This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to refund the amount as paid by the Complainant till filing of this complaint.

The brief fact of the case of the Complainant is that the Complainant had expressed her interest in a tour to be conducted by the OPs and for such tour the cost was fixed at Rs.4,25,000/- per person. The departure date for such tour was scheduled on 27.09.2015. The Complainant remitted an amount of Rs.1,50,000 through online from Kolkata in the Bank Account of Sri. Amit H Doshi, being the Director of the OP-1, being the A/c No-20431011000041, Bank of India, Ahmedabad. The Complainant intimated the transfer details to the OP-1 through an e-mail on 18.05.2015. The OPs have acknowledged the aforesaid payment through an e-mail dated 07.09.2015 and 08.09.2015. The Complainant was requested by the OP-2 through an e-mail for making payment of the balance amount of Rs.2,75,000/- in the account no-2043220110000332, Bank of India, Motera Branch. Accordingly the Complainant had transferred an amount of Rs.2,75,000/- in the given account number of the OP-2, which was duly acknowledged by the OP-2 through an e-mail dated 15.09.2015. It was stated by the OP-2 that the fund being urgently needed as the tour was fixed on 27.09.2015. Though the Complainant paid the entire amount to the OP-2, the OPs were yet to take her in the tour.Inspite of receipt of the entire amount the OPs have failed to fix a date for the scheduled tour till date and thus the OPs did not show their due diligence in the preparation of the abovementioned tour and enjoying the said amount since 15.09.2015. In this manner the OPs have declined the Complainant from her legitimate utilization of the aforesaid amount. The Complainant had issued several legal notices through her Ld. Advocate on 21.03.2016 and 01.04.2016 upon the OP-2 claiming therein for refund of the money as paid by her. Though the OP-2 had received the said notices, did not bother to take any step or reply to the said notices. Such action of the OP-2 shows that he has adopted mal-practice in receiving the amount which is unwarranted and uncalled for. These OPs on earlier occasion had taken a sum of Rs.11,00,000/- for a tour from her, but had failed to give effect to the said tour. However after lots of persuasion the Complainant was able to get refund of the said amount of Rs.11,00,000/-. According to the Complainant such action of the OPs suffer from deficiency in service as well as unfair trade practice. Due to non-refund of the paid amount the Complainant has been suffering from mental pain, agony and financial loss. As the OPs did not take any step to resolve the grievance and dispute of the Complainant, hence having no other alternative the Complainant has approached before the Ld. DCDRF, Barasat by filing complaint praying for direction upon the OPs to refund the amount of Rs.4,25,000/-, to pay interest on the said amount @18% p.a. for the period from 15.09.2015 till realization of the entire amount, compensation to the tune of Rs.8,00,000/- and litigation cost of Rs.15,000/- to her.

It is pertinent to mention herein that initially this complaint was filed before the Ld. DCDRF, Barasat. But after establishment of this Ld. Additional CDRF (Commission as amended in view of the C.P. Act, 2019) this record has been transferred from the Ld. Commission, Barasat to this Ld. Commission in view of the order passed by the Hon’ble SCDRC as from the point of its territorial jurisdiction this complaint falls within the territorial jurisdiction of this Ld. Commission. After receipt of this record the Complainant was directed to publish the notices of the OPs in the daily and well circulated newspaper. The Complainant has complied with such direction. The Complainant had submitted the copy of the said newspaper showing publication of the notices in respect of the OPs. But inspite of such publication the OPs did not turn up and chose not to contest the complaint either orally or by filing written version. Hence this Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs.

In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vsAman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of publication of the notices in the daily and well circulated newspaper, the OPs chose not to appear and contest the complaint either by filing written version or orally, whatever it may be. Therefore in view of the said judgment the allegation as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegation on behalf of the OPs.

We have carefully perused the petition of complaint and other related documents as available in the record and heard oral argument advanced by the Ld. Counsel for the Complainant at length. It is seen by us that being agreed with the terms and the conditions of the tour package as produced by the OPs the Complainant expressed her willingness in a tour to be conducted by the OPs and for such tour the cost was fixed at Rs.4,25,000/- in total per person. The departure date for such tour was scheduled on 27.09.2015. The Complainant paid the said total amount to the OPs in two installments, which was duly acknowledged by the OPs and confirmed the receipt of the amount through e-mail. But inspite of receipt of the total agreed amount from the Complainant, the OPs have neither conduct the said tour nor taken any step to refund the said amount to the Complainant till filing of this complaint.Since 15.09.2015 the OPs have been enjoying the said amount till date. The Complainant had issued several legal notices through her Ld. Advocate on 21.03.2016 and 01.04.2016 upon the OP-2 claiming for refund of the money as paid by her. Though the OP-2 had received the said notices, did not bother to take any step or reply to the said notices. In our view such action of the OP-2 is clearly proved his deficiency in service and unfair trade practice. It is true that inspite of making payment of the agreed amount to the OP-2, the Complainant could not enjoy the tour nor get refund of the paid amount till date and for this reason the Complainant is suffering from mental agony, pain along with pecuniary loss and financial problem. In our considered view due to such deficiency in service on the part of the OP-2, the Complainant is very much entitled to get compensation from the OP-2. It is mentioned earlier that the Complainant had made several written correspondences with the OP-2 requesting him to refund of the paid amount, but the OP-2 did not bother to pay any heed to her request. Having no other alternative the Complainant has approached before the Court of Law to resolve her grievance and dispute by filing this complaint and admittedly for this proceedings the Complainant has to incur some expenses, for which in our opinion the Complainant is very much entitled to get litigation cost from the OP-2. As the OP-2 did not conduct the tour for which money was received from the Complainant and the said money is still lying under the custody of the OP-2, who has been enjoying interest on the said amount of Rs.4,25,000/- since 15.09.2015 till date, we are of the view that the Complainant is entitled to get refund of the said amount along with interest in the form of compensation.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT CC/120/2020 is hereby allowed exparteagainst the OPs with cost.

The OP-2 is directed to refund of the amount as paid by the Complainant to the tune of Rs.4,25,000/- along with interest in the form of compensation @12% p.a. from the date of making payment of the amount i.e. 15.09.2015 till its entire realization within a period of 45 days from the date of passing this judgment, in default the interest in the form of compensation shall carry interest @14% p.a. instead of 12%. The OP-2 shall pay a sum of Rs.10,000/- to the Complainant as litigation cost within a period of 45 days from the date of passing this judgment, failing which the Complainant will be at liberty to put the entire order/decree in execution as per provision of law.

Let plain copy of this final judgment be given to the parties free of cost as per the CPR, 2005.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER