SHRI SWAPAN KUMAR MAHANT, PRESIDENT
This is an application U/s 12 of the Consumer Protection Act, 1986.
The brief facts, giving rise to the complaint, are that the OP DIshari Holiday Limited published an advertisement in the Ananda Bazar Patrika dated 17.07.2016 for tour programme at Thailand and it was a package tour programme comprising 05 nights 06 days. The package included Air fare, visa, 3 star hotel facilities, breakfast, dinner, sightseeing and transport by A.C Car. That the Complainant expressed his intention to avail the said tour and the tour was scheduled to be commenced on 17.02.2017. Accordingly, the Complainant booked the said tour for himself and his wife and the total cost of the package was Rs.53,000/- for the spouse. Complainant signed the Booking Form and paid the entire amount to the OP against money receipts. It is further alleged that the OP issued a letter dated 08.02.2017 to the Complainant intimating that they were unable to conduct the tour owing to shortage of fund and also enclosed a post dated cheque bearing No. 000992 dated 31.07.2017 for Rs.55,120/- drawn on HDFC Bank. The cheque was deposited to the Bank for encashment but dishonoured with remarks “ Fund insufficient “. Complainant lodged a complaint to Shakespeare Sarani P.S and also wrote a letter to the OP requesting him to pay the dishonoured cheque amount. OP is deficient in service and the attitude of the OP is tantamount to unfair trade practice. Hence, the complaint.
In spite of service of notice OP did not turn up to contest the case. As such, the case has proceeded ex parte against the OP.
Points for Determination
- Has the OP deficient in rendering service to the Complainant?
- Has the OP indulged in unfair trade practice?
- Is the OP entitled to get relief as prayed for?
DECISION WITH REASONS
Points No. 1 to 3 .
All the points are taken up together for discussion for the sake of convenience and brevity.
Complainant to establish his case has produced photocopies of tour program, provisional booking receipt, money receipt dated 19.01.2017, letter dated 08.02.2017 of OP, Memo dated 02.08.2017 issued by UBI regarding dishonoured of cheque amount of Rs. 55,120/- with remarks “Fund insufficient “, letter dated 20.08.2017 addressed to the OC Shakespeare Sarani PS, Kolkata – 700 017, postal registration receipt and track report of India Post. On perusal of those documents we find that the Complainant booked a tour for Thailand at a package of RS.53,000/- for himself and his wife with the OP. Tour was scheduled to be commenced on 17.02.2017 and the period of tour was 05 nights and 06 days. The Complainant paid full amount on 15.12.2016 and 19.01.2017 by card as it transpires from the letter dated 08.02.2017 addressed to the Complainant by Biplab Mandal, Chairman & Managing Director of Dishari Holidays Limited. It is also evident that the OP cancelled the proposed tour on account of heavy loss in business during January, 2017 and subsequently, shortage of fund. Therefore, the OP was unable to conduct the tour. The OP also sent an intimation letter dated 08.02.2017 to that effect to the Complainant and also issued a cheque bearing No.000992 dated 31.07.2017 drawn on HDFC Bank for Rs.55,120/- including interest. The cheque was post dated and dishonoured on the reason of “ Fund insufficient “. Complainant wrote a letter dated 30.08.2017 to the OP with a request to pay the bounced cheque amount, but such letter was undelivered with postal peon remarks “ Door locked , intimation served “.
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 published an advertisement in a reputed daily newspaper campaigning for tours at different places like Thailand, Andaman etc. Ultimately, the OP has not been able to conduct the tour. Complainant paid the entire amount but unable to enjoy the tour in Thailand. Moreover, OP issued post dated cheque which was dishonoured with the reason “Fund insufficient “. We find that the Complainant faced first harassment for being unable to go to Thailand solely for the fault of OP and secondly, he also moved from pillar to post to get back the money including the Police Administration. Therefore, OP has been deficient in rendering services to the Complainant and indulged in unfair trade practice. We do not find any reason why the OP would collect amount from the customers by publishing advertisement in daily newspaper and hold amount as per his own discretion. Accordingly, we hold that the OP demonstrated a gesture of deficiency in service. OP has also caused harassment, mental pain and agony to the Complainant.
Complainant corroborates 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 the relief as prayed for. All the points under determination are decided in favour of the Complainant.
In the result, the case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is allowed ex parte against the OP in part.
OP is directed to refund the amount of Rs.55,120/- (Rupees fifty-five thousand one hundred twenty) only to the Complainant within 45 days from the date of this order with litigation cost of Rs.2,000/- (Rupees two thousand) only.
OP is further directed to pay an amount of Rs.10,000/- for causing harassment, mental pain and agony to the Complainant within the said stipulated period.
OP is also directed to deposit Rs.10,000/- to this Forum as punitive damage for practicing unfair trade within the specified period.
Liberty be given to the Complainant to put the order in execution, if the OP transgress to comply the order.
