This is an application u/s 12 of the C.P. Act, 1986.

Complainant by filing this complaint has stated that she intended to travel as per package tour programme of the op/Guruji Travels for visiting Kashmir and accordingly she deposited Rs. 82,551/- to the op for air fare, rail fare which including hotel cost etc. for the schedule tour programme to be commenced on and from 19.10.2013.

It is stated by the complainant that due to illness of her son, she could not avail of the tour and informed the op on 17.10.2013 i.e. prior to the programme scheduled on 19.10.2013.

Fact remains, while she cancelled the said tour and informed them, the op assured her that they would pay back/refund 80 percent of the balance amount deposited with them amounting to Rs. 66,120/-.  But on 20.10.2013 the op refused to pay 80 percent of the amount and instead willing to pay/refund only 20 percent of the deposited amount to the complainant.

The specific case of the complainant is that though the op has made partial refund amounting to Rs. 13,892/- by cheque and Rs. 6,115/- by cash respectively in connection with the railway fare but failed to keep their commitment to make refund of 80 percent of the remaining deposited advance money to them. Hence, this case.

Fact remains, the complainant took all initiatives for serving the notice upon the op and ultimately considering the entire records, it appears that notice was duly served upon the op what is apparent from the postal internet status report as filed by the complainant which is within the record.  But anyhow even after receipt of the said notice of this case, the op appeared but ultimately did not turn up before this Forum.  Since, the op did not turn up and appeared to defend the allegation of the complainant, ultimately for its nonappearance before the Ld. Forum, the case is heard exparte.

Decision with reasons

On an in-depth study of the complaint and on evaluation of the material documents as filed by the complainant, it is found that the complainant has deposited Rs. 15,000/- vide Receipt No. 3485 dated 26.06.2013 and Rs. 67,551/- vide Receipt No. 3769 dated 30.09.2013 in total a sum of Rs. 82,551/- to the op/Guruji Travels for visiting Kashmir for the scheduled tour programmeto be conducted by them and date of journey was scheduled on 19.10.2013.

The main contention of the complainant is that though she intended to travel, deposited the money amounting to Rs. 82,551/- to the op/Guruji Travel for the scheduled programme well in advance, but due to the illness of her mentally retarded son.  They could not proceed with the op as per tour programme of op scheduled on 19.10.2013 and she also informed them on 17.10.2013 and cancelled her journey prior to the scheduled date of journey on 19.10.2013.  Fact remains, she only received Rs. 13,892/- by cheque and Rs. 6,115/- by cash for cancellation of railway ticket from the op.  But in spite of assuring her to make refund 80 percent of the deposited amount i.e. Rs. 62,544/- the op ultimately kept their commitment and did not pay any heed to refund the money to the complainant.

We have heard the complainant and perused the documents on records and evidence which supports the case of the complainant.

On careful consideration of the materials and the evidence led by the complainant, we are of the view that since the case of the complainant is not challenged by the op, so there is no reason to disbelieve the unchallenged testimony supported by the documentary evidence of the complainant.

It is a fact that the complainant has already received the cancelled railway fare from the op amounting to Rs.20,007/- but not the amount of cancelled air ticket and hotel booking money by the op.

          It is also matter of fact that the complainant cannot enjoy the tour programme due to illness of her son and she did not deliberately and intentionally cancelled the tour on 17.10.2013 prior to her journey on 19.10.2013 as conducted by the op.

          Thus, the inability of the complainant was not for her own fault and that was reported to the op under what circumstances she cancelled the tour programme and for such cancelling of the booking in such a situation comes under the principle of law.  Force, de jura where there was no fault on the part of the complainant to avail of that journey.

          So, we are convinced that in such a situation, the complainant had no other alternative but to inform the op prior to the tour programme and she has no other remedy.  In this regard, the principle of law as laid down in AIR 1974 SC 1682 is taken in to account by this Forum as spirit of law for determining the present situation of the complainant.  Such an incident excuses the non-performance of the contract in between the parties by the complainant and relying upon the spirit of the said ruling, we are confirmed legally that the impossibility of doing what is required by agreement/contract excuses by the performance when the present inability on the part of the complainant cannot be treated as a wrong on the part of the complainant and at the same time an obligation to perform the part of contract arises where force de jura instances are not found.

          Considering the whole facts and circumstances including the inability of the complainant to avail of the tour programme which was not her own fault and in such circumstances it was impossible for the complainant to avail of and for which in the eye of law complainant has not violated the contract with the op.  On this ground it is not a willful fault on the part of the complainant to avail of the tour programme as conducted by the op. 

In view of the above decision it can be said law of excuse is applicable in the present case for giving some justice as her fault is excusable in the eye of law.

The complainant is entitled to get back the remaining deposited amount against the booking of air fare and hotel costs after deducting 10 percent as the service charges but without any compensation.

Hence, it is

ORDERED

That the case be and the same is allowed exparte against the op/Guruji Travel with a litigation cost of Rs. 5,000/-.

The op is directed to pay that the deposited money of airfare and hotel cost after deducting 10 percent of the remaining deposited amountto the complainant within one monthfailing which op shall pay 6 percent interest p.a. over the said amount till full satisfaction of the decretal dues.

The op is directed to comply the order of this Forum within 30 days from the date of this order failing which punitive damages of Rs. 100/- per day will be imposed against the op till full satisfaction of the decree.  If it is collected, it shall be deposited to this Forum.

If it is found that the op is reluctant to comply the order, in that case penal action u/s 27 of C.P. Act 1986 shall be initiated against the op.