ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not refunding the amount received by OP to the extent of Rs.1,19,500/-, for refund of the same with interest at 20% p.a., and for Rs.1,00,000/- towards damages for causing mental agony, shock, torture and monetary loss and physical strain and for other reliefs as the Commission deems fit.

2.     The brief facts of the complaint are that; OP is a tour organizer.  Complainant’s daughter, for her mother and father to travel to Thailand paid Rs.1,19,500/- to the OP towards hotel booking and for the itinerary for the holiday package tour on 4^th July 2019.  The tour was for duration of five days and four nights to commence from 06.07.2019 to 11.07.2019.  Unfortunately the mother of complainant Mrs. Ratna Samraj, aged 79 years, suddenly took ill and was rushed to a Specialist Hospital, Kalyan Nagar, HRBR Layout, Bangalore, and admitted for further treatment.  She had a stroke and afterwards shifted to ICU and was under critical condition.  Under the said circumstance, they had to cancel the trip and the same was orally intimated to OP.  On mutual discussion, OP put a proposal to postpone the trip as an alternate suggestion which was not accepted by the complainant.  There were some email correspondences took place and they cancelled the tour programmed and sought for refund of the amount paid.  OP promised that the same would be completed within 10 working days.  In the meantime mother of the complainant died in the hospital.  They could not take up the tour.  Inspite of repeated follow-ups and even after waiting for 10 days, OP did not refund the amount.  Instead complainant was asked to wait for some more time.  Inspite of it, OP did not initiate for the refund of the amount, which amounts to unfair trade and deficiency in service and hence the complaint.

3.     Upon the service of notice, OP appeared before the Commission and filed the version contending that the complaint is not maintainable either in law or on facts and further has taken undue advantage for the situation of illness of her mother.  The complaint is frivolous, vexatious and liable to be dismissed U/s 26 of the Consumer Protection Act and further this complaint is barred U/s 3 of the Consumer Protection Act.   Further OP has taken up the contention that the tour program was fixed by one Shalom David and hence she alone entitled to file the complaint and this complainant has no locus-standi to file this complaint and further there is no privity of contract between OP and the complainant.   OP is only a travel aggregator and acting as an intermediary between the complainant and travel fire flies which is a travel agent.  OP has no role to play in the arrangement of the tour.  Complainant is bound by rules and provisions of the IT Act 2000.  Since the Shalom David booked the tickets, entered into agreement, agreeing for the terms and conditions, is bound by the same.  The travel triangle i.e., OP has no responsibility for any loss that the traveler may suffer.  Further in case of any dispute, the Consumer Commission Bangalore has no jurisdiction and that it has not at all cheated misrepresented or defrauded the complainant and the person who booked the ticket.

4.     Further OP has denied all the allegations made against it in each and every para of the complaint and admitted the booking of the holiday package to Thailand by one Shalom David and the information regarding the cancellation of the same due to the sudden illness of the mother of the complainant.  Though as a policy, it cannot refund any amount, as an exceptional one, it agreed to refund Rs.50,000/- as exgratia payment which the complainant refused to receive.  Citing many decisions in its favour, OP prayed the Commission to dismiss the complaint.

5.     In order to prove the case, both the parties 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?

6.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

7.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that complainant through her daughter Shalom Deepika David booked ticket for a trip to Thailand for herself for her parents Raghu Savlin David and Mrs. Usha Sheela David, and the payment of Rs.1,19,500/- was paid to OP for the holiday package.  The tour was to commence on 6^th July 2019 and to end on 11.7.2019.  Unfortunately mother of the complainant had a stroke on 5^th July 2019, and was admitted to the Specialist hospital and the whole family members had to take care of her and hence they could not perform the journey on 6^th July 2019.  It is also mentioned in the affidavit and the version along with the medical records of the mother of the complainant that Smt. Ratna Samraj, the mother of the complainant died on 15^th July 2019. Afterwards complainant made a claim to OP for refund of the amount since no journey was performed and no facilities reserved for them by OP have been utilized.  The correspondences made in between the complainant and the OP clearly shows that the complainant and family members booked the holiday package with the OP by paying Rs.1,19,500/-. 

8.   In Ex. R6 it is mentioned that as per the policy, OP is not bound to refund the amount whereas, since the trip was cancelled in a very short duration of time, the refund is not applicable in this case, but as a token of apology, it is ready to initiate the refund of INR 50,000/- and also to share the details of the Bank name, Account number, Account Holder name, IFSC code. When this is taken into consideration, OP was ready to pay certain amount, in spite of according to it their policy was not permitting to refund the amount. 

9.  It is pertinent to mention here that OP for that matter on any person is not entitled to retain any of the portions of the amount for which service is not given.   If that is done, it amounts to unfair trade practice to enrich oneself.  No doubt it is true that the time was short for the complainant to cancel the trip, since the untoward incident in respect of her mother happened on 5^th only.  Since OP has also made some arrangements in organizing the package on behalf of the complainants with earnest hope that they would take up the tour, and not to inconvenience them, had made some arrangements for which it has to pay.  It is not known whether the said payment is on returnable basis, in case, the act is not performed.  Hence we are of the opinion that not refunding the full amount inspite of cancellation of the package amounts to unfair trade practice and retaining the full amount without providing the service amounts, to deficiency in service and hence answer point No.1 in the affirmative. 

10.    In the result, we are of the opinion that if 25% of the amount paid to be deducted for the services rendered by OP in making arrangements for the convenience of the complainant at destination and ordered to pay the balance to the complainant would meet the ends of justice under the circumstances.  Since the complainant is made to come to the forum seeking her rights under Consumer Act, by filing this complaint, who has incurred some amount of expenses besides undergoing mental tension and hardship and strain, it will be just and proper to order the OP to refund 75% of the amount it received along with interest at 12% from 6.7.2019 and Rs. 10,000/- towards damages and Rs.5,000/- towards litigation expenses and answer point No.2 partly in the affirmative.

11.  OP has taken up the contention that the complaint filed by Smt. Usha Sheela David is not maintainable and she has no locus-standi to file this complaint as she has not paid the amount and the amount paid by in one Shalom Deepak David.

12.  In this regard as per section 2(1)(d) of the Consumer Protection Act, complainant also becomes a consumer and has a right to file the complaint. Section 2(1)(d) Consumer means

“A consumer has been defined in Section 2 (i) (d) of the Act as follows:-

(d)  “Consumer” means any person who,

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system or deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised , or under any system of deferred payment, when such use is made with the approval of such person but does not include a person who obtain such goods for resale or for any commercial purpose.   Or

(ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payments and includes any beneficiary of such services other then the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such services are availed of  with the approval of the first mentioned person but does not include a person who avails of such services of any commercial purpose.

(For the purpose of the clause “ commercial purpose”  does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment)

13.    In view of the above definition of consumer, in this complaint, the complainant is also the user of goods i.e., getting the services of OP in respect of package and she is also a beneficiary of such service.  In view of this the contention raised by OP that the complainant has no locus-standi to file this complaint cannot be accepted and the same is rejected. Hence we pass the following;

                                      ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay to the complainant a sum of Rs.89,500/- being 75% of the amount received by it, from the complainant along with interest at 12% p.a., from 06.07.2019 till payment of the entire amount.
3. OP is permitted to retain Rs.30,000/- out of the amount received by it from the complainant towards the expenses incurred in making arrangements for the package of the complainant for her husband and daughter.
4. OP is further directed to pay a sum of Rs.10,000/- towards damages and Rs.5,000/- towards litigation expenses.
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.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 29^th day of September 2020

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: Room change consent form.

Ex P2: Copy of the Death summary of Mrs Rathana Samraj dated 15.07.2019.

Ex. P3: Death Certificate.

Ex P4: Copy of the Bank statement.

Ex P5: Copy of the credit card statement.

Ex P6: Copies of the receipt issued by OP (3 Nos.)

Ex P7: Copy of invoice issued by OP. Rs.1,19.500/- along with terms and conditions.

Ex P8: Copies of email correspondences.

Ex P9: Copy of the Whatsapp chatting hard copy.

Ex P10: Certificate U/S 65 B of the Indian Evidence Act.

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

RW-1: R Ashwin Kumar

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Original Board resolution cum authorization letter.

Ex R2: Copy of the Invoice with conditions.

Ex R3: Copy of the Terms and Conditions.

Ex R4: Copy of the Screenshots depicting the terms and conditions. (Counsel for complainant objects to the marking this document)

Ex R5: Copy of the service agreement with travel agent by name Travel Fireflies.

Ex R6: Email correspondences sent by the customers care to the complainant. (2 Nos.)

Ex R7: Copy of the certificate U/s 65-B of Indian Evidence Act.

MEMBER                                PRESIDENT