UTPAL KUMAR BHATTACHARYA, MEMBER 

          Instant Appeal u/s 15 of the C.P. Act, 1986 has challenged the judgment and order dated 27.08.15 passed by the Ld. District Forum, Unit –I , Kolkata in Complaint Case No. 544/2013 allowing the complaint on contest with cost against the Appellants/OPs who are jointly and severally directed to pay to the Complainant a sum of Rs. 35,000/- only on prorata basis for harassment and mental agony and litigation cost of Rs. 5,000/- only within 30 days from the date of communication of the impugned order, failing which , as ordered , interest @ 10% p.a. shall accrue over the entire sum due to the credit of the Respondent /Complainant till full realization.

          Briefly stated, the facts relevant to the instant complaint, were that the Respondent/Complainant, with a view to visiting Lava / Lolagaon,  subscribed for a package tour to those places for 5 heads which include self , wife and his three children . A total amount for the entire package to the tune of Rs. 36,004/- was paid by the Respondent /Complainant to the Appellants /OPs under whose sponsorship  the tour for seven days was scheduled to commence on and from 8.10.2012.

          On the very day on which the programme was to commence, the younger daughter of the Respondent/Complainant was suddenly attacked by Dengue .

          The patient was examined by a Doctor who prescribed some medical tests to be urgently done and some medicines as well with suggestion for hospitalization of the patient .

          The tour , in the given circumstances, was hardly possible to be undertaken and the Appellants/OPs, the tour organizers were informed of their incapability to participate in the tour programme at least one and ½ hour before the commencement of the programme by the Respondent/Complainant  describing the prevailing scenario  being the reason for their decision of cancellation of tour .  

          The Respondent’s/Complainant’s  repeated persuasions to get refund of the advanced amount after deduction of due cancellation and processing charges, being not heeded to by the Appellants/OPs , the Respondent /Complainant , being aggrieved , filed the instant complaint before the Ld. District Forum . The impugned judgment and order against which this Appeal has been preferred originates from the said complaint case.

          Heard the Ld. Advocates appearing on behalf of both sides.

          The Ld. Advocate for the Appellants/OPs submitted that no document could be produced by the Respondent /Complainant towards his claim of communicating the cancellation of the tour programme one and half hours ahead of the scheduled time for commencement of the tour. The Respondent /Complainant, as submitted further, informed that the communication about cancellation of their tour programme was made to the Appellants /OPs over telephone.  He , however , failed to give the telephone number through which the message was claimed to have been communicated .

          Ld. Advocate continued to submit that the tour operators normally incur expenditure towards journey ticket reservation , hotel accommodation etc . If , as continued further , for argument’s  sake  , it is considered that the information about cancellation of their journey was communicated one and half hours before the commencement of the tour, the time was not sufficient enough to get the tickets for upward journey cancelled.  So, as contended, the question of refund does not arise . Same logic was applicable for booking of accommodation etc as the accommodations were booked in advance on commitment of subsequent payments as was the prevailing practice . Since, there was no provision of refund of the accommodation already booked ,  the Appellants /OPs themselves did not get back the amount spent for the booking in question.

          Referring to running page -12 of the case record , being the internal page -2 of the impugned judgment and order, the Ld. Advocate continued that the patient was advised to under go medical tests on the next date , i.e., on 09.10.2012 . It was not understandable , as alleged, how the patient’s suffering from Dengue would be diagnosed a day ahead of the tests being carried out . The entire story , therefore, as further alleged , was a cooked up one only to derive and unlawful gain.  Referring to the decision passed by the Hon’ble National Commission in Revision Petition No. 2846 of 2015 reported in 2016 (1) CPR  726 ( NC) [Commissioner ,Mysore Urban Development Authority –vs- C.R. Ananda Roy] . The Ld. Advocate pleaded in favour of dismissal of the complaint since the Respondent /Complainant resorted to suppression of material facts and thereby did not approach the Consumer Forum with clean hands .

          Drawing attention further to the running page No. 62, being the rules and regulations of the tour furnished by the Appellants/OPs, the Ld. Advocate pointed out that the rules for cancellation of tour was categorical about no refund unless cancellation is claimed with copy of the final voucher  in original 7 days ahead of the onward journey date. 

          Referring to the Decision of the Hon’ble National Commission in Revision Petition Nos. 3099 and 3100 of 2008 [Nuguas Technologists India Pvt. Ltd. –vs- The Principal Geeta Bal Bharti Varisht Madhyamic Vidyalayay ] reported in 2014 (2) CPR 550 (NC) , wherein the Hon’ble National Commission observed that Consumer Fora  have no jurisdiction to go beyond terms and contract between the parties , the Ld. Advocate contended that the tour was not cancelled 7 day’s prior to the onward journey as per agreement. The Appellants/OPs, therefore, did not commit any deficiency by not refunding the package cost paid in advance as there was a breach of the terms of Agreement on the part of the Respondent/Complainant.

          It was also contended that there being no service received by the Respondent /Complainant for their own lapses , the question of deficiency in rendering service does not arise at all on the instant occasion . The Ld. Advocate went on to refer in this context to the decision of the Hon’ble National Commission in Revision Petition No. 1308 of 2011 [ Bhagat Ford A.B. Motor Pvt. –vs- Vinode Sehdev and Ors. ] reported in 2016 (1) CPR 740 (NC) wherein the Hon’ble National Commission was pleased to observe that compensation should not be awarded where there was no deficiency in rendering service .

          With the submission as above, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.

          The Ld. Advocate appearing on behalf of the Respondent /Complainant , per contra , submitted that it was a fact that the Doctor had suggested the medical tests to ascertain whether the patient was actually suffering from Dengue and it was also a fact that the tests were carried out on the next date , i.e., on 09.10.2012 . That the Doctor had correctly diagnosed was appeared on subsequent revelation through the said medical tests that it was Dengue that the patient had been suffering from .

          The Ld. Advocate continued to submit that the telephone was the only mode of communication available with the Respondent/Complainant at that critical juncture and he , inspite of his all business and attention towards treatment of his ailing child , managed to make a little time to communicate to the Appellants /OPs his actual predicament that was standing in the way of his participating the tour programme with his other Members .

          Ld. Advocate , referring to rule 2 of the rules and Regulations at running page -62, continued that the rule was absolutely perverse and indifferent to the interest of the Consumers as provision was there for no refund of the advanced amount even if the intending tourist failed to avail himself of the tour package because of his illness.

          As submitted, the accommodation were booked after the date of commencement of journey , i.e., 08.10.2012, when the Appellants/OPs were confirmed about the Respondent/Complainant’s non participation in the programme.  A little generosity on the part of the said Appellants/OPs might have saved the accommodation charges paid for their accommodations.  The Appellants /OPs, as continued , was having no intention to accommodate their claim as they refused to provide the Respondent /Complainant even an alternative tour package subsequently in spite of their such commitments .

          With the above submission, the Ld. Advocate prayed for dismissal of the Appeal allowing the impugned judgment and order .

          Perused the papers on record . The rules and regulations furnished by the Appellants/ OPs, appeared to have been framed fortifying absolutely the interest of the Appellants/OPs. Astonishingly, no provision has been envisaged therein towards refund of money even under compelling circumstances of physical incapacity of the intending traveller . It should have been borne in mind that a person volunteering for visiting to places of his interest does not normally cancel the programme except on unavoidable circumstances . On the instant occasion , the Respondent/Complainant’s daughter’s suffering from a disease like Dengue   actually stood in the way of their travelling which should have been favourably considered .

          We, however, do not deny the fact that the telephonic information only one and half hour ahead of the scheduled commencement of journey does not provide adequate scope to the Appellants /OPs for taking step for cancellation of the Railway Tickets for the date of commencement . Same is also our observation in case of accommodation booking as the tour operators usually book the accommodations ahead on commitment of subsequent payment.

          We, however, do not find any reason for not cancelling the tickets of return journey as there was sufficient time for getting the cancellation done and of course refunding the money after deduction of cancellation charges as per Railway norms . The Appellants/OPs committed deficiency in rendering services to that extent and should pay compensation and costs along with the refund in the manner prescribed hereinabove.

          In the above context , we may refer to the decision of the Hon’ble National Commission in Revision Petition No. 3404 of 2016 [ Samarjit Roy Chowdhury –vs Kundu Special and Anr.] reported in 2018 (1) CPR  74 ( NC) wherein the Hon’ble National Commission is pleased to observe  towards existence of provision for refund with applicable deduction of charges .

Hence,

                                                          Ordered

that the Appeal be and the same is allowed. The Appellants/OPs are hereby directed to refund the value of the tickets meant for return journey of the five members of the Respondent’s/Complainant’s family who were enrolled in the subject tour package, after deducting the cancellation charges as per Railway norms. The Appellants/OPs are further directed to pay  litigation cost and compensation to the tune of Rs. 2,000/- and Rs. 3,000/- respectively.

          The entire amount has to be paid within 45 days from the date of instant order, failing which, a simple interest @9% p.a shall accrue to the refundable value in terms of the order and the amount of compensation from the date of default till the amount is fully realized.

         The impugned judgment and order stands set aside.