Author: SHRI RABIDEB MUKHOPADHYAY, MEMBER

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

The brief facts, giving rise to the Complaint, are that the O.P. Dishari Holidays Ltd. published an advertisement in the Ananda Bazar Patrika dated 17.07.16 for tour programme toANDAMAN and it was a package tour programmecomprising5 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 other (one) member and the total cost of the package was Rs. 51,254/- for two persons and the payment was fully made by the

Complainant through cheque of United Bank of India (vide para 4 of the Complaint). The said tour Booking Receipt No. is 00000268 dated 07.03.2016. It is further alleged that the O.P. sent a letter dated 14.02.2017 to the Complainant intimating that they were unable to conduct the tour owing to shortage of fund and also enclosed a postdated cheque (Cheque No. 001093) of Rs. 53.304/- drawn on HDFC Bank. The complainant deposited the cheque dated 31.07.2017for clearance but the Cheque was dishonored. The Complainant then tried to contact the O.P. but failed as all the phone lines of O.P. were dead. The complainant wrote a letterthrough Advocate dated 11.08.2017 to the O.P. requesting him to refund the amount of Rs. 53304/-. Despite receipt of letter, O.P. remained silent to redress the Complainant’s grievances. The Complainant realized that he had been duped by the O.P. and lodged diary against the O.P. with the Shakespeare Sarani P.S. on 15.09.2017.

The Complainant prayed to refund an amount of Rs. 53,304/-. He also prayed for an amount of Rs. 50,000/- as compensation (mental agony and harassment) and Rs. 20,000/-.as litigation.

Points for Discussion

1) Whether the Complainant is a Consumer under the O.P.;

2) Whether the O.P. is deficient in rendering service to the Complainant;

3) Whether the complainant deserves relief.

Decision with reasons

            All the points are taken up together for discussion for the sake of convenience and brevity.

The Complainanttried to establish his case and has produced photocopies of tour programme, provisional booking receipt, money receipts, Advocate’s letter dated 11.08.2017, letter dated 15.09.2017 addressed to the O.C. Shakespeare Sarani Police Station, postal registration receipt, track report of India Post and O.P’s. postdated cheque no. 001093 dated 31.07.2017.

On perusal of those documents, we find that the Complainant booked a tour for Andamanatapackageprice of Rs. 51,254/- for himself and other one member with the O.P. Tour was scheduled to be commenced on 14.03.2017 and the period of tour was 5 nights and 6 days. The complainant received the letter fromThe Chairman & Managing Director of O.P dated 14.02.2017 addressed to the Complainantthatthe O.P. was unable to conduct the tour due to shortage of fund. The O.P also sent an

intimation letter to the Complainant to that effect and also issued a Post-Dated Cheque bearing No. 001093 dated 31.07.2017 for Rs. 53,304/- drawn on HDFC Bank. The Post-Dated cheque deposited in Complainant’s Bank was dishonoured.Complainant wrote a letter through his Advocate dated 11.08.2017 to the O.P. with a request to pay the amount, but The O.P remained silent and his phones were dead so that the Complainant could not make any contact.  We also find that the O.P. has published an advertisement in a reputed daily Newspaper campaigning for tours at different places likeAndaman etc. Ultimately, the O.P. has not been able to conduct the tour. Complainant paid Rs. 51,254/- to the O.P. as full payment but the Complainant could not enjoy the tour in ANDAMAN. Moreover, We find that the complainant faced firstharassment for being unable to go to ANDAMANsolely for the fault of the O.P and secondly, he also moved from pillar to post to get back the money includingthe Police Administration. Therefore, O.P is deficient in rendering services to the complainant and indulged in unfair trade practice. We do not find any reason why the O.P. would collect amount from the customers by publishing advertisement in daily newspapers and hold the amount as per his own discretion. Accordingly, we hold that the O.P. demonstrated a gesture of deficiencies in services. O.P. has also caused harassment, mental pain and agony to the Complainant.

It is a settled Principle of Law that when a party in spite of getting opportunity to file its own version but does not do so, it remains on the default side and the leverage of such default goes to the other Party (here the Complainant). So, all the allegations leveled by the Complainant against the Opposite Party remained unchallenged. We may, therefore, presume that the allegations are true and the Opposite Party had no point to controvert the same. The Complainant should get the fruit of such inability, negligence and reluctance of the O.P. to contest the case.

The Complainant corroborated his case by adducing evidence on Affidavit as well as by producing documents. The evidence of the complainant remains unchallenged and uncontroverted.In absence of any contrary and controverting materials on record and having regard to the documents on record, we are of the opinion that the complainant has been able to prove his case. As such, the complainant is entitled to get some relief. All the points under determination are decided in favour of the complainant.

             In the result the case succeeds in part and we are constrained to pass

ORDER

That the Complaint case be and the same is allowed exparte against the O.P in part, in terms of section 13 (2) (b) (ii) of the C.P. Act, 1986;

            That the O.P. is directed to refund the amount of Rs. 53,304/- with an interest of 7  percent from 31.07.2017 till date of actual payment, Rs. 5,000/- as compensation for physical harassment and mental agony, and Rs. 5,000/- as litigation cost, to the Complainant within 30 days from the date of this Order;

That the O.P. is also directed to deposit Rs.10,000/-(Rupees ten thousand) only with this Forum as punitive damage for practicing unfair trade, within the 30 days  from the date of this Order;

That Non-compliance of any of the above Orders by the O.P. within the stipulated time, shall entitle the Complainant to put the Order into execution in terms of Section 27 of the Act ibid.

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