Complainant by filing this complaint has submitted thatcomplainant and his family members are tour loving family and used to travel to go out for long tour and for which complainant hired service of the op ChaloJaai Travel Club in so many earlier occasions.  Subsequently as per programme as fixed by the op for a tour programme Himachal (Big) having its departure date on 18.05.2014 complainant and his family members for total eight persons booked for the said tour and per member package money was Rs. 17,200/-.  So, complainant paid a sum of Rs. 50,000/- as advance amount on 21.02.2014 and advance receipt was issued on 21.02.2014 by the op.

          But unfortunately the mother of the complainant Rekha Chakraborty aged about 60 year just after taking meal at night died due to sudden cardio vascular attack at night of 28.03.2014 without getting any scope of treatment and in such a sad demise of Rekha Chakraborty, all members of the said tour particularly of her family members lost their mental strength and capacity to move but they were engaged for her rituals and while family of complainant and members lost all charm of tour at such uncontrolled situation and mental grief and just after that the condition of the complainant’s father became beyond control for which under such situation complainant was per forced to cancel the said tour and that was intimated to the op by e-mail on 31.03.2014.   After facing much uncontrolled situation of the family prayed for cancellation of the said booking and prayed for refund of the booking amount.

          On receipt of that e-mail, op reported that out of Rs. 50,000/- only Rs. 15,000/- shall be refunded after deduction of Rs. 35,000/- but reason of such sort of huge deduction is completely illegal and uncalled for and in the present situation and in the present fact and circumstances, the clause of cancellation is not applicable in the eye of law when situation for cancellation was impassible and irremediable.

          Fact remains that it was an accident in the family of the complainant as not anticipated but even the op and its staff have taken an immoral and unfair trade practice and are forcing the complainant to receive a meagre amount of Rs. 15,000/- and to settle the dispute.  But ultimately complainant sent e-mail on 14.04.2014 for refund of the said amount of Rs. 50,000/- after deduction of 5 percent.  But after that op did not respond.  In the above circumstances, complainant has prayed for redressal for refunding the entire booking amount though no service is enjoyed by the complainant and other family members and also for adopting unfair trade practice by the op.  In the above circumstances, complainant prayed for redressal.

          On the other hand op by filing written version submitted that the complainant knowing fully well of the terms and conditions signed in the said advance booking slip and final voucher and complainant admitted that he did not avail of the said tour programme and cancelled the same within 30 days before the date of journey that is on 31.03.2014 through an e-mail and then and there op reported the complainant the refund amount of the booking money as per cancellation is sum of Rs. 15,000/- out of booking amount of Rs. 50,000/- and there was no negligence and deficiency on the part of the op and ops never adopted any unfair trade practice and in this regard everything was done as per terms and conditions of the Cancellation Rules what complainant accepted at the time of booking the said tour and moreover complainant has not suffered any loss and for which the complainant is not entitled to get any relief and in the above circumstances, the complaint should be dismissed.

Decision with reasons

          After hearing the complainant and the Ld. Lawyer for the op and also considering the complaint and written version, it is found that it is undisputed fact that complainant booked for the said tour programme Himachal (Big) conducted by the op and paid advance of Rs. 50,000/- on 21.02.2014 on receipt of the payment voucher in which it is written the Rules for cancellation of tour etc.

          Admitted fact is that complainant signed in the said paper that is receipt voucher in which cancellation conditions are noted.  But fact remains that the present situation is beyond the control of the complainant and his family members because one of the member of the said tour programme that is the mother of the complainant Rekha Chakraborty unfortunately died due to cardio vascular attack on the night of 28.03.2014 without getting any scope for treatment and fact remains that as per said advance voucher the fixed date of journey was on 28.05.2014.  But in fact it is specifically mentioned in the complaint that on the death of the mother of the complainant (Rekha Chakraborty), complainant and his family member were completely shocked and failed to enjoy any such tour programme and in the above situation all the family members were in mournful condition and it is specifically mentioned by the complainant that father of the complainant after death of his mother became seriously ill and he was under constant treatment for which they were compelled to cancel the said tour programme and no doubt that cancellation intimation was reported within 3 days from the date of his mother that is on 31.03.2014.

          Now question is whether there was any fault on the part of the complainant for cancelling the same?  In this regard the Ld. Lawyer for the op submitted one ruling reported in 2014 (3) CPR NC and stated that parties are bound by the agreement entered into between the complainant and op and when complainant sent the said final voucher with condition of cancellation after understanding it, there is no scope to go beyond that agreement.  So as per agreement parties are bound by the terms and conditions of the agreement.

          But fact remains that in this case the complainant put question to the op 12 in numbers, particularly question No.9 – by which complainant put question to the op “have you shown your morality and humanity in the present situation”? But the reply of op against that question is irrelevant and incomplete question and cannot claim any reply.  Another question was put by the complainant to the op whether the cancellation of tour was at all intentional on the part of the complainant?  Op replied against that question to the effect that this is irrelevant and incomplete question and cannot claim any reply.   Another question was put by the complainant that is question No.3 that “whether in such a situation would you enjoy such a tour morally and socially as a human being”? and reply of the op was that it is irrelevant question and deserved no answer.

          Considering the answers of the op, it is clear that op has not answered regarding the present situation of the complainant for which the cancellation was made by the complainant and morally and socially it is impassible for any human being after the death of mother for family members who were also party in the said tour and after the death the situation of father of the complainant became serious which has not been challenged by the ops.  Then we are confirmed that the cancellation of the tour was not intentional or for any magic cause.  But the situation was beyond the control of the complainant and their family member to enjoy such a tour after the death of Rekha Chakraborty and on her death the serious condition of her husband who was also a member of the said tour programme.

          So, we are convinced to hold that in view of the ops as per their reply, the situation for cancellation was impassible and ir-remediable and was beyond the control of the complainant.  When that is the fact then as per principle as laid down in the ruling reported in AIR 1974 SC 682, we find that by the judgementHon’ble Supreme Court already decided that any parties’ non-performance in respect of agreement is no doubt a pro-rata on the part of the parties.  But such an instant which is beyond control can invariably excuses the non-performance by the agreement by any parties and by that judgement, Hon’ble Supreme Court has observed if it is found that any party has failed to comply the terms and conditions of the policy for any reason, incapability of doing what is required by the agreement excuses by the parties for the inability on the part of the complainant cannot be treated as wrong and at the same time application to perform part contract to arise where forced majure instances are not found.

          Considering the principle and spirit of the said judgement and after applying that principle in the present particular case, it is found that there was a forced majure instances and complainant and their family members were compelled to cancel the same because it was impossible for them to do what is required by the said clause of the tour programme and such inability on the part of the complainant cannot be treated as a wrong on the part of the complainant and their family members and fact remains that it is settled principle of law that the application to perform the part of contract to assess where forced majureinstances are not found.  At the same time the present instance excuses the non-performance of the agreement in between the parties and by the complainant and in this regard we have relied upon the ruling as referred in AIR 1974 Supreme Court 682 and we are confirmed that the Hon’ble Supreme Court judgement is binding upon all including National Commission and State Commission and the District Forum.  So the ruling as referred by the op is not applicable in this case and that judgement as referred by the ops’ Ld. Lawyer cannot be applied in the present case because present case is completely different from any other cases or the cases as discussed in the judgement as referred by the op.

          Moreover considering the whole fact and circumstances including the inability of the complainant to avail of the said tour programme was not the fault of the complainant but it was impossible for the complainant to perform and for which in the eye of law complainant has not violated any terms and conditions of the said agreement in between the parties as enumerated on the back of the booking receipt and no doubt in the eye of law it is not a willful fault on the part of the complainant because it was impossible situation which prompted the complainant to cancel the said booking and no doubt it was a forced majure instance and fact remains in such a situation no gentle human being can not enjoy such a tour along with other family members who are on grief and also were engaged in serving the said lady’s husband who became ill on the death of his wife Rekha Chakraborty.

          From the answers as given by the op against questions put by the complainant it is found that those ops never showed any morality, humanity and at the same time no social responsibility to the consumer and from their written answers against question of the complainant it is proved that their mentality is as such,family members may die for that reason the ops shall have not to refrain from enjoying their tour at different places as pleasant tour.

          Further considering the reply of the ops, it is clear that their human sense is absence.  They are only for enjoyment and death of any family members of the consumer does not touch their human heart because they are trader and their work is only to squeeze money from the consumers even if the consumer’s family member dies or faces accident and caused death and only their say is that agreement is there.  So, amount shall be forfeited.  If consumer dies even then it shall be deducted if any member of the tour parties dies even then it shall be forfeited.

          Considering all the above fact and circumstances, it is clear that practically death does not any way touch their humanity even in their family and considering their written version we are confirmed that those ops are borne only for enjoyment but not for serving their aged mother, parent, family members and they are not thinking over the grief of any consumer family which is their reason for cancellation but they are booking and they are grabbing the money anyhow.  Whether death is caused to the consumer or his family members or any accident is caused in the family of the consumer they are not in a position take any moral view for that the matter and in fact considering such sort of activities of the immoral business men and traders, Hon’ble Supreme Court in that judgement decided that this theorization the forced majure instances excuses an uncontrolled situation for which the person was not possible to perform the agreement.

          In the light of the above observation we are convinced to hold that no doubt the present complainant practically failed to comply the agreement as entire case was beyond his control and it was a forced majure situation and practically a simple human being cannot enjoy such a tour on the death of his mother and on for ill health of his father.  In such circumstances what we have gathered from the reply of the question of the complainant.  Then it is clear that those ops as corporate business men have no social responsibility, moral application, morality but showed inhuman approach also in respect of such incident what has prompted this Forum to say that those ops only for the purpose of grabbing money informed the complainant that they are willing to refund of Rs. 15,000/- but at the same time ops have failed to show their human face in respect of such sort of cancellation and they have also failed to produce any documents before this Forum that they already faced any loss though same were subsequently cancelled within three days.  So, the approach of the op is immoral, uncalled for and against any social responsibility of any such business men.

          Most interesting factor is that even in such a situation complainant offered the op to deduct 5 percent as service charge etc.  But that was refused.  No doubt it is unsocial approach on the part of the op.  In our view op must have to learn at first the social responsibility, morality and at the same time the legal position in this regard before handling any matter with the consumers.  No doubt the business men one here and there to suck money of the complainant and for that reason they are conducting such business.  But at the same time they shall have to realise that defence of the consumers in exceptional case and in such exceptional case what would be the actual decision of the business men that is already decided by the Hon’ble Supreme Court and same is reported in AIR 1974 SC 682.

          But we are very much satisfied that complainant in his hard days also showed their moral obligation to deduct 5 percent but ops are not willing to accept.  But anyhow considering all the above fact and circumstances, materials including the judgement of the Supreme Court we are convinced to hold that complainant is entitled to get back Rs. 50,000/- after deducting 5 percent as service charge by the op and for causing mental pain and harassment to the complainant by the op, op shall have to pay Rs. 10,000/- as compensation for causing mental pain and agony and harassment to the complainant and also the cost of this case i.e. Rs. 5,000/-.

          Accordingly the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs. 5,000/- against the ops.

          Ops are directed to refund Rs. 50,000/- the advance paid amount after deducting 5 percent service charge from the same and also shall have to pay Rs. 10,000/- as compensation for causing mental pain and agony and harassment to the complainant.  Accordingly ops jointly and severally are hereby directed to pay Rs. 5,000/- as litigation cost + Rs. 47,500/- i.e. after deduction of 5 percent of the advance amount of Rs. 50,000/- + Rs. 10,000/- compensation i.e. total Rs. 62,500/- to the complainant within 15 days from the date of this order failing which for non-compliance of the Forum’s order penal damages  percentRs. 300/- per day shall be assessed till full satisfaction of the decree and if the penal damages is collected, it shall be deposited to this Forum.

          Even if it is found that ops are unwilling to comply the order in that case penal proceeding shall be started against them for which further penalty and fine shall be imposed.