Order-10.

AUTHOR.  RABIDEB MUKHOPADHYAY, MEMBER

        This is an application u/s.12 of the C.P. Act, 1986.  It is stated that looking at the advertisement by the OP Company the complainants booked tickets for the Thailand Tour as per package announced by the OP Company.

        The complainants stated that they paid Rs 20920/- by cheque no. 008036 dated 06/10/2016 of SBI, Santoshpur Branch, where the package amount was Rs 53000/- for two persons excluding Service Tax  at the rate of 4.6 percent.

        As the date of journey was 24^th February, 2017 and full payment was to be made 60 days before departure, complainants paid the balance amounts in full amounting to Rs 17259/- each and the total amount thus paid by the complainants up to 28/12/2016 was Rs 55438/-.

        It is stated at para-7 that a letter dated 09/02/2017 was received by the complainant from the Chairman and Managing Director, Dishari Holidays Ltd. with the content that the tour scheduled on 24^th February, 2017 has been cancelled due to shortage of fund.. It is also stated that Chairman and Managing Director, Biplab Mandal begged apology and wanted 6 months time to return the deposited amount with interest amounting to Rs 57656/- by post dated (31/7/2017) cheque of HDFC Bank. It is also stated that the Chairman and Managing Director expressed willingness to conduct the tour between September to December, 2017 if the complainant so desired.

        It is stated at para-11 that the said cheque bearing no. 001165 of HDFC Bank A/c No. 06932320001203 was deposited on the scheduled date (31/7/2017) with complainant’s A/c of SBI, Santoshpur Branch but the latter bank returned the cheque with Return Memo. stating ‘Funds Insufficient’. For this reason the complainants have been compelled, as stated at para-13, to seek redressal at this Forum after intimating the OP through email regarding legal steps.

        The complainant prayed for return of Rs 57655/- with 9 percent interest per month month from the date of scheduled journey, i.e. 24^th Feb, 2017, total Rs 104360/-, Rs 30,000/- as compensation and Rs 20,000/- as litigation cost.

        WRITTEN VERSION BY OP.

         No WV has been filed by OP and the case proceeded exparte against OP.

                                                        Points for Decision

1. Whether the complainants are consumers under the OP;
2. Whether the OP is deficient;

3)  Whether the complainants deserve relief.

Decision with Reasons

       1) We have perused the documents filed by the complainants including copies of Money Receipts of Advance and Final payments with Booking Reference, made by the complainants to the OP Company,  letter dated 09/02/2017 issued to complainant no. 1 by Biplab Mandal, Chairman & Managing Director, Dishari Holidays Ltd. being unable to conduct  the tour due to heavy loss and expressing apology and issuing a post dated (31/7/2017) cheque for Rs 57656/- including calculated interest of Rs 2217.52, copy of cheque no.001165 dated 31/07/2017 of HDFC Bank for Rs 57656/-, Return Memo. of the Cheque for Insufficient Funds by SBI, Santoshpur Branch and other documents.

         2) The fact remains that initially the postal remark showed that the office of the OP moved and the summon was returned. Then the complainant after tracing the whereabouts of the OP prayed for amendment of plaint with some change in the address. After getting order from this Forum, the summon was again sent and was delivered. The OP made appearance through powered Vokalatnama on 29/11/2017 and copy of amended plaint was served to OP. But thereafter OP had never appeared nor filed any WV.

        3) It is clear that the OP had nothing to plead against the claim of the complainants. So, the OP did not dare to file any reply in the form of WV even after making appearance and thereby backtracked from the proceedings. It is the

admitted position of law that intentional failure of OP to file written version amounts to admission of the allegations of the complainants against the OP.

        4) But we may proceed through perusal of stated documentary evidence issued by the OP but filed by the complainants. It is clear that complainants deposited amounts of tour package well ahead of scheduled date of journey on 24^th February, 2017 and was getting ready for the tour. Before the proposed tour, like others, the senior citizen complainants also might have experienced unexpressed pleasure for the upcoming foreign tour.

        5) Such dreamy pleasure of the complainants were crushed by the letter dated 09/02/2017 of Biplab Mandal, Chairman and Managing Director who intimated the complainants they were unable to conduct the tour due to heavy loss and returned a post dated (31/7/2017) cheque for Rs 57656/- including calculated interest of Rs 2217.52, bearing cheque no.001165 dated 31/07/2017 of HDFC Bank for Rs 57656/-.

        6) This attitude of OP is sheer deficiency in service promised to the complainants after taking full consideration and negligence of the duties expected from them. The question arises how heavy loss occurred when the tour was not at all conducted. It is one type of unfair trade practice adopted by the OP in the manner of collecting money from the public at large and holding them for their own interest, depriving the customers and frustrating their interest.

        7) OP’s unfair trade practice is established at another point. For the sake of argument, let us guess that sufficient number of tourists did not enroll in the said package tour and the tour had to be cancelled at the sacrifice of the enrolled

tourists. But what about the returning of the OP’s post dated cheque for Rs 57656/-?  Why the cheque was dated 31/7/2017 when the tour was cancelled frustrating the expectations of the complainants? Is it not the fact that the OP made its own business on the invested money of the customers? Then what is it other than unfair trade?

        8) Another glaring fact of unfair trade adopted by the OP is that OP took more than 6 months to return the deposited money to the complainants through post dated cheque but when the complainant no. 1 deposited (after waiting for 6 months) the said cheque with his SBI, the SBI sent back the cheque through Return Memo. dated 01/8/17 on the ground of ‘Funds Insufficient’. What is it other than unfair trade.  OP did not even reply to complainant’s mail of 07/8/2017.

        9) The OP took time for more than 6 months to deposit money in its HDFC Bank, still it did not deposit the money sufficient to make payment. Such conduct of OP is not only deficiency in service but also unfair and harassive and putting the complainants in an awkward situation.

        10) The complainants having paid consideration for the proposed tour to the OP is no doubt consumer under the OP as defined under section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as amended so far. The OP having received the consideration money from the complainants promising service to them is the service provider as defined under section 2(1)(o) of the Act. Since the OP failed to keep its promises to the complainants, OP is deficient as clarified under section 2(1)(g) of the Act.

        So, in the light of above analytical discussions, we are constrained to pass   

                                                              ORDER    

                  That the complaint be and the same is allowed exparte against O.P. Biplab Mandal, Chairman and Managing Director (or whoever is in such position) of Dishari Holidays Limited, in terms of section 13(2)(b)(ii) of the Consumer Protection Act, 1986 as amended so far;

                That the O.P. Biplab Mandal, Chairman and Managing Director (or whoever is in such position) of Dishari Holidays Limited is directed to refund Rs 57655/- with 9 percent interest on the amount from 31/07/2017 till date of actual payment, along with compensation of Rs 25,000/- for complainants’ physical harassment, social awkwardness and mental agony and Rs 5000/- as litigation cost, to the complainants together, within 30 days from the date of this order;

                That the O.P. Biplab Mandal, Chairman and Managing Director (or whoever is in such position) of Dishari Holidays Limited is further directed to pay Rs 20000/- in terms of section 14(1)(hb) of the Act for unfair trade practice against the interest of the members of the public at large and the said amount is to be deposited with the account of the Forum within 30 days from the date of this order;

               That on failure of the O. P. Biplab Mandal, Chairman and Managing Director (or whoever is in such position) of Dishari Holidays Limited to comply with the above order within the stipulated time, the complainants shall have the liberty to put the order  into execution in terms of section 27 of the Act ibid.

             Let copies of this order be handed over to the parties when applied for.