DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 8th day of November, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 14/08/2023
CC/211/2023
Savya S.,
W/o. K.G. Gokul,
‘Sreyas’, Thottapura,
Akathethara, Palakkad – 678 008 - Complainant
(By Adv. T.S. Rajesh Kumar)
Vs
Adwaith Manohar
Tour Operator, Celebriz Holiday Hub,
K.M. Mani Memorial Shopping Complex,
Panchayath Bus stand,
Kuravilangad, Kottayam – 686 633 - Opposite party
(OP by Adv. P.K.Dileep)
O R D E R
By Sri. Vinay Menon V., President
- Complainant paid an advance amount of Rs. 20,000/- to the O.P. tour operator for a trip of 12 persons, which had to be cancelled owing to the ill health of the complainant’s husband. Tour was from 25/12/2022 to 27/12/2022. Cancellation was ordered on 3/12/2022. Even after repeated requests, the O.P. failed to return the advance amount. This complaint is filed aggrieved by the non-refund of the advance amount.
- OP admitted complaint pleadings but qualified the complaint pleadings stating that the complainant was already informed that advance amount was not refundable and that amounts had to be expended for paying advance for the rooms for stay. Complainant is not entitled for refund of the advance amount paid.
- Pleadings considered, following issues were framed:
- Whether the complainant is entitled to get refund of the amount paid to OP on account of cancellation of tour by the complainant?
- Whether there is any deficiency in service on the part of OP?
- Whether the complainants are entitled to any of the reliefs sought for?
- Any other reliefs?
4. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits
A1 to A3.
(ii) OP filed proof affidavit and marked Exts. B1 & B2. Marking of these exhibits were objected to on the ground that they were concocted for the purpose of the complaint. OP was examined as DW1.
(iii) Since the complainant is having no case that the amounts paid by the complainant
were not handed over for tour requirements, these documents are not of any consequence for considering the issues. Hence this objection need not be considered seriously at this juncture.
Issue No.1
5. Fact that the complainant had booked for the tour and that advance amount to a tune of Rs.20,000/- was paid are not in dispute. The only question that is to be considered is whether, upon cancellation of the tour, refundable by the OP.
6. The OP pleaded that the complainant was informed that the advance amount was non- refundable and that expenses had to be incurred to book rooms for stay.
7. Evidence on the part of complainant comprised of lawyer’s notice demanding refund and reply notice refusing refund. OP produced two documents i.e. two receipts allegedly issued by the hotels where the stay was booked. Ext.B1 is a receipt for Rs.5,000/- and Ext.B2 is a receipt for Rs.3,000/-. Marking these documents were objected to on the ground that they were concocted.
8. There is no dispute that the OP had failed to book the rooms. The sole dispute is with regard to refundability of the amount paid as advance. Hence we feel that it is not necessary to look into the admissibility or authenticity of Ext.B1, in the facts and circumstances of the case and considering the nature of evidence adduced.
9. The OP pleaded that amounts adding to Rs. 8000/- paid as advance amounts were non-refundable as per the policy of the respective hotels. At this juncture, it would be relevant to note that tour was booked for 25th to 27 of December 2022. Admittedly (in line 8 & 9 in page 2 of deposition of DW1) cancellation was informed to the OP on 3/12/2022 granting more than 20 days advance notice of cancellation.
Apart from pleadings, the OP has failed to produce any documents showing cancellation policies of the aforesaid two hotels wherefrom Exts.B1 & B2 were issued. Unless and until such policies regarding the period permissible for free cancellation this Commission cannot blindly rely on the pleadings of the O.P. Mere pleadings that the aforesaid amounts were not refundable will not prove the case of the O.P. unless backed by cogent evidence.
10. Not only that, unless cogent evidence is produced, this Commission can always resort to a presumption as against the O.P. for having failed to prove his case by way of documentary evidence. Consequently, non-production / hesitancy on the part of OP in producing the cancellation policies of the aforesaid hotels can only lead to a conclusion that such early cancellation was within the free cancellation period.
11. Apropos the findings above, we hold that the complainant is entitled to refund of Rs. 8000/- from the O.P.
12. Next question is with regard to retaining of Rs. 12,000/- with the OP. As already stated before, the OP had notice of over 20 days that the tour was cancelled. The OP has no case that he could not arrange another tour programme leading to losses. He also has no case that the cancellation was immediate, preventing the O.P. from availing alternate programmes and thereby had to entail losses. Here the conduct of the OP was an abrupt refusal to hand over the advance amount. The mere/sole ground for non-refund is that he had orally informed the complainant that he would not return the advance amount.
13. We are unable to accept the grounds for not refunding the advance amount as there is no ground, statutory, contractual or in any manner justifiable for not refunding the advance amount.
14. The complainant, therefore, is entitled to refund of the advance amount balance 12,000/- also.
Issue No.2
15. Consequent upon the findings above we hold that there is deficiency in service on the part of OP.
Issue No.3
16. The complainant has sought for refund of Rs.20,000/- with interest @12% from 13/11/2022, compensation to a tune of Rs.50,000/-, unspecified cost and for incidental reliefs.
17. In the facts and circumstances of the case, we grant a reduced interest at the rate of 10% p.a., from the date of remittance till date of refund.
Since the complainant had to spent time, energy and resources to pursue her grievance, we consider a compensation of Rs. 25,000/- as reasonable in the facts and circumstances of the case.
Complainant is also entitled to a cost of Rs. 20,000/-
Issue No.4
18. Based on the discussions and findings above, we allow the complaint on the following terms:
1. The complainant is entitled to refund of the advance amount and there is deficiency in service on the part of the O.P. in not refunding the advance amount.
2. The OP is directed to refund Rs. 20,000/- (Rupees Twenty thousand Only) with interest @10% thereon from 13/11/2022 till the date of refund.
3. The OP is directed to pay a compensation of Rs.25,000/-.
4. The 2nd OP is directed to pay cost of Rs.20,000/- to the complainant.
- O.P. shall comply with the aforesaid order within 45 days of receipt of a copy of this Order failing which he shall pay a solatium of Rs. 500/- per month or part thereof to the complainant till the date of final payment.
Pronounced in open court on this the 8th day of November, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant:
Ext.A1 - Copy of lawyer’s notice together with postal receipt
Ext.A2 – Original acknowledgment card
Ext.A3 - Original reply notice
Exhibits marked on the side of the opposite party:
Ext.B1 – Original advance receipt dated 16/11/2022
Ext.B2 – Original receipt dated 13/11/2022
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party:
DW1 – Adwaith Manohar (O.P.)
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
