KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 451/2017
JUDGMENT DATED: 17.08.2023
(Against the Order in C.C. 110/2015 of CDRF, Kottayam)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPELLANTS:
- Managing Director, Fortune Destination Management, 1st Floor, Mannamthara Tower, Paramara Road, Ernakulam-682 018.
- Fortune Destination Management, C.S. Building, Sreenivasa Iyer Road, Thirunakkara, Kottayam-686 001.
(By Adv. Abdul Shukkur Arakkal)
Vs.
RESPONDENT:
John Mathew, Vadakkeparambil House, Nedungadappally P.O., Kottayam-686 545.
(By Adv. Sajith C. George)
JUDGMENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
This is an appeal filed by the opposite parties in C.C. No. 110/2015 on the file of the District Consumer Disputes Redressal Commission (will be referred to as District Commission for brevity) against the order dated 30.08.2016 directing the appellants to refund Rs. 89,300/- with interest @ 12% per annum along with costs Rs. 5,000/-.
2. The complaint was filed by the respondent alleging deficiency of service. The opposite parties are tour operators to whom the complainant had booked tour package to Kashmir for six persons and on 16.07.2014 Rs. 1,78,600/- was paid to the first appellant by money transfer. On 08.09.2014 the appellant intimated the complainant that the tour had been cancelled due to flood and he refunded Rs. 89,300/- on 22.09.2014 along with credit shell certificate, but refused to return the balance amount of Rs. 89,300/-. The complainant found that his act would amount to deficiency in service and unfair trade practice. Hence the complaint was filed.
3. The opposite parties filed version with the following contentions:
The District Commission had no jurisdiction as the first opposite party had been staying at Ernakulam and the entire transactions had taken place at Ernakulam. Half of the amount was retained as the tour was cancelled due to flood and the complainant can avail the retained amount for any other tour package within a period of 2 years. The inconvenience was caused not due to the fault of the opposite parties. The complainant does not come within the definition of a consumer and his only remedy was to file a civil suit. The opposite party would seek for dismissal of the complaint.
4. No oral evidence was filed but proof affidavits were filed by both sides. Exts. A1 to A5 were marked.
5. The defence raised in the version filed by the opposite parties were repelled and the complaint was allowed by the District Commission.
6. In the appeal memorandum the following contentions were raised:
The District Commission had failed to appreciate the evidence in its correct perspective. The cause title would show that the office of the opposite party was located at Ernakulam and the entire transaction had taken place at Ernakulam and the second opposite party was added only for the purpose of seeking territorial jurisdiction. The District Commission ought to have found that both parties are bound by the terms contained in the itinerary. The rate of interest awarded is excessive.
7. Heard both sides. Perused the records received from the District Commission.
8. The specific pleading in the complaint was that the entire transactions had taken place from the office of the second opposite party which is within the jurisdictional limits of the District Commission. So the dispute regarding jurisdiction of the District Commission is not maintainable and it is found that the District Commission had jurisdiction. Remittance of the amount by the complainant and retention of Rs. 89,300/- by the appellants were not disputed. It is the case of the appellant that he had issued a certificate permitting the complainant to avail any tour package within two years and it is contended that the tour was cancelled not due to the fault of the appellant but due to natural calamity.
9. The complainant had caused production of Ext. A5, the details in respect of the tour programs arranged subsequently to prove that he had availed tour to other location as permitted by his employer since the tour was on LTC. In Ext A3 a clause is seen incorporated that in the event the tour is cancelled due to any natural calamity, the tourist has to bear the loss if any caused. But no materials had been brought before the District Commission to the effect that the appellant had suffered any loss. In such a circumstance the appellant has no legal right to retain 50% of the cash paid for the tour package on the strength of the clause incorporated in Ext. A3. The arbitrary act of the appellant in retaining 50% of the amount remitted, without providing any service as agreed amounts to deficiency in service and unfair trade practice. The District Commission had arrived at a correct conclusion. The District Commission did not award compensation as interest was ordered. We find no reason to interfere with the order of the District Commission. So the appeal fails.
In the result, the appeal is dismissed. Parties shall bear their respective costs at the appellate stage.
The respondent/complainant is permitted to receive the statutory deposit of Rs. 25,000/- and Rs. 20,000/- paid by the appellant before this Commission as condition to condone the delay on proper acknowledgement.
AJITH KUMAR D. : JUDICIAL MEMBER
BEENA KUMARY. A : MEMBER
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