Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

           For availing of a train to Bolpur, the complainant booked for reservation at the office of Mark Hotel and Resorts, (P) Ltd. (OP1), at Kolkata.  The Hotel is situated at Bolpur, Santiniketan District – Birbhum.  One cottage D.B.L. AC bedded room was booked on 10-08-2013, against the order No.5283 through its authorized agency, Ramkirshna Travels, the office of which is situated at 39, Mahatma Gandhi Road, Kolkata – 700 009 (OP2).  The reservation for the said hotel was from 12 noon of 15-08-2013 to 12.00 noon of 18-08-2013.  The entire amount of booking charge, i.e. Rs.11,477-00 was paid to the OP2 because the authorized travel 0agency of OP1 was Ramkrishna Travels (OP2).  The OP2 discharged money receipt in favour of the complainant Mr. Saibal Das.

          The complainant boarded his own vehicle and started for Bolpur on 15-08-2013.  His vehicle No. was WB-02/AC 6721.  But unfortunately, his car met with an accident with a lorry at Durgapur Excpress way, Burdwan, near Rajhat Petrol Pump P.S. Dadpur, District- Burdwan.  The complainant and his family members were badly injured and his vehicle was totally dismantled.  Local people gathered and police also came to the spot.  Police along with local inhabitants rescued the victims.  The complainant along with his family members was taken to a medicine shop for medical assistance.  They were treated with care.  Meanwhile police seized the petitioner’s vehicle.  The broken vehicle was kept in custody of Daddpur Police Station, Hooghly.  The vehicle was not in a position to move further.

          After the incident took place, the complainant informed Mark Hotel and Resorts(P) Ltd.(OP1) and Ramkrishna Travels (OP2) of the said accident.  The petition and his family members were helpless.  Police personnel of Dadpur Police Station helped them to hire another car for going back to his residence at Kolkata.  The trip was abandoned.  The complainant and his family members came to Kolkata at 11 p.m. on the same day, i.e. on 15-08-2013.  Though the hotel was booked the petitioner could not avail of the service of Mark Hotel & Resorts(P) Ltd.

          The complainant also contacted the Toyota Office situated at Kolkata on 15-08-2013.  Consequently, a brake-down van was sent to pick up the damaged vehicle.  The car was kept in the workshop for repair or replacement.

          The complainant also informed Mark Hotel and Resoprts (P) Ltd. (OP1) and Ramkrishna Travels (OP2) for refund of the payment made for the trip.  But they refused to comment in this matter.  Though it was known to all that the accident took place near Dadpur Police Station, there was no negligence on the part of the complainant.  Instead of enjoying a beautiful outing, he faced trauma and agony.  The complainant did not cancel the journey intentionally.  He was not prepared for the accident.  The complainant visited the hotel for several times.  He used to stay over there while he visited Santiniketan.

          The complainant talked over telephone with OP1 and 2.  He requested them to deduct 10% of the amount of Rs.11,477-00 paid to them and give back the rest.  Not only that he was ready to avail of the trip against that booking.  If OP1 arranges for other three days for the complainant.

          OPs refused to give any reply to his request.  On the 10-09-2013, the complainant sent a notice of the Advocate to the OPs.  His plea was same.  He demanded the amount of Rs.11,477/- by deducting 10% of the same or arrange for an alternative trip against the earlier booking for three days.  The notice was received by OPs1 and 2 on 13-09-2013 and on the 15-09-2013.  But the OPs kept mum.  Till date, the OPs did not listen to the complainant’s request.  OPs1 and 2 failed to perform their duties in a proper way.  Thus the OPs acted with mala fide intention.

          The complainant demanded for refund of the amount paid to the OPs1 and 2.  He pleaded for refund of the amount, i.e. Rs.11,477/- after deducting 10% of the said amount of Rs.10,026/- was given to OP1 and Rs.1,451/- to OP2 as booking charge.

          The complainant also demanded Rs.5,000/- for mental agony, harassment, financial loss and Rs.10,000/- for deficiency of service.  The litigation cost was also demanded.

          In the written statement, Mark Hotel and Resorts (P) Ltd. i.e. OP1 stated that M/s. Ramkrishna Travels, is not the authorized agent of OP1 Ramkrishna Travels was never an authorized agent of Mark Hotels and Resorts (P) Ltd.

          The room was not booked by the complainant with the OP1 on 10-08-2013 but the booking was made and the booking money was deposited for Rs.10,026/- only with the OP1 by Ramkrishna Travels on 13-08-2013 through money receipt N o.19690 dated 13-08-2013 issued by OP1 and Reservation voucher was issued and received by one Kamal; Kundu on behalf of Ramkrishna Travels.

          Clause 3 of the Reservation voucher, i.e. “No show and cancellation policy” declares that 100% of the booking amount will be deducted if cancellation done within 24 hours before the commencement of journey.  In this case, Mark Hotel & Meadows were informed hours before on the date of the accident check in/check out time of the hotel was 9 a.m. sharp and it was also mentioned in clause No.3 that 100% of the booking amount is retained in case of No Show.  So, no question of refund of the amount deposited to the hotel arises.

          Ramkrishna Travels, i.e. OP2 states that the complainant has no cause of action to file the case.  The alleged cause of action is incorrect and improper.  No cause of action arose within the jurisdiction of the Ld. Forum.

          As per version of OP2 his name was wrongly been incorporated.  The complainant has lodged this complainant within mala fide intention Ramkrishna Travels are not the owner of the Mark Hotel and Meadow, so they are not liable to refund the money of the complainant and not responsible for making alternative arrangement due to cancellation of the reservation.

          Under this facts and circumstances, the complianant is not entitled to get any relief, his complaint be dismissed by the Ld. Court with exemplary cost in favour of the OP2.

          In spite of giving full amount to OP1 he is not entitled to get any relief because he cannot satisfy the condition on printed overleaf.

Decision with Reasons

On proper study of the complaint and the written version and the affidavit in chief it is found that the complainant booked for reservation for a trip to Santiniketan which was scheduled to start on and from 15-08-2013.  The trip was a three day tour for which the complainant booked a double AC bedded cottage of Mark Hotel and Meadows situated at Santiniketan.  The complainant stays at that hotel while he visits Santiniketan along with his family.  This time also, there was no exception.  He booked the cottage of the said resort.  The complainant’s trip was from 12-00 noon of 15-08-2013 to 12-00 noon of 18-08-2013.  He started his journey on 15-08-2013 by his own vehicle.  While he was on his way to Santiniketan, his car collided with a lorry near Rajhat Petrol Pump.  Police were informed Local people and Police personnel of Dadpur Police Station rushed to the spot.  They were taken to a nearby medical shop for treatment.  In this situation it was not possible for them to go to Santiniketan.  Saibal Das’s family was compelled to come back to Kolkata.  Even in this situation he informed Mark Hotel and Resorts (OP1) and Ramkrishna Travels(OP2) about the accident.

          The complainant wanted the refund of the money after a deduction of 10% of the principal amount or to arrange for their three days stay or any other days for the complainant, what he was ready to avail of that opportunity.

          The OP1 i.e. Mark Hotel & Resorts repudiated the claim of the complainant by saying that OP1 was not informed beforehand.  So, they could not arrange the cottage for others.  Their cottage remained vacant.  So, OP1 is not in a position to refund the same.  because according to their rules 100% of boarding amount will be deducted if cancellation is done within 24 hours before check-in time and date.

          It is a matter of fact that the complianant could not enjoy the stay at the resort.  He could not reach there due to that mishap.  In most of the cases, it is found that the hotel authorities do not keep the cottage vacant.  Santiniketan is a prominent place.  Almost throughout the year the hotels are flooded with visitors.  If the allotted visitors do not turn up, they invite the stray visitors.  Thus the hotels and resorts are always filled up.  But the OPs stated that as per terms and conditions of the booking it is not possible for them to refund the money since the complainant at the last moment informed them to cancel the booking which was difficult for them to cancel at that moment, because those rooms of the cottage would remain vacant and it cannot be given to other visitors on rent.  So, the complainant is not entitled to get the refund.

          But the complainant submitted that he did not deliberately and intentionally cancel the reservation of hotel booking but due to an accident on the way while he was moving towards Santiniketan as a result he had to report to the hotel authorities that he is no longer able to avail of the booking for which he had no fault but he has unfortunately become a victim of the circumstances.

          Truth is that an unnatural situation was created due to the said accident what was beyond the control of the complainant and that is the inability on the part of the complainant to avail of the reserved hotel room at Santiniketan and the present inability of the complainant was not his own fault and the impossibility of availing of the said booked hotel room cannot be treated as fault on the part of the complainant.  In fact, there was no such remedy on the part of the complainant but to report the OP under what circumstances they are cancelling the booking and such a situation comes under the principles of Law, Force, de jure where there was no fault on the part of the complainant to perform his part of arrangement with the OP in respect of booking of hotel room at Santiniketan and truth is that there was no alternative procedure to attend the said tour and the said hotel.

          So, we are convinced that the complainant had no other alternative but to return to home and he has no other remedy.  In this regard, the principle of law as laid down in AIR 1974 SC 1682 is taken into account by this Forum as spirit of law for determining the present situation of the complainant.  Complainant’s non-performance is no doubt a draw back on the part of the complainant.  Such an incident excuses the non-performance of the agreement in between the parties by the complainant and relying upon the spirit of the said ruling we are confirmed legally that the impossibility of doing what is required by agreement excuses by the performance when the present inability on the part of the complainant cannot be treated as a wrong on the part of the complainant and at the same time an obligation to perform the part of contract arises where force de jure instances are not found.

          Considering whole facts and circumstances including the inability of the complainant to avail of the said hotel room at Santiniketan was not the fault of the complainant but it was impossible for the complainant to do so and for which in the eye of law complainant has not violated any terms and conditions as enumerated on the back of the booking receipt.  On this ground it was not a willful fault on the part of the complainant but it was an impossible situation which prompted the complainant to do the same.  In view of the above decision it can be said Law of Excuse is applicable in the present case for giving some justice as his fault is excusable in the eye of law.

          The complainant is entitled to get back the whole amount by deducting 10% as the service charge but without any compensation.

Hence,

Ordered

That the case be and the same is allowed with contest against b oth the OPs without cost.

          OPs are jointly and severally directed to pay back the deposited money to the complainant after deducting 10% of the principal amount within one month.

          The OPs are directed to comply the order within 30(thirty) days from the date of order failing which punitive damages of Rs.100/- per day will be imposed against the OPs till full satisfaction of the decree.  If it is collected, it shall be deposited to the Forum.

          If it is found that they are very much reluctant to comply the order, in that case penal action u/s.27 of C.P. Act 1986 shall be initiated against them.