BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                       

Dated this the 7^th February 2017

   PRESENT

     SRI VISHWESHWARA BHAT D   : HON’BLE PRESIDENT

     SRI T.C. RAJASHEKAR                : HON’BLE MEMBER

ORDER IN

C.C.No.51/2012

(Admitted on 30.01.2012)

Mr. Suresh Bhandary

Aged 53 years,

S/o Jayaram Bhandary,

R/at Aishwarya,

1^st Cross Shivabagh,

Kadri, Mangalore  575002.

                                                                 ….. COMPLAINANT

(Advocate for the Complainant: Sri KSR)

VERSUS

1. The Managing Director,

    Thomas Cook (India) Ltd,

    Dr. D.N. Road,

    Fort, Mumbai  400071.

2. The Manager,

    Thomas Cook (India) Ltd.,

    Ram Bhavan Complex,

    Nav Bharath Circle, Kodialbail,

    Mangalore.

                                                       …......OPPOSITE PARTIES

(Advocate for the Opposite Party No.1 & No.2: Sri. SR)

ORDER DELIVERED BY HON’BLE MEMBER

SRI. T.C. RAJASHEKAR:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against opposite parties claiming certain relief to repay a sum of Rs.1,00,000/ along with 18% interest p.a. from date of receipt till the date of payment with cost, to pay a sum of Rs. 5,000/ towards mental agony.

      2.  In support of the above complainant Mr. Suresh Bhandary, filed affidavit evidence as CW1 and produced documents got marked as Ex.C1 to C3 detailed in the annexure here below. Opposite party not filed the interrogatories to the complainant. On behalf of the opposite party Mr. Rohith Patali (RW1) Authorized Signatory, also filed affidavit evidence and answered the interrogatories served on him produced documents got marked as Ex.R1 to R7 detailed in the annexure here below.

The brief facts of the case are as under:

          On perusal of the complaint and the version of the parties the dispute revealed is, the complainant and his family booked a foreign tour with the opposite party and later cancelled the tour. On claiming the refund the opposite party refused to refund. The complainant submits that due to his personal problems he had cancelled the tour of four members well in advance and the opposite party not refunded the deposit made. The opposite party contends that the complainant has cancelled just before two weeks of schedule departure and by that time the air tickets were booked and all arrangements of lodging and other arrangements are made. Also the opposite party contends that the complainant in spite of asking several times the documents for getting US VISA, the complainant not provided the said documents due to which even Visa could not be processed and the refund policy is governed by the terms of tour and conditions and as per agreed terms the complainant is not entitles for any refund. Hence not refunded and there is no deficiency in service on their part. These are being the core issue in resolving this dispute we consider the following

POINTS FOR ADJUDICATION

          We have considered the evidence lead by the parties and documents produced to prove their case. The admitted facts are, the foreign tour booked by the complainant with the opposite party by paying ₹ 1,00,000/ as advance for four members of the family, the cancellation of the tour and the opposite party not refunded the deposit paid. It is denied by the opposite party that the complainant informed the cancellation well in advance and deficiency in service. In conciliation of the admissions and the denials we arrived at the following points to be decided in resolving this dispute:

1. Whether the complainant is a consumer under Consumer Protection Act 1986?
2. Whether the complainant proved deficiency in service on the part of the opposite party?
3. Whether the complainant entitled for the prayed relief?
4. What order?

     On careful study of the evidences and scrutiny of the documents produced, we heard the party submission and answered the above points as under:

1. In the affirmative.
2. In the negative.
3. In the negative.
4. As per delivered order.

REASON

POINT NO 1: The complainant had produced the EX C 1 which shows a tour booked with the opposite party and the opposite party is admitting the tour booked by the complainant, which established the relation of consumer and the service provider between the complainant and the opposite party. Hence we answered the point no 1 in the affirmative.

POINT NO 2 & 3: The complainant case is he has cancelled the booking well in advance and the opposite party bound to refund the deposit amount. The opposite party contends that the complainant not entitled for the refund as per agreed terms of the contract which was signed by complainant. To his contention complainant not produced any evidence or documents. The documents produced by the complainant shows only the payment had been made which is not disputed. However the opposite party produced the tour booking form as EX R 1 which contains the terms and the conditions of the tour booking and this document as per opposite party  contains the signature of the complainant which is not disputed by the complainant. The terms containing in overleaf of the EX R 1 is not denied or disputed by the complainant which by inference admitted by the complainant. The crux is whether the complainant informed well in advance as per agreed terms of the Tour?

2.     The complainant states that he had informed well in advance but not produced any documents the date of information in writing as specified in the terms. The opposite party admitted that the complainant had informed on 04.07.2011 i.e. just two weeks left for the schedule departure on 18.07.2011.

3.     We have laid our hand on the terms of the contract of tour. Under the head cancellation the table of charges on cancellation shows that per person the cancellation charges

          Before 35 days or more ₹      40000/

          Before 34-21 days          ₹.    70000/

          Before 20-11 days          ₹   1,00,000/  on considering this the complainant falls under the third category and the charges applicable is ₹ 100,000/ which is in the knowledge of the complainant at the time of booking the tour. Hence opposite party is as per agreement not liable to refund the deposit received. To justify his contention the opposite party also produced the copies of the details of the Air tickets booked which show the Air tickets of tour schedule were booked on 30.06.2011 and the ticket number also mentioned in it. There is beyond doubt that the opposite party has done his part of work well before the cancellation made by the complainant. The opposite party also produced EX R 4 the copy of the ELECTRONIC Ticket PASSENGER ITINERARY RECEIPT which was generated on 1 July 2011 and sent to the complainant. By taking these above facts also we are of the opinion that the complainant not informed well in advance so as to giving breathing time for the opposite party to make arrangement for facilitating refund to the complainant deposit. So the complainant not proved the deficiency in service on the part of the opposite party and we answered the point no 2 in the negative and so also point No.3.

POINT NO 4: As per above discussion and the adjudication of the above points we delivered the following

ORDER

          The complaint is dismissed. No order as to cost.   

      Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 6 directly typed by member revised and pronounced in the open court on this the 7^th February 2017)

                 MEMBER                                       PRESIDENT

      (SRI. T.C. RAJASHEKAR)       (SRI.VISHWESHWARA BHAT D)

  D.K. District Consumer Forum         D.K. District Consumer Forum

   Additional Bench, Mangalore            Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Suresh Bhandary

Documents marked on behalf of the Complainant:

Ex C1: 20.06.2011: Payment Receipt issued by opposite party

Ex C2: 22.11.2011: Legal Notice issued to the O.P No.1 along with acknowledgment

Ex C3: 22.11.2011: Legal Notice issued to the O.P. No.2 along with acknowledgment                 

Witnesses examined on behalf of the Opposite Parties:

RW1:  Mr. Rohith Patali, Authorized Signatory

Documents produced on behalf of the Opposite Parties:

Ex.R1: Booking Form

Ex.R2: Relevant extract from Brochure

Ex.R3: Electronic tickets received via e-mail

Ex.R4: Internal e-ticket issued to complainant

Ex.R5: Office copy of reply notice

Ex.R6: Postal receipt

Ex.R7: Acknowledgment Card

Dated: 7.2.2017                                                MEMBER