Date of filing: 16/07/2021
Date of Judgment: 17/01/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Dr. Alok Kumar Datta, under section 35 of the Consumer Protection Act, 2019 against opposite party (referred as O.P. hereinafter) namely Flying Squirrel Holiday (FSM) alleging deficiency in rendering service on the part of O.P.
Case of the complainant in short is that having expressed his positive intent with the O.P. to travel East European Countries around 1st week of June 2020 and having cordial relation with O.P., without any proper quotation and itinerary of tour, complainant to facilitate the travel arrangement paid sum of Rs. 2,50,000/- through two cheques dated 30.01.2020 and 06.03.2020. The “Tax Invoice” of Rs. 3,56,486/- was only submitted through an E-mail by the O.P. on 18.03.2020. But the said purported Tax invoice neither had any break-up nor had any acknowledgement receipt / voucher. It also did not have buyer’s address. Price quoted therein included GST and SGST months before start of the Tour. Tax invoice did not show any convincing proof of connection between the stated price and the detailed tour itinerary. So the said Tax invoice issued by the O.P. was erroneous and prepared with an ulterior motive. Due to worldwide pandemic of Covid – 19 and declaration of lockdown in India from 22.03.2020 including ban on travelling by air domestically and internationally, visas of complainant and his wife could not be processed as other countries including East Europe where the complainant desired to visit had also declared ban on tourists. So complainant requested the O.P. to refund the amount paid by him. O.P. refunded only a sum of Rs. 53,954/- in the account of the complainant but did not refund rest of the amount of Rs. 1,03,046/-. So a legal notice was served upon the O.P. and in response to the same, O.P. replied that complainant was entitled to a sum of Rs. 69,095/- only. But since the tour did not take place, deduction of any service charge by the O.P. is illegal as question of providing any service did not arise. So the present complaint is filed by the complainant praying for directing the O.P. to refund Rs. 1,03,046/-, to pay compensation of Rs. 1,00,000/- and litigation cost of Rs. 50,000/-.
O.P. in spite of service of notice did not take any step nor filed any written version and thus the case has been heard exparte.
So the only point requires determination is that whether the complainant is entitled to the reliefs as prayed for?
DECISION WITH REASONS
In support of his claim that he paid Rs. 2,50,000/- to the O.P. to travel to East European Countries, complainant has filed the passbook of his bank account and money receipt wherefrom it appears that Rs. 1,50,000/- was received by O.P. on 04.02.2020 and Rs. 1,00,000/- on 09.03.2020. However on a careful scrutiny of the documents filed by the complainant and the complaint itself, it appears that the dispute now is restricted only for non-payment of an amount of Rs. 33,951/-. Admitted case of the complainant is that sum of Rs. 53,954/- has already been refunded in the bank account of the complainant and O.P. in its reply dated 31.12.2020 offered to pay sum of Rs. 69,095/- to the complainant but has withheld sum of Rs. 33,951/-. According to complainant, he is entitled to entire sum of Rs. 1,03,046/-. The documents filed by the complainant also consists of the said reply sent by the O.P. dated 31.12.2020 and it appears from the said document that the said sum of Rs. 33,951/- has been retained by O.P. being 10% of the total consideration. But no agreement or any other document is forthcoming before this commission that O.P. was entitled to such deduction as per the terms and condition of any agreement between the parties. It may be pertinent to point out that it is the specific case of the complainant that no quotation or any itinerary or tour programme was issued by the O.P. Even the tax invoice dated 14.03.2020 did not disclose of any break ups. There was no mention of any hotel arrangements or desired tour itinerary. So the case of the complainant is very categorical that no agreement was executed between the parties. If that be so than as it is known fact that due to Covid – 19 pandemic and lockdown there was ban on travelling by air domestically or internationally and no visa could be processed than the O.P. has to explain on what account said 10% of total amount was retained by it. It is rightly claimed by the complainant that question of providing any kind of service by the O.P. did not arise as tour did not happen. So no amount towards any service charge could be deducted by the O.P.
In this case it is evident that alleged tour was to be held in the 1st week of June 2020 but much before the said date, lockdown in India was declared i.e. on 22.03.2020. So it cannot be said that O.P had already made arrangement especially when before this Commission, no such material is forthcoming that O.P. had already taken steps towards hotel accommodations, sightseeing etc. So in the absence of any such document justifying such deduction by the O.P., we find complainant is entitled to the refund of entire sum of Rs. 1,03,046/- along with interest on the said sum as compensation.
Hence,
ORDERED
CC/298/2021 is allowed exparte. Opposite party is directed to refund Rs. 1,03,046/- to the complainant along with interest on the said sum @ 8% p.a. from 19.05.2020 (the date of letter sent by complainant asking for refund) within 60 days from the date of this order. O.P. is further directed to pay Rs. 10,000/- as litigation cost within the aforesaid period of 60 days, in default of payment, the entire amount shall carry interest @ 8% p.a. till its realisation.
