The complainant’s case in a brief manner can be reproduced as herein under. That the complainant with his family intended to make visit some places in North India. Accordingly he makes contact with the O.P. No.1 Tour Agency represented by Asit Bose. The date of tour was fixed on 17.9.2016 by Kalka Mail in AC Three Tire. Period of tour is 17.9.2016 to 5.10.2016 involving some places mainly Simla, Manali and other places. Total cost was fixed between the complainant and the O.P. amounting to Rs.2,00,000/- for train fair, car fair, hotel, break first, lunch, tiffin, dinner etc.
The complainant paid Rs.1,30,000/- out of Rs.2,00000/- to the O.P. Balance amount ought to have been paid on 16.9.2016. On 16.9.2016 the petitioner and another family members were ready to go for the above tour and luggage were ready. But at 9 AM on 17.9.2016 the O.P. informed the petitioner regarding cancellation of tour for unavoidable circumstances. The O.P. disclosed that they have purchased ten tickets and for other purposes. But ultimately the tour was cancelled. So, due to the reason as shown by O.P. the tour was cancelled. But the O.P. did not return the money to the complainant. On repeated occasion the complainant requested the O.P. to return back the money but the O.P. did not pay any heed to the complainant’s word. The complainant has been mentally harassed and became very sorrowful minds towards his family members. So, finding no alternative the complainant has come here for praying relief for the unforeseen conduct of the O.P.
The O.P. appeared here and contested the case by filing W/V denying inter-alia all the material allegations. O.P. admits that he took Rs.1,30,000/- from the complainant as advance out of total sum of Rs.2,00,000/- for conducting whole tour programme. The O.P. has created new cause that the petitioners/complainant did not availed themselves the opportunity of tour on the ground of suffering from dengue fever and that Mr. Sekhar Roy Chowdhury was fallen seriously ill on 15.9.2016. Here in the O.P. went to the house of the complainant and the complainant handed over copies of certain test report of his son, Manik Sarkar which he undergone Serampore Medical & Diagnostics Centre. Accordingly from the illness of Manik Sarkar and Sekhar Roy Chowhdhury the complainant suspended the tour and cancelled the programme. Further case of the O.P. is that they have borne expenses of Rs.44,411/- out of which Rs.12,095/- was deducted for cancellation of Railway Ticket and Rs.32,316/- towards cancellation of hotel and car charges. It is also case of the O.P. that the complainant agreed to adjust in the next programme when the balance amount Rs.85,589/- would be adjusted. Accordingly, there is no negligence and deficiency on the part of the O.P. and the complainant is not entitled to get any relief as he is not a consumer under the Consumer Protection Act.
Both parties has filed some documents, affidavit in chief and O.P. has affidavit in chief and some annexure-A-1 to B-11. The complainant also filed written notes of argument. The O.P. has also filed written notes of argument.
Point for decision
- Whether complainant is a consumer or not?
- Whether there was oral contact of tour between the complainant and O.Ps.?
- Whether there was any deficiency in service of O.P.?
- Whether the complainant is entitled to get any relief?
Decision with reason
It is admitted fact that complainant being the head of the family member made oral agreement with O.P. No.1 & 2 for a tour in the North India and for which total cost was fixed Rs.2,00,000/-. The complainant paid a sum of Rs.1,30,000/- to the O.P. No.2. The O.P. No.2 booked train for journey vide IRCTC E-ticket, Annexure-B(2) to B(10) and B(11). The IRCTC form shows cancellation fee of some tickets. The O.P. has stated total cancellation fees was around Rs.8000/-. O.P. filed another paper for booking hotel-car package booking. But this document and another documents B-11, is not reliable. The O.P. has filed B-12, calculation sheet, wherein O.P. has written train ticket cancellation charge of Rs.12,095/-. But cancellation charge of hotel and car is not proved by reliable evidence and document. It is still uncertain to establish the name of hotel, vehicle as alleged booked by the O.Ps. From the IRCTC cancellation charge may be Rs.12,095/-. But cancellation charge of hotel and car amounting to Rs.32,316/- is not acceptable for want of reliable documents.
So, the case is now stand that complainant demands principal sum of Rs.1,30,000/- but he is not entitled to get the same because O.P. booked train tickets for their cause. So, the complainant shall bear this cancellation charges. The O.P. is unable to prove that they have booked hotel, vehicle etc. as such cancellation charge Rs.26,325/- shall not be paid to the O.P. or conversely it can be said O.P. cannot claim the said sum from the complainant without any cogent document. So, the net amount the complainant is entitled to get back from the O.P. is Rs.1,30,000/- minus train ticket cancellation charge of Rs.12,095/- =Rs.1,17,905/-.
From the case record it appears that the complainant and O.P. are known to each other and they made only oral agreement and O.P. also failed to show any laws or any by laws or any law or any paper that they are authorized tourist agent by the Govt. of W.B. or by Central Govt. or approved railway agent. However, when the both party was agreed to abide by a oral contract and which became unfulfilled by some unforeseen reason which cannot be predicted and complainant paid money to the O.P. So, complainant is entitled to get back the money after deducting the train ticket cancellation charges.
It is pertinent to mention that incident occurred on 16.9.2016 after that and within the reasonable time opposite party has duty to return back the aforesaid amount i.e. Rs.1,30,000/- minus cancellation charges of train ticket. But opposite party did not do it amicably to show their good gestures towards the complainant or good behavior towards the complainant who are senior citizens. Accordingly, the O.P. should pay some compensation to minimize the mental suffering of the complainant. In our opinion Rs.20,000/- will suffices that need.
Accordingly, after deliberation over the dispute of both sides and point of difference of both sides we are of the opinion that complainant’s case be and same is succeeds on contest. opposite party No.2, Sri Asit Bose, Proprietor of Supriya Tour and Travels i.e. the opposite party No.1 is directed to pay Rs.1,17,905/- and compensation of Rs. Rs.20,000/- as compensation to the complainant. They also pay Rs.10,000/- as litigation cost to the complainant. The above all directions are complied with within 45 days from this date of order, failing which the complainant is at liberty to execute this case before this Forum.
Let the copies of this order be supplied to the parties free of cost.
