FINAL ORDER/JUDGMENT   

SMT. SUKLA SENGUPTA, PRESIDENT

            This is an application U/s 35   of the CP Act,   2019 as filed by the complainants against the OP Hiden Planet Travel Services Pvt. Ltd.

            The fact of the case in brief is that  in the month  of November  2019,  the complainants had approached the OP Travel Company to plan a trip for them to Singapore, Malaysia and Thailand on and from 4^th April,  2020 till 11 April,  2020. The copy of the tour package is annexed herewith as annexure- A.

The complainant further stated that they have jointly made the payment in lieu of such booking with the OP Company  as they were expected to travel on decided dates. The copy of payment receipt is annexed herewith as annexure-B. but due to Covid-19 which spreads as global  pandemic affecting more than  100 countries and as per the travel advisories issued by the Ministry of Tourism of India, 26 Feb 2020 addressing the city ends of India to refrained from non essential tour to Singapore. The copy of which is annexed herewith as annexure-D.

            Subsequently,   on 23th Feb,  2020 a complete nationwide lock down was declared by the Govt. of India till 15 Feb,  2020 and thereafter expecting through  notification till the month  august and Govt. of India had already ordered a blanket on international  flight from 22 march   2020 and in addition to it. The Director General of Civil Aviation though it circular dated 26.03.2020 restricted the movement of all commercial international bank flight till the 14^th April,  2020 and thereafter  extended it and international  travel is only made possible, in the month of  August 2020 through  the Bande Bharat Scheme of the Govt. of India even the domestic Air  Communication  within India was also stopped. Copy of circular dated 26.03.2020 is herewith as Annexure-E.

Under such circumstances,   it was not possible for the complainants to carry on the planed vacation trip with the OP travel Company as per schedule. Subsequently, the complainants held talked with the OP travel company over the issue when it was informed to the OP, the OP travel Company advised that the tour made shifted   to the month of October   2020 and it was also assured by the representative of the OP travel Company that no financial loss would be borne by the complainant as a result of such shifting, nothing   was finalized by the complainants about the shifting of date of tour to the month of Oct,  2020. Due to such pandemic situation and also financial  insurgency dropped the letter to the OP on 06 April,  2020 by email to the refund  of full booking amount to them and the copy of such email is annexed as annexure -A. Thereafter, on 01.05.2020,  the complainants have received  a mail from  the OP Company  that all the booking were transferred to the  month of Oct 2020 as any such cancellation at this moment would attract the cancellation fee, but is alleged by the complainants that no such changes were done by the OP in respect of trip text and no form was given to the complainants to that effect. 

The OP further alleged that the OP travel Company   was trying to refund the money in a fashion with an ulterior motive deprived the complainants from their legitimate claims  in one of such option,  the OP Company is agreed to provide full refund via mode of motor vouchers which has to be redeemed through booking a tour vacation with the company within this span of one  year but usefulness of voucher is nil due to pandemic situation. Copy of such option is annexed as annexure “H”.

Without having any other alternative,  the complainants have served a legal notice to OP travel Company  vide their  letter dated  19.06.2020. The copy of which is marked as annexure “I” which was duly received by the OP travel Company  and sent a reply  of  the cancellation of the tour booking amount by the OP Insurance Company is amounts to deficiency  in service  on its part for which the OP is liable to pay the compensation  to the complaint.  Hence, the case is filed by complainants to refund an amount of Rs.14,30,000/- i.e. booking amount and to pay compensation of  Rs.1,00,000/- to the complainants for causing harassment,   mental pain and  agony along with litigation cost.  

The OP Tour Co. has contest the claim application by filing a WV denying all the material allegations leveled against it. It is the OP’s case that the petition of complaint is barred by law of limitation. The OP alleged that the complainant is not a consumer within the scope of CP Act, 2019 and prayed for dismissal of the petition of compliant.

The OP further stated that admittedly the complainants had approach the OP to plan a trip for them to visit Singapore, Malayasia and Thiland.  The complainants have entered into the terms and condition of the trip Itinerary as proposed by the OP. The admitted trip was for 7 nights and 8 days which was scheduled to commence on 4^th April, 2020 and ending on 11^th April, 2020.  It is denied that the OP has ever shown its high handedness or to harass the complainants. It is also denied by the OP that complainants have made payment in lieu of such booking in terms of understanding as more fully recorded in the Itinerary as alleged.

The OP further mentioned that the Itinerary was handed over to the complainant at the time of finalization of the said trip in question clearly recoded that each person had to deposit a sum of Rs.35,000/- towards booking amount which was non refundable.  That apart the complainants also contractually obliged to pay 50% of the tour cost on or before 70 days i.e. on 25.01.2020 prior to the schedule departure and full and final payment on or before 45 days, i.e. on 19.02.2019 prior to schedule departure. So the complainants were contractually obliged to complete the payment on or before 19^th February 2020. But none of the complainants has complied with contractual payment and or complete the entire payment.  The OP further alleged that it was categorically stated that the booking were made entirely on family basis and / or even on individual basis as such there is / was no question of joint payment in connection with booking amount as made by the complainants. So the statement made by the complainants in respect of payment of booking amount is false and frivolous and to mislead the Commission with an ulterior motive. It is alleged by the OP that none of the payments were made by the complainants as per agreed terms and conditions. The OP further stated that the pandemic situation was hit on headline in the last week of March 2020 all Government and private work places were opened and functioned with full strength so there had been no restrictions on interstate communication. The OP stated that the complainants falsely alleged that due to pandemic situation the entire country were under Lockdown. It is also denied by the OP that there was no final commitment on the part of the complainants regarding shifting of the said travel fee to the month of October 2020 as alleged rather the OP requested the complainants to finalize their decision on the said trip and had also given the cancellation charges applicable if the said trip is cancelled at any point of time but the complainants have no intention of such cancellation rather they had opinion to shift the tour plan to Sri Lanka / Maurites or other places. Ultimately on 13/03/2020 one of the Representative of the OP attended the complainants No-1, 3 and 4 physically and the complainants No. 2 and 5 over telephone and the said meeting it was decided that the alleged plan to be shifted in the month of October 2020 and accordingly the OP made arrangement to shift the tour on October 2020 and all necessary arrangements were taken by the OP which was informed to the complainants Sudip Kumar Dutta vide E-mail. The copy of the said mail is annexed as Annexure-A. So all the part of the there was no deficiency in service and question of giving compensation to the complainants from the end of the OP does not arise at all rather the complainants have breached the booking contract deliberately and willfully for illegal gains and are not entitled to get the relief as prayed for.

The contending OP further demanded that the petition of complaint as filed by the complainants is baseless without have any cause of action thus the same is liable to be dismissed.

In view stated above pleadings,   points  of consideration are as follows.

1. Whether the case is maintainable or not?

2. Have the complainants any cause of action to file the case?

3. Are the complainants consumer?

4. Is there any deficiency in service on the part of the OP?

5. Are the complainant entitled to get the relief as prayed for?

Decision with reasons

All  the points of considerations are taken up together for convenience of discussion and to avoid unnecessary repetition.

On a close scrutiny of the materials on record,   facts and circumstances,  and position  of law it is found that the case is well maintainable  in the eye of law and the Commission has got ample jurisdiction  to try this case in all respect.

It is the case of the  complainants that in the month of November, 2019  they approached OP travel Company  to plan a treat for them for visiting Singapore, Malaysisa and Thailand  on and from 4^th April  2020 till 11^th April  2020 as we got it from annexure -A filed by the complainant and they made payments in lieu of such booking to the OP travel Company. The money receipts of which are collectively marked as annexure- B filed by the complainant. but subsequently, the tour was cancelled due to Covid-19 as per advisories of  the ministry of Tourism of Govt.  of India dated 26 Feb  2020 (annexure D). Subsequently, on 23th March  2020 the Govt. of India ordered a complete nation wise lock down till  15^th,  April 2020. So, the tour was cancelled due to pandemic situation and the complainants though requested the OP travel company  to shift the tour programme to the month of Oct 2020 but the complainants could not be able to avail the opportunity as the Covid-19  Global Pandemic situation was also continuing during that period. So, the complainants requested the OP travel Company to refund the entire paid amount but the OP  replied that it will be refunded partially after deducting the processing fees. The complainants then served a legal notice upon the OP travel Co. on  19.06.2020 asking them to refund the entire amount paid by them, which was duly served upon  the OP and the OP replied such notice dated  14.07.2020 and denied the refund of the entire amount.

The complainants in their evidence and argument have alleged that the OP travel Company did not pay any heed to their request to refund the entire paid amount and did not consider pandemic situation, rather they tried to force the complainants to go on trip during pandemic situation, when the international air  was not functioned and when the lock down period was going on throughout India and world. Such conduct of the OPs is nothing but deficiency in service because the OP travel co. harassed the complainants and causing their mental pain and agony and also suffering financial loss.  OP travel co. in its written version and evidence has tried to establish that as per terms and condition of the booking of the trip in question which was constituted between the complainant the OP travel co. The complainants cannot get the entire paid amount rather as per terms and condition of the trip contract, the complainants are bound to pay the booking amount individually as per family. So, they cannot paid the amount jointly  however, considering the fact and circumstances  of the case as well as considering evidence on record it is palpably clear that at that point of time when the booking time was fixed in the month of April  2020 lock down was going on through the country as well as world due to Coivd-19 pandemic situation. The international air ways were also not run regularly  as per direction of the Department of Tourism Ministry of India as well as world moreover, due to pandemic situation when the life of the Indians were under threat the OP travel co. cannot force the complainants to go for the trip as they booked the trip by paying the fee. In the month of June, the OP demanded that they cannot refund the entire booking amount but during the pandemic situation which prevented the complainants to go on making the trip in Singapore,  Malayisa and Thailand then the OP bound to pay the entire booking amount to the complainants because such that was national as well as international incident due to pandemic situation and  it was the dictum of the law of the land that  no limitation, no conditions will be acted upon against the interest of any person during pandemic situation.

Under such circumstances, the OP is also bound to pay entire booking amount to the complainants but the OP did not do that and denied to pay the entire  booking amount to the complainants which should be considered as deficiency in service on the part of  the OP travel company.

It is needless to mention here that admittedly the complainants  are consumers within the ambit of CP Act 2019 as and when they entered into the agreement with the OP Insurance Company  for the alleged trip on payment  of booking amount since then the complainants are the consumers and the OP is the service provider.

On the basis of the discussions made above that the OP denied to refund the entire booking amounts to the complainant which compelled  the complainant to serve the  legal  notice up on the OP on  19.06.2020. It is established that the complainants have sufficient cause of action to file this case and the OP due to its deficiency in service is liable to refund the entire booking  amount and also pay compensation to the complainants.

In view of discussion made above, it is held by this Commission that the complainants being the consumers as per provision  of  Act 2 (7)  of the CP Act,  2019 could be able to prove their case against the OP travel Company  beyond all reasonable doubt and the OP service provider for its misconduct which amounts to deficiency  in service on its part is liable to pay compensation  to the complainants and also liable to  refund the booking amount paid by  the complainants.

Thus, the complainants  are entitled  to get the relief as prayed for.

All the points of consideration are decided and considered in favour  of the complainants.

The case is properly stamped.

Hence,

Ordered

 that the case be and the same is decreed on contest against the OP with cost of Rs. 5,000/-.

The complainants do get the decree as prayed for.

The OP is directed to refund the booking amount of Rs.14,43,000/- (Rs. Fourteen lacs forty three thousand) only to the complainants as paid by them on account of cancellation of tour programme  within 45 days from the date  of this order.

The OP is further directed to pay compensation  of Rs.12,000 /- to the  complaints for harassment  mental pain and agony along with litigation cost of Rs.5,000/-  within 45 days from the date  of this order,  id the complainant will be at liberty to execute the same as per law.

Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.