Order-8.
Date-10/08/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that OP runs a business of travel and tour operation and package tour. Being convinced from the advertisement published on 14-08-2016 in Ananda Bazar Patrika, the complainant along with his wife Sampa Das decided to tour to Andaman through OP. The total package was for Rs.51,254/- for two persons. Tour was scheduled to be fixed on 18-03-2017 and the period of tour was for 5 nights and 6 days. The complainant paid the entire amount of Rs.51,254/- by three cheques and OP duly encashed the said cheques. OP also issued booking receipt No.00000289 dated 03-08-2016 as against such booking and payment. The complainant surprisingly received a letter dated 14-02-2017 from the OP intimating that OP is unable to conduct the Andaman tour owing to shortage of fund. OP in the said letter enclosed a cheue being No.001077 dated 31-07-2017 for Rs.53,304/- drawn on HDFC Bank, the amount mentioned in the cheque includes interest. The cheque was post dated one. Moreover, the complainant’s name has been wrongly spelt as Bikas Das in place of Bikash Das. It is alleged that the OP did not obtain the consent of the complainant before issuing the post dated cheque. The complainant vide letter dated 09-03-2017 raised his objection to the OP stating that the complainant would not be able to wait so long for recovering money and complainant also pointed out to the spelling mistake named in the said cheque. The letter was sent by speed post and was received by OP dated 10-03-2017. Despite receipt of the letter, OP remained silent and did not take any positive step. The complainant finding no other alternative wrote another letter dated 17-04-2017 enclosing the original cheque No.001077 dated 31-07-2017 for Rs.53,304/-. The said cheque was also received by the OP on 20-04-2017. Despite receipt of the letter dated 17-04-2017 along with original cheque OP kept silent and did not send any current date cheque in the name of the complainant. OP also did not reply to the letter of the complainant. OP has alleged deficiency in service, harassment, mental pain and agony. Complainant has prayed for a direction upon the OP for refund of amount of Rs.53,304/- along with other reliefs in terms of prayer in the complaint.
OP entered into appearance in the case but subsequently did not file written version and the case has proceeded ex parte against the OP.
Point for Decision
- Whether the OP is deficient in rendering service to the complainant?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We take both the points/issues together for convenience of discussion.
Complainant to establish his case has produced some documents before us, i.e. Xerox copy of booking receipt dated 03-08-2016, Xerox copy of post dated cheque being No.001077 dated 31-07-2017, Xerox copies of letters dated 09-03-2017, 17-04-2017 addressed to the OP by the complainant. We find from the documents on record that the complainant booked a tour for Andaman at total package of Rs.53,304/- for two persons with the OP. Tour was scheduled to be commenced on 18-03-2017 and the period of tour was for 5 nights and 6 days. The complainant paid full amount by three cheques, as it appears from the letter dated 14-02-2017 addressed to the complainant by Biplab Mondal, Chairman and Managing Director, Disari Holiday Home. But quite astonishingly it is also evident that OP cancelled the proposed tour and the reasons stated by him as per letter 14-02-2017, heavy loss in business during January, 2017 and subsequently, shortage of fund. Be that as it may, as we find OP was unable to conduct the tour. The OP also sent an intimation vide letter dated 14-02-2017 as regards the cancellation of the proposed tour and also enclosed a cheque being No.001081 dated 31-07-2017 drawn on HDFC Bank for Rs.53,304/- including interest as refund money. The cheque is obviously post dated one and there also appears to be a spelling mistake in the said cheque. The name of the complainant is Bikash Das and not Bikas Das as mentioned in the cheque. The complainant raised objection to such issuance of post dated cheque vide letters dated 09-03-2017 and 17-04-2017 with request to issue current dated cheque but the OP remained silent and did not care to return the deposited amount of the complainant either by issuing a current dated cheque or in cash or otherwise.
It appears that the OP has been unable to conduct the tour on the ground of loss in business i.e. for personal predicament. We also find that the OP has brought out advertisement in a reputed daily newspaper campaigning for tours at different places like Andaman, Thiland, etc.etc.. ultimately OP has not been able to conduct the tour. Complainant deposited the amount and was unable to enjoy the holidays in Tour in Andaman. Moreover, OP issued a post dated cheque for the reason best known to them. We find that the complainant faced harassment at the first place for being unable to go to Andaman solely for the fault of OP. Secondly, he also moved from pillar to post to get back his money. We think that OP has been deficient in rendering services to the complainant. We find no reason why OP would collect amount from the customers and hold the amount as per his own discretion. We accordingly hold that OP demonstrated a gesture of deficiency in service. He has also caused harassment, mental pain and agony to the complainant.
Despite receipt of summons, none came from the side of the OP to controvert the case of the complainant. Complainant corroborates his case in adducing Evidence on Affidavit. The Evidence on Affidavit filed by the complainant remains unchallenged and uncontroverted. In absence of any contrary or controverting materials on record and having regard to the documents on record, we think that complainant is entitled to get the relief as prayed for.
Consequently, the case merits success.
Hence,
Ordered
That the instant case be and the same is allowed ex parte against the OP.
OP is directed to refund the amount of Rs.51,254/- to the complainant along with interest at the rate of8 percent p.a. w.e.f. 03-08-2016 till compliance within one month from the date of this order apart from litigation cost of Rs.10,000/-.
OP is also directed to pay an amount of Rs.8,000/- for causing harassment, mental pain and agony to the complainant within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in C.P. Act.
