Complaint No: 457 of 2018.
Date of Institution: 05.11.2018.
Date of order: 14.9.2023
Gulshan Kumar Son of Sh.Tilak Raj resident of Village Kahnuwan, Tehsil and District Gurdaspur.
.....Complainant.
VERSUS
M/s Sidhu Travels, opposite Bank of Maharastra, Hargobind Nagar, Phagwara, through its proprietor Mr. Kulwinder Singh Sidhu son of Daya Singh Sidhu.
….Opposite party.
Complaint Under section 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.K.S.Walia, Advocate.
For the Opposite Party: Sh.Harpreet Singh, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President
Gulshan Kumar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against M/s Sidhu Travels (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the opposite party is a proprietorship firm carrying on the business of travel agency under the name and style of M/s Sidhu Travels at Phagwara dealing in air ticketing, visa consultancy, tour packages, study visa etc. The opposite party also gives advertisement in mass media including newspaper, website and internet about the services provided by it. The opposite party published calendar as a means of business promotion. It was submitted that after reading the advertisement, the complainant approached the opposite party through their contact number mentioned in the calendar for getting return air ticket for travelling to USA and back to India and also for booking an hotel for his stay in USA. It is further pleaded that opposite party demanded Rs.1,35,000/- from the complainant which included Rs.85,000/- for return air tickets and Rs.50,000/- for hotel booking and itinerary expenses. It is further pleaded that on 18.06.2017, the complainant paid Rs.85,000/- to the opposite party which amount was transferred from his current Account No. 916020079323707 from Axis Bank, Branch Bhikhari Harni (Gurdaspur) which was withdrawn by opposite party on 19.06.2017. It is further pleaded that the bank statement of current account of the complainant showing amount withdrawn by the opposite party and the remaining amount of Rs.50,000/- was paid in cash in the presence of one Inderjit Sharma at the office of opposite party on 18.06.2017. It is further pleaded that air ticket confirmation and travel itinerary was handed over to the complainant by opposite party on 18.06.2017. It was further submitted that on the date of journey, the brother-in-law of the complainant fell seriously ill and therefore, the complainant was unable to go to USA. It is further pleaded that he informed the opposite party about the same and asked him to postpone the air ticket and hotel booking for the time being. It is further pleaded that opposite party assured the complainant that he will get the needful done. It was alleged that to the utter surprise of complainant, the opposite party on his own got cancelled the air tickets and hotel booking of the complainant and took the refund of the entire amount without any information to the complainant. It was further alleged that the opposite party got the refund of tickets and hotel booking from concerned authorities but he did not return it to the complainant inspite of many requests of the complainant which amounts to unfair trade practice and deficiency in service on the part of opposite party. It is further pleaded that opposite party has swindled the complainant of his hard earned money of Rs.1,35,000/- and due to non-refund of the said amount, the complainant has suffered mental agony and harassment at the hands of opposite party. It was further alleged that the complainant had also moved an application to SHO, Police Station Kahnuwan on 31.07.2017 against the opposite party regarding the alleged unfair trade practice by him in which the opposite party was called upon by the Police and in the presence of witnesses, the opposite party admitted that he will refund the amount back to the complainant within some time but till date, the opposite party has not refunded the said amount. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to pay the amount of Rs.1,35,000/- to the complainant after deducting the cancellation charges alongwith interest at the rate of 18% per annum from the date of cancellation of air tickets and hotel booking till the date of realization thereof alongwith Rs.50,000/- as compensation for causing mental agony and harassment and Rs.10,000/- as litigation expenses in the interest of justice or any other order as this Hon’ble Commission may deem fit may also be passed.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not maintainable in the eyes of law as the same has been filed on false and frivolous grounds which is a gross abuse of the process of law and the present complaint has been filed by the complainant with the sole motive to pressurize and harass the opposite party to submit unreasonable and mischievous demands of the complainant. It is further pleaded that this Learned Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint and the complaint is misconceived, vexatious, untenable and devoid of any merit. It is further pleaded that complainant has approached this Hon'ble Commission with soil hands and has made the complaint in order to raise a false and frivolous dispute to harass the opposite party and the complainant himself is a wrong doer and has filed the complaint on false and baseless grounds. It is further pleaded that the opposite party is authorized by Lions District 321-D to Coordinate the convention registration and hotel accommodation for Lions Clubs International Chicago, USA and serving Lionism since 1999. It is further pleaded that performance of the opposite party always remained good and there is no complaint ever against him from the last plenty of years and the present complaint is frivolous and vexatious and liable to be dismissed under section 26 of the Act. It is further pleaded that the complainant approached the opposite party at Phagwara, District Kapurthala for getting the Tour package to USA and back to India alongwith booking a hotel for stay in USA which rate was fixed Rs.1,67,999/- per person. It was pleaded that the complainant paid only Rs.85,000/- to opposite party by cheque. No other cash amount was given to opposite party by the complainant in the presence of lnderjit Sharma. It is further pleaded that said Inderjit Sharma is interested person of the complainant. It was further pleaded that the complainant made payment of Rs.85,000/- through Bank transaction and it is unbelievable for a prudent person that he should handed over Rs.50,000/- without any receipt or writing. It is further pleaded that the contents of affidavit of Inderjit Sharma are totally wrong and he gave false affidavit at the behest of the complainant in order to make pressure upon the opposite party with the intention not to return the balance amount to the opposite party which is due against the complainant as per policy. It is further pleaded that the said affidavit of lnderjit Sharma is not attested by any lawful authority and the same is not admissible in evidence and its contents cannot be looked into. It is further pleaded that separate affidavit of Pardeep Kumar son of Sh. Baldev Raj R/o Master Sadhu Ram Nagar, Model Town, Phagwara District Kapurthala with regard to the fact that he is Head Clerk of the opposite party and serving the office of the opposite party since 2012 and said Inderjit Sharma alongwith complainant never approached the office of opposite party on 17.6.2017. It was further pleaded that the complainant in the presence of Inderjit Sharma never paid any cash amount of Rs.50,000/- to the opposite party. The contents of the affidavit of Inderjit Sharma are false and frivolous and the said affidavit has been prepared at the behest of the complainant. It is further pleaded that the office of the opposite party have not accepted the cash payment from any applicant. It was further pleaded that the complainant was unable to go to USA and alleged excuse is false one which is intentionally and deliberately made by the complainant. No information verbal, in writing or by any communication was given to the opposite party in this regard. It is further pleaded that as per the policy rules of India an international tour packages, there is no refund given before 6 days prior to departure of tour package. It was further pleaded that this version is clearly mentioned in the voucher at the terms and conditions (Cancellation policy). It is further pleaded that all the terms and conditions of the package alongwith all details of the same were dictated to the complainant at the time of transaction between the parties at Phagwara and he after satisfying the same accept the package. It is further pleaded that copy of same is also handed over to him. It was further pleaded that the complainant is not entitled to get any kind of refund rather the complainant is liable to give to opposite party the amount detailed below:-
It is further pleaded that total cost of tour package was Rs.1,67,999/- out of which the complainant paid only Rs.85,000/- as such the sum of Rs.82,999/- is balance towards him. Further the amount Rs.9500/- is also due towards him i.e. cost of International Sim Rs.2500/-, a parade Dress = Rs.2000/- and difference of Ticket from Amritsar instead of Delhi which extra cost of Rs.5,000/-. It is further pleaded that total due amount became towards complainant is Rs.92,499/ of which refund deducted is Rs.50,988/- and the balance Rs.41,511/- is due towards complainant which he has not paid to the opposite party despite repeated several requests.
On merits, the opposite party have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Gulshan Kumar, (Complainant) as Ex.C-1 along with other documents as Ex.C-2 to Ex.C-15.
5. Learned counsel for the opposite party has tendered into evidence affidavits of Kulwinder Singh, (Proprietor of M/s Sidhu Travels) as Ex.OP-1 and Pardeep Kumar S/o Sh. Baldev Raj as Ex.OP-3 alongwith other documents as Ex.OP-2 to Ex.OP-5.
6. Rejoinder filed by the complainant.
7. Written arguments filed by the complainant but not filed by the opposite party.
8. Counsel for the complainant has argued that opposite party is carrying on business of travel agency and on being approached by the complainant opposite party demanded Rs.1,35,000/- for air ticket for travelling to USA and back to India and for hotel stay in USA. It is further argued that on 18.06.2017 complainant had paid Rs.85,000/- to the opposite party and Rs.50,000/- were paid in cash. However, the brother-in-law of the complainant fell seriously ill due to which complainant could not go to USA and requested the opposite party for postponing of air tickets and hotel booking. Opposite party assured the complainant to do the needful but opposite party on its own got cancelled the air ticket and hotel booking of the complainant and received the received the entire refund without any information to the complainant which amounts to deficiency in service.
9. Counsel for the opposite party has argued that this Commission has no jurisdiction to entertain the present complaint and it is further argued that opposite party was approached by the complainant for package to USA for Rs.1,67,999/- per person. Payment of Rs.85,000/- is also admitted by the opposite party. It is further admitted by the opposite party that the opposite party received refund Rs.50,988/- from the concerned airline and it is the complainant who is required to pay Rs.41,511/- to the opposite party and complaint is liable to be dismissed.
10. We have heard the Ld. counsels of for the parties and gone through the record. It is admitted fact that complainant had booked tour to USA and opposite party received 85,000/- through cheque. It is further admitted fact that the complainant could not travel on the date for which tickets were purchased and booking was made by the opposite party. It is further admitted fact that complainant had informed the opposite party regarding cancellation of the ticket. The only disputed question for adjudication before this Commission is whether the opposite party had right to retain the amount of Rs.50,988/- received as refund from the airline and further demand Rs.41,511/- from the complainant.
11. Perusal of evidence on record shows that on being intimated tickets and booking was cancelled by the opposite party and opposite party received refund of Rs.50,988/- from the airline but the opposite party has not been able to explain any reason to with hold the refund received from the airline. The plea of opposite party itself seems to be baseless as opposite party has not explained or give any document regarding recovery of alleged amount of Rs.41,511/- from complainant, rather it shows that baseless plea has been taken only to deprive the complainant of his amount and which shows that opposite party has no intention to refund the amount received from the airline.
12. From the evidence on record it is proved that amount of Rs.85,000/- was paid by the complainant to the opposite party, which is also proved from statement of account Ex.C3 but complainant has failed to prove the payment of Rs.50,000/- by producing any receipt. As such since the complainant had not travelled and had made cancellation request which was within his right and as such since the opposite party has received refund of Rs.50,988/- from the concerned airline, the opposite party has no right to withhold the said amount..
13. As such present complaint is partly allowed and opposite party is directed to pay Rs.50,988/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till its realization. Opposite party is further directed to pay Rs.5,000/- for mental tension, harassment suffered by the complainant and cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
14. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
15. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Sept. 14, 2023 Member.
*YP*
