This appeal is directed against the final order of Ld. DCDRF, Siliguri dated 1/9/2017 in reference to cc no 75/S/2017. The fact of the case in nutshell is that complainant s Dutta, Tarun Dey and M Dutta along with their family members intended to visit the hilly regions of Darjeeling and for that reason, they made contact with OP no. 1 m/s trip to India tours and travels, owned by Sri, P Roy, its proprietor, for the package tour, cost of which settled at rupees 32500 total for their journey from NJP Railway station to Darjeeling town up and down with sightseeing and in reference to that tour agreement they paid rupees 2000 in cash and rupees 2000 through Bank towards the account of op no. 2 as an advance payment on 6/5/2016 and the said Bank transaction was encashed by the OP no. 2 in his bank account on 11/5/2017. Subsequently as per scheduled program the complainants party  while reached at NJP railways station on 23/5/2017 found no cab thereon waiting for their trip. Then the complainants under compulsion had arranged the other cabs for the trip with huge extra money and straightway came to the office of the OP no. 2 at Siliguri for not providing the cabs  for their trip. The OP no. 2 told them that due to driver problems he could not arrange for the cab to the trips and was agreed to return back the advance money to the complainants when they would return from Darjeeling. Accordingly the complainants completed their tour and came back at NJP on 26/5/2017 and claimed before the OP no. 2 to return back their money. Then the OP no. 2 replied that he was unable to arrange the advance money and collected the bank details from the complainants so that they be could set refund the advance money through bank payment. The complainants could not realize refund of the advance money after a long wait and started to communicate with the OP no. 2 but the OP no.  2 somehow avoided this responsibility to refund the advance money. Then the complainants approached the Director of Consumer affairs,. Siliguri by written complaint for its mediation and settlement. CAD called the complainants and OP for a settlement but the OP intentionally avoided the sitting of consumer affairs department and the entire mediation process was failed due to non-cooperation of the Ops. So, under the advice of CAD the complainant side had registered the consumer complaint and claimed reliefs under the [protection of Section 12 of consumer protection Act, The Ops in spite the notice of consumer complaint did not turn up before the Ld. forum to contest the case.

Therefore, the Ld. Forum was compelled to decide the case ex-parte against the OP no. 1 and 2. The complainant filed the affidavit in chief and produced the necessary documents and also filed the written note of argument. Ld. Forum after hearing the consumer complainant has dismissed the same on the ground that the complainant side could not produce the required documents to substantiate their claims. Being aggrieved with this order, this appeal follows on the ground that the decision of the Ld. Forum was based on mis appreciation of facts and circumstances of the case which is misconceived, erroneous  and contrary to law.

The appeal was registered in due time and it was admitted on merit. The Ops of the consumer complaint case as respondent’s in the appeal was served notice with a direction to contest the appeal by personally or through legal representative. The respondents, In spite of receiving notice, did not contest the same.  Accordingly the appeal was heard ex-parte against the respondents.

Decision with reasons,

During the course of hearing the argument, the complainant side, has furnished the reliable documents which was marked as annexure documents by the Ld. Forum that is visiting card, Bank’s slip, Banks’s passbook copy of application before the Directorate of Consumer Affairs Department, the notice issued by the Consumer Affairs Department to the Ops, copy of mediation letter, travel tickets and copy of the mediation order. After going through all these documents, it has become crystal clear that the complainant side has negotiated for their trip with the OP company which is situated near Raj Darbar Hotel of Siliguri. The Bank deposit slip (Annexure-B) shows that the complainant side has deposited rupees 2000  as advance to one Palash Roy who happens to be the proprietor of M/s Trip to India tour and travels. Ld. Forum in the body of judgment has observed that the Complainant could not produce any reliable documents to hold that said Palash Roy in whose bank account rupees 2000 was deposited by the complainants was the actual proprietor Palash Roy, M/s Trip to India tour and travels or not. Ld. Advocate of the appellant at the time of argument mentioned that the complainants are permanent inhabitants of Calcutta. They have contacted with the proprietor of M/s trip to India tours and travels owner Palash Roy over telephone and they have collected information of this company, through the website and portal  of M/S Trip to India tours and travels and from the portal they could gather the knowledge that Palash Roy was the owner of the said company. Ld. Forum wrongly observed that the complainant could not establish Palash Roy as the sole owner M/s trip to India tours and travels. The bank passbook of the complainant clearly established that they have deposited Rs. 2000/- in the SBI account number 33344040313. The complainant could satisfy the directorate of the Consumer Affairs for the redressal of grievances and A.D. of Consumer Affairs was satisfied with the documents submitted by the complainant side and for that reason and purpose of Mediation called the opposite parties by sending notice to its address and also by making a contact with Palash Roy by Telephone, the numbers of which was collected from the visiting card of Palash Roy. The complainants time and again visited to the office of directorate, Consumer Affairs Siliguri for such mediation but the opposite parties intentionally avoided the process of mediation by which the complainant was forced to lodge and register a Consumer Complaint coming from a for distant place from Siliguri. The annexure H shows that the DAD of Consumer Affairs department Siliguri R.O has lost the faith upon opposite parties. As the opposite parties was not at all interested to have a settlement in mediation in spite of repeated requests. So the complainant was advised to register a Consumer Complaint for the Redressal  of the grievances. Ld. Forum has not entertained the Consumer Complaint on the ground that though there was deficiency of service yet the complainant has failed to prove of a nexus of Palash Roy with M/s trip to India tours and travels. These observations of Ld. Forum is unexpected and erroneous one. As because sufficient documents has produced on the part of the complainant side to proof that in spite of receiving the advanced money Mr. Palash Roy the OP no. 2 as owner of M/s trip to India tours and travels has defrauded the complainants and did not provide proper service towards them in spite of receiving the advanced money for providing the good service of the trip of the complainant to the hilly region of Darjeeling. So, the order of Ld. Forum appears to be erroneous, irregular and not vasted with the Law. Therefore the order of Ld. Forum is liable to be set aside.

Hence, it is,

 ordered,

That the instant appeal be and the same is hereby allowed ex-parte on merit without imposing any cost. The final order of Ld. DCDRF, Siliguri dated 1/9/2017 in reference no. CC number 75/S/2017 is set aside. The Consumer Complaint under section 12 of CP Act filed by the complainants in this case is hereby allowed ex-parte.  The respondent number 2 Palash Roy as owner of respondent number 1 M/s trip to India tours and travels is hereby asked to return the advanced money of Rs. 4000/- to the complainants and pay Rs. 50,000/- as compensation for their harassment and financial loss and Rs. 5000/- for the depensation of litigation cost and the travel expenses of the complainants which they had to incur to come at Siliguri from Calcutta. Within 45 days from this day. Failing which 8% per annuum as interest will be carried on over the total amount of money awarded.

Let a copy of this order be sent to the address of respondent no 1 and 2 for compliance and one copy of order be supplied to the appellants free of cost and the order be communicated to the Ld. DCDRF Siliguri for doing the needful,

If the respondents/ Ops fail to comply this order of this commission, the appellants / complainants shall have the right to execute this order by registering an execution case before the Ld. DCDRF Siliguri.