECOND INNINGS OLD AGE CHARITABLE TRUST….COMPLAINANT

v.

TRIP MAKERS PVT. LTD. ………….……OPPOSITE PARTY

_________________________________________________

COMPLAINT U/S 35 OF THE CONSUMER PROTECTION ACT, 2019.

______________________________________

MEMORIAL ON BEHALF OF THE COMPLAINANT

MEMORIAL ON BEHALF OF THE COMPLAINANT 1

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................... 2

LIST OF ABBREVIATIONS ............................................................................................ 4

INDEX OF AUTHORITIES .............................................................................................. 5

STATEMENT OF FACTS ................................................................................................. 7

STATEMENT OF JURISDICTION .................................................................................. 8

ISSUES/CHARGES ........................................................................................................... 9

SUMMARY OF ARGUMENTS...................................................................................... 10

ARGUMENTS ADVANCED .......................................................................................... 11

1. THE COMPLAINT FILED BY SECOND INNINGS OLD AGE CHARITABLE

TRUST IS MAINTAINABLE. ......................................................................................... 11

1.1. The Trust is a Juridical Person .................................................................................. 11

1.2. The Complainant Trust is a Consumer; in any Case, it is a Representative. ............. 14
1.3. The Trust is a Bona Fide Complainant. ..................................................................... 15
1.4. Objectives of the Act ................................................................................................. 15
1.5. Judicial Precedent in Pratibha Pratishtan Case and Its Irrelevance in Present Case. 16
2. THE ACT OF TRIP MAKERS CHARGING AN ADDITIONAL INR 500/- PER
PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR TRADE PRACTICE. .......... 17

2.1. Deceitful and Unfair Trade Practice .......................................................................... 17

2.2. Duty to Disclose Changes.......................................................................................... 18
2.3. Deficiency in Service and Restrictive Trade Practices .............................................. 19
3. THE ACT OF TRIP MAKERS TO PROVIDE PILGRIMS ACCOMMODATION
IN A SUBSIDIARY HOTEL AND DISTURBANCE CAUSED DUE TO THE LOUD
MUSIC MAKES THE TRIP MAKERS LIABLE FOR DEFICIENCY IN SERVICE.
.............................................................................................................................................. 20

3.1. Misleading Advertisement ......................................................................................... 20

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3.2. Unfair Trade Practices ............................................................................................... 22

3.3. Fraud .......................................................................................................................... 23
3.4. Nuisance .................................................................................................................... 24
3.5. Deficiency in Service................................................................................................. 25
PRAYER .......................................................................................................................... 26

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LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

U/S UNDER SECTION

OP OPPOSITE PARTY

W.R.T. WITH RESPECT TO

SC SUPREME COURT

SCC SUPREME COURT CASES

V. VERSUS

NI NEGOTIABLE INSTRUMENTS

IBID IBIDEM

CTC CURRENT TAMIL NADU CASES

CPJ CONSUMER PROTECTION

JUDGEMENTS

COPRA CONSUMER PROTECTION ACT

AIR ALL INDIA REPORTER

ILR INDIAN LAW REPORTS

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INDEX OF AUTHORITIES

S.No. Particulars Page No.

Statues Referred
1. The Constitution of India Passim.
2. The Consumer Protection Act, 2019 (35 of 2019) Passim.
3. The Indian Contract Act, 1872 (9 of 1872) Passim.
4. Law of Torts (Uncodified) Passim.
5. The Indian Trusts Act, 1882 (2 of 1882) Passim.
Cases
1. Administrator Smt. Tara Bai Desai Charitable Opthalmic Trust Hospital v.
Managing Director Supreme Elevators India Pvt. Ltd & Ors., SPL 18363/ 2019.

2. Bhupinder Singh v. Air India, I (1996) C.P.J. 344 (M.P. S.C.D.R.C).

3. Bhaurao Dagdu Paralkar v. State of Maharashtra, A.I.R. 2005 S.C. 3330.
4. Briess v. Woolley, (1954) A.C. 333.
5. Curtis v. Chemical Cleaning and Dyeing Co., (1951) 1 K.B. 805.
6. Derry v. Peek, (1889) 14 A.C. 337.
7. Dunlop Pneumatic Tyre Co. v. Selfridge & Co., (1915) A.C. 847.
8. Fay v. Prentice, (1854) 1 C.B. 828.
9. Hamdard Dawakhana v. Union of India, AIR 1950 SC 554, 563.
10. Khwaja Muhammad Khan v. Husaini Begum, I.L.R. (1910) 32 All. 410.
11. Lakhanpal National Ltd v MRTP Commission, (1989) 66 Comp Cas 519 SC.
12. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787 (790).
13. Makemytrip (India) Pvt. Ltd. Versus Manabendra Saha Roy, Revision
Petition No. 1146 of 2018.
14. Masjid Shahid Ganj v. SGP Committee, (1940) 42 BOMLR 1100.

15. M/s Abraham Memorial v. C. Suresh Babu, [2012 (2) MWN (Cr.) (DCC) 161 (Mad.).

16. M/s. Cox & Kings (I) Pvt. Ltd. Versus Mr. Joseph A. Fernanes, 2005 SCC
OnLine NCDRC 41.

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17. Nirma Indus tries Ltd. v. Director General of Investigation, (1997) 4 Comp LJ 165.
18. Pratibha Pratishthan & others v. Manager, Canara Bank & Others, (2017) 3
SCC 712.
19. Ramanlal Bhailal Patel v. State of Gujarat, (2008) 5 SCC 449.
20. Re: Ramlila Maidan Incident Dt. 4/5.6.2011 Versus Home Secretary, Union of
India and Others, [2012] 2 MLJ (CRL) 32.
21. Re: Noise Pollution, A.I.R. 2005 S.C. 3136.
22. Shiromani Gurdwara Prabandhak Committee v. Som Nath Dass, (2000) 4
SCC 146.
23. Standard Chartered Bank v. Directorate of Enforcement, 2005 (3) CTC 39.
24. Stikeman v Dawson (1847) 1 De G& Sm 90 at 104
25. The Director General (I & R) v. St. Francis Xavier School, Calcutta II (1997)
C.P.J 35 (MRTP).
26. Turner v Harvey, (1821) Jac 169.
27. Vikas Verkhadekar v. Narmada Electronics (P) Ltd., II (1996) CPJ 469.
28. With v. O'Flanagan, (1936) Ch. 575, (1936) 1 All. E.R. 727.
29. Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, 1969 (1)
SCC 555.
Books and Journals
1. Dr. R.K. Bangia Contract-1, Allahabad Law Agency,7th Passim.
Edition

2. Dr. R.K. Bangia’s Law of Torts, Allahabad Law Agency, Passim.

Faridabad, 25th Edition
3. Y.P. Bhagat; Kumar Keshav, Commentary on The Passim.
Consumer Protection Act, 2019, Whitesmann, New Delhi,
2021 Edition
4. Dr J N Barowalia : Commentary on the Consumer Passim.
Protection Act, 7th Edition
5. Dr Avtar Singh & Dr Harpreet Kaur: Introduction to the Passim.
Law of Torts and Consumer Protection, 4th Edition
Dictionaries Referred
1. P Ramanatha Aiyar, Advanced Law Lexicon, (3rd Edition Passim.
2005), Wadhwa Nagpur Publishers, Nagpur
2. Henry Campbell Black, Black’s Law Dictionary, (7th Passim.
Edition 1999), West Publishing Company, St. Paul

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STATEMENT OF FACTS

BACKGROUND: Bindia, a sovereign, socialist, secular, democratic and republic country,

80 percent of its population follows Bindoo religion. Every year, a large number of Bindoos
go to the Prathnath Yatra in February, a pilgrimage dedicated to the Supreme God of the
Bindoos. Trip Makers Pvt. Ltd., a travel agency located in Bindore city in Central Pradesh
state, offered an exclusive tour package covering the Prathnath Yatra along with terms and
conditions1. The package was officially launched on 01.12.2021and had a cap of 30 tourists
which got filled by 15.12.2021. The entire package was purchased by ‘Second Innings Old
Age Charitable Trust’ located in Scindia city in Eastern Pradesh. The charitable trust receives
money in form of donations from within the country and also from NRI’s. All the payments
to Trip Makers were made from a bank located in Scindia city.

UNFAIR TRADE PRACTICE AND DEFICIENCY IN SERVICE: On 19.01.2022, the

package buyers received an email from the travel agency stating that the District Police had
revised the VIP entry rates from INR 500 to 1500 on 16.01.2022. Consequently, an additional
amount of INR 500/- was demanded from each buyer. As the ‘full refund cancellation period’
had lapsed, the Charitable Trust was left with no option but to pay the extra amount. The
Yatra tour offered by Trip Makers commenced on 01.02.2022. The pilgrims had expected
that they would be taken to Le Maddison, a 3-star property, as per the advertisement2.
However, instead, they were taken to Blu Maddison, a subsidiary property of Maddison
Group. During their stay at the subsidiary property, the yatris had to bear with sleepless
nights on account of loud music and noise of parties held in hotel premises as opposed to the
calm and serene environment promised by the OP.

HENCE, THE PRESENT COMPLAINT: On account of sheer indifference shown by OP in

the matter, the complainant trust decided to seek redressal before this hon’ble commission by
way of a consumer complaint dated 25-03-2022 an amount of INR 15,000/- as a refund
pertaining to extra VIP ticket charges and INR 5,00,000 as compensation for deficiency of
services on account of the OP. Notice was issued to OP on 01-04-2022 and written reply was
filed by OP on 21-04-2022.

1
ANNEXURE A1 of the Moot Proposition.
2
ANNEXURE A2 of the Moot Proposition.
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STATEMENT OF JURISDICTION

It is humbly submitted that the Complainant has approached the Hon’ble District Consumer
Disputes Redressal Commission at Scindia under section 34 of the Consumer Protection Act,
2019 which reads as follows:

“34. (1) Subject to the other provisions of this Act, the District Commission shall have
jurisdiction to entertain complaints where the value of the goods or services paid as
consideration does not exceed one crore rupees:
Provided that where the Central Government deems it necessary so to do, it may
prescribe such other value, as it deems fit.
(2) A complaint shall be instituted in a District Commission within the local limits of
whose jurisdiction,—
a) the opposite party or each of the opposite parties, where there are more than one, at
the time of the institution of the complaint, ordinarily resides or carries on business
or has a branch office or personally works for gain; or
b) any of the opposite parties, where there are more than one, at the time of the
institution of the complaint, actually and voluntarily resides, or carries on business or
has a branch office, or personally works for gain, provided that in such case the
permission of the District Commission is given; or
c) the cause of action, wholly or in part, arises; or
d) the complainant resides or personally works for gain.

(3) The District Commission shall ordinarily function in the district headquarters and
may perform its functions at such other place in the district, as the State Government may, in
consultation with the State Commission, notify in the Official Gazette from time to time”

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ISSUES/CHARGES

I. WHETHER THE COMPLAINT FILED BY SECOND INNINGS OLD AGE

CHARITABLE TRUST IS MAINTAINABLE OR NOT?

II. WHETHER THE ACT OF TRIP MAKERS CHARGING AN ADDITIONAL

INR 500/- PER PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR TRADE
PRACTICE?

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

I. WHETHER THE COMPLAINT FILED BY SECOND INNINGS OLD AGE

CHARITABLE TRUST IS MAINTAINABLE OR NOT?

The present complaint against Trip Makers Pvt. Ltd. is maintainable as the complainant trust
is an artificial/ juridical person u/s 2(31) of the Consumer Protection Act 2019 with legal
rights and duties such as ability to contract, lend/borrow money, ability to avail income tax
benefits etc. The trust is a ‘consumer’ as it has paid the amount of consideration from the
donations held by it in its name and has availed services of the OP for its beneficiaries. In any
case, the present complaint is also maintainable under order 1 rule 8 of Code of Civil
Procedure, 1908 which provides for a representative suit to be filed for the sake of
convenience when common-interest is involved.

II. WHETHER THE ACT OF TRIP MAKERS CHARGING AN ADDITIONAL INR

500/- PER PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR TRADE
PRACTICE?

The act of the OP to wilfully withhold the information about the increase in VIP entry fee,
before the full refund and cancellation period had lapsed amounts to unfair and deceitful trade
practice. This failure of OP to disclose relevant information with the obvious aim of unethical
profiteering amounts to deficiency in service u/s 2 (11) of COPRA, 2019.

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?

The OP is guilty of defrauding the complainant by way of active concealment. The

complainant was led to enter into a contract with the OP by providing fabricated information,
promising a serene and calm stay at a 3-star Le maddison Hotel. However, the yatris were
taken to a subsidiary property called Blu maddison without any justification and instead of a
rejuvenating experience, as promised in the advertisement, the yatris had to bear with severe
auditory disturbance at night. All of this amounts to misleading advertisement, unfair trade
practice, deficiency in services, fraud, and nuisance.

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ARGUMENTS ADVANCED

1. THE COMPLAINT FILED BY SECOND INNINGS OLD AGE CHARITABLE

TRUST IS MAINTAINABLE.

It is most humbly submitted before this Hon’ble Commission that the maintainability of the
present complaint has been challenged by the OP in their written reply dated 21-04-2022,
alleging that the complainant trust does not fall within the definition of ‘consumer’ as per
The Consumer Protection Act, 2019 (herein referred as ‘COPRA, 2019’) however, the
inclusion of charitable trusts, particularly the Second Innings Old Age Charitable Trust
within the definition of ‘consumer’ under COPRA 2019 can be elucidated through following
separately: (A) Person ; (B) Consumer and (C) Complainant.

1.1. The Trust is a Juridical Person

1.1.1 It is submitted that u/s 2(31) of COPRA 2019 "person" includes—

(i) an individual;

(ii) a firm whether registered or not;

(iii) a Hindu undivided family;

(iv) a co-operative society;

(v) an association of persons whether registered under the Societies Registration Act, 1860 or not;

(vi) any corporation, company or a body of individuals whether incorporated or not;

(vii) any artificial juridical person, not falling within any of the preceding sub-clauses;

1.1.2 That the Indian Trusts Act, 1882 is not a correct guide w.r.t. the definition of Trust in
the present matter as it is not a private trust but a public charitable trust. In any case,
although, u/s 3 of the Indian Trusts Act, 1882 the word 'Trust' denotes only an obligation
attached to the property or Trust is nothing but a confidence reposed on the person
whether natural or artificial. Such artificial person, upon whom trust is reposed, may even
be founded by the creator of the Trust. As held by the Hon'ble Supreme Court, the trust

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obligation can be imposed on a person already in existence or the founder himself can
create an artificial person upon whom the trust obligation can be imposed3.
1.1.3 The word Trust means: “An arrangement whereby a person (a trustee) holds property
as its nominal owner for the good of one or more beneficiaries"4.
1.1.4 That a person is such, not because he is human, but because rights and duties are
ascribed to him. The person is the legal subject or substance of which the rights and
duties are attributes.5
1.1.5 The question whether or not a charitable trust qualifies as a ‘person’ in the eyes of law
came before the High Court of judicature in Madras and the same was answered in
positive under the purview of section 2 (42) the General Clauses Act (language of which
is identical to section 2 (31) of COPRA) in the case of M/s Abraham Memorial v. C.
Suresh Babu6. The judgement explained the juridical nature of Trust in the light of
admissibility of approval granted to a trust registered under the Charitable Trusts Act,
1950 by AICTE, application of income held by trust7, capable of lending or taking loans,
contracting, and issuing negotiable instruments in its name. It was also held that:-
“That a person is ordinarily understood to be a natural person, it only means a
human being. But a person is also artificially created and recognised in law as such.
Such persons are called in different names, such as "juristic person", "juridical
person", "legal entity" etc. Institutions like corporations, companies etc., are given
legal status of a person. By virtue of the statutory recognition, these artificial persons
came to own property and enjoy various statutory rights and even some constitutional
rights.” AND
“27. From the foregoing discussions, it is manifestly clear that the moment a Trust
(organisation) is formed with an obligation attached to the same,
an artificial person is born and because such artificial person is recognised by law,
conferring upon such artificial person right to own property, to enjoy certain other
rights and also to discharge certain obligations, it attains the status of a
juristic person. Thus, a Trust whether private or public, is a juristic person who can
sue/be sued or prosecute/be prosecuted.”

3
Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta, 1969 (1) SCC 555.
4
Concise Oxford English Dictionary, Eleventh Edition.
5
Bryan A Garner & Henry Campbell, Black’s Law Dictionary, (4th edition, 553 West Thomson Reuters , 2008).
6
M/s Abraham Memorial v. C. Suresh Babu, [2012 (2) MWN (Cr.) (DCC) 161 (Mad.).
7
Circular no. 100 dated 24-01-1973, income tax department.
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1.1.6 Para 26 of the same judgement8 recognises the right of a trust to transfer its property
and in the case of Standard Chartered Bank v. Directorate of Enforcement9, SC held that a
charitable trust can be prosecuted for an offence but on conviction only fine or
compensation may be imposed.
1.1.7 Similar view was held when the definition of “person” in the context of Gujarat
Agricultural Lands Ceiling Act, 1960 came up for consideration in Ramanlal Bhailal
Patel v. State of Gujarat.10
1.1.8 It was also held in Shiromani Gurdwara Prabandhak Committee v. Som Nath Dass11
that where there is any endowment for charitable purpose it can create institutions like a
church, hospital, Gurudwara etc…it gains the status of juristic person when it is
recognised by the society as such.
1.1.9 It was held by the SC in Administrator Smt. Tara Bai Desai Charitable Opthalmic
Trust Hospital v. Managing Director Supreme Elevators India Pvt. Ltd & Ors.12 that:-

“The definition of “person” in terms of Section 2(1)(m) of the Act is also an inclusive
definition. Under sub-clause (iv) to Section 2(1)(m), the expression “person” includes
“every other association of persons whether registered under the Societies
Registration Act, 1860 (21 of 1860) or not”. In our view, the case of a “trust” may
also come within the purview of the definition of “person” under the Act.

Moreover, the legislative intent appears to have a wider coverage and therefore the
concerned provision includes number of categories under the definition of “person”
so much so that even an unregistered firm which otherwise has certain disabilities in
law, is also entitled to maintain an action.”

1.1.10 It can be concluded that the definition of the term ‘person’ under the Indian law in
general and under COPRA, 2019 in particular is wide enough to include Charitable trusts,
therefore the Second Innings Old Age Charitable Trust is a juristic and artificial person
and is ‘person’ under Section 2(31) of The Act, 2019.

8
Ibid. at 6.
9
Standard Chartered Bank v. Directorate of Enforcement reported in 2005 (3) CTC 39.
10
(2008) 5 SCC 449.
11
(2000) 4 SCC 146.
12
SPL 18363/ 2019.
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1.2. The Complainant Trust is a Consumer; in any Case, it is a Representative.

1.2.1 It is submitted that a ‘Consumer’ u/s 2(7) of COPRA, 2019 includes those persons
who hire or avail of any services for a consideration which has been paid or promised to
be paid or partly paid and partly promised to be paid or under any system of deferred
payment. The trust having (i) paid the consideration (ii) availed the services qualifies
as a consumer within its ambit. It also includes beneficiaries of such services other than
the persons who hire or avail of such services with the consent of the hirer. In Vikas
Verkhadekar v. Narmada Electronics (P) Ltd.,13 beneficiaries of a group insurance cover
were held to be ‘consumers’ under section 2(1)(d)(i) of COPRA, 2019.
1.2.2 That the purchase of the package was made by the trust and the services were availed
by the beneficiaries of the trust i.e., elderly citizens of the society who are dependent
upon the functioning of the trust for their maintenance and meeting of necessities of day-
to-day life. It begs a question, in such circumstances, that whether such elderly citizens,
who in any case qualify as ‘consumers’ in the latter part of the definition us 2(7) (ii),
should be denied the opportunity to seek redressal before this Hon’ble Commission
through the trust entrusted with a duty of care towards them. Order I Rule 8 of the Code
of Civil Procedure 190814 deals with representative suit. A representative suit is a suit that
is filed by one or more persons on behalf of themselves and others having same interest in
the suit. The general rule is that all persons interested in a suit ought to be joined as
parties to it. Rule 8 forms an exception to this general rule.
1.2.3 That in Masjid Shahid Ganj v. SGP Committee15 the Court has said that a
representative suit on behalf of inhabitants of a village with reference to the village
property or on behalf of the members of sect, caste or community is maintainable under
this rule. Section 35(1)(c) of the COPRA, 2019 enables one or more consumers, where
there are numerous consumers having the same interest, with the permission of the
District Commission, to file a complaint, on behalf of or for the benefit of all consumers
so interested. It is needless to point out that the sine qua non for invoking Section
35(1)(c)16 is that all consumers on whose behalf or for whose benefit the provision is
invoked, should have the same interest. Interestingly, Section 35(1) (c) uses the

13
II (1996) CPJ 469.
14
Code of Civil Procedure 1908, Act No. 5 of 1908, Order I Rule 8.
15
Masjid Shahid Ganj v. SGP Committee, (1940) 42 BOMLR 1100.
16
The Consumer Protection Act, 2019, Act no. 35 of 2019, s 35 (1)(c).
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disjunction “or” in between two sets of words, namely, (i) “on behalf of”; and (ii) “for the
benefit of”.
1.2.4 Therefore, a complaint filed under Section 35(1)(c) could either be “on behalf of” or
“for the benefit of” all consumers having the same interest, providing legal basis for the
relief sought by the effected senior citizens. It is also pertinent to note here that there
exists a general exception to the privity rule in law of contracts which allows right to sue
to be conferred upon a third party under a trust17. The same has been recognised under
Indian Law as well18

1.3. The Trust is a Bona Fide Complainant.

1.3.1 It was held by the SC in Administrator Smt. Tara Bai Desai Charitable Opthalmic
Trust Hospital V. Managing Director Supreme Elevators India Pvt. Ltd & Ors.19 that:-
“According to Section 2(1)(b), any voluntary consumer association and certain other
authorities enumerated in other clauses of the provision would come within the definition
of “complainant”. The idea is to have a broader spectrum. According to Section 2(1)(d)
“consumer”, inter alia, means any person who buys any goods for consideration or hires
or avails any services for consideration.”
1.3.2 That under COPRA, 2019 a complainant means under clause (i) a consumer and
under sub-section (v) one or more consumers, where there are numerous consumers
having the same interest. Therefore, having the characteristics of a person as well as a
consumer, the Second Innings Old Age Charitable Trust is a complainant within the ambit
of the Act and hence, the present complaint before this Hon’ble Commission is
MAINTAINABLE.

1.4. Objectives of the Act

1.4.1 The importance of the Consumer Protection Act lies in promoting welfare of the
society by enabling the consumers to participate directly in the market economy. It
attempts to remove the helplessness of a consumer against powerful business
establishments described as, ‘a network of rackets or a society in which, ‘producers have
secured power’ to ‘rob the rest’ The enactment of Consumer Protection Act in these

17
Dunlop Pneumatic Tyre Co. v. Selfridge & Co., (1915) A.C. 847.
18
Khwaja Muhammad Khan v. Husaini Begum, I.L.R. (1910) 32 All. 410: (1910) 37 I.A. 152.
19
Ibid at 12.
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unbelievable yet harsh realities appear to be the silver lining, which may, in course of
time, succeed in checking the rot.20
1.4.2 The legislative intent of the Indian Parliament for enacting the COPRA, 2019 can be
understood from the Objective of the Act i.e., “An Act to provide for protection of the
interests of consumers and for the said purpose, to establish authorities for timely and
effective administration and settlement of consumers' disputes and for matters
connected therewith or incidental thereto.”
1.4.3 The Supreme Court in LDA v. M.K. Gupta21 made the following observations with
respect to the legislative intent “To begin with the preamble of the Act, which can afford
useful assistance to ascertain the legislative intention, it was enacted, ‘to provide for the
protection of the interest of consumers. Use of the word ‘protection’ furnishes key to the
minds of makers of the Act… A scrutiny of various definitions such as ‘consumer’,
‘service’, and ‘trader ‘,’ unfair trade practice indicates that legislature has attempted to
widen the reach of the Act. Each of these definitions is in two parts, one, explanatory and
the other expandatory. The explanatory or the main part itself uses expressions of wide
amplitude indicating clearly its wide sweep, then its ambit is widened to such things
which otherwise would have been beyond its natural import.”
1.4.4 Therefore, it is requested to the Hon’ble Commission to deliver decision i.e. not just
effective in strictly implementing the law but also in widening the scope of law through
wider judicial interpretations which is in favour of the consumers.

1.5. Judicial Precedent in Pratibha Pratishtan Case and Its Irrelevance in Present Case.
1.5.1 The SC in its judgement delivered in Pratibha Pratishthan & others v. Manager,
Canara Bank & Others22 held that a “trust” would not be a “person” and consequently
not a “consumer” within the meaning of the provisions of the Act. However, it is
pertinent to note that the facts of that case are very different from the present matter.
Moreover, the matter is now under re-consideration of full bench upon request by Justice
UU Lalit and Justice Anirudha Bose.

20
Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787 (790).
21
Supra.
22
Pratibha Pratishthan & others v. Manager, Canara Bank & Others, reported in (2017) 3 SCC 712.

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

PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR TRADE PRACTICE.

It is most humbly submitted before this Hon’ble Commission that the act of the OP, Trip
Makers Pvt. Ltd to charge the Complainant Trust INR 500/- per person amounting INR
15,000/- for VIP entry amounts to Deceitful & Unfair Trade Practice and Restrictive
Trade Practice on account of which refund of INR 15,000/- should be made towards
Complainant trust.

2.1. Deceitful and Unfair Trade Practice

2.1.1 In Nirma Indus tries Ltd. v. Director General of Investigation,23 the word "unfair trade
practice" was defined. The trade practice which is undertaken by the company for the
purpose of promoting the sale, use or supply of any goods or for the provision of any
service/services by adopting one or more of the practices that cause loss or injury to the
consumers of such goods or services whether eliminating or restricting competition or
otherwise would amount to unfair trade practice.
2.1.2 The Hon'ble National Consumer Dispute Redressal Commission in Makemytrip
(India) Pvt. Ltd. Versus Manabendra Saha Roy24 held that:-
“9. Admittedly a tentative itinerary was sent by the petitioner to the respondent on
19th September, 2015on the basis of which the respondent booked the tour and
paid the entire tour amount. The schedule date of departure was 18th October,
2015. Three days prior to the date of departure, the so-called final itinerary was
given to the respondent. It is also not disputed by the petitioner that the brochure
allows the petitioner to forfeit the entire tour amount submitted by the respondent
in case of cancellation of the tour between 10 days preceding the schedule date of
departure. It means that the respondent was left with no option but to avail the
tour. This practice or this act of the petitioner not only amounts to deceptive act
but also amounts to unfair and restrictive trade practice.”
2.1.3 In the present case, point f of the Terms and Conditions (Annexure A1)25 is material
which states that, “In case of cancellation, a full refund will be provided to the
package buyer, subject to the condition that such cancellation shall be made at least
23
(1997) 4 Comp LJ 165, p. 171 (SC).
24
Revision Petition No. 1146 of 2018.
25
ANNEXURE A1 of the Moot Proposition.
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14 days prior to the date of departure. Any cancellation made less than 14 days
before the date of departure will be subject to at least a 50% deduction of the total
package amount plus cancellation charges.”
2.1.4 In the present case, the district police had revised the VIP entry fees from INR 500/- to
INR 1500/- on 16.01.2022 however, complainant trust received an email after 3 days on
19.01.2022 from the OP demanding additional amount of INR 500/- per person in order
to be eligible for availing benefits of the package.26
2.1.5 It is pertinent to mention here that the full refund policy to the package buyer was
applicable till midnight of 17th January, 2022 but due to fraudulent intention of OP,
the complainant trust came to know about the revised fees through an email on
19.01.2022 after ‘full refund cancellation period’ had lapsed and after receiving the
entire tour amount, the Complainant Trust was left with no option for cancellation of
the tour but to pay the extra amount.
2.1.6 Therefore, threatening the Complainant Trust with forfeiture of their 50% amount,
amounts to deceptive, restrictive and unfair trade practices.

2.2. Duty to Disclose Changes

2.2.1 If a statement is true when made, but subsequently becomes false by the change of
circumstances, there is a duty to disclose the change, before the other party acts upon it. If
the change is not notified to the other party, it would amount to fraud.27
2.2.2 In With v. O'Flanagan28, It was held that where silence will become deceptive in case
one of the parties has more information about a particular subject matter and does not
disclose it, where there has been a change in circumstances after a representation has been
made and the change has not been communicated failed to discharge the duty of disclosing
the change in the situation.
2.2.3 Where a person has said something to another, a duty may at once arise to say more,
and if he fails to discharge this duty his reticence from that point becomes an implied
misrepresentation.29 It follows that if, during the intervening period, events happen by
reason of which the representation is not substantially in accordance with the facts

26
Point 4 of Moot Proposition.
27
Briess v. Woolley, (1954) A.C. 333.
28
(1936) Ch. 575; (1936) 1 All. E.R. 727.
29
Stikeman v Dawson (1847) 1 De G& Sm 90 at 104.
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existing at the time when the representee acts upon it, though it was in accordance with
the facts existing when it was made, a misrepresentation is established.30
2.2.4 In Curtis v. Chemical Cleaning and Dyeing Co., It was held by the Court of Appeal
that as there was misrepresentation as to the contractual terms which misled the
plaintiff as to the extent of the defendants' exemption of liability, the defendants could
not rely on the clause and they were bound to pay damages. Even if a person signs a
document containing certain terms but there is found to be a different oral
misrepresentation about the contents of the document, the document would not be a
binding one.31
2.2.5 That in the present case, the OP had the extra information on 16.01.2022 however, they
intentionally concealed the information and informed the complainant on 19.01.2022
much after the date of ‘full refund cancellation period’ of the tour therefore, depriving
the complainant of exercising their right for the cancellation of the tour which amounts
to deception, non- disclosure and fraud.
2.3. Deficiency in Service and Restrictive Trade Practices
2.3.1 According to Section 2(11) of the COPRA, 2019 “deficiency” means any fault,
imperfection, shortcoming or inadequacy in the quality, nature and manner of
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 and includes—
(i) any act of negligence or omission or commission by such person which causes
loss or injury to the consumer; and
(ii) deliberate withholding of relevant information by such person to the consumer;
2.3.2 In The Director General (I & R) v. St. Francis Xavier School, Calcutta, 32 the
respondent insisted on the payment of Rs. 501/- as Building Donation Fund as a
condition precedent to the issue of admit cards to the students for their examinations.
It was held to be restrictive trade practice, prejudicial to public interest, and the
respondents were directed to discontinue the practice forthwith and not to repeat the
same in future.

30
Turner v Harvey (1821) Jac 169.
31
(1951) 1 K.B. 805.
32
II (1997) C.P.J 35 (MRTP).
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2.3.3 In Bhupinder Singh v. Air India33, It was held that charging excess fare in this case
amounted to deficiency in service and the complainant was held entitled to the refund
of excess fare charged from him.
2.3.4 In the present case, the act of OP of negligently omitting and deliberately withholding
relevant information for 3 days so that the Complainant trust could not get full refund
and pilgrims had no other option but were forced to undertake the tour to their utter
dissatisfaction is deceptive, unfair & restrictive trade practice, deficiency in service and
fraud therefore, the Complainant Trust should be given refund of INR 15,000/-.

3. THE ACT OF TRIP MAKERS TO PROVIDE PILGRIMS ACCOMMODATION IN

A SUBSIDIARY HOTEL AND DISTURBANCE CAUSED DUE TO THE LOUD
MUSIC MAKES THE TRIP MAKERS LIABLE FOR DEFICIENCY IN SERVICE.

It is Most humbly submitted before this Hon’ble Commission that the OP, Trip Makers Pvt.
Ltd. are liable of (A) Misleading Advertisement; (B) Unfair Trade Practices; (C) Fraud;
(D) Nuisance and (E) Deficiency in Service as pilgrims had to stay in a subsidiary hotel,
Blu Maddison rather than a 3-star hotel, Le Maddison and had sleepless nights because of
loud music and partying in the lawns of the Hotel premises, therefore they should be
compensated with amount of INR 5,00,000/-

3.1. Misleading Advertisement

3.1.1 That the Section 2(25) of The Act, 2019 defines “Misleading Advertisement” as 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;
3.1.2 That “Advertisement” is given wide meaning under Section 2(1) of the COPRA,
2019.34 The OP, Trip Makers published an advertisement Annexure A235 officially
launching their Prathnath Yatra package which promises its consumer:-

33
I (1996) C.P.J. 344 (M.P. S.C.D.R.C).
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(a) An amazing family stay at Le Maddison, a 3-star property;

(b) De-stress and rejuvenate stay in calm and serene surroundings.
3.1.3 That it is humbly submitted before this Hon’ble Commission that the advertisement
Annexure A2 is a misleading advertisement under Section 2(28) read with Section 2(1)
of The Act, 2019 as:-
(a) OP falsely described that the pilgrims will be taken to Le Maddison, a 3-star property
and the pilgrims had sleepless nights due to the disturbance by the ongoing party in
the hotel lawns whereas they were promised calm and serene surroundings.
(b) A false guarantee was given as to the quality of the service that the pilgrims would be
provided De-stress and rejuvenating stay.
(c) OP conveyed an express false representation that the pilgrims will be taken to Le
Maddison, in calm and serene surrounding whereas they had to stay in subsidiary
hotel where they were not able to sleep, therefore, it is unfair trade practice under
Section 2(47)(i)(b).
(d) OP was aware that hotel management has started organizing parties in its lawn as they
had kiosk on the property of the hotel but the respondent decided to conceal the fact
from complainant and promised them comfortable stay in natural surroundings.
3.1.4 That in Hamdard Dawakhana v. Union of India36, it was held that an advertisement is
a form of speech but its true character is reflected by the object for the promotion of
which it is employed. It assumes the attributes and elements of the activity under Art
19(1) which it seeks to aid by bringing it to the notice of the public. When it takes the
form of a commercial advertisement it no longer falls within concept of freedom of
speech. Therefore, advertisement launched by the OP is a commercial advertisement
and do not fall within the article 19(1) of the Indian Constitution.
3.1.5 That from the above arguments it can be concluded that OP published a misleading
advertisement due to which Complainant Trust brought the package which otherwise
they would not have brought.

34
“Advertisement” means any audio or visual publicity, representation, endorsement or pronouncement made
by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice,
circular, label, wrapper, invoice or such other documents.
35
ANNEXURE A2 of Moot Proposition.
36
AIR 1950 SC 554, 563.
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3.2. Unfair Trade Practices

3.2.1 That according to Section 2(47) "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:—
(i) making any statement, whether orally or in writing or by visible representation
including by means of electronic record, which—
(c) falsely represents any re-built, second-hand, renovated, reconditioned or old
goods as new goods;
3.2.2 The Supreme Court also gave its ideas about the unfair trade practices in the
Lakhanpal National Ltd v MRTP Commission37 as following:
“The definition of ‘unfair trade practice’ in s 36-A is not inclusive or flexible, but specific
and limited in its contents… When a problem arises as to whether a particular act can be
condemned as an unfair trade practice or not, the key to the solution would be to examine
whether it contains a false statement and is misleading and what is the effect of such a
representation... on the common man? Does it lead a reasonable person in the position of
a buyer to a wrong conclusion? The issue cannot be resolved by merely examining whether
the representation is correct or incorrect in the literal sense. A representation containing a
statement apparently correct in the technical sense may have the effect of misleading the
buyer by using tricky language, a statement which may be inaccurate in the technical or
literal sense can convey the truth and sometimes more effectively than a literally correct
statement. It is, therefore, necessary to examine whether the representation contains or
carries the possibility of misleading the buyer: would a reasonable man, on reading
the advertisement form a belief different from what the truth is?”
3.2.3 That in the present case OP Company launched a misleading and false advertisement
promising a comfortable and serene stay in Le Maddison which is located in natural
surroundings which led the Complainant to form a belief different from what the truth is
and on this belief the complainant brought the package which the complainant would not
buy if there was no false representation. Therefore, the act of the OP Company of providing
accommodation in a subsidiary hotel, Blu Maddison rather than a 3-star Hotel, Le

37
(1989) 66 Comp Cas 519 SC.

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Maddison and the inactiveness, careless and indifference shown by the OP Company when
they were complained of the disturbance caused to the pilgrims although they were
promised a calm stay is Unfair Trade Practice under Section 2(47)(i)(c).
3.2.4 In the case of M/s. Cox & Kings (I) Pvt. Ltd. Versus Mr. Joseph A.
Fernanes38, SC examined what options are open to the Respondents even if they were
aware beforehand 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.
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. 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.
3.2.5 Similarly, in the present case Complainant did not have any other option
except to adjust and make compromise in the subsidiary hotel Blu Maddison as they were
already tired from the long journey and at that point of time, all the hotels in the nearby
places were fully packed as large number of Bindoos go to the Prathnath Yatra. Moreover,
they had to deal with the nuisance caused due to the loud music played on amplifiers
during night time because of which they had difficulty in sleeping. Therefore, complainant
mutely suffered the false and misleading advertisement given by the tour operators which
falls squarely under the unfair trade practice.
3.3. Fraud
3.3.1 In the case of Bhaurao Dagdu Paralkar v. State of Maharashtra39, the Apex Court
explained : “Fraud’ is a conduct either by letter or words, which induces the other
person or authority to take a definite determinative stand as a response to the conduct of
the former either by words or letter.”

38
2005 SCC OnLine NCDRC 41.
39
A.I.R. 2005 S.C. 3330.
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3.3.2 Fraud or deceit is a tort, for which an action for damages can lie and it is also defined
under Section 17 of The Indian Contract Act, 1872.
3.3.3 In the case of Derry v. Peek40, wherein the Court described that “fraud” was proved
when it was shown that “a false representation has been made: (i) knowingly; or (ii)
without belief in its truth; or (iii) recklessly, carelessly whether it be true or false.
3.3.4 It is humbly submitted before this Hon’ble Commission that two essentials must be
proved to constitute fraud that are:
(I) It is necessary that there should be a false statement of fact by a person who himself
does not believe the statement to be true. In the present case, Respondent Company made a
false statement that the pilgrims will be taken to Le Maddison, a 3-star property located in
natural surroundings and they will have calm, serene and comfortable stay whereas they
were taken to Blu Maddison, a subsidiary hotel where they were disturbed due to parties
that last longed whole night due to which they were not able to sleep and the Respondent
Company was well aware of the fact that the Hotel has started organizing parties in its
lawn in spite of that they concealed the fact and made a false statement by Advertisement.
(II) The statement was made with a wrongful intention to deceive the complainant and
induce them to enter into the contract on that basis. By an active concealment of certain
facts, there is an effort to see that the Complainant is not able to know the truth and he is
made to believe as true which is in fact not so.
Both the essentials are met and the complainant was induced by the false statement to
enter into a contract which they would not have done otherwise, therefore, it is fraud.
3.4. Nuisance
3.4.1 "Nuisance" includes any act, omission, place or thing which causes or is likely to
cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or
disturbance to rest or sleep or which is or may be, dangerous to life or injurious to health
or property.41 It is an inconvenience materially interfering with ordinary comforts of
human existence; anything injurious or obnoxious to the community or to an individual
as a member of it, for which some legal remedy may be found42

40
(1889) 14 A.C. 337.
41
Manipur Municipalities Act (43 of 1994), S. 2(37); New Delhi Municipal Council Act (44 of 1994), S. 2(28).
42
S. 268, IPC (45 of 1860).
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3.4.2 Stating that nobody could indulge in aural aggression, the Apex Court in in re: Noise
Pollution43, said that human life had its charm and there was no reason why the life
should not be enjoyed along with all permissible pleasures. Holding that nobody could be
compelled to listen and nobody could claim that he had a right to make his voice trespass
into the ears or mind of others and that nobody could indulge into aural aggression.
Taking serious note of this menace, the court issued detailed directions for spreading
awareness about noise pollution.
3.4.3 In Re: Ramlila Maidan Incident Dt. 4/5.6.2011 Versus Home Secretary, Union of
India and Others44, it was held that:-
“29. Thus, it is evident that right of privacy and the right to sleep have always been treated to
be a fundamental right like a right to breathe, to eat, to drink, to blink, etc.”
3.4.4 In the present case, there was unreasonable interference with the enjoyment of the hotel
by the pilgrims due to loud music during midnight which is even against Rule 5(2) of The
Noise Pollution (Regulation and Control) Rules, 2000 and violation of Right to sleep of the
pilgrims, therefore damage is presumed45 making OP responsible for causing nuisance.
3.5. Deficiency in Service
3.5.1 Deficiency in Service is defined under Section 2(11) of the Act, 2019 where two
essentials are given which must be fulfilled.
(I) The act of OP of making negligent claim that the complainant would be provided with
calm and serene stay at Le Maddison which they knew was false, therefore causing loss to
the complainant; and
(II) Deliberately withholding information that the hotel management has started organising
parties in its lawns which they were aware of satisfies both the essentials, therefore,
making OP liable for deficiency in service and Unfair Trade Practices on account of
which Complainant must be Compensated for causing Nuisance, Fraud, Mental pain and
agony with amount of INR 5,00,000/-

43
A.I.R. 2005 S.C. 3136.
44
[2012] 2 MLJ (CRL) 32.
45
Fay v. Prentice, (1854) 1 C.B. 828.
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PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Hon’ble District Dispute Redressal
Commission at Scindia that it may be graciously pleased to adjudge and declare that:

I. The Second Innings Old Age Charitable Trust has the Locus Standi and present
complaint is maintainable.
II. Order refund of INR 15,000 as the act of OP charging an additional INR 500/- per
person for VIP Entry amounts to unfair trade practice.
III. Order compensation of INR 5,00,000 for the deficiency in service and unfair trade
practice on account of the OP.

AND/OR

Pass any other order that it may deem fit in the favour of the COMPLAINANT in the light of
equity, justice and good conscience.

For this act of Kindness, the COMPLAINANT shall duty bound forever pray.

Place: Scindia sd /-

Date: 06th May, 2022 Counsel for Complainant

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