IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 12th day of July, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 104/2020 (filed on 07-08-2020)
Petitioners : 1) Dr. Krishnakumar V.S.
M.D. Senior Consultant Physician,
Prasanthi, XVIII/645,
Pandit Narayana Dev Road,
Muttambalam P.O.
Muttambalam Village, Kottayam
Taluk, Kottayam Dist.
2) Dr. Nagalatha R.
W/o. Dr. Krishnakumar,
Prasanthi, XVIII/645,
Pandit Narayana Dev Road,
Muttambalam P.O.
Muttambalam Village, Kottayam
Taluk, Kottayam Dist.
[Adv. Siby Jacob (Pampady)]
Vs.
Opposite party : Fortune Destination Management
(India) Pvt. Ltd.
Represented by its Managing
Director Bastin Joseph,
1st Floor, Mannamthara Tower,
Paramara Road, Ernakulam North,
Cochin – 682 018.
(Adv. M.K. Jose and Adv. P.C. Chacko)
O R D E R
Sri. Manulal V.S. President
The crux of the complaint is as follows.
Complainants are well known Doctors practicing at Kottayam. Upon seen the advertisement given by the opposite party in Malayala Manorama daily the complainants made an enquiry and as informed by the opposite party, the complainants availed the service of the opposite party for tour packages to Europe. In pursuance of the offer made by the opposite party, the 1st complainant paid an amount of Rs.1,99,800/- to the opposite party for the said tour package. The date of tour was fixed as 28-03-2020. In the meanwhile the opposite party informed the complainants that the tour was cancelled owing to Covid outbreak. It is averred by the complainant that before making the payment there was a discussion between the opposite party and the complainant regarding the Covid-19 outbreak. Then the opposite party specifically informed that there is no travel restriction and the tour would be carried out without any problems on the said date. The complainants had made payments based on the assurance made by the opposite party. The employees of the opposite party had also categorically given assurance that in case of any cancellation of tour, the money would be refunded.
When the tour was cancelled by the opposite party the complainant contacted the opposite party and enquired with regard to the refund of the amount collected and the opposite party informed that they were trying for a future date for carrying out the tour. On receiving such information the complainants informed the opposite party about this inconvenience and requested the opposite party to refund the amount collected from them. But the opposite party was not amenable for the same and they had informed that they were offering credit shell against the payment made by the 1st complainant. The opposite party specifically informed that an amount of Rs.1,57,592/- is credited to the credit shield account and same can be utilized or adjusted against any future tour booking with the opposite party and further that the amount is not encashable in any other manner. Immediately after receiving the said information, the complainants informed the opposite party that they were not amenable to the proposal made by them and requested for the refund of the amount. It is averred in the complaint that act of the opposite party by unilaterally forming a credit shell account and also issuing a credit shell certificate is not proper and highly illegal and has been done only to protect the interest of the opposite party. The act of the opposite party amounts to deficiency in service and unfair trade practice. Hence this complaint.
Upon notice, opposite party appeared before the Commission and filed version contenting as follows.
The opposite party is a registered company with its headquarters at Ernakulam. The office of the opposite party is situated at Ernakulam and the entire transaction between the complainants and opposite party was also done at Ernakulam. Moreover as per the transactions of tour package the opposite party and the complainants are admitted that if any dispute arises that would be under the jurisdiction of Ernakulam. Hence the complaint is not maintainable before this Commission due to want of territorial jurisdiction.
As per the terms and conditions of the tour package and itinerary, the opposite party is not liable for any acts beyond their control. The tour package was cancelled due to the Covid-19 and not due to the any latches or negligence from the part of the opposite party. The opposite party had collected Rs.1,99,800/- from the complainants towards the cost of Grand Europe Tour. The opposite party had processed two Europe and Schengen Visa for the complainants and the Visa granted to them. The visa was stamped in the passports of the complainants also. An amount of Rs.42,208/- was spent for the fee and processing charges of the visas and thus actual expenses for 2 visa are non refundable.
The company had booked 2 way air tickets, booked accommodation, conveyance, entry tickets of various tourist spots and food etc. for the complainants and other co-passengers. The entire tour companies in the world had suspended their operations from March, 2020. Eventhough the complainants are not entitled to get any amount as refunded from the opposite party, they have decided to issue a credit shell certificate to the complainants for the balance amount, after deducting the VISA expenses from the total amount received from the complainants. The company has issued credit shell certificate for any tour package equal to the amount of Rs.1,57,592/- paid by the complainants within a period of 5 years from 15-05-2020. The alleged inconvenience caused to the complainant is due to the Covid-19 outbreak beyond the control of the opposite party and due to the act of God; hence the opposite party is not liable for any inconvenience or loss caused to the complainants. There is no deficiency in service from the side of opposite party.
The 1st complainant filed proof affidavit in lieu of chief examination and got Ext.A1 to A8 were marked.
Bastin Joseph, who is the Managing Director of the opposite party filed proof affidavit in lieu of chief examination and Ext.B1 to B10 were marked.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
- Whether the complaint is maintainable or not?
- Whether there is any deficiency in service?
- If so, what are reliefs?
Point No.1
There is no dispute on the fact that the complainants have booked grand Europe tour, which was conducted by the opposite party and the said tour was scheduled on 20-03-2020. The opposite party admitted that they had collected Rs.1,99,800/- from the complainants towards the cost of said tour. The opposite party contented that the complaint is not maintainable on the ground that this Commission have no territorial jurisdiction to entertain the complaint. According to the opposite party their office is situated at Ernakulam and the entire transaction between the complainant and opposite party were also carried out at Ernakulam. They further contented that as per the terms and conditions of the tour package the opposite party and the complainants admitted that if any dispute arises that would be under the jurisdiction of Ernakulam only. On perusal of records it can be seen that this complaint is filed on 07-08-2020. Consumer Protection Act 2019 came into force on 20-07-2020 only. Section 34 of the Consumer Protection Act 2019 deals with the jurisdiction of the District Commission is as follows.
- “Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees:
PROVIDED that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit.
- A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,-
- The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
- Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given; or
- The cause of action, wholly or in part, arises; or
- The complainant resides or personally works for gain.
- The District Commission shall ordinarily function in the district head quarters and may perform its functions at such other place in the district, as the State Government may, in consultation with the State Commission, notify in the Official Gazatte from time to time”.
Thus we are of the opinion that the complainants who are the residence within the territorial jurisdiction of this Commission can file a complaint against any deficiency in service or unfair trade practice alleged to have committed by the opposite parties and this Commission have the territorial jurisdiction to entertain said complaints. Section 100 of the Consumer Protection Act reads as: Act not in derogation of any other law.
“The provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.
Further we are of the opinion that the contention of the opposite party is that the complainants and opposite parties are admitted by the terms and conditions of the tour package that only the Commission or Tribunals or Civil Courts at Ernakulam have the jurisdiction to entertain this complaint cannot be accepted.
Point Nos.2 and 3
It is admitted by both the parties that the tour package for which the complainants booked was cancelled due to the Covid 19. Ext.A1, A3 and A6 proves that the complainant had paid Rs.1,99,800/- to the opposite party towards the cost of the said tour package. According to the complainant he had booked the tour package on believing the words of the employees of the opposite party that in the event of the cancellation of tour the entire amount would be refunded. Ext.A4 and A5 are the E-mail communications sent by the 1st complainant to the opposite party demanding the refund of the entire amount which was paid by the complainants to the opposite party. On the other hand opposite party contented that they had obtained visas from Europe and Schengen for the complainants by spending Rs.42,208/-. According to the opposite party this is the actual expense for the visas incurred by them and which is not refundable. It is further submitted by the opposite party that the complainants can use the visas during its validity. Ext.B6 and B7 are the visas of the complainants and valid upto 27-09-2020. Another contention raised by the opposite party that the opposite parties had booked 2 way air tickets, accommodation, conveyance, entry tickets of various spots and food for the complainants and other co-passengers. It is further submitted by the opposite parties that the opposite party has losed the entire amount which was spent for the accommodation and other expenses of the complainants. They further contented the tour was cancelled not due to any latches or negligence from the part of the opposite party but due to act of god in the nature of Covid-19 pandemic. Without considering the loss suffered by the opposite party, the opposite party issued a B1 Credit shell certificate to the complainant for an amount of Rs.1,57,592/-. On perusal of Ext.B1 it is stated that B1 certificate is valid for 5 years from the date of certificate. According to the complainants they are not interested to accept the certificate of the opposite party by redeeming the credit shell against any tour package of the opposite parties within 5 years.
The counsel of the complainant relied on the decision of the Hon’ble Supreme Court in Pravasi Legal Cell Vs. Union of India which was decided on 01-10-2020. In this case Hon’ble Supreme Court has discussed about the cancellation of air tickets which was booked before the outbreak of Covid-19 pandemic and formulated guidelines regarding refund of air tickets. In this decision the Hon’ble Supreme Court has given direction to the airlines;
“(1) if a passenger has booked a ticket during the lockdown period (from March 25, 2020 to 24 May 2020) for travel during lockdown period and the airline has received payment of booking of air ticket for travel during the same period for both domestic and international air travel and the refund is sought by the passenger against the booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of 3 weeks from the date of cancellation.
- If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the passengers as the cse may be”.
Thus we are of the opinion that the opposite parties are entitled to refund entire amount which was paid by them towards the air tickets for the complainants and the contention of the opposite party that they had lost the amount which was paid by them towards the air ticket of the complainant is not sustainable. The another contention to be forwarded by the opposite party is that they had spent money for booking accommodation, food and other expenses and it cannot be refundable. It is very pertinent to note that though the opposite party produced Ext.B3 to prove the booking of accommodation for the complainants and other co-passengers it does not reveal the date on which the booking was done by the opposite parties. We are of the opinion that while the entire world was eagerly waiting for the unexpected consequence of the Covid-19 pandemic, the booking of accommodation and other facilities without assuring the safe travel of their customers amounts to shortcoming in service from the part of opposite parties. Ext.B1 proves that the opposite party has deducted only Rs.1,57,592/- towards the credit shell account of the complainants. On perusal of terms and conditions of Ext.B1 it is stated that the amount is not encashable in any other manner except by utilising or adjusting against any of future tour package with the opposite party only to the same destination for which the complainant had booked. Ongoing through the terms and conditions of Ext.B1 it is a unilateral terms and conditions without considering the interest of the customers or passengers who have booked the earlier tour package with the opposite party. On a mere reading of Ext.B1 we can see that as per the terms and conditions the passengers who have booked for the tour package which is cancelled due to Covid-19 pandamic have no option to redeem or refund the amounts spent by them if they are not interested in any other tour package in future with the opposite party. Therefore we are of the opinion that issuance of Ext.B1 is restrictive trade practice, which compel the individuals who have availed the service of the opposite party to depend the opposite party in future. On thoughtful evaluation of above discussed evidence we are of the opinion that opposite party has committed deficiency in service and restrictive trade practice as well as unfair trade practice. The complainants had suffered much loss and hardships due to the deficient act of the opposite party, the Fortune Destination Management India Pvt. Ltd, opposite parties are liable to compensate for the same. In this circumstances we allow the complaint in part and pass the following Order.
- We hereby direct the opposite party to pay an amount of Rs.1,57,592/- together with an interest of 9% from the date of 20-03-2020, date on which tour was cancelled till the date of realization to the complainants.
- We hereby direct the opposite party to pay Rs.10,000/- as compensation.
Order shall be complied within a period of 30 days from the date of receipt of Order. If not,
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 12th day of July, 2021.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1 : Copy of receipt dtd.10-01-20 issued by opposite party for Rs.20,000/-
A2 : Copy of receipt dtd.20-01-20 issued by opposite party for Rs.79,800/-
A3 : Copy of receipt dtd.18-02-20 issued by opposite party for Rs.1,00,000/-
A4 : E-mail dtd.11-03-20 sent by petitioner to opposite party
A5 : E-mail dtd.15-03-20 by petitioner to opposite party
A6 : Certificate dtd.23-07-20 by IDBI Bank, Kottayam
A7 : Copy of Aadhar of 1st petitioner
A8 : : Copy of Aadhar of 2nd petitioner
Exhibits marked on the side of opposite party
B1 : Credit shell certificate dtd.15-05-20 issued by opposite party
B2 : Copy of tour itinerary tour package
B3 : Copy of confirmation status of accommodation booking and other facilities for the tour package from 28-03-2020 to 07-04-2020
B4 : Copy of details of payment of 10,000/-Euro to the Tumlance Corporations
A/S
B5 : Copy of details of payment of 16,430Euro to the Tumlance Corporations
A/S
B6 : Copy of UK and Shengen VISA of Krishna Kumar (2 Nos.)
B7 : : Copy of UK and Shengen VISA of Nagalatha (2 Nos.)
B8 : True copy of the Airline confirmation letter dtd.07-01-20 issued by Oman Air towards the booking of onward on 28-03-20 to 09-04-20 of complaints and other co-passangers.
B9 : E-mail communication dtd.17-01-20
B10 : E-mail communication dtd.18-0120
By Order
Senior Superintendent
