The case of the complainant, in a nutshell, is that the complainant being attracted with the lucrative advertisement published / telecasted by the O.P opted for one triple sharing tour package to Europe along with his wife and daughter and the tour cost was fixed to the tune of Rs. 1,14,990/- INR per head including EURO 1725 for foreign exchange per head and the O.P intended to give a discount amounting to Rs. 24,990/- per head from the fixed tune. That the said package tour was for sixteen nights and seventeen days i.e. 24/04/2020 to 10/05/2020 and on 13/11/2019 the complainant paid Rs. 90,000/- (Rupees Ninety Thousands) to the O.P through net banking as advance.
Thereafter, on 13/11/2019 O.P issued one money receipt vide No.57498 Dated – 13/11/2019 duly signed by the authorized signatory of the O.P and one guest registration form containing all particulars of the complainant as well as his wife namely Sankari Ghosh and his daughter namely Megha Ghosh.
Thereafter, the said trip to Europe VIA AVIANA TRAVELS PVT. LTD. was unfortunately cancelled due to worldwide pandemic arising out of Covid – 19. After that the complainant sent message to the O.P through email and requesting for refund the amount which was paid by him to the O.P as advance. The complainant communicated with the O.P over telephone repeatedly and visited the office of the O.P several times but no positive result came out from the side of the O.P and lastly O.P refused to refund the advance money and the O.P stating that the money paid by the complainant shall be forfeited if the complainant failed to go in trip with the O.P in future.
Hence, this case filed by the complainant against the O.P with a prayer to pay Rs. 90,000/- (Rupees Ninety Thousands) as the claim amount plus interest @18% per annum till realization and the complainant also prayed for a sum of Rs. 1,00,000/- (Rupees One Lakh) for his mental agony and sufferings and also prayed for a sum of Rs. 20,000/- (Rupees Twenty Thousands) towards litigation costs.
In the instant case the O.P has received the notice on 18/10/2021 and the acknowledgement card, Postal Department duly signed by the O.P and returned to this Commission but did not appear before this Commission to contest the case. Hence, this case has been proceeded ex-parte against the O.P.
In support of the case the complainant has filed some documents, evidence-on-affidavit as well as written argument in this case.
We have gone through the materials on record very carefully and also perused the documents which are lying on record and also heard argument from the Ld. Advocate of the complainant.
In this context, the following issues are necessarily come up for the proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.P?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. The case has been filed u/s. 35 of the Consumer Protection Act, 2019 by the complainant.
In the instant case the O.P after receiving the notice did not turn up before this Commission to contest the case.
On perusal of the materials available in the case record it reveals that the complainant paid Rs. 90,000/- (Rupees Ninety Thousands) to the O.P through net banking as advance on 13/11/2019 and on the same date the O.P issued one money receipt vide No. 57498 Dated – 13/11/2019 duly signed by the authorized signatory, but after the cancellation of the said Europe tour due to worldwide pandemic arising out of Covid – 19, the O.P did not refund the booking amount which was paid by the complainant as advance.
According to this provision of u/s. 2(7)(ii) of the Consumer Protection Act, 2019, the complainant avails the service of the O.P for visiting Europe tour and for that purpose he was agreed to pay the amount to the O.P and he has paid Rs. 90,000/- as advance to the O.P for three persons including himself. The law says that the complainant is a consumer and he can get benefit from this case if it is proved.
In this case the O.P runs his business at Kolkata and the complainant is residing at Alipurduar. According to the provision of old act the case was required to be filed at Kolkata as because the O.P runs his business at Kolkata and works for gain at Kolkata but after amendment of this C.P. Act, 2019 u/s. 34(d) the case can be filed under C.P. Act, 2019 where the complainant resides or personally works for gain. Here although the O.P runs his business at Kolkata but the complainant resides at Alipurduar which is within the jurisdiction of this Commission and the case has been filed on 30/09/2021 that is after amendment of C.P. Act, 2019. So, this Commission has the jurisdiction to try this case in terms of the provision of amendment C.P. Act, 2019.
The case of the complainant is that he along with his wife and daughter intended to visit Europe for touring purpose and accordingly he contacted with the O.P who organized and conducted the tour to Europe and date of departure was 24/04/2020. The complainant was agreed with the terms and conditions of the O.P including the tour price and accordingly he paid an advance of Rs. 90,000/- to the O.P and filled up the guest registration form and he was signed the terms and conditions of the O.P company. O.P company served tour guides of seventeen days Europe tour to the complainant. But unfortunately, the pandemic of Covid – 19 was started in the last part of 2019 all over the world and the lockdown was started all over the world as a result the tour was cancelled. The complainant thereafter asked the O.P to return the advance money as because the tour was cancelled due to the pandemic of Covid – 19 but the O.P did not pay any heed to the request of the complainant and ultimately refused to return the advance money to the complainant. In this case the O.P did not turn up to contest the case as we have stated earlier. So, the written version of the O.P is not known to this Commission but the documents shows as filed by the complainant that he paid advance of Rs. 90,000/- for his Europe tour on 13/11/2019 and he also filled up the guest registration form supplied by the O.P. Annexure-B is the payment receipt of Rs. 90,000/- issued by the O.P and Annexure-A is the guest registration form duly filled in signed by this complainant on 13/11/2019 including the terms and conditions of the O.P. Annexure-C is the tour brochure. It appears from the terms and conditions of Annexure-A wherein rules 14 and 15 is mentioned regarding cancellation of the tour. According to the rule 14 of the said terms and conditions of the O.P it is mentioned that the “Aviana Travels (O.P) reserved the right to cancel any tour prior to departure, without assigning any reason. In such situation we will booked the passenger on a different tour date. In case if the alternate tour date is not acceptable we shall refund all money paid by you after deducting the visa cost incurred by Aviana Travels but no compensation is payable.” Here the tour has been cancelled due to pandemic of Covid – 19 the complainant himself did not cancel the tour program. The alternate tour program is not acceptable to the complainant and accordingly in terms of the said conditions the complainant is entitled to get back booking amount from the O.P excluding the visa cost but here no papers is filed from the side of the O.P to prove that they have applied for visa for this complainant and his family and charges have been paid to the department for issuance of visa. So, when there is no charges paid for visa the complainant entitled to get to entire advance amount paid to the O.P but the O.P did not pay any amount to the complainant or did not state anything in writing to the complainant and appeared before this Commission to say anything in this regard. So, in that case the complainant is entitled to get the refund of entire Rs. 90,000/- from the O.P. According to the terms and conditions of the said rule 14 the O.P is not bound to pay compensation to the complainant in this regard. But here we find that the complainant contacted with the O.P on several occasions for refund of the amount and ultimately, the O.P refused to pay. There was the harassment and mental agony of the complainant as because he has paid the advance amount for his Europe tour but the tour was cancelled for pandemic and at the same time he did not get back the entire amount. So, in that case the O.P is bound to pay the compensation for the harassment of the complainant and he knocked the door of the O.P on several occasions but the complainant was disheartened due to non refund of the amount.
It can be stated as such that there is the negligence on the part of the O.P as well as the deficiency in service for not refunding the advance money paid by the complainant at the same time. O.P pressurized upon the complainant for future tours otherwise the amount shall be forfeited which is proving unfair trade practice.
In our considered view that the complainant did not cancel the tour by himself and it was cancelled due to the pandemic of Covid-19 situation. The O.P can not force the complainant for future tour which is mentioned in rule 15 of the terms and conditions of Annexure-A. There is a deficiency in service for non-refunding the advance amount and also used to unfair trade practice upon the O.P. The O.P also harassed the complainant by not making refund the advance money. So, O.P is bound to pay the refund advance money as well as the compensation of the complainant.
We find that that complainant is entitled to get back Rs. 90,000/- as his advance amount paid to O.P along with 6% interest Per annum from the date of the cancellation of the tour till realization of the said amount. Complainant is also entitled to get a sum of Rs. 25,000/- for his mental agony, harassment and sufferings and Rs. 5,000/- for litigation costs. The O.P is bound to pay the said amount to the complainant within time fixed by this Commission.
Thus all the points are disposed of accordingly.
Fees paid are correct.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is allowed ex-parte with costs against the O.P. The complainant Sri. Pranab Kumar Ghosh do get the award amounting to Rs. 90,000/- (Rupees Ninety Thousands) of the advance money which was paid to the O.P along with 6% interest Per annum from the cancellation date of the tour till realization and he also do get a further award of Rs. 25,000/- (Rupees Twenty Five Thousands) for his mental agony, harassment and sufferings and also Rs. 5,000/- (Rupees Five Thousands) as litigation costs against the O.P; total decreetal amounting to Rs. 1,20,000/- (Rupees One Lakh Twenty Thousands) excluding interest. The O.P (AVIANA TRAVELS PVT. LTD.) is hereby directed to pay the total decreetal amount along with the interest upon the cost of the advance payment as stated above till the payment is made to the complainant. The O.P is directed to pay the said award to the complainant within 30 days from the day of receiving this order i.d. legal action will be taken against him.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
