Case No. CC/101/2021
FINAL ORDER/JUDGMENT
Sudeb Mitra, President:-
The epitome of the complaint case, as could be culled out from the available materials on record and the documents furnished therein, submitted by the complt. Bivas Mitra, is that the O.P. Amjad Khan is the owner of the Travelling Agency in the name and style ‘Urban Antelop Travels’ situated at A18, Sector-2, New Shimla, Himachal Pradesh, Pin – 171009 and the O.P. has been known to run the said travel agency at Shimla for a long time.
The complt./petitioner had decided to pay a visit to Shimla from 20.05.2021 to 28.05.2021 & had decided to stay there for eight nights and for that purpose had contacted with the O.P. on 03.02.2021 through Online system and after conversation had booked ‘Dancing Deer’ apartment from the Antelop Hospitality of Shimla, Himachal Pradesh for eight night stay at Shimla from 20.05.2021 to 28.05.2021, against consideration of Rs- 52,900/- as determined on discussion with the O.P. on that score, as full payment of such stay of eight days over there. The payment of that amount was made through ‘Online Bank Transfer’ (NEFT) on 03.02.2021.
The complt’s contention is that it was contained in the booking proposal that it cancellation of booking has been done two days prior to the start of the booking, the O.P. shall return entire booking amount to the proposer excluding Tax and it was reflected in the cancellation column ‘cancellation would be 100% if cancelled two days before the start of booking, prior to that cancellation refund would be 100% minus tax.
This is the complt’s specific case that due to outbreak of Covid-19 pandemic, the petitioner/complt. was compelled to cancel the said tour at Himachal Pradesh and he had clearly communicated on that score to the O.P. on 07.05.2021 through Telephone & Email & requested the O.P. to make arrangements to refund the amount to the complt. as per refund policy & shared his Bank A/C details with the O.P. for refunding the travelling expenses already paid by the complt. through NEFT on 03.02.2021.
This is forthcoming from the complaint that though the O.P. had assured the complt. about refunding him the said amount yet finally the O.P. had declined to refund that amount to the complt. who had thereafter made a complaint in the National Consumer Helpline and inspite of its repeated efforts N.C.H. couldn’t help the complt. to get back the refund of his sent Travelling expenses to the O.P.
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As a result the complt. has filed this complaint and has prayed for reliefs as stated in the prayer portion of the complaint.
The case record reflects that the O.P. was duly summoned and the Postal Track Record fortifies such finding but the O.P. has not turned up and so this complaint case is fixed to be heard exparte.
This is transpiring from the materials on record that the complt. has furnished detailed Emails made from his end addressed to the O.P. and sent to him by the O.P. step by step, covering a span of time from the afternoon of 31.01.2021 when the booking as referred in this case, was confirmed by the O.P. The complt. has also submitted the Email copy sent from his end to the O.P. dtd. 07.05.2021 at 01.37 P.M. when he had cancelled the booking under compelling circumstances, arising as a result of outbreak of Covid-19 pandemic. The complt. has also submitted O.P’s sent email dtd. 03.02.2021, informing the complt. about O.Ps confirming receipt of full booking amount of Rs- 52,900/- in respect of the intended tour of the complt. The complt. has submitted Bank A/C details of his respective Bank A/C showing withdrawal of Rs- 52,900/- through NEFT dtd. 03.02.2021. The complt. has furnished payment receipt (Xerox) of Rs- 52,900/- dtd. 03.02.2021 issued by the O.P. The complt. has also filed Xerox copies of series of correspondence/communications sent through email to the O.P., lending reasonable ground to hold that the complt. had sought for refund of the amount given to the O.P. for staying at the travelling spot since the said booking was cancelled for the outbreak of Covid-19 pandemic.
The complt. has also submitted Email dtd. 01.06.2021 sent to him from the O.P’s end from which it could be found that due to constant lockdown & severe restriction on the Hospitality business, affecting all including the O.P., the O.P. has shut down the ‘Dancing Deer Chalet’ where the complt. was scheduled to stay.
Besides the complt. has furnished the extracts of his communications with N.C.H. of redressal of his grievances vide grievance no 2912310. That apart the lawyer’s letter dtd. 14.09.2021, 20.09.2021 sent from his end to the O.P. with Postal Track report seeking redressal.
On the basis of the materials on record the following issues are framed for decisive determination of the complt’s case.
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ISSUES / POINTS FOR DETERMINATION
- Is the complainant a consumer as per scopes of Sec 2 (7) of the C.P. Act of 2019?
- Has this Commission jurisdiction to entertain the instant complaint?
- Has the O.P. caused deficiency in service, as alleged towards the complt. and is the O.P. liable for that?
- Whether the complainant is entitled to get the relief(s) as prayed for in this complaint?
DECISION WITH REASONS
Issues No. 1 & 2:-
Both these two issues, at first, are taken up for consideration since the decision of these first two issues practical pave the way to determine as to whether the other two issues are required to be discussed to reach the decisive conclusion of the contentions involved in this case.
Having regard to the nature of this case, the transactions entered into by the complt. & the O.P. in this case, we feel incline to hold that in consonance with the scopes of Sec 2(7) of the C.P. Act of 2019, the complt. was the consumer and was the beneficiary of the service, in pursuance of a contract with the O.P.
The materials on record, and the address of the complt. particularly the place of his present residence, cause of action we feel to hold that as per scopes of sec 34 of the C.P. Act of 2019 this Commission has territorial jurisdiction to deal with this complaint.
The reliefs sought for in this complaint case by the complt. also lends ground to hold that this Commission has pecuniary jurisdiction to deal with this complaint case.
This appears that the cause of action of this case arose on 07.05.2021 at first and lastly on 19.08.2021 and since this complaint was filed on 26.11.2021 & admitted on 01.02.2022, this case is not hit by limitation as contemplated under Sec 69 of the C.P. Act of 2019.
Accordingly these two issues are decided in favour of the complt. & the same are both thus disposed of.
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Issues No. 3 & 4:-
At this stage both these two issues are taken up for hearing for the sake of convenience, brevity & to avoid repetition and prolixity.
The materials on record, unrefuted ex-in-chief on affidavit of the complt. besides the unrefuted documents furnished by the complt. lend sufficient ground to hold that the complt. had booked with the O.P. by following online system for paying a visit to Shimla from 20.05.2021 to 28.05.2021 and paid full consideration to the O.P. for that purpose of travelling from his relevant Bank A/C through N.E.F.T. The documents submitted by the complt., besides Email messages of the O.P. dtd. 31.01.2021 sent by the O.P. lend reasonable ground to hold that the amount of travelling expenses so paid by the complt. in full was received by the O.P. & the O.P. had confirmed the complt’s booking at ‘Dancing Deer’.
The complt. has furnished Email, in support of the complaint case due to sudden surge of Covid-19 Pandemic, he had given clear intimation to the O.P. vide Email letter dtd. 07.05.2021 to cancel the trip to Shimla, as scheduled.
This appears from the Email of the O.P. dtd. 01.06.2021, that the O.P. because of that pandemic had been compelled to shut down the ‘Dancing Deer Chalet’.
This is forthcoming from the materials on record that, the pursuance of the complt. and N.C.H had failed to being back the complt’s paid up amount for travelling & staying expenses at ‘Dancing Deer’ and the O.P. has ignored & avoided to pay up back/refund the complt’s paid amount of Rs- 52,900/- though as per stipulation of refunding of such payment, the complt. had well within time intimated specifically to the O.P. that due to outbreak of Pandemic, he(petitioner) has cancelled the tour & stay programme in the O.P’s allotted spot.
In the presence of the complt’s evidence that corroborates with his filed complaint, in the presence of the supportive documents of the complt’s case that are unchallenged & unrefuted, in the absence of any cogent evidence to the contrary, the complt’s case stands as the complt. has suffered from deficiency in service caused to him by the O.P. & therefore the complt. is entitled to get the reliefs as prayed for.
Accordingly both these last two issues are decided in favour of the complt. & are thus disposed of.
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Accordingly all the issues framed are decided in favour of the complt., exparte.
Hence it is…
ORDERED
That the instant complaint case no 101/2021 is allowed exparte with cost of Rs- 10,000/- in favour of the complainant Bivas Mitra. The O.P. Amjad Khan, Manager of Urban Antelop Travels is directed to pay Rs- 52,900/- (Fifty two thousand and nine hundred) only as refund to the complt./petitioner together with Rs- 30,000/- for deficiency in service perpetrated by the O.P. towards the complt. of this case within forty five(45) days from this date of order in this complaint. On failure of compliance of this order, the O.P. shall pay Rs- 100/-(one hundred) only for each day’s delay from the forty sixth day of this order till realisation of the same. The consolidated amount resulting from delayed payment, if any, shall be deposited in the ‘State Consumer Welfare Fund’ West Bengal.
Let a plain copy of this order be supplied to the contesting parties of this complaint case, by hand/ by Regd. Post with A/D forthwith, free of cost, for information and necessary action, as per law & relevant rules.
Member Member President
District Commission
Paschim Medinipur
