Order-11.
Date-04/07/2018.
Smt. Sangita Paul, Member
Having been convinced from the advertisement published on 27.11.2016 in Bartaman Newspaper Complainant with other two members i.e. three persons in total decided to tour to Amazing Thailand through the OP. The OP is a tour and travel Company, represented by the Chairman and Managing Director.
The total package was Rs.85,000/- for 3 (three) persons. The tour was scheduled to be commenced on 05.04.2017 and the period of tour was 5 (five) nights and 6 (six) days. Complainant paid the total amount of Rs.85,000/- through 2 (two) cheques.
The OP issued Booking receipt No.00000539 dated 16.01.2017 to that effect.
Surprisingly, Complainant received a letter from the OP on and around second week of March,2017 intimating him that they were unable to conduct the ‘Amazing Thailand’ tour owing to shortage of fund. OP in the said letter, enclosed cheque No.001121 dated 31.07.2017 for Rs,.88,920/- (Rupees eighty-eight thousand nine hundred twenty) only drawn on HDFC Bank. The amount mentioned in the cheque, includes interest. It was post dated cheque.
In this regard Complainant states that before issuing the post dated cheque, Complainant’s consent was not sought by the OP. The OP issued post dated cheque according to their whim and choice.
That on 31.07.2017, the OP deposited the cheque No.001121 dated 31.07.2017 for Rs.88,920/- for encashment but the cheque was dishonoured.
Thereafter, Complainant tried to contact with the OP an umpteen times, but to no effect. All the phone lines of the OP were dead. Complainant wrote a letter dated 25.08.2017 requesting the OP to refund an amount of Rs.88,920/- with interest, but the said letter was returned with postal endorsement “ O/C (2nd inst) “.
Complainant realized that they have been duped by the OP and lodged GD against the OP to the Shakespeare Sarani PS on 09.08.2017.
The scheduled tour programme of Complainant has been cancelled by the OP suomotu without reasons and there are no latches on the part of Complainants. The OPs have grabbed Complainant’s money in deceitful manner in the name of package tour to Thailand. Complainant paid the cheque believing in the advertisement, but the tour did not materialize. Complainant with high hope and trust paid the money Complainant was not ready for this situation.
The OP is no doubt deficient and negligent in services and the entire attitude of the OP tantamounts to unfair trade practice. Complainant suffered monitory loss, mental agony and harassment.
Then cause of action of this case arose on 25.08.2017, when the OP tour company cancelled the tour all on a sudden.
The Complainant case is within the pecuniary jurisdiction of Ld. Forum. The first address of the OP falls within the pecuniary jurisdiction of Ld. Forum. The Complainant is made bonafide and for the ends of justice.
Hence, Complainant prays for admitting the petition and directing the OP to refund an amount of Rs.88,920/- by Bank Draft by Bank Draft, directing the OP to pay an amount of Rs.60,00/- as compensation for mental agony and harassment and also directing the OP to pay litigation cost of Rs.30,000/- (Rupees thirty thousand) only and directing the OP to pass such order / orders as the judges deem fit.
Complainant was admitted that 18.01.2018 and on 15.02.2018 Complainant files postal internet track report which showed service of notice to the OP on 02.02.2018. On 08.03.2018, Complainant was present, but the OP was absent on call. No W/V was filed on the next date i.e. on 13.06.2018. OP has not entered appearance for two consecutive days. The case was fixed ex parte against the OP. Complainant is to file E/Chief. On 28.06.2018 Complainant was present and E/Chief was filed by Complainant. OP was absent on call. Ex parte argument was heard. As OP did not file W/V and E/Chief, the E/Chief of Complainant remained uncontroverted and unchallenged. We proceeded for giving judgment.
Decision with Reasons
We have perused complaint petition, E/Chief of Complainant, photocopy of money receipt, photocopy of terms and conditions, photocopy of email addressed to Complainant, photocopy of cheque of HDFC Bank sent to Complainant, photocopy of letter addressed to the OP and other documents lying on record. Attracted by the lucrative advertisement, published in a leading Bengali newspaper, dated 27.11.2016 Complainants decided to tour to Thailand. Complainant was accompanied by two persons. Total package was Rs.85,000/- for three persons. The tour was scheduled to be commenced on 05.04.2017 and the period of tour was fixed for (five) nights and (six) days. Complainant made full payment of Rs.85,000/-.
Complainants paid Rs.57,750/- on 16.01.2017. Complainant paid the rest amount of Rs.27,750/- by cheque, being No.067742 dated 08.02.2017 of Allahabad Bank. The earlier payment of Rs.57, 750/- was paid by cheque Complainant made full payment. The date of journey was scheduled on 05.04.2017. It was also written in the money receipt.
Surprisingly, Complainant received a letter on and around 2nd week of March, 2017 from the OP informing the inability to conduct the tour viz. Amazing Thailand due to shortage of fund. The news of cancellation of the tour was really astonishing. Complainant was not ready for this situation. In the letter the OP mentioned several dates and told that he had requested Complainant to choose any one of the following dates, because most of the tourists opted for September, 2017. As such, it was not possible to form a group in the month of April, 2017. The deposited amount of Complainant would be sent back to the OP with 4 percent interest. The OP sent the cheque, but the same was bounced due to insufficiency of fund. Because most of the tourists sent EMIS but the cheques were bounced and the OP faced shortage of fund, but Complainant’s cheque was not bounced. So, there is no justification in sending a bounced cheque to Complainant, because Complainant is not responsible for insufficient fund of the OP. Complainant paid the full amount in two instalments.
OP cancelled the journey suddenly and whimsically. Complainant was deprived of having a beautiful journey in Thailand. After full payment, Complainant could not avail of the journey. But Complainant is entitled to get back Rs.85,000/- with accrued interest. In the letter, OP regretted for cancellation of the tour, but failed to repay the amount paid by Complainant. Complainant was given an offer to conduct the tour in the month of September,2-017 and it was told that the paid amount will be adjusted . But Complainant was not willing to conduct he tour. He wanted his paid amount of Rs.85,500/- which was lying with the OP.
Complainant wrote a letter to the OP on 25.08.2017. Complainant informed that he paid Rs.57,750/- in the first instalment and then he paid Rs.27,750/-, through cheque. Altogether he paid Rs.85,500/-. After full payment was made, Complainant was informed by the OP, that tour has been cancelled due to some unavoidable reasons. After cancellation, Complainant demanded money, money was returned through cheque, but the cheque was dishonoured.
Complainant is a consumer, because he paid Rs. 85,550/-. OPs are deficient, because they are unable to refund the same after cancellation of tour. So, Complainant deserves relief.
In result, the case succeeds.
Hence,
Ordered
That the complaint be and the same is allowed ex parte against the OP.
That the OP is directed to pay back Rs.85,550/- with 7 percent interest from 06.03.2017 till actual payment to Complainant within thirty days from the date of this order.
That the OP is also directed to pay an amount of Rs.20,000/- as compensation for physical harassment and mental agony and Rs. 5,000/- as litigation cost to Complainant within the stipulated period.
OP is also directed to pay Rs.10,000/- for adopting unfair trade practice to be deposited within this Forum, within 30 days from the date of this order.
Failure to comply with the order will entitle the Complainant to put the order into execution under appropriate provision of the C.P. Act.
