Minakshi Chakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that he (complainant) is a government servant and he gave his consent to opposite party no. 1 for Andaman Tour with his family members(total 04 number members) and he paid Rs. 60,000/- and Rs. 30,000/- on 22/05/2016 and 26/05/2016 respectively vide cheque no. 212894 and 262020 drawn on SBI, Kalyani Branch in favour of the Opposite Parties for the tour to Andaman.
The complainant also states that he received four Air India Tickets purchased on 23/05/2016 in favour of him including his three family members which actually cost of Rs. 19,409/- each for both up and down journeys. The complainant also states that he also paid Rs. 25,000/-by cheque dated 29/05/2016 for his mother’s tour to Andaman with them and the opposite party no. 2 encashed the cheque amounting to Rs. 25,000/- on 31/05/2016.
The complainant also states that the opposite party no. 2 cancelled all the four tickets of Andaman Tour without informing the complainant and the complainant came to know it from an employee of Air India and then the complainant was shocked and the reason for such cancellation of the tickets was never divulged to the complainant by the opposite party no. 2 and it caused severe prejudice to the complainant as he could not apply for the LTC advance in his office and the ticket of his mother for Andaman Tour never provided by the Opposite party no. 2.
The complainant also states that he several times requested to the opposite party no. 2 to provide him with the air tickets at an early date to facilitate for the LTC Advance in his office but it was in vain.
The complainant also states that ultimately on 26/10/2016 the opposite party no. 2 had provided the complainant with 05 Jet Airways tickets via e-mail and the complainant found that all the tickets were purchased on 20/08/2016 at a cost of Rs. 17,500/- each for to and return journey from Andaman and the complainant also states that he collected the originals of all the tickets from the Customer Care of Jet Airways and was surprised to find that the tickets were originally issued on 25/10/2016 and the cost of the journey from Kolkata to Andaman was just Rs.5595/- and return journey from Andaman (Port Blair) to Kolkata was just Rs.3720/- and it costs to Rs.9315/- and the complainant immediately understood that the Opposite Party no. 2 had illegally manufactured the tickets which were handed over to the complainant and was cheating the complainant and the complainant being a Govt. employee was not in a position to submit thoseforged tickets in his office for availing LTC benefit.
The complainant immediately requested the Opposite party no. 2 to cancel the tour programme for cheating and misleading thecomplainant and refund the complainant the full amount of money that the complainant had paid to the Opposite party.
The complainant also states that the Opposite party no. 2 refunded to the complainant only Rs.65,000/- on 02/11/2016 but the complainant had paid Rs.1,15,000/- to the Opposite party no. 2 and the complainant asked and requested Opposite party no. 2 to refund the balance amount of Rs. 65,000/- but the Opposite party no. 2 has not refunded Rs. 65,000/- till date.
Complainant filed the complaint petition praying direction upon the opposite party no. 2 to pay sum of Rs. 65,000/- and to pay interest @ 18% per annum from the date of payment made by the complainant to the opposite party no. 2 till refund of the balance amount is refunded back to the complainant and pay a sum of Rs. 50,000/- for mental agony and harassment and unfair trade practice and to pay cost of this present case of Rs. 50,000/- and to give any order/ orders as deem fit and proper.
Case of the opposite parties: The opposite party Nos. 1 and 2 contested the case by filing a joint written version denying inter-alia all the material allegations as leveled against them. These opposite parties submitthat the actual state of affairs is that there is no such cause of action arrows to file the instant case and the Opposite party no. 2 actually to provide the complainant a betterservice without any hesitation and the Opposite party no. 2 also informed the complainant verbally at his office mentioned in the case title of the complaint that the advertized package tour would not be suitable for the complainant and it is more expensive as because the said package tour composed only for the general travellers not for theGovt. Service (state/central) holders.
The opposite party no. 2 also states that Government (state / central) service holder is entitled to get some travel concession from the Govt. because of that all the independent traveling agent or tour conductor or operator given an opportunity towards their customers demand, to get an extra financial benefits who specially desire to take such benefits from the Government Authority.
The Opposite party no. 2 also states that he never claims any cancellation charges against the complainant and the Opposite party no. 2 send the 05 Air Tickets to the complainant. And the complainant only to harass the Opposite party lodged the above mentioned case;the complainant cancelled thesaid tour of his own which is absolutely violating the contract and also illegal in the eye of law and the opposite party no. 2 booked the hotels to theAndaman for the complainant and his family members but due to freak cancellation of the tour by thecomplainant the opposite party incurred huge loss notwithstanding on humanitarian grounds the Opposite party no. 2 already paid Rs,.50,000/- to the complainant. Thus, the complainant is not entitled to get any relief as prayed for and the complaint petition is liable to be dismissed with cost.
Evidence adduced by both the parties
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed a petition on 14.1.2020 to treat their W/V as evidence on affidavit.
Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument advanced by the Ld. advocates of the complainant and the opposite parties heard at length.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue number 1
In the light of the discussion hereinabove and from the materials on record it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (7) of the Consumer Protection Act 2019, as well as a consumer under section 2(d) of the Consumer Protection Act 1986.
Issue number 2
Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding Rs. 50,00,000/-. So, this Commission has territorial as well as pecuniary jurisdiction to entertain the present case.
Issue nos.3&4 :
Both the issues are taken up together for the sake of convenience.
Complainant was enticed by a tour package to Andaman for 7 nights/8 days for which he visited one Vivekananda Gupta (OP-2) who runs Guruji Travels (OP-1). Coming to know of the total package for four persons would cost about Rs. 1 lakh. He paid Rs. 90,000/- to the OP-2. Subsequently, the complainant received four Air India tickets purchased on 23.05.2016 in favour of himself and his three family members. Cost of each ticket was shown as Rs. 19409/-. Thereafter on complainant’s request to purchase another ticket for his mother, he paid Rs. 25,000/- which ultimately yielded no result in spite of frantic effort on the part of the OP-2.
Specific case of the complainant is that at his surprise he found that tickets were cancelled by the Ops without any prior intimation given to the complainant. This fact was never divulged to the complainant by the OP-2 causing serious prejudice to the complainant as he could not apply for LTC advance to his office. At the subsequent stage on 26.10.2016, the OP-2 provided the complainant with 5 Jet Airways tickets via Email which were purchased on 20.08.2016 at the cost of RS. 17500/- for each person inclusive of return journey. The complainant collected the originals of all the said tickets from the customer care of Jet Airways and found that those tickets were issued on 25.10.2016 wherefrom he came to know that the cost of journey of each person from Kolkata to Andaman was Rs. 5595/- and return journey ticket costs Rs. 3720/-. The complainant understood that OP-2 had illegally manufactured the tickets which were handed over to him and was cheating him. The aforesaid dishonesty and the fraudulent activities on the part of OP-2 compelled the complainant to lose faith on OP-2 and not to keep confidence on the Travel Agency being OP-1. The complainant ultimately cancelled the tour programme for cheating and misleading the complainant for which he asked OP-2 to refund him the full amount of money that he paid to OP-2. It has not been denied by the OPs that the five Jet Airways tickets were purchased on 20.08.2016 at the cost of Rs.17500/- surprisingly the petitioner found that those five tickets were originally issued on 25.10.2016 giving the petitioner opportunity to understand that OP no 2 has cheated the complainant by illegally manufacturing those five tickets and according to the complainant it goes without saying that electronic air tickets as given to him were doctored so as to show an inflated figure to deceive him which cannot but be leading the complainant to think that those inflated figures have been shown to deceive him and as such this act amounts to fraud.
The complainant had paid Rs.1,15000/- to the OP-2 and on the cancellation of the tour programme only Rs. 50,000/- was refunded but the balance Rs. 65,000/- still remained unpaid giving rise to the instant case. The request of OP-2 on several occasions to wait for the refund of the aforesaid money resulted in vain.A demand notice3 was served upon OP-2 w3hich also resulted in futile exercise.
In the above circumstances the petitioner is constrained to believe that he would not get any justice or relief from the Ops as a result the complainant has been compelled to institute the instant proceeding.
Both the Ops have filed a written version on 07/08/2018 and therein OP no 2 has admitted that without taking any written evidence cancelled those four tickets dated 23.05.2016 as has been stated in para 30 of the written version.
The commission has gone through the photocopy about cancellation of Andaman tour dated 26.02.2017 wherein the complainant asked for the rest amount of Rs. 65000/- intimating therein that he will be forced to take legal action for failure on the part of OP no 2 to refund Rs. 65000/-. On scrutiny of the record it appears that ten copies of G mail regarding cancellation of Andaman tour have been filed where from it appears that the OP no 2 has admitted about return of Rs. 65000/-. Even after noting therein about cancellation charges and others it appears therefrom that the OP-2 has made the complainantresponsible for cancellation and so all the cancellation charges will be deducted from the total amount of Rs. 65000/-
Many documents have been filed by the complainant including his prayer for permission for availing LTC dated 02.06.2016 including e ticket dated 23.05.2016 for four persons. A perusal of the above facts and circumstances leads this Commission to hold that there is deficiency of service on the part of the Ops of unilateral cancellation of four tickets and also purchase of Jet Airways tickets said to have been purchased on 20.08.2016 were found to have been issued on 25.10.2016 which also amounts to deficiency of service on the part of the Ops as a result of which the complainant requested to cancelled the tour programme and to refund the entire money out of which Rs. 50000/- has been paid and still there remains Rs. 65000/- to be paid
The observations of first appeal no 195 of 2017 (Dr. nirpaul Singh vs. Kalra Tour and Travel)is of no assistance to the Ops inasmuch as therein complainant opted for alternative trip of Goa and Ooty and availed the same with his family the fact of which is something otherwise than the present one.
Be it noted herein that e mail bearing annexure F at page no.41 specifically lays down that the OP -2 has admitted to refund the advance money “ after deducting the airlines and tour cancellation charges ……” which clearly manifests that the amount claimed by the complainant of Rs. 65000/- does not appear to be tenable.
Both the issues are thus disposed of.
Hence,
it is
ordered
that the complaint case being no. 35 of 2018 be and the same is allowed in part on contest.
The complainant do get refund of Rs. 50000/ and do get Rs. 8000/- as litigation cost and Rs. 10000/- for mental agony and harassment.
The entire amount to be paid within 45 days from date by OP-2 failing which the amount shall carry interest at the rate of 9% till refund and the petitioner is at liberty to take recourse to law.
Op is directed to deposit Rs. 3000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly for the poor litigant.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
