Sri Utpal Kumar Bhattacharya, Member

This is an Appeal u/s 15 of the C.P Act, 1986 wherein the judgment and order dated 24.11.2016 passed by the Ld. District Forum, Kolkata—I (North) in Complaint Case No. CC/13/591 has been put under challenge by the Appellant/OP.

The Appellant/OP was directed in the impugned judgment and order to refund to the Respondent/Complainant a sum of Rs. 3,07,298/- along with compensation and litigation cost to the tunes of Rs. 30,000/- and Rs. 5,000/- respectively within 30 days from the date of communication of this order, in default, as ordered, interest @ 10% p.a. shall accrue over the entire sum due to the credit of the Respondent/Complainant till full realization.

The Case of the Complainant was that the Respondent/Complainant along with his wife intended to undertake a 60 day “Euro Summer Tour” during May June 2012. The Respondent/Complainant deposited a total amount of Rs. 3,42,770/- for the above mentioned tour scheduled to commence on and from 21.05.2012 under the aegis of the Appellant/OP. On 19.05.2012, the Respondent/Complainant sustained a Cardiac attack and was hospitalized immediately on the doctor’s advice. Feeling the fact that his health will not permit him to undertake the tour, the Respondent/Complainant informed the tour Manager about his physical incapacity to join the tour programme. The daughter and son-in-law of the Respondent/Complainant also intimated separately to the Appellant/OP about the adverse health condition of the Respondent/Complainant that compelled him to take the decision of not participating in the tour programme.

The Appellant/OP, in his letter dated 21.05.2012, responded with intimation to the Respondent/Complainant that his matter was taken up with the concerned airlines and overseas operators so that the matter might be considered sympathetically by them and a refund of a substantial part of the paid amount could be ensured.

The Appellant/OP ultimately refunded through a cheque an amount of Rs. 35,742. In its letter dated 24.01.2013, addressed to the Ld. Advocate for the Respondent/Complainant, the Appellant/OP communicated the component wise breakup of the aforesaid refund amount and also made clear that with the above refund, Appellant/OP will be left with no liability for the refunding of any further amount.

Being dissatisfied with the paltry amount of refund and observing in the activities of the Appellant/OP an unlawful trade practice for deriving an unjust enrichment, the aggrieved Respondent/Complainant filed the Complaint Case before the Ld. District Forum. The impugned judgment and order which has been put under challenge in the instant Appeal originates from the said Complaint Case.

Heard the Ld. Advocates appearing on behalf of both sides.

The Ld. Advocate appearing on behalf of the Appellant/OP drew the notice of the Bench to para 3 of the running page 60 being the part of the terms and conditions of the package tour and submitted that the provisions of cancellation and refund were very clear to the extent that full tour cost would be levied in case of cancellation of a tour within 3 days prior or after departure. On the instant occasion, as contended, since there was cancellation proposal two days prior to the scheduled date of the departure, the Respondent/Complainant did not have any rightful claim for refund of any amount.

As he continued to submit, the proposal for cancellation of tour came from the Respondent/Complainant at a time when the tour, after all arrangements being made, was ready to be kicked off. Naturally, there were full expenditure towards hotel accommodation, package fare and other incidental charges. As submitted, the effort made by the Appellant/OP towards recovery of hotel accommodation, local transport and other incidental charges failed. The airlines authority, however, yielded to their request and refunded an amount of Rs.35,742/- as a gesture to its customer friendly approach. Said amount being routed through the Appellant/OP reached the hands of the Respondent/Complainant who received the amount without raising any voice of protest.

As continued further, the Respondent/Complainant, in fact, went to the extent of denial of the receipt of the above mentioned refund amount before the Ld. District Forum and resorted to thereby an act of suppression of material fact. The Ld. Advocate brought to the notice of the Bench the fact that the Ld. District Forum had recorded in the order about hearing to be given for disposal of petition filed by the Appellant/OP challenging the maintainability of the complaint at the time of its final hearing. Astonishingly, as the Ld. Advocate maintained, the complaint was finally disposed of without the petition challenging the maintainability of the complaint being heard and disposed of.

The cheque, as the Ld. Advocate continued, since received without any voice of protest being raised, it can safely be stated that the amount in question was received by the Respondent/Complainant as full and final settlement of the claim. Consequent upon the receipt of the amount, the Respondent/Complainant, as contended, ceased to be a consumer any longer.

At the end, the Ld. Advocate submitted that the Ld. District Forum did not allow the Appellant/OP to submit evidence. Since there was no evidence, a vital step of cross-examining the Respondent/Complainant was skipped subjecting the Appellant/OP to utter deprivation of the opportunity of bringing the facts behind the screen before the Ld. District Forum.

The Ld. Advocate, with his submission as above, prayed for the Appeal to be allowed setting aside the impugned judgment and order.

The Ld. Advocate appearing on behalf of the Respondent/Complainant, contrary to the above submission, impressed upon the Bench the reluctance of the Appellant/OP Company to appreciate the compelling circumstances that made the Respondent/Complainant cancel his intended participation in the package tour. The Appellant/OP, as contended refused to appreciate the fact that the Respondent/Complainant was really incapable of participating in the tour as he had sustained a serious heart attack and had to undergo angioplasty surgery.

Admitting the fact that the Respondent/Complainant had signed the registration form, the Ld. Advocate submitted that, as a common man having no knowledge about the Agreement he was signing, he placed his signature on the body of the form reposing full credence upon the Appellant/OP Company and without going through the “cancellation and refund” part narrated in the said form. As such, he had no knowledge about what amount he would get in case of cancellation of tour under compelling circumstances.

The Ld. Advocate drew the notice of the Bench at para 8, running page 19 and continued that it was not a fact that the Respondent/Complainant did not admit the receipt of the amount refunded to him. As he contended, the Ld. District Forum recorded at page 3 of the impugned order an erroneous observation towards non-receipt of any amount as refund by the Respondent/Complainant.

The Ld. Advocate, denying the claim of the Appellant/OP that the Respondent/Complainant had received the refund without objection as full and final settlement, stuck to his prayer for upholding the impugned judgment and order dismissing the instant Appeal.

We have gone through the case records and considered submissions made by the Ld. Advocates appearing on behalf of both sides.

It was of no denying the fact that the Respondent/Complainant himself signed the registration form wherein the details about entitlement to refund were delineated. The tour participation was cancelled by the Respondent/Complainant for his own predicaments for which the Appellant/OP should not be blamed in any manner. Therefore, the deficiency in rendering service and resorting to unlawful trade practice by the Appellant/OP, as alleged in the complaint, do not lie.

The Respondent/Complainant’s denial about his having knowledge of the provisions of refund against cancellation laid down in the certificate of registration does not hold good as the certificate of registration has been signed by the Respondent/Complainant himself. The provision was clear enough about levying of full cost in case of cancellation of tour within three days prior or after departure i.e. initiation of journey. Since the cancellation of the tour was conveyed to the Appellant/OP No. 2 two days ahead of the scheduled date of journey, the Respondent/Complainant did not have entitlement for any refund.

The papers, since signed by the Respondent/Complainant himself, the parties concerned came under contract and the tour package was supposed to be governed by the contractual terms under any circumstances whatsoever. In this context, we would like to rely on the judgment delivered by the Hon’ble Supreme Court on 09.05.1996 [Bharathi Knitting Company—Vs—DHL Worlwide Express Courier Division of Airfreight Ltd.] wherein the Hon’ble Court was pleased to observe that a person who signed the document containing contract and terms was normally bound by them even though he had not read them or even though he was ignorant of their precise legal effect. The Appellant/OP, on the instant occasion, had not committed any act in contravention of the terms of the contract by not refunding any amount in excess of what the Respondent/Complainant was entitled to.

We had seen the papers wherefrom it revealed that in its effort to pay to the Respondent/Complainant the refundable amount, the Appellant/OP moved the airlines authority and overseas operator. The amount which the Appellant/OP received from the airlines authority was refunded to the Respondent/Complainant. The record did not reveal any fact that the Respondent/Complainant before accepting the said refund had ever raised any voice of protest. In this context too, we intend to rely on the decision of the Hon’ble National Commission in Revision Petition No. 2779 of 2012 [Meerut Developmental Authority through its secretary, Meerut, U.P—Vs—Smt. Manju Gupta] reported in 2014 (3) CPR 76 (NC) wherein the Hon’ble National Commission was pleased to observe that once the Respondent had claimed the refund amount, she ceased to be a consumer. In the present case, the Respondent/Complainant not only claimed the refund but also received a part refund. We did not find any convincing document which might lead to prove that the Respondent/Complainant ventilated his grievances against the refund he received. The Respondent/Complainant’s claimed for treating him as a consumer on the instant occasion, therefore, may be put to question in the above perspective.

Above being the circumstances, we are of the considered view that there was material irregularity in the impugned judgment and order.

Hence,

ORDERED

that the Appeal be and the same stands allowed. The impugned judgment and order stands set aside. Consequent thereof, the Complaint Case also stands dismissed. No order as to costs.