Before the District Consumer Dispute Redressal Commission [Central District] - VIII,      5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No. 76/2021

Mrs. Anjani V. Raghavan w/o Late.Sh. Venkatesh Raghvan,

R/o A 304, Sangeeta Apts, Malieswaram, 5^th Cross,

Bangalore, Karnataka-560003                                                       …Complainant

                                                Versus

OP1- Bunk Tribe Private Limited

Having its registered office at:

2A/3, Kundan Mansion, Asaf Ali Road,

New Delhi-110002                                                                

OP2- Dehaat Store Private Limited

Having its registered office at:

61/MG-2, Kartik Apartment,

Ghaziabad-201005                                                                          ...Opposite Party

                                                                                    Senior Citizen's Case

                                                                                    Date of filing:            12.08.2021

Coram:                                                                       Date of Order:            29.08.2024

Shri Inder Jeet Singh, President

Ms Rashmi Bansal, Member -Female

                                                       FINAL ORDER

Rashmi Bansal, Member

By the present order, the Commission disposes of the complaint filed by the complainant alleging deficiency in service on the part of the Opposite Parties (OPs) for their failure to refund the amount paid by her for a tour and travel package offered by the OPs.

1. Complainant’s Case
   1. The complainant contends that in June 2020, she came across an advertisement issued OP1 for senior citizen for travel and tour package titled "Scandinavian Midnight Sun," which was to cover various foreign destinations commencing on 22.04.2021, for a duration of 15 days and 14 nights. Being interested, the complainant contacted OP1, who assured her that all necessary arrangements, including air tickets, hotel bookings, visa applications, fees etc would be arranged by OP1 as their responsibilities for a cost of Rs. 3,25,000/- and complainant may choose payment in monthly instalments. OP1 further assured the complainant that the entire amount would be refunded in the event if there is any  cancellation of the trip due to COVID-19 pandemic. The complainant subsequently paid the entire amount of Rs. 3,25,000/- through monthly instalments from 20.06.2020 to 02.01.2021 ( as detailed in para 8 of the complaint) and as per instructions of OP1, she transferred the said amount to the bank account of OP2, having Account No. 414605000249 with ICICI Bank, Cherry Counting Tech Zone 4, Greater Noida.
   2. Around February 2021, OP1 notified the complainant of their intention to initiate visa applications with various embassies. The complainant consistently followed up with OP1 regarding the status of the visa applications and the tour package, particularly in view of the COVID-19 pandemic. OP1 repeatedly assured the complainant that efforts were being made to secure the necessary visas and that in the case they do not receive embassy confirmations by 31.03.2021, then full amount of Rs. 3,25,000/- would be refunded by the second week of April 2021. However, on 31.03.2021, OP1 informed the complainant that the senior citizen tour had been cancelled due to the pandemic and assured her that the full refund would be refunded by 16.04.2021. OP1 also proposed that one trip for Nepal is also scheduled for an amount of Rs. 53,000/- which can be adjust out of  amount already paid to them and the balance of Rs. 2,72,000/- would be refunded to the complainant immediately. The complainant accepted this proposal.
   3. On 16.04.2021, when the complainant inquired about the refund of Rs. 2,72,000/-, she was falsely informed by OP1 that the amount had been transferred to her bank account via RTGS. However, no such transfer was received. Upon Complainant’s considerable effort and persistent requests, OP1 eventually issued a cheque in favour of the complainant for Rs. 2,72,000/-, bearing Cheque No. 000002 dated 07.05.2021, drawn on AU Small Finance Bank, Sector-63, Noida, but upon presentation of the cheque to her banker on 11.05.2021, the cheque was returned with a return memo dated 13.05.2021, citing remarks "Payment Stopped by Drawer." The Nepal tour was also subsequently cancelled by OP1, as communicated to her via email dated 17.05.2021, whereby OP1 further undertook to refund the entire money within 20-25 days and requested the complainant to share her bank account details for the refund. Despite all these assurances, no refund has been made to date by OP1.
   4. After putting much efforts, energy and running from post to pillar, a legal notice dated 18.05.2021 was sent by the complainant to the OP1, demanding refund of Rs. 2,72,000/- and Rs. 53,000/-, totalling Rs. 3,25,000/-, in response of which OP1 vide their reply dated 02.06.2021, acknowledged the complainant’s claim and sought an additional two months’ time to process the refund, citing financial difficulties due to the COVID-19 pandemic. Despite the expiration of the requested two-month period on 02.08.2021, no refund has been effected by the OPs. The complainant has also initiated proceedings under Section 138 of the Negotiable Instruments Act against OP1. The complainant asserts that she has suffered severe mental trauma, harassment and financial loss, in addition to physical inconvenience, due to the gross deficiency in service on the part of OPs. The complainant seeks a refund of Rs. 3,25,000/- along with penal interest at the rate of 24% p.a. pendente lite, compensation of Rs. 5 lakh for mental agony and harassment and litigation costs.

2. Upon notice OP1 & OP2 put their appearance through counsel. The written statement was filed on 04.04.2022 (by writing words " of 1 and 2" manually),  but signed by Mr. Deepak Bhati, AR of OP1 with support of board resolution in his favour by OP1. The written statement denies the contentions of the complainant, by taking objection to the jurisdiction of the Commission since  the transactions took in ICICI Bank, NOIDA, U.P.  The complainant  herself had cancelled the tour because of which the amount was forfeited and she told the OP that she does not want any money from OP. It is also submitted that the emails and cheque of Rs.2,72,000/- were unauthorisedly sent to complainant, by ex-employee Shri Suresh Sharma of OP, who had been given blank cheques for office use and authority of make correspondence by email. However, because of his salary issue, he mis-used the subject cheque against OP.  His services were terminated.  The complainant was informed of it by telephone but she filed the complaint u/s 138 N I Act,. The written statement is just accompanied a single document of the Board resolution of OP1 in favour of Shri Deepak Bhati

3. The complainant filed a rejoinder, reiterating her contentions of the complaint but objected that she always dealt with the OP1 having its office in Delhi, she made correspondence by mode of whattsup, email etc. , she never visited OP1 at NOIDA, UP. The written statement is filed beyond limitation period prescribed. The complainant also stated that while the written statement was filed on behalf of both OP1 and OP2, the accompanying affidavit was signed only by OP1. The complainant denies all the averments of written statement.
4. The complainant has submitted her evidence and endorsed the documents cited as per her complaint. The documents filed by the complainant in support of her claim/case are the copy of the advertisement; booking invoice towards Rs.3,25,000/- issued by OP1 bearing stamp of OP2; copy of cheque for Rs. 2,72,000/-  issued by OP1 along with copy of the envelope containing the said cheque; copy of cheque return memo dated 13.05.2021; copy of email dated 17.05.2021 from OP1; copy of legal notice dated 18.05.2021 and  copy of reply dated 02.06.2021 by OP1.
5. The OPs failed to file affidavit of evidence despite various opportunities, therefore, vide order dated 24.03.2023, the evidence was closed.
6. The Commission has examined the documents on record and has heard the arguments advanced by the complainant. The OPs failed to participate in the proceedings. At the outset, there is no written statement of OP2 nor Shri Deepak Bhati/AR of OP1 was authorised by OP2 to sign, verify and file written statement for OP2 nor the written statement filed states so, thus title of written statement qualified with words written manually "of OP1 and OP2" would not make it for OP2. The written statement will be read for OP1 exclusively. Secondly, the written statement of OP1 contains admissions of certain facts of the complaint. Thirdly, the vakalatnama filed is in favour of counsel for OP1, appointed by the said Deepak Bhati, thus counsel appearing was for OP1 and OP2 remained abstained from the proceedings despite service.
   1. The business office of OP1 is at Asaf Ali Road, Delhi, which is within the functional jurisdiction of this Commission. The OP1 also sent its reply dated 02,06,2021 to legal notice from the same business office of OP1, therefore, it would not divest the jurisdiction of this Commission, in case the cheque was pertaining to bank at NOIDA, UP.  The complaint was filed in the competent Commission, having jurisdiction on the matter involved.
   2. Though the OPs failed to file their evidence, however, the case of the complainant is confirmed in OP1's reply dated 02.06.2021 to the legal notice of complainant (also proved in evidence by the complainant) which unequivocally confirms OP1's admissions. The OP1 acknowledged receipt of Rs. 3,25,000/- from the complainant for the booking of the tour package, cancellation of the tour due to the pandemic and its obligation to refund Rs. 2,72,000/- out of the Rs. 3,25,000/- paid, with an assurance to refund the amount within two months due to alleged financial difficulties. Further, the OP1 also  due to the pandemic.
   3. The OP1 further admitted issuing a cheque for Rs. 2,72,000/- to the complainant and stopping its payment attributing the cancellation of the tour due to COVID-19 pandemic. The OP1 not only admits in the reply to legal notice to return the amount to the complainant, however, money could not be arranged but also apologised for stopping the payment for which cheque was issued.  The testimony of complainant remained un-challenged on all counts vis a vis the written statement of OP1 is inconsistent to the plea taken in the reply to legal notice, otherwise the OP1 has not proved its case for want of leading evidence. Similarly, there is no written statement or evidence by OP2.  
   4. The documentary evidence on record, coupled with the OP1’s  admissions in its reply dated 02.06.2021, to the legal notice, conclusively establish  receipt of Rs. 3,25,000/- by OP1  and  OP2 from the complainant; the issuance of Cheque No. 000002 dated May 7, 2021, for Rs. 2,72,000/- by OP1, the cancellation of the Nepal tour, the return memo citing "Payment Stopped by Drawer," and an email dated May 18, 2021, from OP1 requesting bank account details for processing the refund and assuring that "100% of the amount paid by you would be refunded and credited into your account within 20-25 working days,". It also incontrovertibly establishes that the amount was paid in full for the tour program to OP1 through the bank account of OP2  but it has not been refunded to the complainant after cancellation of tour as promised, it constitutes a clear and unequivocal deficiency in service on the part of OP1 and OP2, making them jointly and severally liable to refund the said amount, to the complainant. Thus the complainant is held entitled for refund of 3,25,000/- from OP1 and OP2 jointly and severally
   5. The complainant has sought penal interest at the rate of 24% per annum on the refund of Rs. 3,25,000/-. However, in consideration of the unprecedented circumstances arising from the COVID-19 pandemic and the time required by the OPs to re-establish their business, it would meet both ends by allowing simple interest at the rate of 6% per annum on Rs. 3,25,000/- from the date of filing the complaint  (which is 12.08.2021) till its realization by the complainant.
   6. Complainant has claimed Rs. 5 lakh towards compensation in lieu of mental agony, harassment, financial loss and physical hardship. Further, given the complainant’s age as a senior citizen, her sufferings were  significantly exacerbated due to the gross deficiency in service by the OPs as she parted with her huge money that too during Corona period which is equally difficult for her too as it was for OPs. The  inaction of OPs, even after the pandemic subsided and passing of a long time, entitles the complainant to compensation to be consonance with the situation involved, which is determined for Rs. 25,000/- as appropriate to compensate for the complainant's suffering.
   7. Complainant has also claimed litigation cost. Due to the non-action on the part of OPs, the complainant was compelled to take recourse of legal action to get her refund, including issuance of the  legal notice and filing the present complaint to enforce her legal rights, which justifies her entitlement for the litigation costs, which  is quantified as Rs. 15,000/-.
7. Therefore,  in view of above, the OP1 and the OP2 are directed to comply,  jointly and severally, as follows:
   1. to refund the amount of Rs. 3,25,000/- along-with an interest @ 6% p.a.  from the date of filing the complaint (i.e. 12.08.2021) till its realization by the complainant;
   2.  to pay compensation of Rs. 25,000/- in lieu of  causing sufferings, mental agony and harassment to the complainant;
   3. to pay Rs. 15,000/- towards litigation cost to the complainant;  

The above-mentioned order be complied with by OPs within 45 days from the date of passing of the order failing which the rate of interest shall increase from 6% p.a.  to 9% p.a. on amount of Rs. 3,25,000/-  The OPs are at liberty to deposit the said amount in the Registry of this Commission by valid instrument in the name of complainant.

8. Announced on 29.08.24. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for  compliances, besides to upload on the website of this Commission.          

                                             [Rashmi Bansal]                                                       [Inder Jeet Singh]

                                              Member                                                                       President