ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not refunding the amount paid towards the tour and for refund of the same along with  other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant along with her mother aged 73 years her cousin brother aged 68 years, her sister-in law aged 65 years, her aunt aged 65 years, and her daughter aged 15 years, wanted to travel to Dubai in the first week of March 2020 and contacted OP and after negotiation the charges were fixed for Rs.50,000/- per person and an amount of Rs.2,41,500/- was paid between 29^th February 2020 to 2^nd March 2020.  The tickets were booked on 16^th March 2020, from Felix Feria, the unit of Happy Holiday booking.  Due to pandemic situation, the trip was postponed to 4^th May 2020.  Even on those days also, the flights were not in operation and lockdown was continued.  Hence she requested the OP to cancel the trip and to refund the amount, for which OP rejected her claim stating that it will reschedule the trip.  Since except her daughter all the other persons were senior citizen, were not ready to travel due to pandemic situation even though OP was ready to reschedule. The same was explained to OP by sending mails.  Inspite of it, OP has deducted all the charges and was ready to refund an amount of Rs.48,803/-.  Since her mother, brother, sister in law and aunt denied to travel due to pandemic, OP forfeited all the amount by sending an email. Hence there is deficiency in service on its part and hence prayed the commission to direct OP to pay the amount along with damages.

3.      Upon the service of notice, OP sent a letter through email to this office stating that “we would like to acknowledge that we have received your request and the ticket has been created.  A support representative will be reviewing your request and will send you a personal response within 24 hours.”  By noting the said letter, the commission held that the notice has been served on the OP and since OP was not present, hence placed exparte. 

4.      In order to prove the case, complainant has filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

5.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

6.     POINT No.1 AND 2:-

   Perused the complaint, affidavit evidence and the documents produced by the complainant.  Complainant has also produced the email correspondences, the bank details and the booking details, with terms and conditions.  It is also mentioned therein that, if the booking is cancelled before 15 days of travel, 25% of the amount would only be refunded and incase the cancellation is within 15 days from the date of travel, no refund would be made.  Further the email correspondences, which is produced and marked, establishes that OP has been requesting the complainant to inform “whether they want to postpone the trip or to cancel it as they do not have much time and won’t be able to help in case of any delay as the trip date is 1^st May 2020, please note that it cannot change anything on the trip without traveler approval”. So kindly let us know your decision as early as possible” this is dated April 2^nd 2020.  The complainant has replied to the same that, “due to lock down, she cannot attend the office and she cannot obtain the permission from the government and sought time till the clearance of the lockdown”.  Many correspondences taken place and ultimately it is mentioned that “as per the above mail your whole amount has been forfeited and we are closing mail trail.”  This is issued on 1^st June 2020.

        7.     When this is taken into consideration, since the complainant did not inform her choice of either cancelling or postponing the tour, OP has taken extreme step of forfeiting the amount which according to us is highly illegal, immoral besides unfair trade.  It would have been fair enough if some portion of the amount was forfeited and the rest of the amount paid to the complainant.  

        8.     No material has been placed by the OP to show that they have made all arrangements at the destination by paying the amount so that the said amounts are not refundable and that they are not in a position to refund the amount.  Even after the service of notice, they remained silent and did not put forth their defence whatsoever.  In view of this we are of the opinion that there is deficiency in service on the part of OP in forfeiting the entire amount.  

9.     On the other hand, it is to be noted here that after receiving the amount from the complainant, OP in order to make arrangements for the comfortable journey and stay of the complainants at destination, has acted upon by spending the money.  Though it is not specified, we are of the opinion that at least 25% of the total amount has been spent for the said arrangements, as the OP has failed to produce the receipts for having booked air ticket which is a major portion of the expenditure. Hence if we order OP to pay 75% of the amount received i.e., 75% out of Rs.2,41,000/- would be just, proper and reasonable under the circumstance.  The tour could not be taken by the complainant due to pandemic situation, and also due to the imposition of the lockdown by the Government of India, and also all the flights were cancelled to and fro from India, and many of the foreign countries cancelled their flights and did not allow the citizens of foreign countries in order to control the pandemic situation and spreading of corona virus in their country.

10.   Further we direct OP to pay a sum of Rs.5,000/- towards the litigation.  In case, if OP fails to pay the said amount as ordered above within 30 days, the same shall carry interest at 12% from the date of forfeiture of the amount i.e., from 1^st June 2020 till the payment of the entire amount and answer point No.1 and 2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay the 75% of the amount out of amount received i.e., Rs.2,41,000/-.
3. OP is further directed to pay Rs.5,000/- towards the litigation expenses to the complainant.
4. If the OP failed to pay the above ordered amount within 30 days the same shall carry 12% interest from 01^st June 2020 to till the day of payment of the entire amount.
5. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 11^TH DAY OF OCTOBER 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Document relating to bank account transfer details transferring the amount to OPs account.

Ex P2: Email communications

Ex. P3: Email stating that the amount has been forfeited.

Ex P4: My bank account statement

Ex P5: Another email dated 29^th April 2020

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                                        PRESIDENT

HAV*