FINAL ORDER/JUDGMENT
Presented by:
Minakshi Chakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant went to the office of the OP, situated at the above mentioned address and as per the demand of the OP the complainant deposited amount of Rs.30,000/- only through google pay to the account of OP on 10-1-2020 and after depositing the said money the OP issued a money receipt vide receipt no.527 dated 10-1-2020. But inspite of receiving the amount of Rs.30,000/- only OP failed to discharge the responsibility and liability and informed the complainant that they are not in a position to purchase the ticket and advised the complainant to purchase the AIR ticket and accordingly complainant purchased the AIR ticket on 10-01-2020 at 8.36 P.M. through paytm vide No.10097964826 for Andaman Trip, from Kolkata to Port Blair but due to pandemic situation of covid 19 the said tour was cancelled for which the complainant went to the office of OP and requested to refund the entire amount but the OP returned only Rs.20,000/- out of Rs.30,000/- and kept Rs.10,000/- which the OP did not refund to the complainant inspite of her repeated requests and OP told Rs. 10,000/- will be adjusted when the trip will be final and expected date of departure was fixed on 2-4-2020 but due to the pandemic situation of COVID-19 the tour was cancelled and the complaint is a helpless widow lady she does not have any sources of income but for the heartiest expectation of travel she some how managed the aforesaid amount and paid to the OP but due to the greedy intention the OP did not return the amount of Rs.10,000/- or did not pay any heed to the request of the complainant and replied he will not refund the balance amount Rs.10,000/- to the complainant which is not only contrary to the law but also illegal, arbitrary and cheating act done by the OP.
On 19-8-2020 due to illegal and motivated act of the OP complainant was compelled to serve a legal notice to the OP through registered post by his appointed Ld. Advocate Swaminathan Trivedi and said legal notice was received by the OP and after receiving the said notice OP gave reply to the complainant and acknowledged that complainant had deposited Rs.30,000/- but the balance amount Rs.10,000/- was not returned by OP as he has spent the said amount for booking the ;hotel room but it is curious enough that the OP being a proprietor of travelling agency will have to the responsibility to his every customers for giving the proper service but from the beginning of communication in between the complainant and OP the OP did not give any proper service to the complainant. Firstly, when the complainant had deposited the amount of Rs.30,000/- on the same day without refunding money, the OP told the complainant, he is not in a position to purchase the ticket, secondly on next day when he refunded the money he only refund Rs.20,000/- and kept Rs.10,000/- in his pocket arbitrarily and thirdly when tour was not conducted due to the pandemic situation OP replied that he has spent Rs.10,000/- as he booked hotel but the actual date of tour was fixed on 2-4-2020 and Govt. of India was pleased to announce the lock-down situation on and from 21-3-2020 night so when there is/was no possibility to continue the tour the OP could cancel the booking of hotel and take back the amount so deposited as alleged.
Complainant filed the complaint praying direction upon the opposite party to pay a sum of Rs. 10,000/- and to pay a sum of Rs. 10,000/- for mental agony and deficiency of service and to pay a sum of Rs. 5000/- as litigation cost and to give any other relief or reliefs as deem fit and proper.
Defense Case:- The opposite party contests the case by filing written version denying inter-alia all the material allegations as leveled against him and stated that the complainant deposited Rs.30,000/- only through Google pay to the accounts of his answering OP’s organization Samrat Travels for Andaman Trip of 02.04.2020 for herself and her son, and in this regard your answering OP’s office duly issued the receipt bearing no.527 dated.11.01.2020, but due to pandemic situation of COVID-19 the said tour was cancelled, and in this circumstance on 11.01.2020 his answering OP’s officer refunded Rs.20,000/- out of Rs.30,000/- only and in the meantime on 19.08.2020 the complainant sent legal notice claiming the rest amount of Rs.10,000/-. In reply his answering OP sent the rejoinder notice through his Ld. Advocate on 10.09.2020, whereby his answering OP mentioned that at the time of refund of Rs.20,000/- his answering OP had not been able to refund the rest amount of Rs.10,000/- which he already been expensed and/or paid to the hotelier for the booking of room in favour of the complainant thereat, and in this unavoidable and/or unprecedented situation it was not possible either to the hotelier, or to your answering OP, because everybody is passing through a prolonged economical crisis, and in this circumstance your answering OP gently offered to the complainant that he will adjust the aforesaid rest amount of your answering OP only, which is not only the say of every travel and tour agency of the economy, but also of the world economy and in this context, the instant case should be dismissed.
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The O.P. have filed a evidence on affidavit which reiterates the averments of the written version.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.
From the discussion hereinabove we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue no.1: In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.
Issue no.2: Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claim does not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.
Issue nos. 3 & 4: Both the issues are taken up simultaneously for the sake of convenience.
Let us have a look to the written version of the O.P. Para 11 of which states ,” at the time of refund of Rs. 20000/ your answering O.P had not been able to refund the rest amount of Rs. 10000/ which he already been expensed and / or paid to the hotelier for the booking of room in favour of the complainant thereat….”. The evidence in chief of the opposite party at para 3 repeats the same version.
In such a situation this commission takes assistance of sections 102 and 103 of the Indian Evidence Act admittedly test of proof is the test of probabilities upon which a prudent man base his opinion; in other words it is the estimate which a prudent man makes of the probabilities, having regard to what must be his duty as a result of his estimate.
In this connection let us have a glimpse over section 103 of the Indian Evidence Act wherein it is stated that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence.
In this perspective let us take the assistance of the statement of the O.P noted beforehand wherein he had said that an amount of Rs. 10000/ was already expensed to the hotelier for the booking of the room in favour of the complainant thereat. That being the position, the O.P could have brought some documentary evidence to satisfy this commission that any amount has been paid to the hotelier for booking of the room in favour of the complainant. This being the position the O.P has not been able to prove the burden as to this particular fact as to the booking of the room for the complainant which he wishes the commission to believe in its existence.
Under the facts and circumstances stated hereinabove this commission passes the order in favour of the complainant.
Both the issues are thus disposed of.
Hence,
ordered
that the complaint case no. 64 of 2020 be and the same is allowed on contest .
The petitioner do get Rs. 10000/ alongwith interest of 9% accrued thereon since 11.04.2020 within 45 days from date from O.P failing which the petitioner be at liberty to take recourse to law.
The petitioner do gate Rs 5000/ as litigation cost and Rs.7000/ for mental agony within 45 days from date from O.P failing which the petitioner be at liberty to take recourse to law.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
