Order no. 11
The case of the complainant in brief is that the complainant in order to avail a tour at Dooers with his wife contacted the o.p. who conducts the tour including travelling, fooding, lodging, etc. and accordingly the complainant paid Rs.10,000/- by way of cheque. After 4-5 days the owner of o.p. through phone informed the complainant that the said tour from 20.12.14 to 26.12.14 would not be materialized as the o.p. did not get the sufficient number of tourist. The complainant was asked to avail the tour in the month of Jan. 2015 but the complainant could not avail of the said tour because he had further assignment during the period and accordingly he asked the o.p. to refund the money but o.p. did not return the same, ultimately the complainant made a complaint before the Hon’ble Minister in charge, Dept. of Consumer Affairs and the matter was referred to CA & FBP, Govt. of West Bengal who directed the o.p. for refunding of the money within 15 days. In spite of issuance of such order o.p. did not pay the amount for which the complainant had to file this case praying for refund of the principal amount plus interest, compensation of Rs.75,000/- and litigation cost of Rs.10,000/-, totaling of Rs.95,000/-.
The o.p. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that there was no deficiency in service on the part of the o.p. and the complainant was offered to avail of the tour on a subsequent date fixed by o.p. The complainant only paid Rs.10,000/- out of total tour cost of Rs.9945/- plus train faire plus 3.09% service tax for the tour period from 20.12.14 to 26.12.14. The complainant failed to pay the tour cost and became defaulter. Apart from the said fact o.p. did not cancel the tour and for the first time the complainant claimed the amount on 4.12.14. It was also stated that since the complainant himself cancelled the tour therefore the complainant will not be entitled to get any relief as prayed for.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant entered into an agreement with o.p. for travelling Dooers with his family.
- Whether the tour was cancelled.
- Whether the complainant paid of Rs.10,000/- as advance.
- Whether the complainant will be entitled to get the relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. Lawyer for the complainant argued that after being attracted in the advertisement the complainant contacted the o.p. and came to know that during the period from 20.12.14 to 26.12.14 the tour would be conducted by o.p. and for that purpose the complainant paid Rs.10,000/- as advance, but subsequently the tour programme was cancelled with the assurance that the amount would be adjusted in the next tour that would be conducted by o.p. But since the complainant had the preoccupation in the month of Jan. 2015 he wanted to get back the amount but the amount was not returned to the complainant. Subsequently the complainant had lodged a complaint before the Hon’ble Minister in charge, Dept. of Consumer Affairs and the matter was referred to CA & FBP, Govt. of West Bengal who directed the o.p. for refunding of the money within 15 days. In spite of issuance of such order o.p. did not pay the amount for which the complainant had to file this case.
Ld. Lawyer for the o.p. argued that since the tour programme was cancelled by the complainant over phone and the said cancellation is not acceptable and since the o.p. did not cancel the tour programme or cancel the booking therefore the complainant cannot take advantage of the same by claiming that the tour programme was cancelled by o.p. and he will be entitled to get the amount paid by him. In the terms and conditions of the agreement at clause 15 it was mentioned that if tour is cancelled by o.p. or by the party for any reason the party may switch over to any other tour or may avail anu tour within a span of one year and the payment will be adjusted in the next tour within the same duration, after the payment will not be adjustable, no cash will be refunded an no part postponement will be accepted. In view of the said submissions ld. lawyer for the o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it is admitted fact that the complainant paid Rs.10,000/- towards the advance payment for availing of the said tour with his family from 20.12.14 to 26.12.14. The o.p. did not dispute regarding the said payment made by the complainant. Now the question arose whether the tour programme was cancelled by the complainant or by the o.p. The o.p. could not produce any document to show that the complainant himself cancelled the tour. On the contrary the complainant in the evidence stated that he after payment of the said amount had the idea that he would be availing of the said tour programme, but suddenly a telephonic call from o.p. informed the complainant that the tour would not be materialized as o.p. did not get sufficient number of tourist and he was asked to avail of the tour in the month of Jan 2015. But the complainant expressed his inability to avail of the tour programme during the said period because of his preoccupation in respect of the other matter. Naturally he did not opt for availing of the said tour programme, for that reason it cannot be said that the complainant himself cancelled the tour programme. Apart from the said fact whenever the complainant lodged a complaint before Hon’ble Minister the o.p. was informed and the owner of o.p. attended the hearing made by CA & FBP, Govt. of West Bengal and it was also decided that Rs.10,000/- is to be paid by o.p. within 15 days, but o.p. did not abide by the said direction. Having no other alternative the complainant had to file this case. Considering the facts and circumstances of the case it is crystal clear that there was gross deficiency in service on the part of o.p., in order to avoid the payment of the said amount the o.p. has taken the plea that the complainant himself cancelled the tour programme. Considering all these aspects we hold that the complainant will be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
that the CC No. 284/2015 is allowed on contest with cost against the o.p. The o.p. is directed to refund the complainant a sum of Rs.10,000/- (Rupees ten thousand) only along with compensation of Rs.10,000/- (Rupees ten thousand) only for harassment and mental agony and litigation cost of Rs.2000/- (Rupees two thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
