The complainant Ms. Jhuma Thakur, w/o Dr Sumanta Thakur of Kolkata 700059 files complaint petition u/S 35, 37 and 38 of the Consumer Protection Act’ 2019 on the allegation of deficiency of services on the part of the Opposite party M/s Make Easy Travel Online Pvt. Ltd. represented by it’s Director, with office at AH-316, Sector II, Salt Lake City, PO: Sech Bhawan, PS : Bidhannagar (East), West Bengal in a consumer dispute of tours and travels.

The complainant filed this complaint case for deficiency in service which was originally running ex parte but subsequently been revised as per Order dated 4.10.2021 by SCDRC, West Bengal on the Revised petition when scope to file WV was restored against cost. Accordingly OPs were allowed to participate in the adjudication process. Questionnaires, Replies and Evidences on affidavit were exchanged between the parties. On 06.01.2023 argument was heard in full when the complainant filed BNA.

The brief fact of the case of the complainant in a capsulated form is that the complaint valued at Rs. 5, 86,000/- was prayed for refund advanced by the complainant along with 12% interest and a compensation of Rs. 2,00,000/- for mental harassment etc. for deficiency in service and negligence on the part of the OP. The case of the complainant is that a private tour was arranged by the OP company who is a tour and travel operator having business all over the country for hotel accommodation, tour and travels along with other related services in domestic sector and abroad. The petitioner being allured with the advertisement by the OP company about such tour and travel programmes expressed her wish for an international tour to Europe under the name and style of “European Dreams” which was scheduled from 22.05.2020 to 31.05.2020 that got booked by her 3 months in advance for an amount of Rs. 5, 86,000/- for 3 adults that includes air fares, transfers, visa, fooding & lodging and accordingly an itinerary was sent to petitioner by the OP through e-mail. The petitioner paid the full amount in advance by cheque and tried to ascertain about the trip to be conducted, when she got to know that the said tour has been cancelled by the OP on 01.03.2020. But upon enquiry, there was no response from the OP. In spite of repeated efforts, the petitioner got no reply from the OP and then she filed a police complaint on 24.06.2020 for refund of the aforesaid advance amount. The OP company issued credit note in favour of the complainant with a false assurance which was submitted by the OPs at the police station and the complainant had to collect a copy of the same from the police station. This has led to shattering of dream of the petitioner due to spoiling the vacation tour due to the unethical, unprofessional and insensitive behaviour of the OPs who have indulged into illegal and arbitrary act leading to unfair trade practices and deficiency in service that needs to be compensated. In support of her claims, the complainant files exhibits like tour itinerary including terms and conditions (running page 11-15), credit note no. C202002 dated 08.07.2020 (page 16), receipt issued by M/s Search route vacations to OP (page 17-19), letter by OP to complainant dated 11.07.2020 (page 20) and an unsigned statement stating cancellation charges etc. and refund schedule of Rs. 3,77,000/- (page 21)

The OPs filed Written version contesting the contention of the complainant stating that their complaint is misconceived, speculative and harassing with false and fabricated allegation and with malafide intention. It was also contested by the OPs that the complainant is not a consumer under the meaning of Consumer Protection Act 2019 and this complaint is not falling under the pecuniary jurisdiction of this Consumer Commission and as such, the instant case is not maintainable in law. The OPs also claimed that the “European Dreams” tour was scheduled from 22^nd to 31^st May, 2020 for a package price of Rs. 5, 86,000/- including air fares, visa, hotel, fooding & lodging and tour cost for which necessary payments were received from the complainant but due to the pandemic situation of Covid-19 globally, the tours and flights have been cancelled and suspended in compliance of the orders of Government of India due to declaration of lockdown from 24^th March, 2020. The OPs stated that as all the suppliers and agents of the international tour package got blocked, the OPs could not collect the payments from their backend operators and awaited for the necessary adjustments again further group tours. Considering such situation, on request of the complainant, the OPs provided credit note facility in favour of the complainant for adjustment with the next tours after the pandemic situation gets over. The OP also claims that as per general terms and conditions of the abovementioned tour program, which states inter alia that if the tour is cancelled due to an act of God, the company is not liable to pay any refund to any of the client. But even then the OPs issued credit note in favour of the complainant valid till 31.03.2021 for adjustment with their next travel by the complainant. The OPs contended that they, in turn, suffered a business loss due to such pandemic situation and paid a huge amount of Rs. 1, 50,000/- towards their supplier “Search Route Vacations Ltd.” who in turn informed the OPs that due to such situation the tours would remain suspended, till the normalcy is restored. Hence all the complaints were vehemently denied and disputed by the OPs on aforesaid grounds

We have gone through the case thread bare. Upon perusal of the records and documents along with exhibits annexed by the parties it appears that there is no dispute in respect of the proposed tour programme and monetary transaction between the parties. As the receipt has been issued by the OP company to the complainant for providing service for the proposed tour and travel, the complainant is very much covered as a consumer under the scopes and meaning of Section 7(ii) of the Consumer Protection Act 2019. The value of the complaint and the geographical jurisdiction of the same is also duly covered under the pecuniary jurisdiction of this District Commission as per Section 34 (1) and 34 (2) of the said Act. Hence the complainant is undoubtedly a consumer as per definition of the Act. The moot contention of the OP is regarding considering the pandemic situation of Covid-19 as act of God. It is obvious that the proposed tour programme had to be either kept suspended or cancelled due to prevailing regulations issued by various authorities from time to time during the concerned period of Covid 19, but that does not give liberty to the OP company to not to refund the money that they have received as advance from the complainant for which no service was rendered. Neither the OP company can forcefully impose acceptance of credit note (that too for a limited period up to 31.03.2021) upon the complainant without their consent. The ‘cancellation clause’ as per running page 14 exhibited deals cancellation terms if invoked by the customer i.e. complainant in this case. But no such cancellation from the side of complainant is on record in this complaint case. Further, as per Clause (1) and (2) of the ‘General terms & conditions’ (page 15) the OP company is not liable to refund if tour gets cancelled due to natural calamities like earthquake, thunderstorm, flood, heavy rain, heavy snowfall etc. or due to an act of God or due to any political disturbances like strike, curfew, 144 act, road blockage, bad road conditions etc. But there is no administrative order we have come across by which the said pandemic situation has been classified or declared either as ‘an act of God’ or falling under the aforesaid categories. The OP as a service provider is completely liable for the risk involved in a business situation while discharging promised services to their consumers in full fairness and even if there was valid reasons for not to complete the promised services, they should have given full refund in lieu thereof. Otherwise this becomes an unfair trade practice promising to provide a service or a deceptive practices by failing to refund the consideration amount that was never availed by the consumer.

So the facts and circumstances and materials on record reveals it palpably clear that the OP company has adopted unfair trade practices towards the consumer by not refunding the consideration money that they received, although they could not render any service.

                             The Hon'ble Supreme Court in the judgment of case Supreet Batra v. Union   of India 2003 (1) SLT 730, held that "service provider cannot forfeit the fee or consideration for services, which are not provided”. This speaks volumes about the 'unfair trade practice' on the part of the opposite parties in causing wrongful loss to the complainant and wrongful gains to the opposite parties.

In view of the above, the complainant is entitled to get relief.

In a landmark order, the CCPA (Central Consumer Protection Authority) also granted full refund of tour cost to the consumers where tours were cancelled due to pandemic in the matter of complaint by Mumbai Grahak Panchayat against Mango Holidays Pvt. Ltd. and other private tour operators. 

      Hence, it is Ordered :-

That the complaint case no. CC/294/2020 be and the same is allowed on contest against the OP. The OP is hereby directed to refund the amount of Rs.5,86,000/- (Rupees Five lacs Eighty Six thousand only) to the complainant along with compensation in the form of simple interest @ 8% per annum with effect from the starting day of proposed tour i.e. 22.05.2020 till the date on which the entire amount including compensation is paid. However the OP company shall be at liberty to deduct the Visa fees, GST and Travel insurance premium only from the refundable amount, if incurred actually on account of the complainant, subject to production of documentary evidences to the complainant.

The payment in terms of this order shall be made 45 days from date of this order.

If the Opposite party fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.

Let a plain copy of this Order be provided to both the parties free of cost as per CPR.

Dictated and Corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER