BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 15^th DAY OF MARCH 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This joint complaint has been filed by these complainants with due permission under Section 35(1)(c) of C.P.Act, 2019 for the following reliefs against the OPs:-

(a) direct the OPs to refund the amount of Rs.5,26,581 to complainant Nos.1 and 2; Rs.7,87,500/- to complainant Nos.3 to 5 and Rs.2,62,500/- to complainant No.6 totally Rs.15,76,581/-.

(b) direct the OPs to pay interest at 18% p.a. on the said amount from the date of payment i.e. from 30.11.2019 till full and final payment.

(c) direct the OPs to pay compensation of Rs.1,50,00,000/- to each complainant towards mental agony and mental torcher with interest at 18% from the date of complaint till full and final payment.

(d) Any other reliefs.    

2. The case set up by the complainant in brief is as under:-

The complainants by paying Rs.15,76,581/- on 30.11.2019 through cheque, booked the Group Tour Programme of New Zealand commencing from 09.05.2021 with OPs.  The complainant Nos.1 and 2 have paid Rs.5,26,581/-, complainant Nos.3 to 5 have paid Rs.7,87,500/- and complainant No.6 has paid Rs.2,62,500/- i.e. in all Rs.15,76,581/-.

3.  The complainant No.6 by sending E-mail dated 13.12.2019 to Ms.Ayesha, Sales Executive of the OPs requested for cancellation of her booking and Ms.Ayesha informed the complainant No.6 that after deducting Rs.60,044/- towards cancellation charges, the balance of Rs.2,02,456/- will be refunded.  It is further case of the complainants that Covid was reported in Wuhan, China on 31.12.2019.  Accordingly, the complainant Nos.1 to 5 requested the OPs to cancel their booking through E-mail dated 19.03.2020 and refund their amount.  But, OPs failed to refund the amount.

4. The complainant Nos.1 and 2 being senior citizens and other complainants being apprehend travel due to Covid.  The OPs despite knowing Covid situation, failed to refund the amount.  Ultimately, the complainants by issuing legal notice called upon the OPs to refund their amount.  The inaction of the OPs amounts to deficiency of service and OPs put the complainants under mental tension.  Therefore, OPs are liable to pay interest at 18% p.a. on booking amount and compensation of Rs.1,50,00,000/-.

5. In response to the notice, the OPs appear and file objections.  OP Nos.1 and 2 are the Whole time Directors of Kesari Tour Pvt. Ltd., which is engaged in business of conducting domestic and international tour.  OP Nos.3 and 4 are the employees of OP No.1.

6. The OPs contend that the intimation was issued to the complainants to reschedule their tour without payment of extra amount. Neither complainant are entitled to refund of the amount, not OPs are liable to refund the booking amount.  The terms and conditions are binding on both the parties.  Therefore, complainants are not entitled to any reliefs.  There is no deficiency of service.  The OPs deny the allegations made in para 1 to 4 of the complaint.  They request to dismiss the complaint.

7.  The affidavit evidence of complainant No.1 has been filed and complainants rely on certain documents.  The OPs filed affidavit evidence of Rahul Shekar, their authorized representative and rely on fourteen documents. Heard the arguments of both the sides.

8. The following points arise for our consideration:-

1. Whether the complainants prove the deficiency of service on the part of OPs?
2. Whether the complainants are entitled to relief mentioned in the complaint?
3. What order?

9. Our answers to the above points are as under:

       Point Nos.1 and 2:  Partly in the affirmative.

      Point No.3: As per final orders

REASONS

10. Point Nos.1 and 2:  Even though claim of the complainants is contested by the OPs who request to dismiss the complaint. 
11. This complaint has been filed with due permission of this Commission under Section 35(1)(c) of the C.P.Act, 2019.  The complainant No.1 on his behalf and as a Special Power of attorney of complainant Nos.2 to 5 has filed affidavit evidence in support of the case set up in the complaint.  Whereas, the Rahul Shekar, Legal Representative of OPs filed affidavit evidence on behalf of OPs. The documents relied by both the parties are not in dispute.
12. At the first instance, we would like to refer the admitted and proved facts.  The complainants by paying in all Rs.15,76,581/- under Ex.A.1 to Ex.A.3 have proved that they have paid above amount to the OPs.  The receipt of this amount is not in dispute. The complainant Nos.1 and 2 have paid Rs.5,26,581/-, complainant Nos.3 to 5 have paid Rs.7,87,500/- and complainant No.6 has paid Rs.2,62,500/- through cash and cheque dated 30.11.2019.
13. In para 7 of the complaint and affidavit evidence of complainant No.1, the date of commencement of tour programme of New Zealand is wrongly mentioned as 09.05.2021, but the commencement of tour was 09.05.2020.  It is the specific case of the complainant that on 13.12.2019, complainant No.6 by sending E-mail requested the Sale Executive of OPs to cancel her booking due to ill-health and Sales Executive Ayesha promised to refund only Rs.2,02,456/- after deducting Rs.60,456/- towards cancellation charges.  Even though, OPs denied the allegations made in para 7 of the complaint in their version. But, Rahul Shekhar who has filed affidavit evidence on behalf of OPs, no where denied the complainant No.6 got cancelled her booking by issuing E-mail dated 13.12.2019 Sale Executive Ayesha is the best person to deny the allegations made against her.  The non-examination of Ayesha clearly indicates that the complainant No.6 on 13.12.2019 requested the Sales Executive Ayesha to cancel booking of complainant No.6 on health ground.
14. It is specifically mentioned in the complaint that complainant No.1 send a E-mail for cancellation of tour on his behalf and other four persons.  He made a request to refund the amount.  Even though, OPs denied this fact in the version.  But, Rahul Shekhar who has filed the affidavit evidence has not specifically whispered that the complainant No.1 on his behalf and on behalf of other four complainants had requested for cancellation of booking through Email dated 19.03.2020.  The complainants have produced E-mails under Ex.A.4. These E-mails are for the period from 19.03.2020, 31.03.2020, 07.04.2020, 22.03.2020, 11.08.2020 etc.,  These E-mails clearly support the contention of the complainants that they made a request even on 19.03.2020 and subsequent dates for cancelling their booking and refund of their amount.  But, OPs failed to refund the amount.  However, the OPs have issued Ex.A.5 bunch of Credit Shell Certificate on 10^th September 2020 extending tour programme till January 31^st 2022.  It is true that OPs have specifically intimated the complainants the terms and conditions are applicable to present Credit Shell certificate which will be valid till Jaunary, 31^st 2022. This Credit Shell certificate disclose the name of all the complainants.  The complainants do not dispute issuance of credit shell certificate.  But, complainants have not accepted these credit certificates.  By issuing legal notice dated 31.01.2021, the complainants called upon the OPs to refund their entire amount with interest and compensation.  Despite receipt of this notice, the OPs failed to respond.
15. Rahul Shekhar, Authorized representative of the OPs denies liability to refund the amount with compensation and interest. Ex.B.1 is the certificate of the resolution authorizing Rahul Shekhar to represent the OPs in this case.  Ex.B.2 is the terms and conditions.
16. Advocate for the OPs pressed into Service Clause iv and clause 8 which speaks about Force Majeure which read thus:-

iv. Force Majeure – means an event or circumstance not within the reasonable control, directly or indirectly, of Kesari in its ability to perform its obligations/responsibilities regarding the tour including (a) war, hostilities, invasion, act of foreign enemies; (b) rebellion, revolution, insurrection or military or usurped power or civil war; (c) epidemic, explosion, fire, food, earthquake or other exceptional natural calamity and act of God; (d) ionizing radiation or contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly, (e) riot, commotion or disorder; (f) any act or omission of any Government instrumentality; (g) a Change in legal requirements; (h) strikes, lock outs or other industrial tempest, lighting, hurricane, typhoon, rain and temperatures.

8. Itinerary changes:

i. Force Majeure situations: a. In case of force majeure conditions, Kesari reserves the right to change/modify/vary/alter the tour itinerary and/or tour tariff accordingly.  Such changes etc., shall be intimated to guest/s prior to the start of the tour or on tour as the case may be.  Additional charges, if any, due to such changes etc., over and above the tour tariff have to be paid by the guest/s before or on tour itself as the case may be.  No complaints/compensations and/or claiming of excess refunds beyond the provided refund by Kesari – if any – by the guest/s shall be entertained by Kesari for limitation and/or non-availability of certain services beyond the control of Kesari including museums, restaurants, sightseeing, shopping etc., though included in tour itinerary.  b. Due to certain unavoidable circumstances, other than force majeure conditions, if any day of tour is curtailed/any sight seeing missed/any other services not being provided due to some reason from company’s side, then Kesari shall be liable to refund the guest/s, only that portion of the tour amount arrived at for that missed day/missed sight seeing/missed services.  However, guest/s are requested not to demand any other payment over and above (if any) as than shall be made by Kesari in this regard.

17. He also pressed into Service Condition No.15 which speaks bout cancellation charges.  The condition 15 cancellaiton charges read this:-

15. Cancellation charges:

18. It is also relevant to refer condition No.18 which speaks about refund.  The condition No.18 read thus:-

18. Refund:-

1. Refunds if any, for variation/modification /amendments/alteration and/or cancellation etc., of any tour shall be paid directly to the guest by A/C payee cheque, in Indian Rupees at the prevailing rate of exchange on the date of the cheque, as per Reserve Bank of India Rules and Regulations, irrespective of whether the tour payments in part or whole were made in foreign currency.
2. No refund shall be payable.

1. For any missed/unused services of the tour including the meals due to whatsoever reason.
2. Where full deposit is required to be paid in advance to the concerned authorities to enable Company to confirm the reservation.
3. If services of the tour are modified, varied, amended, cancelled or not utilized.
4. If any guest decides and/or is required to cancel the tour due to any changes made in the rules by the concerned Government.
5. Where Airfares are contracted in bulk for Airport to Airport.
6. If the tour is indefinitely postponed/cancelled due to natural calamity, riots, political calamities or any other unforeseen calamities.
7. Refund is not calamities or any Indian/domestic sectors and on certain conditions which include that such air tickets are non refundable and date change is not allowed.

19. No refund shall be payable for any missed/unused services of the tour including the meals due to whatsoever reason etc.,  These terms and conditions are binding on both the parties.
20. The counsel for the OPs also places reliance on order of Hon’ble National Consumer Disputes Redressal Commission produced at Ex.B.3 in Satishchanddra Vasantrao Ghatwal Vs. M/s Kesari tours Pvt. Ltd., and another.  In the above case, the Europe and  Australia tour was commencing on 17.05.2012 and sister of the complainant died on 16.05.2012 and as per the terms and conditions, the complainant was entitled to only 20% of the refund.  However, the Hon’ble State Commission was please to permit the respondent M/s Kesari Pvt. Ltd., to forfeit 50% of the amount paid by the complainant.  This order came to be upheld by the Hon’ble National Commission. But, in the case on hand, as indicated in the preceding paragraph, the commencement of the tour was on 09.05.2020, the complainant No.6 had requested the Sales Executive of the OPs on 13.12.2019 cancelling for her booking due to ill-health.  Whereas, complainant Nos.1 to 5 had send E-mail dated 19.03.2020 for cancellation of tour of all the complainants due to Covid effect.
21. It is admitted that the effect of Covid commenced in India in the month of March, 2020.  Even though, Covid-19 shown its effect in China in December, 2019. The complainants were right in requesting the OPs well in advance for cancellation of their booking and refund of amount.
22. As per the Condition No.15 referred above, the OPs are liable to retain registration amount or 10% tour cost whichever higher when the cancellation is made more than 60 days prior to the date of commencement of the tour and whereas deduction 15% in case cancellation was requested between 60 to 46 days prior to commencement of the tour.  The request of the complainant No.6 for cancellation of tour dated 13.12.2019 is definitely more than 60 days prior to commencement of the tour, whereas, request of complainant Nos.1 to 5 dated 19.03.2020 stands between range of 60 to 46 days prior to commencement of the tour.  These terms and conditions are binding on the OPs. Therefore, OPs were entitled to deduct only 10% on the cost of the tour i.e. Rs.2,62,500/- so far as complainant No.6 is concerned.  Similarly, OPs are entitled to deduct maximum 15% on total cost of the tour paid by the complainant Nos.1 to 5.  Despite receipt of legal notice dated 21.01.2021 OPs failed to refund the balance amount even after deducting 15% or 10% cost of the tour which are applicable.
23. The OPs rely on notice for travelers under Ex.B.4 dated 14.03.2020, 18.03.2020, 20.20.2020, 01.04.2020, 15.04.2020, 18.05.2020, 20.06.2020, 20.08.2020 and16.10.2020 stating that due to force majeure situation, they were going to reschedule the tour till October 21^st, 2020 and later on OPs had sent E-mail as per Ex.B.5 dated 10.09.2020 with Credit Shell certificate stating that the complainants can avail the benefit of the travel till 31^st January, 2022.  But, on prior to this date, the complainants had requested the OPs to refund their entire amount.  Therefore, the credit shell certificate do not absolve the responsibility of OPs from the terms and conditions.  The OPs have produced the index of costs. Ex.B.6 does not help the OPs to reject the complaint.  Mere submission is not sufficient that OPs have spent this amount for the benefit of the complainants.  This expenditure is for the year 2019 and 2020.  But, OPs have not produced audited documents and receipt for having spent the amount for the benefit of the complainants.
24. Advocate for the OPs also relies on the order of Madurai Bench of Madras High Court in W.P.(MD) No.19596 of 2020 and V.M.P.(MD) Nos.16318 and 16320/2020.  We carefully perused the facts and ratio involved in the above decision.  The doctrine of frustration is embodied in Section 56 of the Indian Contract Act, 1872, and Section 65 of the Indian Contract Act were referred in the above decision.  It is pertinent to note that due to Covid-19 and international travel restrictions, the complainants made request for cancellation of their tour prior to the commencement of the tour.  The facts and ratio involved in the above decision are not applicable to the present case on hand.
25. The OPs also rely on Ex.B.8 invoice receipt submitted by the complainant No.1.  But, this document itself is not sufficient to accept the case of the OPs.  Ex.B.9 is announcement of the Official Receiver.  This document is nothing to do with present case.  Ex.B.10 indicates that Air Mauritius issued a communication to the OPs.  Ex.B.11 indicates that wide spread of Corona virus of epidemic. Ex.B.12 indicates that Deputy Official Liquidator Varun.B.S. addressed a letter to the OPs for compliance of certain things.  This document no way helps the OPs.  Ex.B.13 indicates the cancellation of 9W 589 w.e.f. 18.04.2019.  Ex.B.14 is a letter dated 16.12.2019 of IATA Global Delivery Center.  But, this document does not help the OPs to absolve them from terms and conditions.  The OPs have also produced the terms and conditions.  The relevant clause iv, 8, 15 and 18 have already been referred in the preceding paragraph. 
26. Advocate for the OPs further places the reliance of decision of Hon’ble Supreme Court of India in W.P.(C) No.570/2020, W.P.(C) No.595/2020 and W.P.(C) No.952/2020 in the matter between Pravasi Legal Cell and others and Union of India and others.
27. We carefully perused the direction 1 to 8 issued in the above matter.  It is relevant to note that the complainants paid entire cost of the tour to New Zealand including flight charges, local side seeing, transportation, boarding and lodging.  The complainants have not availed the service of OPs only for purchasing Air tickets.  Even though, OPs issued credit shell certificate, but he cannot insist the complainants to travel to New Zealand. 
28. According to the OPs, they have incurred GST Rsa.3,26,563/-.  But, they have not produced any document having paid GST on behalf of the complainants.
29. It is relevant to note that the witness of OPs Rahul Shekhar has clearly stated in para 14(5) of the affidavit evidence that “OPs are willing to refund Rs.2,04,045/- to comkplainant Nos.1 and 2, Rs.3,29,816/- and Rs.1,09,939/- to the complainant No.6.” When the OPs have taken this stand, no value can be attached to credit shell certificate.  As per Clause No.15 of terms and agreement referred above, the OPs are entitled to retain cancellation charges of 10% where the cancellation is made more than 60 days prior the date of commencement of the tour and 15% when the cancellation request was made 60-46 days prior to the tour dated 09.05.2020.
30. The Complainant No.6 made request on 13.12.2019 for cancellation of booking i.e. more than 60 days prior to 09.05.2020 and request made by the complainant No.1 for self and on behalf of complainant Nos.2 to 5 on 19.03.2020 is more than 51 days prior to the date of tour dated 09.05.2020.  Under such circumstances, the OPs are entitled to retain 10% of cancellation charges so far as complainant No.6 is concerned and OPs are entitled to retain 15% of cancellation charges so far as complainant Nos.1 to 5 are concerned.  Non-refund of balance amount after deducting this amount towards cancellation charges amounts to deficiency of service.  The OPs failed to refund the balance amount after receipt of legal notice dated 21.01.2021.  This act of the OPs amounts to deficiency of service.  Accordingly, the OPs are liable to refund Rs.4,47,594/- to the complainant Nos.1 and 2, Rs.6,69,375/- to the complainant Nos.3 to 5 and Rs.2,36,250/- to the complainant No.6.
31. The complainants claim interest at 18% on total amount of Rs.15,76,581/- and also claim Rs.1,50,00,000/- as compensation with interest at 18%.  The complainants have not lead any foundation claiming such huge rate of interest and huge quantum of compensation.  Even though, there is a deficiency of service on the part of OPs not refunding the balance amount after deducting permissible cancellation charges.  But, it does not mean that the complainant is entitled to 18% interest and Rs.1,50,00,000/- as compensation.  When there is a deficiency of service on the part of OPs, they are liable to pay compensation to the complainants.  Therefore, each of the complainants are entitled to only Rs.15,000/- each as compensation apart from getting refund of Rs.4,47,594/- to the complainant Nos.1 and 2, Rs.6,69,375/- to the complainant Nos.3 to 5 and Rs.2,36,250/- to the complainant No.6 with compensation of Rs.15,000/- to each of the complainants. 
32. Point No.3:-Having regard to the discussion made in the preceding paragraph, the complaint requires to be allowed in part.  The OPs are liable to refund Rs.4,47,594/- to the complainant Nos.1 and 2 jointly, Rs.6,69,375/- to the complainant Nos.3 to 5 jointly and Rs.2,36,250/- to the complainant No.6 with compensation of Rs.15,000/- to each of the complainants. The complainants have engaged service of advocate.  Therefore, cost of litigation is quantified at Rs.25,000/- to the complainant. We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OPs shall refund Rs.4,47,594/- to the complainant Nos.1 and 2, Rs.6,69,375/- to the complainant Nos.3 to 5 and Rs.2,36,250/- to the complainant No.6 with compensation of Rs.15,000/- to each of the complainants and cost of litigation Rs.25,000/- to the complainants.
3. The OPs shall comply this order within 60 days from this date, failing which, the OP shall pay interest at 10% p.a. after expiry of 60 days on Rs.4,47,594/-, Rs.6,69,375/- and Rs.2,36,250/- till realization to the respective complainants.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 15^th day of March, 2022)

Documents produced by the Complainants which are as follows:-

Documents produced by the OPs which are as follows:-