Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant was willing to make a tour from Chandigarh to Shimla and returns along with her family members and being aware about such travelling agency of the op through publication made by the op regarding travel/ hotel booking at Chandigarh, the complainant met with the op for booking a package tour in the month of January 2020. After making conversation with the op complainant booked a package tour with mentioned tourism in the month of January 2020 and the said tour had been schedule on 20^th May 2020. As per demand of the op complainant also paid Rs. 54,000/- as advance amount for the said tour and the op also issued bill in favour of the complainant acknowledging the receipt such booking. The complainant also paid excess amount of Rs. 12,000/- only as advance for railway ticket from Kolkata to Chandigarh to the op. thereafter unfortunately the said tour was cancelled due to pandemic situation of the Covid 19. Thereafter lapsed of sudden period complainant contacted the op and wanted to know the status of her tour and also requested him to arrange the said tour in October 2021 but op did not provide any satisfactory reply. Thereafter the complainant requested to the op either to make arranged the said tour or refund back the advance amount paid by him to the op but op did nothing. Thereafter the complainant send a notice to the op to refund back the advance amount which was received by op from the complainant and also send email in his email id on 13.9.2021 but the op did nothing.

Thereafter finding no other alternative complainant on 23.4.2022 complain the matter to Grievance Management, Assistant Director, Kolkata (Central), R.O. Directorates of C.A. & F.B.P. and the said complain transferred to the Consumer Affairs and Fair Business Practice Hooghly Religion Officer, NNICE building, Chinsurah and thereafter complainant on 21.6.2022 further send a notice with same request to the op which was duly served upon op but op did nothing. The said Consumer Affairs and Fair Business Practice Hooghly Religion Officer, NNICE building, Chinsurah fixed on 29.8.2022 for hearing of the said case but in this date none the op or their representative was present.

Complainant filed the complaint petition praying direction upon the opposite party to refund a sum of Rs. 54,000/- along with 18% interest per annum and to pay a sum of Rs. 12,000/- as advance for railway ticket and to pay a sum of Rs. 4,00,000/- towards compensation for mental agony, anxiety and harassment and to pay a sum of Rs. 20,000/- towards litigation cost.

In this case the op inspite of receiving notice have not appeared and even after getting 45 days statutory time limit have not file written version and so this District Commission has heard this case ex parte.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

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.

Argument highlighted by the ld. Lawyers of the parties

Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

            Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant have given emphasis on evidence and document produced by complainant.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties inspite of receiving notice have not filed any W/V and also have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. It has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus on close examination of the pleadings of the complainant it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.

            On comparative studies of the evidence on affidavit filed by the complainant and on close compare of the documents filed by complainant it appears that the complainant by way of giving oral and documentary evidence has proved his case in respect of all the issues and the evidence given by the complainant remains unchallenged as the ops have not adduced any evidence and documents. There is no reason to disbelieve the unchallenged and uncontroverted evidence given by the complainant side. The evidence given by the complainant side goes to show that he has proved the fact that the complainant invested Rs. 54,000/- + Rs. 12,000/- in favour of op. So, the complainant is entitled to get the said amount of Rs. 66,000/- along with interest @ 9% per annum from the date of filing of this case (9.9.2022). Thus, all the points of consideration framed in this case are decided in favour of the complainant side.

In the result it is accordingly

ordered

that the complaint case being no. 209 of 2022 be and the same is allowed ex parte.

It is held that the complainant is entitled to get Rs. 66,000/-  along with interest @ 9% per annum from the date of filing of this case (9.9.2022) and the complainant is also entitled to get compensation of Rs. 10,000/- and litigation cost of Rs. 5000/- from the op.

Opposite party is directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

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.