KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 67/2021

JUDGMENT DATED: 26.09.2024

(Against the Order in C.C. 345/2016 of DCDRC, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR           : PRESIDENT

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

M/s GnS Leisure Travels Pvt. Ltd., 39/3993, Vantage Point, VRM Road, Ravipuram, Ernakulam-682 016.

(By Advs. George Cherian Karippaparambil & S. Reghukumar)

RESPONDENTS:

1. Antu Alapadan Ouseph, Alapadan House, Koovapady P.O., Perumbavoor, Ernakulam-683 544.

2. Susamma Antu, Alapadan House, Koovapady P.O., Perumbavoor, Ernakulam-683 544.

(By Adv. Paul Varghese)

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The appellant is the opposite party and the respondents are the complainants in C.C. No. 345/2016 on the files of the District Consumer Disputes Redressal Commission, Ernakulam (“the District Commission” for short). 

2.  The 1^st respondent is the husband of the 2^nd respondent.  Pursuant to an advertisement in the Mathrubhumi daily about a package tour to Dubai, the respondents approached the appellant over phone.  The representatives of the appellant visited the respondents and explained the tour package and collected an amount of Rs. 20,000/- from the respondents on 24.12.2015 towards booking charges for the tour.  Thereafter, the 1^st respondent visited the appellant and paid the balance amount of Rs. 82,000/- towards the full charges for the tour package for the 1^st respondent and his wife to Dubai.  The tour was scheduled to be held from 23.01.2016 to 26.01.2016.  On 23.01.2016, when the respondents proceeded to the airport in an auto rickshaw, the 1^st respondent received a phone call from the appellant stating that the visa of the 2^nd respondent was not approved by the embassy and hence the 1^st respondent alone could proceed to Dubai as scheduled.  Since it was a joint tour package for the 1^st respondent and his wife, the 1^st respondent did not go alone.  Thereafter, the respondents visited the office of the appellant on many days and requested for rescheduling the tour programme.  Eventually, when the respondents were convinced that the appellant was evading to accede to the request of the respondents for rescheduling the tour, the respondents went to the office of the appellant and submitted an application for refund of the amount paid by them.  Thereafter, the respondents caused to issue a legal notice.  However, the appellant did not respond to the lawyer notice, even though the appellant had sent a cheque for Rs. 51,000/- to the 1^st respondent.  The request of the respondents for the refund of the balance amount paid by them was not accepted by the appellant.  In the said circumstances, the respondents approached the District Commission with the above said complaint. 

3.  The appellant filed version before the District Commission admitting the programme of tour package proposed to be organized by the appellant.  The appellant contended that the appellant had taken all steps to get the visa for the 2^nd respondent.  However, the visa for the 2^nd respondent could not be received till the other persons in the tour package left for Dubai on 23.01.2016.  Therefore, the appellant requested the respondents to proceed to Dubai on the next day when the visa was received.  However, the respondents did not agree to the said request.  That apart, as per the conditions in the brochure and the terms agreed to by the parties, the air fare and visa fee are not refundable.  

4.  The evidence consists of the oral testimony of PW1 and the documentary evidence Exts. A1 to A24 for the respondents/complainants.  DW1 was examined for the appellant/opposite party.  No document was marked for the appellant.  After evaluating the evidence, the District Commission found that there was deficiency in service on the side of the appellant.  Accordingly, the District Commission directed the appellant/opposite party to pay an amount of Rs. 51,000/- to the respondents, which was the amount already paid by the respondents to the appellant for the proposed journey arranged by the appellant.  The District Commission further directed the appellant/opposite party to pay a cost of Rs. 5,000/- to the respondents.  Aggrieved by the said order, this appeal has been filed.

5.  Heard both sides.  Perused the records.

6.  The points arise for consideration are:

1. Whether there was any deficiency in service on the side of the appellant?
2. Whether the order impugned is liable to be set aside or modified?

7.  Point (i):- It is not disputed that pursuant to an advertisement in Mathrubhumi daily regarding a tour programme organized by the appellant, the respondents contacted the appellant over phone.  It is also not disputed that the representatives of the appellant visited the house of the respondents and collected an amount of Rs. 20,000/- from the respondents.  It is further admitted by both sides that an amount of Rs. 82,000/- was also paid by the respondents to the appellant in connection with the tour programme. 

8.  It is also not disputed that the above said tour package was scheduled to be conducted from 23.01.2016 to 26.01.2016.  Admittedly, the respondents are husband and wife.  It is also not disputed that the visa of the 2^nd respondent was not received till the other persons in the same tour programme left for Dubai on 23.01.2016. 

9.  The respondents contended that the respondents requested the staff of the appellant for rescheduling the tour programme or to return the money paid by them.  However, the staff of the appellant did not respond to that.   Therefore, the respondents went to the office of the appellant and gave Ext. A11 letter dated 25.02.2016 requesting for refund of the full amount paid by the respondents to the appellant in connection with the proposed tour.  But the appellant had handed over a cheque for Rs. 51,000/-.  Subsequently, the appellant also sent a letter dated 23.03.2016 stating that the said amount was paid towards full and final settlement.  However, there is nothing to show that the respondents agreed to such a settlement. It appears that Ext. A15 was a letter sent by the appellant to the 1^st respondent.  Ext. A20 is exactly the verbatim reproduction of Ext. A15 letter.  The respondents sent Ext. A22 registered notice to the appellant on 15.04.2016 requesting the appellant to pay back an amount of Rs. 51,000/- paid by the respondents as the appellant had only refunded an amount of Rs. 51,000/- out of the total amount of Rs. 1,02,000/- paid by the respondents.  

10.  Now the question to be considered is as to whether the appellant had offered rescheduled tour package to the respondents. The respondents would contend that even though the respondents made several requests to the appellant to reschedule the tour programme, the appellant did not reschedule the programme.  Ext. A20 letter issued by the appellant on 23.03.2016 would also show that the appellant did not make any such offer to the respondents. The respondents also sent Ext. A12 legal notice to the appellant which was not responded to by the appellant.  It is not mandatory to reply the legal notice.  However, since the respondents had asserted in Ext. A12 legal notice that the request of the respondents for rescheduling the tour programme was declined by the appellant, the appellant would have naturally sent a reply if the appellant had a different contention.

11.  It was only when the version was filed that the appellant had taken the contention for the first time that the appellant had offered for rescheduling the tour programme.  However, no material has been produced before the District Commission to support the said contention.  Even Ext. A20 letter dated 23.03.2016 would also show that the appellant did not make any such offer to the respondents.  The visa of the 1^st respondent was admittedly received on 18.01.2016.  However, the visa of the 2^nd respondent was not received at that time or subsequently.  However, the said aspect was also not duly communicated to the respondents by the appellant.  The above conduct would definitely show deficiency in service.  Exts. A9 and A10 would show that the respondents got visa from the Government of Dubai to visit Dubai from 26.02.2016 to 25.04.2016.  Ext. A8 would show that the respondents left for Dubai on 09.03.2016 for visiting Dubai.  The respondents had stated in Ext. A12 also that they had visited Dubai from 09.03.2016 to 19.03.2016 through another agency.  The said aspect is also not disputed by the appellant.  The above aspect would also show that the contention of the appellant in the version that the appellant had offered to reschedule the tour programme cannot be correct.  On the other hand, Exts. A8 to A10 coupled with the contention of the respondents would clearly show that the respondents had left for Dubai through another agency.  Thus, having gone through the relevant inputs, we are of the view that the appellant failed to establish by preponderance of probability that the appellant offered the respondents to reschedule the programme.  The appellant also failed to refund the money collected by the appellant from the respondents.  The above discussions would clearly show that there was deficiency in service on the part of the appellant. 

12.  The appellant produced Annexure II to show that there was an agreement by the appellant with the parties who were parties to the tour programme.  However, Annexure II is only a format of application, not signed by the respondents.  In the said circumstances, Annexure II is of no use for the appellant to prove his case.  It is true that in the brochure, which was marked as Ext. A2, there was a clause that air fare and visa fee were not refundable.  However, the said brochure was also not signed by the respondents.  Apart from that, the said clause in the brochure reflects only one sided terms of agreement which are entirely in favour of the appellant and against the consumers/respondents.  In the said circumstances, the said clause cannot be acted upon. The above view gains support from the decision of the Hon’ble Apex Court in IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna and Others reported in 2021 KHC 6012.  In the said circumstances, the argument in this regard advanced by the appellant cannot also be accepted. 

13.  Having gone through the relevant inputs as discussed above, we have no hesitation to hold that there was deficiency in service on the part of the appellant in this matter.  In the said circumstances, the finding of the District Commission in this regard does not call for any interference by this Commission.    

14.  Point (ii):- The District Commission directed the appellant to pay only an amount of Rs. 51,000/-, which was the amount already paid by the respondents to the appellant for the proposed journey.  The District Commission also ordered a cost of Rs. 5,000/- to the respondents.  Having gone through the relevant inputs, we find nothing to hold that the amount or the costs ordered by the District Commission is arbitrary or excessive, calling for interference by this Commission.  In the said circumstances, the order passed by the District Commission stands confirmed.

In the result, this appeal stands dismissed.  There is no order as to costs.   

JUSTICE B. SUDHEENDRA KUMAR  : PRESIDENT

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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