1

Group no. 1 - Team Code: A36

INTRA DEPARTMENT MOOT COURT COMPETITION 2015

BEFORE THE

HON'BLE DISTRICT FORUM

AT

GOA

Consumer Complaint No. ... of 2015

IN THE MATTER OF :

Mr and Mrs Alexander

... COMPLAINANT

Versus

Goa Travel and Co. & Ors.

... OPPOSITE PARTY

Complaint under Section 11 of the Consumer Protection Act, 1986

- MEMORIAL FOR COMPLAINANT-

-MEMORIAL for COMPLAINANT-

 2

TABLE OF CONTENTS

INDEX OF REFERENCE ……………………………………………………………………3

STATEMENT OF JURISDICTION …………………………………………………….……5

STATEMENT OF FACTS ……………………………………………………………………6

ISSUES RAISED ……………………………………………………………………………..8

SUMMARY OF ARGUMENTS…………………………………………………………...…9

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

1. WHETHER MR ALEXANDER IS A CONSUMER UNDER CONSUMER

PROTECTION ACT OR NOT? ............................................................................. 11
2. WHETHER GOA TRAVELS & CO. IS LIABLE FOR DEFICIENCY IN
SERVICE AS PER CPA AND ENTITLED TO RELIEF UNDER THE ACT? ....14
2.1. Consumer of service by renting a car………………………………...…..14
2.2. Not providing another vehicle to the couple’s rescue ………..…………….14
2.3. Compelling the couple to undergo severe distress at unknown place at
midnight and then refusing to bear any responsibility towards the
consumer…………………………………………………………………..14
3. WHETHER GOA TRAVELS & CO.. IS LIABLE FOR PAYING DAMAGES
FOR BREACH OF CONTRACT AND DEFICIENCY IN SERVICE FOR
ALTERATION OF SCUBA DIVING PACKAGE IN THE ITINERARY?..........16
4. WHETHER THERE WAS NEGLIGENCE ON THE PART OF GOA CRUISES
SCUBA OR NOT?....................................................................................................19

PRAYER FOR RELIEF…………………………………………………………………...…21

-MEMORIAL for COMPLAINANT-

 3

INDEX OF REFERENCE

-CASES-

Amit Gupta v. M/s bajaj Travels, 2012………………………………………………………...……18

DDA vs. Joint Action Committee. Allottees of SFS Flats reported in (2008)2 SCC
672…………………………………………………………… …………………………………………17

Fertilisers & Chemicals Ltd., v. Vellapally Bros and Anr, 1982 HC……………………...……20

Jarvis v Swans Tours Ltd[1972]EWCA Civ 8, [1973]QB233; [1973] 1 AII ER

71…………………………………………………………………………………………………………15

Joseph V. Mathruboomi Printing And O. Co………………………………………………………17

Madan Builders V. Rk Saxena AIR

2009(NOC)2551(NCC)……………………………………………………………………………….16

Tej Narain Sharma V. M/S. Cox & Kings (I) Pvt. Ltd IV(2007) CPJ 414
……………………………………………………………………………………………………………13

-DOMESTIC LEGISLATION-

1. The Consumer Protection Act,1986

2. The Indian Contract Act,1872

3. Monopolistic and Restrictive Trade Practices Act, 1969

-WEBSITES-

1. www.indiankanoon.org

2. www.legalcrystal.com

3. www.manupatra.com

4. www.advocatekhoj.com

-MEMORIAL for COMPLAINANT-

 4

-BOOKS REFERRED-

1. Dr V.K Aggarwal ., “Consumer protection(Law and Practice)”, B.L.H Publishers,New

Delhi(2008) 6th ed.

2. Avtar singh, “Law of consumer protection”, (2004),eastern book company 3rd Ed.

3. Avtar singh .,“Law of contract and specific relief”, Eastern Book Company, Lucknow
(2004)

4. Ramaswamy Iyer, “Law of torts”, (2003)Lexis Nexis Butterworths , (9th ed.)

5. Gurudev Singh., “Supreme court and National Commission on consumer Law Cases”,
Singla Law Publisher Co. Chandigarh. (2005).

6. Dr. R.K Bangia 'Consumer protection Laws and Procedusre, Allahabad Law Agency,
faridabad (2004) 5th Ed.

7. Dr R.K Bangia., “The Law Of Contract”, Allahabad Law Agency.Faridabad, (2004).11th

Ed.

8.Shreyas Desai, “Consumer Protection Law In India”, Unique Law Publishers, Jodhpur
(2006) 1st Edition

-DICTIONARIES-

1. Collins English Dictionary

2. Wharton’s Pocket Law Dictionary (15thEd., Universal Law Publishing Co. 2010)

3. Webster’s New Encyclopaedia Dictionary, (2002)

-MEMORIAL for COMPLAINANT-

 5

STATEMENT OF JURISDICTION

The complainant humbly submits to the jurisdiction of Hon’ble District Consumer Redressal
Forum, Goa which derives its powers through Section 11(1) of Consumer Protection Act,
1986 (hereinafter referred to as CPA) that determines the jurisdiction of district forum to
entertain complaints where the value of goods or services and the compensation, if any,
claimed does not exceed rupees 20 lakhs and to the territorial jurisdiction of this court under
section 11(2)(b) of CPA.

-MEMORIAL for COMPLAINANT-

 6

STATEMENT OF FACTS

1. BACKGROUND:

 Goa travels & co., a London based company provides holiday packages in goa. Its
business is done through its website – www.goatravel.co.uk and is ranked as one
of the top ten holiday planners in India.
 Mrs and Mr. Alexander booked a highly acclaimed tour package named ‘Goa
Delight’ (Dec 23-31, 2014) which included stay at a 5 star, sightseeing, buffet
meals, day on 5 star cruise, water sports, etc. for a whole package of ₹.88000.
 the couple reached goa on 23rd and started to stay at beach resort of Taj.mr D’Cruz
was their tour manager.

2. CAR BREAKDOWN INCIDENT:

 On Dec 25th the couple went for sightseeing by themselves in a rental car. The car
was handed over to them by Mr. D’Cruz who hired it from Goa Cars and Co. for
an additional charge of ₹. 5000 per day.
 While the couple was returning back after sightseeing, the car broke down at
around 11:30 p.m. For safety concerns, they called Mr. D’Cruz who assured them
to send another car in one hour to pick them up.
 No car came for three hours. The couple then took a passing can and went to a
motel to stay for the night as Taj was far off.
 This cost them ₹.8000 which included ₹ 3000 for the cab at cab at night, 4000 as
the stay charges and ₹ 1000 to reach the cruise the next morning i.e. Dec 26th.

3. STAY AT CRUISE – SANTA MONICA (DEC 26TH, 2014) :

 After boarding the cruise, they decided to do snorkelling and scuba diving.
 Firstly, they went for snorkelling and came back for lunch. But after the lunch,
when they decided to go for scuba diving they were informed that scuba diving

-MEMORIAL for COMPLAINANT-

 7

was not a part of their tour package and could be enjoyed for an additional sum of
₹ 10000nper person.

4. SCUBA DIVING& CONTRACT WITH GOA CRUISES SCUBA:

 The couple paid the amount and decided to go diving provided at the cruise.
 The cruise had specialised trainer and adhered to all safety measures provided by
the tourism ministry of India.
 The couple signed a contract stating that none of them suffered from heart disease,
mental disorder or high blood pressure problems to ensure safety.
 After signing contract the couple put on diving suit and went diving. But due to
severe pain in Mrs Alexander’s ear they came back midway and rested for the
night at cruise.

5. VISIT TO HOSPITAL

 The couple visited to an ENT specialist at Goa super speciality Hospital after a
few days as the pain remained severe.
 It was detected that the tympanic membrane of her ear was ruptured due to change
in pressure during scuba diving and could also lead to permanent hearing loss.

6. LODGING OF COMPLAINT

 Mr Alexander filed a case in the consumer forum as Mr. D’Cruz tried to get rid of
all the responsibilities and problems occurred during the time of tour.

-MEMORIAL for COMPLAINANT-

 8

ISSUES RAISED

1. Mr alexander is a consumer under consumer protection act.

2. Goa travels & co. Is liable for deficiency in service as per CPA and Mr Alexander is
entitled to relief under the act .
3. Goa Travels & Co. Is liable for paying damages for breach of contract and deficiency in
service for alteration of scuba diving package in the itinerary.
4. There was negligence on the part of Goa Cruises Scuba.

-MEMORIAL for COMPLAINANT-

 9

BODY OF ARGUMENTS

1. WHETHER MR ALEXANDER IS A CONSUMER UNDER CONSUMER

PROTECTION ACT OR NOT?

It is humbly submitted that Mr. Alexander, complainant, by paying the requisite

consideration of ₹ 88000 had hired the services which the opposite party had agreed
to promise in connection of the tour .
The rendering of service was not free of charge or under any contract of personal
service . Mr. Alexander is a consumer of services within the meaning of Section
2(1)(d) of CPA 1986,and has a Locus Standi to appear as a consumer before the Act.

2. WHETHER GOA TRAVELS & CO. IS LIABLE FOR DEFICIENCY IN

SERVICE AS PER CPA AND MR ALEXANDER IS ENTITLED TO RELIEF
UNDER THE ACT ?
It is humbly submitted that Goa Travels & Co. is liable for the deficiency in service
within the meaning of Section 2(1)(d),CPA1986.Goa Travels & Co. had been
inadequate in the manner of performance of its contractual obligation on flimsy
grounds namely:
o Not providing another vehicle to the couple’s rescue.
o Compelling the couple to undergo severe distress at unknown place at
midnight and then refusing to bear any responsibility towards the
consumer.

On account of non-sending of another car,for the loss due to breakdown of the car, the
complainant is entitled to for the grant of such appropriate relief to the complainant
under the act of CPA,as the forum may deem fit.

3. WHETHER GOA TRAVELS & CO.. IS LIABLE FOR PAYING DAMAGES

FOR BREACH OF CONTRACT AND DEFICIENCY IN SERVICE FOR
ALTERATION OF SCUBA DIVING PACKAGE IN THE ITINERARY?

It is humbly submitted that goa travels &co. is liable to pay damages for the breach of
contract under section 73 of Indian Contract Act, 1872 because they refused to
provide scuba diving as stated in the prior contract as a part of the tour package. This
was done even after it was written in the terms and conditions provided by the

-MEMORIAL for COMPLAINANT-

 10

company that any such changes would be informed before the confirmation invoice is
made.

It is humbly submitted that such an action of the company amounts to fraud under
section 17 of Indian Contract Act, 1872.

It is also humbly submitted that the opposite party is liable for deficiency in service
within the meaning of section 2(1)(d) of CPA.

This action of the company also falls under the definition of unfair trade practices
under section 36-A of The Monopolies and restrictive trade practices act, 1969.

4. WHETHER THERE WAS NEGLIGENCE ON THE PART OF GOA CRUISES

SCUBA OR NOT?
It is humbly submitted that complainant had followed all the instructions as given by
the trainer and they were not suffering from any serious medical problems and they
also stated the same in the contract signed by them.
The respondent no.2 i.e. Goa Cruises Scuba, had guaranteed to promise their
customers only the best, unbiased option and advice .They had been working in the
scuba diving industry in Goa for a period of over 14 years. They had assured high
safety standards in turn of cleanliness and comfort.
It is humbly submitted that the opposition party had not taken due care and protection
of the complainant in the course of scuba diving and thus are responsible for
negligence on their part.

-MEMORIAL for COMPLAINANT-

 11

ARGUMENTS ADVANCED

1. WHETHER MR ALEXANDER IS A CONSUMER UNDER CONSUMER

PROTECTION ACT OR NOT?

It is humbly submitted that Mr. Alexander, the complainant has a locus standi as a
consumer before this honourable forum under section 2(1)(d) of the CPA read with
section 2(1)(o) of the CPA, 1986.
Under CPA, 1986, a consumer includes who hires any services for a consideration as
per section 2(1)(o) of the act, A service means a service of any description which is
made available to potential users inclusive of the provisions of the facilities in
connection with tours and travels etc.
Consumer’ and ‘service’ under Sections 2(1)(d) and 2(1)(o) which are as under:

“Section 2(1)(d):
‘Consumer’ means any person who,—
(i) buys any goods 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 user of such goods other than the person who buys such goods
for consideration paid or promised or partly paid or partly promised, or under
any system of deferred payment when such use is made with the approval of
such person, but does not include a person who obtains such goods for resale
or for any commercial purpose; or
(ii) hires or avails of any services 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 services 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 services for any commercial
purpose.)”.

Explanation:- for the purposes of this clause, “commercial purpose” does not include
use by a person of goods bought and used by him and services availed by him
exclusively for the purposes of earning his livelihood by means of self-employment.

-MEMORIAL for COMPLAINANT-

 12

Section 2(1)(o)

‘service’ means service of any description which is made available to potential users
and includes the provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or other energy, board or lodging
or both, housing construction, entertainment, amusement or the purveying a news or
other information (but does not include the rendering of any service free of charge or
under a contract of personal service).”

From the aforesaid definitions it can be held that:

(a) A person is a consumer who buys any goods for consideration and also include
user of such goods;
(b) Who hires any services for consideration and includes beneficiary of such
services.

To this wide definition there are exclusions:

(i).It excludes a consumer who obtains such goods for resale or for any commercial
purpose;

(ii). It also excludes a person who avails of services of any description –

o free of charge; or
o under a contract of personal service; and
o for any commercial purpose

I would like to draw further distinction in the use of phraseology in exclusion clause
by contending that Legislature has provided exclusion with regard to availing of the
services and not for hiring of the services. Meaning of the words ‘avail’ and ‘hire’ is
different. For this purpose, I would like to refer to the meaning giving to these words
which are as under:

“AVAIL –profit of land “avail oneself of” is stated to mean “to take advantage of
utilise” meaning given in Oxford Dictionary is also to the same effect.

In Webster’s Dictionary makes, “avail” synonymous with “benefit”, “profit”, “use”

and have availed himself of something only if he had taken advantage or profited by
that thing or utilized it to his benefit.

-MEMORIAL for COMPLAINANT-

 13

HIRE – In Collins English Dictionary, “hire” has been defined as “to acquire the
temporary use of a thing or the services of a person in exchange for payment or “to
provide something or the services of oneself or others for an agreed payment usually
for an agreed period”.

It is humbly submitted that in the case of Tej Narain Sharma V. M/S. Cox & Kings (I)
Pvt. Ltd1, the court granted compensation to the complainant on the grounds of
deficiency in services. The facts of the case as they were humbly accepted by the
Hon’ble court present that Tej Narain Sharma went for a tour after giving
consideration of the said amount and was considered as a consumer under CPA, 1986.

It is also humbly submitted that here the complainant, Mr.Alexander has taken a
comprehensive tour package from Goa Travels & Co..( Defendant 1), which agreed to
provide all the services included in the Goa Delight Package. The complainant by
paying the requisite consideration hired services which the opposite party agreed to
provide in connection with the tour.

The rendering of services was not free of charge or under any contract of personal
service. Therefore Mr. Alexander is a consumer of services within the meaning of
section 2(1)(d) of CPA and has a Locus Standi to appear as a consumer before the act.

1
IV (2007) CPJ 414

-MEMORIAL for COMPLAINANT-

 14

2. WHETHER GOA TRAVELS & CO. IS LIABLE FOR DEFICIENCY IN SERVICE

AS PER CPA AND ENTITLED TO RELIEF UNDER THE ACT?
2.1 CONSUMER OF SERVICE BY RENTING A CAR
As per the definition of ‘service’ mentioned in the prior argument, it includes the
provision of facilities in connection with transport. Also it does not include the
rendering of services for free of charge or under a contract of personal service.
In lieu of the above stated definitions and references, it is submitted that
complainant has availed the transport service by paying the compensation of ₹
5000 per day for the car.
The Goa travels & co. cannot waive off their liabilities by saying that the car was
hired from Goa Cars & Co. this is because that Mr. Alexander had contacted the
tour manager for the car and the consideration was also paid for the same. The car
was also provided by Mr. D’Cruz and the complainants were not informed at all
that the car was hired from Goa Cars & co.
The offer and acceptance for the contract was made between the Mr. Alexander
and Mr. D’Cruz and the consideration was also paid to the tour manager, hence
Goa Cars & Co. must be liable to pay the damages.

It is humbly submitted that Goa Travels & Co. is liable for the deficiency in
service within the meaning of Section 2(1)(d),CPA1986.Goa Travels & Co. had
been inadequate in the manner of performance of its contractual obligation
namely:

2.2 NOT PROVIDING ANOTHER VEHICLE TO THE COUPLE’S RESCUE.

It is humbly submitted that ‘deficiency’ according to section 2(1)(o) 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.

Thus, as per the above definition of ‘deficiency in service’, Goa Travels & co.
must be held liable for not providing the car for the rescue of the couple.
The car was supposed to come within an hour as was promised by Mr. D’Cruz.

-MEMORIAL for COMPLAINANT-

 15

However, even after waiting for 3 hours, no car came for their rescue. Thus, they
had to leave the car where it broke down an took another passing by cab to reach
the nearest motel.

The Goa travels & co. cannot waive off their liabilities by stating that their
manager only promised to send the car for an action in good faith. But, under
section 52 of the Indian Penal Code,1860, the word ‘good faith’ has been defined
as “Nothing is said to be done or believed in ‘good faith’ which is done or
believed without due care and attention”

Thus it is submitted that no appropriate action was taken by the tour manager in
regard to sending the car. Hence the company must compensate the complainants
for the not fulfilling his promises.
2.3 COMPELLING THE COUPLE TO UNDERGO SEVERE DISTRESS AT
UNKNOWN PLACE AT MIDNIGHT AND THEN REFUSING TO BEAR ANY
RESPONSIBILITY TOWARDS THE CONSUMER.
It is humbly submitted that the goa travels & co. must be held liable for all the
mental distress, agony and disappointment suffered by Mrs. And Mr. Alexander.
This was due to the deficiency of service that the couple had to take a cab and go
to a local motel. They were stranded in the middle of the night without help. They
were tourists and thus they were not aware of the local transport facilities. Hence
they had to suffer mental harassment in finding a way to reach to a motel to spend
the night. They also had to take a cab to reach to the cruise the next day to
continue their tour.
It is humbly submitted that in the case of Jarvis v Swans Tours Ltd, Lord Denning
MR2 held that Mr Jarvis could recover damages for the cost of his holiday, but
also damages for "disappointment, the distress, the upset and frustration caused by
the breach." He said old limitations on damages for distress and disappointments
are out of date.
Thus it is humbly submitted that Goa Travels & Co. must be held liable for all the
mental agony and they must pay the damages to the complainants for the same.

2
[1972] EWCA Civ 8 [1973] QB 233; [1973] 1AII ER 71

-MEMORIAL for COMPLAINANT-

 16

3. WHETHER GOA TRAVELS & CO.. IS GUILTY OF UNFAIR TRADE

PRACTICE AND BREACH OF CONTRACT?

It is humbly submitted that Goa Travels & Co.. is guilty of unfair trade practice
and breach of contract as they failed to provide the facility promised to the
complainant as part of the holiday package. Further, the alterations in the contract
were made unilaterally by the Goa Travels & Co. without informing the
complainant and the same amounts to deficiency in service on part of the opposite
party.

 That Goa Travels & Co.. is guilty of unfair trade practice.

As per the Consumer Protection Act, a business should not engage in any conduct
that misleads or deceives consumer. The Section 36-A of the MRTP Act provides
a list of acts which amount to unfair trade practices. Clause 3 of the said section
states that the offering of gifts, prizes or other items with the intention of not
providing them as offered amounts to unfair trade practice. In such a case whether
or not a business intends to mislead a consumer is an irrelevant consideration
under the Consumer Protection Act. The fact that the behavior was misleading is
what matters.

In the case of Madan Builders V. Rk Saxena3, The Hon’ble National Consumer

Dispute Redressal Commission held that not providing the said facility after
representing and promising to make provision for the same definitely amounts to
unfair trade practice and deficiency in service.

It is humbly submitted that in the present case, the holiday package namely Goa
Delight booked by Mr. Alexander and his wife with Goa Travels & Co.. included a
stay in Goa Taj, buffet meals etc. along with facility of water sports as a recreational
activity. Snorkeling and Scuba diving were specifically mentioned as part of the Goa
Delight Package Tour including which the complainant paid a consideration of ₹
88,000/-. However, at a later stage the opposite party themselves made changes in the
contract without informing the complainant at the right time as per the contract
between the two. Therefore, it is humbly contended that Goa Travels & Co.. is guilty
of indulging in unfair trade practice prohibited by both Consumer Protection Act as
well as MRTP Act.

3
AIR 2009(NOC) 2551 (NCC)

-MEMORIAL for COMPLAINANT-

 17

 That Goa Travels & Co.. is liable for breach of contract.

 That the Goa Travels & Co.. have unilaterally changed the terms of contract.

Breach of Contract is a legal cause of action in which a binding agreement or

bargained-for exchange is not honored by one or more of the parties to the contract by
non-performance or interference with the other party's performance. If the party does
not fulfill his contractual promise, or has given information to the other party that he
will not perform his duty as mentioned in the contract or if by his action and conduct
he seems to be unable to perform the contract, he is said to breach the contract. The
remedy for the same is provided in Section 73 of the Indian Contract Act, 1872.

The general principal that a party to a contract cannot unilaterally change the terms of
a contract was recognized in the case of Joseph V. Mathruboomi Printing And O. Co4.
The Supreme Court in the case of DDA vs. Joint Action Committee. Allotters of SFS
Flats reported in (2008)2 SCC 672, has held that a concluded contract cannot be
novated unilaterally and any change to a concluded contract has to be brought to the
notice of the affected party. In Delhi Development Authority's case (supra), the
Supreme Court laying down the broad principles for novation of contract had held
that it is well known principle of law that a person would be bound by the terms of the
contract subject of course to its validity. A contract in certain situations may also be
avoided. With a view to make novation of a contract binding and in particular some of
the terms and conditions thereof, the offeree must be made known thereabout. A party
to the contract cannot at a later stage, while the contract was being performed, impose
terms and conditions which were not part of the offer and which were based upon
unilateral issuance of office orders, but not communicated to the other party to the
contract and which were not even the subject matter of a public notice..."

It is humbly submitted that in the present case, the complainant had opted for a
holiday package called the Goa Delight from the Opposite party for a consideration of
₹ 88,000/- which along with lodging, food and sight-seeing also included recreational
activities specifically snorkeling and scuba Diving. On 26th December, when Mr.
Alexander and his wife decided to go scuba diving they were informed by Mr. D’Cruz
of the alteration in the holiday package that scuba diving was no longer part of the
tour package. However, no reasons as to the late alteration were assigned and

4
(1991)ILLJ359

-MEMORIAL for COMPLAINANT-

 18

informed to the complainant. In view of the above mentioned principles iterated by

the Indian Courts, it is humbly submitted that Goa Travels & Co. is liable for breach
of contract as they have unilaterally changed the terms of contract to the disadvantage
of the complainant. Although, Goa Travels & Co.. reserves the right to make changes
in the order placed with them but the same has to be communicated by them before
the invoice is made. However, even this condition was violated by the opposite party
as they failed to inform of this change on time. On the contrary, the alteration in the
terms of contract was brought to the notice of the complainant right before Mr.
Alexander and his wife expressed their desire to do the same. Therefore, it is humbly
stated that Goa Travels & Co.. is liable for breach of contract.

 That the Goa Travels & Co. are liable for deficiency of service.

As per Section 2(g) of the Consumer Protection Act, deficiency of service 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. The term ‘service’ which is defined
under Section 2 (o) of the same act includes services provided for amusement as well.

In the case of Amit Gupta v. M/s bajaj Travels, 2012 the Hon’ble State Consumer
disputes Redressal Commission observed that alteration in the tour programme
handed initially to the complainant amounted to deficiency in rendering service by the
opposite parties.

It is humbly submitted that initially scuba diving was shown as part of the holiday
package which was later on removed from the package without prior information to
the complainant. Goa Travels & Co. failed to provide the services promised to the
complainant under the contract between the two parties with respect to the holiday
package. This amounts to inadequacy in the manner of performance of the services
which falls within the meaning of deficiency of service. Therefore, it is humbly stated
that Goa Travel and Co. is liable for deficiency of services as well.

-MEMORIAL for COMPLAINANT-

 19

4. WHETHER THERE WAS NEGLIGENCE ON THE PART OF GOA CRUISES

SCUBA OR NOT?
It is humbly submitted that complainant had followed all the instructions as given by
the trainer and they were not suffering from any serious medical problems and they
also stated the same in the contract signed by them.
Negligence is a conduct which creates a risk of causing damage, rather than a state of
mind. It is a neglect of ordinary care or skill towards a person to whom the defendant
owes the duty of observing ordinary care and skill, by which the plaintiff has suffered
injury, to person or property. Goa Cruises Scuba must be held liable for negligence on
the ground that they did not take reasonable care for the safety of the divers.
The Goa Cruises Scuba, in their terms and conditions, clearly mention that they
guarantee to offer their customers, only the best, unbiased options and advice. They
also claim an experience of over 14 years working in scuba diving industry in Goa.
The respondents also claimed to offer the operators which are tried and tested by
them. The safety standards, cleanliness and comfort, must have exceeded all the high
standards before they offered them to the complainants. But, it is submitted that Mrs.
Alexander suffered severe ear pain in the midway of the dive and thus they had to
return back. The pain was so severe that it continued for 2 days and thus they were
forced to go to an ENT specialist at the Goa Super Speciality Hospital. The doctor
detected that the tympanic membrane of her left ear was ruptured, which might have
resulted into permanent hearing loss. The injury was caused due to massive change in
atmospheric pressure during scuba diving.
It is humbly submitted that it was mere negligence on the part of Goa Cruises Scuba
which led to such severe pain and sufferance to Mrs. Alexander. If the operators of
the company would have taken due care and protection of the complainants, then no
problem would have arisen.
In the case of Klaus Mittelbachert vs East India Hotels Ltd5.,the defendants were held
liable to pay compensation for the loss suffered by the plaintiff due to the cause of
negligence on the part of the defendants.
It is also humbly submitted that even if the complainants have signed a contract with
the Goa Cruises Scuba, their rights are not forfeited. The company by providing a
clause in their terms and conditions cannot withdraw the liability on their part to take
appropriate care and protection.

5
A.I.R. 1997 Delhi 201

-MEMORIAL for COMPLAINANT-

 20

In the case of Fertilisers & Chemicals Ltd., v. Vellapally Bros and Anr, 1982 HC, it
was held that by exclusion clauses, one party in a contract inserts terms excluding or
limiting liabilities which would otherwise be his. Normally exclusion clauses are
regarded as mere defence. One should first construe the contract without regard to the
exemption clauses in order to discover the promiser's obligation and only then
consider whether the clauses provide a defence to breach of these obligations.

-MEMORIAL for COMPLAINANT-

 21

PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cirted ,it is
humbly prayed before the Hon’ble Commission that it may be pleased to hold ,adjudge and
declare that:
1. Goa Travels & Co. is liable for deficient service as per Consumer Protection Act ,
1986.
2. Goa Cruises Scuba I liable for negligence on its part.
3. Goa Travels & Co. is entitled to pay damages for the breach of contract and
deficiency in service for the alteration of the tour package without prior information.

Any other relief that Hon’ble Court may be pleased to grant in the interest of justice, equality
and good conscience.

And for this act of kindness Your Lordships the complainants shall as duty bound ever pray.

Sd/-

(Counsel for Complainant)

-MEMORIAL for COMPLAINANT-