Author-RABIDEB MUKHOPADHYAY, MEMBER

This is an application under section 12 of the Consumer Protection Act, 1986.

The brief facts, giving rise to the Complainant, are that the O.P. Dishari Holidays Ltd. published an advertisement in the Ananda Bazar Patrika dated 17.07.16 for tour programme in the Andaman through O.P. and it was a package tour programmecomprising of 5 nights and 6 days.The Complainant expressed his intention to avail the said tour and the tour was scheduled to be commenced on 14.03.2017. Accordingly, the Complainant booked the said tour for himself and two others of Dutta Family and the total cost of the package was Rs. 73,500/- for three persons. Complainant signed the booking receipt bearing no. 00000268 dated 30.07.2016 and paid Rs. 15,690/-. Subsequently the Complainant paid Rs. 30595.50 each on 07.12.2016 and 09.01.2016 and total amount was paid 76881/-

through Cheques of SBI, UCO Bank & IFSC and 03.01.2017 respectively to the O.P. against money receipts. It is further alleged that the O.P. issued a letter to the Complainant intimating that they were unable to conduct the tour owing to shortage of fund and also enclosed a postdated cheque of Rs. 79,956/- drawn on HDFC Bank. The Complainant deposited Cheque in his Bank for clearance. The Cheque was dishonored. The Complainant tried to contact with the O.P. an umpteen times but no effect. All the phone lines of O.P. were dead. The complainant wrote a letter through Advocate dt. 11.08.2017 requested the O.P. to refund the amount of Rs. 79,956/- despite receipt of letter O.P. remained silent to redress Complainant grievances. The Complainant lodged the diary against the O.P. at Shakespeare Sarani P.S. on 15.09.2017.

            O.P. is deficient and negligent in service.

            The Complainant prayed for refund of amount of Rs. 79,956/-, to pay amount of Rs. 60,000/- as compensation for mental agony and harassment and also prayed for amount of Rs. 20,000/- as litigation cost.

Written Version of O.P.

The O.P. did not attend the proceedings and did not file any W.V.

Points for Determination

1) Whether the complainant isa consumer under the O.P.;

2) Whether the O.P.isdeficient in rendering service to the complainant;

3) Whether the complainant deserves relief.

Decision with reasons

1) We have perused copies of Booking Receipt dated 30 July, 2016, internet copy of policies and T&C, letter dated 14 Feb, 2017 of Biplab Mondal, Chairman and Managing Director to Complainant acknowledging full payment, stating the date of journey in the month of Jan 2017, and intimating cancellation of the tour with reasons of shortage of fund, returned Cheque no. 001084 of HDFC Bank for Rs 79,956/-,dated 31.07.2017, letter by speed post of Advocate Pradip Kumar Dutta dated 11.08.2017 written to the O.P.claiming return of the money within 6 months, copy of Complainants letter dated 15.09.2017 addressed to the officer-in-charge, Shakespeare Sarani P.S alleging dishonor of Cheque no. 001084 of HDFC Bank 31.07.2017 for Rs. 79,956/- etc.

2) It is very clear that the Complainant being duped through Advertisement booked the     tour against full payment of Rs.76,881/- in three phases. The date of journey was also mentioned as 14 March, 2017.

3) But on 14.02.2017, just after less than  one and half month of receiving full amount for the tour, O.P. sent letter cancelling the tour due to various reasons including shortage of fund and sent a postdated cheque (dated 31.07.2017) for Rs.79,956/- allowing a whimsical amount of interest of Rs.3,075/- only.

4) It is to be mentioned that the Said cheque no. 001084 sent by the O.P. to the Complainant amount in Rs. 79,956/- got dishonored and returned on 01.08.2017 to the Complainant with the remarks FUNDS INSUFFICIENT, as revealed from the said Advocate’s letter dated 11.08.2017. The Complainant through his Advocate Pradip Kumar Dutta sent an ultimatum to the O.P. through letter dated 11.08.2017 allowing a time of 6 months for return of the money from any source.

5) Now-a-days, this has been the practice of the said O.P. to receive first the full amount for tour and then cancel the tour on ground of fund crisis and other pleas. In this case, the Complainant has been subjected to much more harassment, agony and frustration.

We cannot understand how the question of fund crisis arises when O.P. realizes full amounts beforehand from each prospective tourist?

This is a parallel shadow business. Such practice is quite unfair too.

6) More unfair is the dishonor of the cheque due to “fund insufficient” as commented by the Complainant in his Advocate’s letter on dated 11.08.2017.  It is to be noted that the Cheque was dated 31.07. 2017 i.e. after about 7 months from the date of final payment.  In spite of such long gap of date, the Cheque got dishonored.

7) The O.P. appears to be in the practice of making expenses in making Ad in daily Newspapers to dupe and attract potential tourists who come to O.P., make payments and get cheated.

8) Running from pillar to post, the Complainant helplessly sent legal notice through Advocate on stated date to O.P. requesting for return of the paid up money for the cancelled tour but the O.P., in particular, intentionally kept silent. The Complainant was compelled to move this Forum for redressal.

9) It remains the fact that the aggrieved Complainant paid consideration (Rs.76,881/-) in expectation of getting the service of tour from the O.P.  So, the aggrieved Complainant is a Consumer under the O.P., in terms of section 2(1)(d)(ii) of the C.P. Act, 1986.

The O.P. in spite of receiving full consideration money did not render promised services to the aggrieved complainant.

So, the O.P. is drastically deficient in terms of Section 2(1)(g) read with Section 2(1)(o) of the Act.

Thus the aggrieved Complainant deserves relief. He faced embarrassing situation among the acquaintances also.

10)Apart from deficiency in service, the O.P. misrepresented in the Advertisement to pull potential tourists only to adopt unfair trade practices by first duping them and then extracting money by false pleas and promises.  So, the O.P. suffers from unfair trade practices as defined u/s. 2(1)(r) of the Act.

11) It is the settled principle that the party in spite of getting opportunity to defend his case, does not take the opportunity, it is on the default side and its leverage goes to the other side (here to the Complainant). It remains the fact that the Summons reached the address of the O.P. on 16.07.2018 but the postal remark was “unclaimed”, which is good service.

In the circumstances of what have been analytically discussed above, we are constrained to pass –

 That the complaint be and the same is allowed ex-parte against the O.P., represented by its Chairman & Managing Director, Biplab Mondal, in terms of Section 13(2)(b)(ii) of the C.P. Act, 1986;

That the O.P. represented by its Chairman & Managing Director, Biplab Mondal is directed to refund Rs.76,881/- with interest of 8 percent from 09.01.2017(the date of final payment by the Complainant ) till date of actual payment, Rs.10,000/- u/s 14 (1) (d) of C.P. Act, 1986, as compensation for physical harassment, mental agony and loss of dignity of Complainant and Rs.5,000/- as litigation cost, to the aggrieved Complainant, Manas Kumar Dutta, within 30 days from the date of this Order;

That the O.P. represented by its Chairman & Managing Director, Biplab Mondal is directed to deposit Rs.25,000/- for practising unfair trade u/s.14(1)(hb) of the Act with the Forum under Legal Aids Account, within 30 days from the date of this Order;

That non-compliance of above Orders by the O.P. represented by its Chairman & Managing Director, Biplab Mondal within the stipulated time, will entitle the aggrieved Complainant to put the Order into execution in terms of Section 27 of the Act ibid.

Let copy of the Order be handed over to the parties when applied for.