Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.41/29.03.2022
C1. Renu N. Karanjgaonkar w/o Col. Niraj S. Karanjgaonkar
R/o B-3, Service Officers’ Flats, DRDO Complex, Timarpur,
Delhi-110054
C2. Dr. Rakesh Tiwari s/o Shri R.P. Tiwari
R/o A-3/86, Paschim Vihar, New Delhi-110063
C3. Poonam Kataria w/o Shri Sumit Kataria
R/o L 15/10, DLF Phase 2, Gurugram Haryana-122002
C4. Dr. Sanjeev Lehri s/o Shri Sushil Kumar Lehri
R/o 117 MIG, Prasad Nagar (Phase-1) New Delhi-110005
C5. Aroma Jain w/o Shri Vikas Jain
R/o B-1/238, Paschim Vihar, New Delhi-110063
C6. Roli Goel Jindal w/o Shri Anup Jindal
R/o A 1/3 Shakti Nagar Extension, Delhi-110052
C7. Gaganeet Kaur Khurana w/o Shri Amandeep Khurana
R/o 881, Dr. Mukherjee Nagar, Delhi-110009
C8. Ritu Bhatia w/o Shri Ashish Bhatia
R/o Flat 401, 12 Ashoka Road, Alipore, Kolkata …Complainants
Versus
Ed Terra Edventures Private Limited
505-507, Vikrant Towers, 4 Rajendra Place
New Delhi-110008 ...Opposite Party
Date of filing: 29.03.2022
Coram: Date of Order: 01.08.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.11)
1.1. (Introduction to case of parties) – The complainants have grievances of unfair trade practice and deficiency of services against OP. The case of eight complainants is that they had individually paid the agreed amount to the OP for 'international education tour of 08 nights/09 days “Language Immersion Programme” in United Kingdom for specified period for their respective child-student, however, it was cancelled by the OP due to Covid-19 pandemic. The OP had just spent amount of Rs.10,000/- for each ward till then but the balance amount paid was not returned. That is why the joint complaint by all of them for balance amount and other relief. .
1.2. The complainant is opposed by OP that neither there is unfair trade practice nor deficiency of services, since there was Covid -19 wave in the world, the OP had to cancel the tour. Since there was terms and conditions in the registration form, accordingly the OP was entitled to deduct non-refundable amount and the OP had already spent amount of Rs.10,612/- as visa fees, besides blocking the air tickets and other bookings immediately prior to Covid-19 surge. The complainants were offered two option either to reschedule of program or for cancellation of tour, but they had not opted either of them. The amount offered (after appropriate deductions) was also not accepted by them. There is no cause for filing the complainant, besides the complaint in its present form is not maintainable.
2.1. (Case of complainants) –All the eight complainants filed their joint complaint on 29.03.2022 under the provisions of section 35 of the Consumer Protection Act 2019 against OP that they are parents of children [namely – (a) Ishan Karanjgaonkar (son of complainants no.1); (b) Aditi Tiwari (daughter of complainants no.2); (c) Aeshika Kataria (daughter of complainants no.3); (d) Saumya Lehri (daughter of complainants no.4) (e) Parth Jain (son of complainants no.5); (f) Jashodhara Jindal (daughter of complainants no. 6); (g) Ayanveer Singh Khurana (son of complainants no. 7) and (h) Kunj Bhatia (son of complainant no.8) ] studying in Springdales School, Pusa Road, New Delhi, {hereinafter referred either as children or students}. In the academic year 2019-20 the said children were student of Class-VIIth/VIIIth of Springdales School, Pusa Road, New Delhi (hereinafter as the ‘school’). The OP advertised in the school that it had experiences in undertaking international tour for school children and OP had offered tour of 08 nights/09 days “Language Immersion Programme” in United Kingdom. On the basis of such representations made by OP and its officials, the complainants booked 08 nights/09 days "Language Immersion Programme" in United Kingdom for their respective child and as per representations made by OP, this programme was especially designed keeping in mind that the students are student of Class-VII/VIII. The total tour price was Rs. 1,55,000/- per child, according to brochure issued by the OP.
On the basis of representations of OP, the complainants nos. 1 to 7 each made advanced payment of Rs. 1 lakh for the said programme and complainants no. 8 paid entire amount of Rs. 1,55,000/- in respect of their children/students. However, the complainants no.1 to 7 paid the amount in two installments of Rs. 50,000/- each and complainants no. 8 had paid initially Rs. 50,000/- and then balance amount of Rs. 1,05,000/-, for which acknowledgement was issued by the OP [paragraph 4 of the complaint gives payment detail in the form of a Table].
Moreover, as per representations of OP, the amount included towards educational workshop, return airfare, accommodation, internal transportation, all meals, every ticket, visa fee and processing charges, GST and medical insurance. Moreover, as per the brochure provided, the program included - (a) Language Lessons; (b) Touch Rugby Sessions; (c) Excursion to Cambridge; (d) Visit Stratford; (e) Walking tour of London with London Eye; (f) HAKA session; (g) Global Exposure. The cost of such program/excursion was included in the total amount payable by the complainants for their children-students.
2.2 The OP had spent visa fee for the children-students for visiting London, England. Before the other work or expenses could be undertaken or air tickets or other tour program booking could be done, Covid-19 pandemic hit the countries across the Globe including England and India. Because of this reason, the OP failed to undertake the Language Immersion Program in United Kingdom scheduled from 31.03.2020. But despite cancelling the program, the OP failed to refund advance amount of Rs.1 lakh, which was received from each of the complainants nos. 1 to 7 and Rs.1,55,000/- from complainant no.8. The OP had spent Rs. 10,000/- as visa fee for each child out of Rs.1 lakh collected from complainants nos. 1 to 7 and Rs.1,55,000/- from complainants no. 8 but OP had retained illegally balance amount of Rs. 90,000/- in respect of each complainants nos. 1 to 7 and Rs. 1,45,000/- in respect of complainants no. 8; the OP ought to refund the amount to the complainants. Moreover, the complainants approached officials of OP from time to time but they refused to refund the money on the one pretext or the other.
2.3. Since the OP refused to refund the amounts, the complainants got issued legal notice dated 14.12.2021 while calling upon the OP to refund the aforementioned amounts alongwith interest at the rate of 18%pa besides compensation amount of Rs. 2 lakh towards harassment and stress caused to them (the complainants no. 8 had paid amount of Rs. 1,55,000/- but it was mentioned Rs. 1 lakh inadvertently in the notice). In response to legal notice dated 14.12.2021, the OP claims that it sent its notice dated 24.12.2021 by refusing to refund the amount ( i.e. of Rs. 90,000/- to the complainants nos. 1 to 7 and Rs. 1,45,000/- to complainant no. 8), however, no such notice was received by the complainants. The OP also alleges that it had sent a force majeure notice to Springdale School, Pusa Road. Otherwise, there is no such force majeure condition agreed upon between the parties.
2.4. The complainants made the payment of tour directly to OP and the tour was to be undertaken by the OP, the school had no role and there is no privy of the contract between the OP and the school, since payment was received from the complainants individually and not from the school. The OP also refers clause no. 8.2 in the reply to notice but it is baseless since the amount was paid towards tour expenses and not as security deposit; the OP could not forfeit amount of Rs. 30,000/- unilaterally as alleged in the reply to the notice. It was not an earnest money to forfeit under the garb of security deposit but it was advance towards the tour, which could not be undertaken by the OP. The OP is required to refund the amount.
The complainants were made to sign on standard format agreement but the tenor of agreement was grossly biased in favour of OP and it was drafted keeping in view to safeguard the interest of OP and at the detriment of complainants. The terms of agreement are unfair and they cannot be relied upon by the OP to deprive the complainants of their money. They cannot enrich unjustly by retaining the money of complainants, especially the complainants are not responsible or liable for cancellation of tour. Further, the force majeure prevents the performance of contract but does not entitle the OP to misappropriate money of the complainants (viz. Rs. 90,000/- of each complainants nos. 1 to 7 and Rs. 1,45,000/- of complainants no. 8 or other amount of Rs.30,000/-) since no services were rendered by OP and also without actually spending the amount. There was also no unilateral roll-over agreed as alleged and there was no question of accepting the same. The program, for which payment was made by complainants, was for specified schedule of March 2020 for children-students, who were studying in VIIth/VIIIth Class, now they are studying in class 9th & 10th. Therefore, the program which was to be undertaken by those children at that material time had lost relevance. Thus, the OP intends to cheat the complainants of their money under the garb of invoking force majeure. The program was cancelled by OP and retention of money by the OP amounts to criminal misappropriation.
In order to perpetuate that fraud, the OP by its email dated 19.03.2022 sent to some of the parents offered settlement for an amount of Rs. 59,388/- by making unilateral deduction of Rs. 44,612/- and also stating that in case settlement was not acceptable, they would issue travel voucher for roll-over automatically, however, none of the complainants had agreed for the same. They rejected the offer by email dated 23.03.2022 but asked for refund of amount of Rs. 90,000/- with litigation cost of Rs. 9,000/-. The OP had not accepted the proposal of complainants but in response wrote for ‘travel vouchers’ as the exclusive terms for settlement. The acts of the OP are of unfair trade practice, which have caused great loss and injury to the complainants, the complainants went to the extreme stress as they were deprived of their hard earn money vis-à-vis the OP was enjoying that money taken in advance. In this way the OP has acted in a manner prejudicial to the interest of the complainants-customers and that too in most arbitrarily and illegal manner. They are required to be discontinued from such practice.
That is why the joint complaint is filed under the provisions of Order I Rule 8 CPC r/w the law laid down in Brigade Enterprises Limited Vs. Anil Kumar Virmani CA. No. 1779/2021. The complainant nos. 1 to 7 claim refund of Rs. 90,000/- each and complainants no. 8 claims amount of Rs. 1,45,000/- with interest at the rate of 18%pa besides compensation of Rs. 1 lakh to each of the complainants in lieu of loss, harassment, injury and undue hardship. The complainants further seek directions to the OP to discontinue unfair trade practice adopted by it.
2.5. The complaint is accompanied with copies of – brochure, acknowledgement receipt of amount, legal notice dated 14.12.2021, OP's notice dated 24.12.2021, emails dated 19.03.2022, 23.03.2022 and 24.03.2022.
3.1 (Case of OP) -The OP does not dispute the facts which are mentioned in paragraph 2.1 of this order.
3.2. However, the OP denies other allegations of the complaint, besides the present complaint by eight complainants is not maintainable in its present form as the complaint has not been filed for the benefit of all the consumers as such, as class action is expressly prohibited. The complaint is liable to be returned on this short ground.
3.3. It was November 2019 when the school approached and engaged OP to conduct an educational tour for London and other places of interest for 12 of its students and 01 teacher-Chairperson for total cost of Rs. 1,55,000/- per student. It was mutually decided of schedule of 31.03.2020 to 08.04.2020 and the school had acted as a facilitator between the participants through complainants and the OP. The complainants entered into individual agreement with the OP by giving consent in writing to the participation of their wards for the said tour. A separate registration form containing terms and conditions applicable were also filled in. At that time, there was no milieu of Covid-19. Till March 2020, the OP was acting in its normal course of operation and at different stages of operational bookings for various schools including the present group in order to ensure smooth implementation. The OP was able to secure U.K. visa for all the students. The OP also blocked the air tickets for the group with Finnair Airlines , that too with the approval of schools. Further, the OP also paid booking advance amount to the organizer of the program in U.K.
3.4. Due to Covid-19, national lock-down was imposed in India as well as internationally, the local and international travel got suspended and the proposed tour could not be carried out because of such circumstances beyond the control. Moreover, there were series of notification qua lock-downs and correspondingly all kinds of travels were extended by the authorities, which were not anticipated at all.
In the first week of March 2020 the OP voluntarily offered to postpone U. K. program to July of the same year, it also called each and every parent of participant and also extended the option individually besides sharing the cancellation option as per signed agreement, but for those who are willing to cancel the journey. The complainants had refused to accept the offer.
On 16.03.2020, OP sent email force majeure notice to the school in furtherance of clause 8.2 of their Bookings Rules and Regulations of signed agreement, being an option of roll-over (i.e. re-schedule of the program), whenever it was safer to travel. The OP also sent various email, zoom meeting etc. with the school and the complainants, proposing to settle the matter in terms of Booking Rules and Regulations form signed by them but complainants made no efforts and to appreciate the position of OP. The OP also made suggestions and agreement with the school authorities by email dated 14.12.2020 containing terms and conditions of roll-over with each participant individually. Further, OP by email dated 08.03.2022 to the school and emails dated 14.03.2022 & 19.03.2022 to the complainants, again extended the two options viz. (i) issue of travel voucher or (ii) settlement scheme of refund after due deductions, however, the complainants did not accept such options. The OP has invoked clause no. 8.2 in registration form in all cases of cancellation due to unforeseeable situations. The clause 8.2 reads as :-
"Clause 8.2 of Registration Form reads - "EdTerra holds the right to cancel a journey when there are less than 10 full paying participants from one school. Ed Terra will cancel a journey if unforeseen circumstances (political or social instability, inclement weather, natural disasters, acts of war, terrorist acts, incidents of violence, medical issues, public health hazards, strikes, lockouts, government instability, unusual and vast fluctuations in foreign exchange currencies, fires, etc) pose a threat to the safety and well-being of the participants. In such a situation, Ed Terra may provide the participants with a journey voucher equivalent to the value paid by them for the cancelled journey, minus the non-refundable portion of the enrollment security, i.e. Rs. 30,000/- and visa and insurance charges (if applicable) or reschedule the journey for which additional charges will apply.....".
The option extended to the complainants are to be determined after taking into consideration the terms and conditions between the parties instead of unilateral demand of refund raised by the complainants. However, the OP agrees to refund the amount, on compassionate ground, but after charging/reducing non-refundable security and the visa fee paid to the U.K. Embassy. Further, out of twelve travelling participants, four participants have accepted the offer of the OP company by virtue of refunds given to them but after deducting refundable security amount and visa fee, by executing settlement agreements. The complainants do not realize that cancellation of tour was due to extra-ordinary circumstances all over the world due to Covid-19 pandemic and there was no fault of OP. Thus, service were provided by the OP and the same were not deficient. Moreover, the OP also made efforts to carry out its responsibilities before the impact of Covid-19. There is force majeure situation and it was the beyond the control of OP.
3.5 Program fee was inclusive of non-refundable security of Rs. 25,000/- as per circular as well as terms of the signed agreement. The OP extended offer of refunds (after due deductions) on compassionate grounds, since at-least Rs. 35,612/- are deductable in lieu of agreed non-refundable security of Rs. 25,000/- and Rs. 10,612/- of visa fees spent by the OP. The OP by emails in March 2022 not only extended two options to the complainants but also informed that non-refundable security amount is Rs. 25,000/- and not Rs. 30,000/-. The OP agrees to refund amount of Rs. 64,388/- to the complainants no. 1 to 7 and Rs. 1,19,388/- to complainant no. 8 [after deducting non-refundable security of Rs. 25,000/- and visa fee of Rs. 10,612/-] but it was not accepted by the complainants. They filed false and frivolous complaint and it is liable to be dismissed.
3.6 The reply is accompanied with copies of - Board Resolution dated 31.05.2022 in favour of Sh. Sumant Vij, author of the written statement, registration forms of the children of complainants, booking application form, circular, emails and copy of settlement agreement of all other participants.
4. (Replication of complainants) – The complainants also filed their detailed rejoinder, each and every aspect of the written statement has been replied and the allegations of written statement are denied. The OP relies upon clause no. 8.2 of booking form, but the same was not signed by the complainants vis-à-vis otherwise, there was no provision or agreement of non-refundable security of Rs. 25,000/-. The joint complaint of eight complainants is maintainable. The force majeure condition is being wrongly invoked to deny the legible claim/refund of complainants, however, the unilateral deduction of Rs. 40,612/- is not tenable nor acceptable and there is no reason for the OP to enrich unjustly for Rs. 25,000/- or Rs. 30,000/-. The OP has spent visa fee of Rs.10,000/- but rest of the amount is liable to be returned to the complainants, as claimed.
5.1. (Evidence) - In order to establish the complaint, all the eight complainants (as arrayed in the title), filed their respective affidavit of evidence, with the support of documents filed with the pleading. Each complainant has narrated the case as stated in the complaint in respect of their respective child-student.
5.2. On the other side, OP also led evidence by filing detailed affidavit of Sh. Sumant Vij, authorized representative of OP and his affidavit is on the lines of written statement coupled with the documentary record filed with the reply, besides reproduction of clause no. 8.2 of registration form (already stated in paragraph no.3.4 above).
6.1 (Final hearing)-The parties were given opportunity to file written arguments and to make oral submissions. Both the parties filed their written arguments and the same was followed by oral submissions by Sh. Sanjeev Mahajan, Advocate for complainants and Sh. Digvijay Singh, Advocate for OP.
6.2. The case of parties and their rival contentions are not required to be referred again in this paragraph, since their case has been detailed in paragraph 2 & 3 above. However, in order to fortify their contentions, the parties have also referred the case law, it will be mentioned appropriately while dealing with the point for determination.
7.1 (Findings)- The contentions of both the sides are considered, keeping in view the material on record, the case law presented and provisions of law especially sections 5 (v) [ under the definition of "complainant" that there may be one or more consumers (in the situation of numerous consumer) , having common interest], 35 (1) (c) [manner in which complaint may be filed with the permission of Commission under the eventuality of sec.2(v)] & 38(11) of the Consumer Protection Act, 2019 read with Order I Rule 8 CPC [one person may sue or defend on behalf of all in same interest].
7.2.1 The OP has strong objections that the complaint of eight complainants is barred by law, it is not maintainable in its present form, since the complaint was not filed for the benefit of all the consumers and class action is prohibited. The OP also derives reasons from the following cases :-
(i) Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt.
Ltd, dod 07.10.2017 the Hon'ble National Commission on interpretation and scope of section 12(1) (c) of the Consumer Protection Act, 1986 observed that
"The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term 'persons so interested' and 'persons
having the same interest' used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words
"all consumers so interested' and "on behalf of or for the benefit of all consumers so interested", in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider".
(ii) Abhishek Roy & 3 Ors. vs M/s Unitech Limited CC 1038/2016 dod 11.04.2017 (N. C New Delhi) it was held that on reading of the above observations of Larger Bench it is clear that where there are numerous consumers having common interest, one or more consumers can be permitted to maintain a joint complaint provided there is a communality of interest amongst the complainants and numerous other consumers and the complaint has been filed for the benefit of all such consumers including the consumers who are not party to the complaint but having the same interest.
8. As the complainants have sought reliefs for themselves and not on behalf of other consumers who have booked the flats in the subject development project, this matter cannot be termed as "class action" as envisaged under Section 12 (1) (c) of the Act. Thus, this is not a fit case for grant of permission under Section 12 (1) (c) of the Act. Permission is accordingly declined as three different complainants have filed the joint complaint in respect of their respective agreements. This is a clear case of mis-joinder of parties and causes of action. Accordingly complaint is dismissed.
7.2.2 But on the other side the complainants have reservation that the present complaint in its present form is valid and competent complaint, since all the complainants have joint together as there is common issue involved as well as each of the complainants is seeking refund of the amount as well as other relief, pursuant to cancellation of the education tour by the OP. The joint complaint is maintainable under the provisions of the Consumer Protection Act 2019. The complainant relies upon case law (which has also been referred in paragraph 27 of the complaint) :-
(a) Brigade Enterprises Ltd. Vs. Anil Kumar Virmani & Ors. Civil Appeal no.1779/2021 (= 2022 II AD (SC) 15 dod 17.12.2021], it was held that the joint complaint by more than one complainant is maintainable by the complainants for reliefs for themselves, while also discussing Ambrish Kumar Shukla case (supra) and other cases.
7.2.3 The rival contentions on this issue is considered keeping in view the nature of complaint, its substance, the relief claimed in the light of relevant sections of the Consumer Protection Act 2019 (already referred), Order I Rule 8 CPC and case laws. In brief, the plea of OP is that it is a complaint of eight complainants, but for want of appropriate permission from the Commission and also for want of seeking benefit of all the consumers having common interest, the complaint is not maintainable. Whereas, on the other side the complainants have contrary plea that the joint complaint of eight complainants is maintainable and it is not a class suit as being projected on behalf of OP.
On plain reading of the contents of complaint and evidence led by each individual complainant, each of them is seeking refund of the advance amount given to the OP by reducing the visa fee. It is not the case that any of the complainants for seeking relief for other seven complainants or on their behalf. Moreover, the complainants have proved legal notice dated 14.12.2021, which is also not disputed by the OP. This legal notice (Annexure C3/page 60) was sent on behalf of twelve persons, however, out of them eights complainants have filed the claim. But the present eight complainants or any of them are not making any claim about those four persons for whom notice was also sent. It further confirms that all the eights complainants have joint together by filing joint complaint against the OP and there are common facts and issues involved but relief is being claimed by each individual complainant and for or on behalf of others. Therefore, it is a joint complaint and the law laid in Brigade Enterprises Ltd. Vs. Anil Kumar Virmani & Ors. case is applicable to the present situation. The complainant is maintainable in its present form.
It will also not be out of context to mention that section 2 (v) is to be read with section 35(1) (c) and Order I Rule 8 CPC but it applies when one person may sue on behalf of all others having same interest and provisions of section 35(1)(c) of the Act, 2019 is not applicable. This is not the situation in the present complaint. Accordingly, this contention is disposed off.
7.4.1 Now the other issues can be taken up.
7.4.2 By taking into account the entire case of both the sides, it is not a disputed fact that out of the amount received by the OP from the complainants, the OP has paid visa fee. However, according to complainants the visa fee was Rs. 10,000/- for each participant but according to the OP the visa fee was Rs. 10,612/-. There is a difference of Rs. 612/-.
By considering that the OP had actually made the efforts for visa purposes, therefore, it is believed that actual expenses incurred were Rs. 10,612/- by OP, this expenditure is being considered for the purposes of visa fee. There is also no dispute by the complainants, to the extent, that visa fee is liable to be deducted from the advance amount.
8.1 There was also rival stand that the complainants were given option for deferred tour to be for re-schedule program or travel voucher, which were not acceptable to the complainants. The answer of this aspect lies in the record itself, the following conclusions are culled out :-
(a) When it was already pandemic Covid-19 situation and it was not known when the things will be normalized, how the complainants could agreed for deferred tour program for their children-students?.
(b) It is admitted case of OP that complainants' children were student of VIIth / VIIIth classes, correspondingly there is a particular age for the student of VIIth/ VIIIth class, then how the complainants could agree for future program.
(c) It is also undisputed that the participants are student-children of the school, the program was scheduled accordingly, there was no occasion for the individual complainants to opt for separate program offered by the OP.
(d) the students of class VIIth/VIIIth standard had reached to other upper standard with the passage of time vis a vis it is well known facts that things turned towards normalcy in 2022.
(e) As appearing, the OP had offered the travel voucher according to its own business convenience without considering the other aspects involved, referred in the aforementioned sub- clauses of this sub-paragraph.
In view of the above, as appearing, the complainants were justified by not accepting unilateral offer of OP in respect of roll over tour program or travel vouchers.
8.2 Now the controversy has been further narrowed to the extent that that the OP was offering rest of the amount but after deducting amount of Rs. 30,000/-, which was subsequently suggested as Rs. 25,000/-. In order to decide this point, the record is weighted, analyzed and then following conclusions are drawn:-
(i) The OP has relied upon clause no. 8.2 of the registration application form, this clause has been referred/reproduced in paragraph no. 10 of the written statement, and in paragraph 16 of the affidavit of the evidence that an amount of Rs. 30,000/- is deductable/non-refundable portion. It is also mentioned/reproduced in paragraph 5 of the OP’s notice dated 24.12.2021. But the OP in its written statement also mentions that the amount was Rs. 25,000/- and not Rs. 30,000/-, besides it was also apprised to the complainants by emails of March 2022.
(ii) In view of (i) above, the circular form proved by the parties (which is at page no. 50&51/Annexure C1 in the paper book of the complainants and page no. 27 & 27A/Annexure-3 in the paper book of OP), it mentions on its face that Rs. 30,000/- is non-refundable. It is not Rs. 25,000/-. Moreover, the circular does not contain detailed terms and conditions but this document was used for the purposes of booking tour by mentioning detail of three installment of total amount and period in which amount is to be deposited.
(iii) The OP has produced booking form (page no. 26-26C being part of Annexure-2) to be containing terms and conditions (including clause 8.2), but the same is denied by the complainants either for want of supplying to them or signing the same.
However, clause 8.2 being relied upon by the OP find mentions at page no. 26B of this Annexure-2. But immediately prior to this clause 8.2, there is another clause 8.1 under the main heading "cancellation policy". Briefly, clause 8.2 specifies different slabs of cancellation charges with duration when cancellation is done by the participants and amount is refunded after deducting non-refundable security of Rs. 30,000/-. But the clause 8.2 is in respect of cancellation on the part of OP and the amount mentioned in this clause 8.2 is Rs. 25,000/- and not Rs. 30,000/- (but the clause 8.2 reproduced in the legal notice dated 24.12.2021, written statement and in the evidence mentions the amount Rs. 30,000/-; this clause has already been reproduced in sub-paragraph 3.4 above of this order). It proves that clause 8.2 applies when cancellation of the tour is on the part of OP and as per booking form at page no. 26B, the amount is Rs. 25,000/- and not Rs. 30,000/-.
(iv) Further, the clause 8.1 applies when cancellation is done on the part of participants and then amount of Rs. 30,000/- will be deducted but this is not the case of parties of cancellation of tour by the participants or complainants.
(v) On the face of circular (at page no. 51 of the complainants’ paper book and page no. 27A of the paper book of OP) the non-refundable amount of Rs. 30,000/- is mentioned. This demonstrates that it is in reference to situation of cancellation of tour by the participant, by referring to the clause 8.2
. This circular does not mention that amount of Rs. 25,000/- would be deductable in case OP cancels the tour. This demonstrates that the OP has intentionally withheld material information of non-refundable amount of Rs. 25,000/- in case the tour is to be cancelled by the OP or in other words it was not put to the terms and conditions in the circular that there may be a situation of non-refundable amount of Rs. 25,000/- in case the tour/program is cancelled by OP.
To say, when it was not put to terms and conditions in the said circular, how the complainants would be bound for non refundable of Rs. 25,000/- by the OP. Further, there is inconsistent stand by the OP initially in its notice dated 24.12.2021 that the amount deductible is Rs. 30,000/-, it was also repeated in the written statement and the same was followed in the affidavit of evidence. It is appearing to make a camouflage that since amount of Rs. 30,000/- is mentioned in the circular and that is why clause 8.2 was invoked in a manner to show as if the amount deductible is Rs. 30,000/-.
Moreover, the OPs have also proved settlement deed of other four persons, whom refund of Rs. 59,388/- was made pursuant to settlement between those four and the OP. On plain calculation, picture will be crystal clear. It was advanced amount of Rs. 1 lakh, the visa fee amount was Rs. 10,612/- and another amount of Rs. 30,000/- was deducted and balance amount of Rs. 59,388/- was paid to each of those four participants. Whereas, it was never the case of cancellation of tour by those four participants nor it was case of clause 8.1 being relied upon by OP but OP had deducted amount of Rs.30,000/- for each one of those four persons. This proves unfair practice on the part of OP.
(vi) In fact, by reading clause 8.1 and 8.2 together, from the registration form brought on record by the OP, it is emerging that in the eventuality the participants cancel the tour then OP will make deductions of Rs. 30,000/-, however, in other situation if OP cancels the tour then an amount of Rs. 25,000/- will be deducted. It means in both the eventuality the OP will retain the amount of participants. The clauses are not appearing to be justified but are framed by the OP being creator of the application form. Simultaneously, the OP could not prove that those terms and conditions of registration were provided to the complainants or it were part of application form filled by the complainants for their children-students. The application forms of each participant is on record, which are also signed by the parent of ward. The sheet of form is complete in itself. The terms and conditions are separate paper book, the complainant deny of its receipt of want of supply by the OP vis a vis there is no proof that each participant or complainant was provided the same.
(vii) The OP has emphasized that there was advance booking with regard to other services or blocking of air tickets, however, the OP has not brought any fact on record that it had actually blocked the tickets, or when the tickets were got blocked or what amount was paid as an advance for air tickets or for other services. The OP could not establish these facts. There is also no other plea or proof that in case any advance was given, what happened to it? The OP was required to establish it but it failed.
(viii) Moreover, so far pandemic Covid-19 situation around the Globe inclusive of India is concerned, since it was not in the control of either side, therefore, the OP cannot derive any benefit under the garb of that pandemic situation to retain refund -able amount of complainants.
The aforementioned analysis and conclusion shows facts, documents and circumstances brought on record are clearly establishing that the OP cannot deduct amount of Rs. 25,000/- for each participants (or Rs. 30,000/- but not pressed for by the OP) from the advance amount given by the complainants. There is also no dispute that the other amount is also refundable (except visa fee of Rs. 10,612/-), which was also conceded by the OP.
8.3 In view thereof it is held each of complainants nos.1 to 7 is entitled from OP for refund of amount of Rs. 89,388/- [Rs. 1,00,000/- less less visa fee of Rs.10,612/- spent by OP] and complainant no.8 is entitled for refund of amount of Rs. 1,44,388/- [Rs. 1,55,000/- less visa fee of Rs.10,612/-].
8.4. Since, it is already held in sub-paragraph 8.3 above that the complainants are entitled for refund of amounts and by considering the inconvenience, difficulties, trauma faced by the complainants while pursuing and seeking their valid refund, they deserve reasonable compensation to be consonance to the situation involved and balance amount. Thus, compensation of Rs.17,000/- is determined in favour of each complainants and against the OP/insured besides costs of Rs.8,000/- is also allowed in favour of each complainants and against OP.
8.5 The complainants claim interest of 18%pa, however, there is no proof of such of rate of interest nor it is so specified in the insurance policy. Simultaneously, the complainants had parted with their money; they remained deprived of that amount which they were entitled to hold, therefore, it is appropriate to award simple interest at the rate of 6%pa from the date of complaint till realization of the balance amount of each complainant.
9.1 Accordingly, the complaint is allowed in favour of the complainants and against the OP to reimburse balance amount of Rs. 89,388/- to each complainants nos.1 to 7 and balance amount of Rs. 1,44,388/- to complainant no.8 along-with interest at the rate of 6%pa from the date of complaint till realization of the amount, apart from compensation of Rs. 17,000/- to each complainant and cost of Rs. 8,000/- to each complainants.
The OP will pay the amount within 45 days from date of this order, failing which the OP will be liable to pay enhanced interest at the rate of 8% on the balance amount payable. The OP may deposit the amount within time in the Registry of this Commission by way of valid instrument in the name of each individual complainants nos. 1 to 8.
9.2 Since, the participants are student of Springdales School, Pusa Road, New Delhi; this school has role of facilitator in the program; the circular was issued and communicated through the school. It warrants to send copy of this Final Order to the Springdales School, Pusa Road, New Delhi so that if any program are planned and arranged for its students in future, then it should be ensured that all relevant and material information is provided and made available to school, participants and/or their parents, to avoid arising of any disputes and litigations, which involves energy, time, power and other off shoots of legal proceedings. The Registry shall also sent copy of this Order to School. With this observation the complaint is disposed off.
10. Announced on this 01st day of August, 2024 [श्र!वण 10, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[ijs-97]
