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

DATED 10^TH DAY OF AUGUST 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

          This joint complaint is filed by husband and wife against the OPs u/s 35 of the Consumer Protection Act 2019 for the following reliefs;

1. To direct the opponent to remove the deficiency in service by refunding advance amount without allowing any deduction from the deposit amount.
2. To direct to refunding balance amount INR 76960/- (actual payable to both persons) with 15% interest from 30.10.2019 to till date final order
3. To direct the opponents to pay the compensation for mental agonies caused by the opponent
4. To direct the opponent to reimburse cost incurred by the complainants and to award another cost deem fit by the Hon’ble Forum.

2.       The case of the complainants in brief is as under;

The complainants wanted to avail 18 nights and 19 days America tour to be conducted by the OP on 13.05.2020 paid Rs.1,00,000/- on 30^th October 2019 towards total cost of Rs.4,19,900/-.  The complainants have agreed to pay balance amount of Rs.3,19,990/-.  But due to the covid, they could not pay the balance amount and not continued the proposal with the OP.

3.       As per the terms and conditions certain percentage of amount was required to be deducted if cancellation was more than 45 days from the date of deposit, 40% in case of cancellation between 44 to 30 days, 60% from 29 to 15 days and 15 days are less than 90% of the held cost.

4.       It is further case of the complainant that they had contended the American visa class interview of 15.12.2019 at Chennai.  Even though OP informed the complainants they can took the tour on 4^th May 2021 but they were not agreed for the same.  Therefore, by letters dated 24.08.2021 and 19.10.2021 they had requested the OP to refund Rs.76,960/- after deducting the visa charges of Rs.23,040/- out of the paid amount but OP failed to do so. The act of the OP amounts to deficiency of service.  Hence this complaint.

5.       After receipt of notice, OPs appeared and filed version.  They contended that the complaint is not maintainable.  They admit that complainants booked a tour package as per the tour agreement dated 30^th October 2019, the OPs have willingly and voluntarily carried their part of performance as per tour agreement dated 30^th October 2019.  Even though option was given to the complainants either opt for future tour or can seek for refund of the amount.  The OP was agreed to refund the amount subject to deduction of visa charges and corresponding expenses incurred by the OP.

6.       There is no deficiency of service on the part of the OPs.  The chartered accountant of the OP suggests to refund tour cost to the untraveled customers after deducting the cost and service expenses.  Even though OPs had offered two options to the complainant, but complainants failed to submit the signed voucher.  Hence balance amount not refunded.  They request to dismiss the complaint.

7.       The complainant No.1 files affidavit evidence and relies on 29 documents.  OP1 has filed affidavit evidence and relied on 12 documents. Heard the arguments and perused the records.

8.       The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OP?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

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

       Point No.1:- Affirmative in part

      Point No.2:- Affirmative in part.

       Point No.3:- As per the final order.

                                      REASONS

10.    Point No.1 AND 2:   Even though both the parties have reiterated the facts pleaded in the complaint and version in their affidavit evidence and both the parties rely on documentary evidence. It is a relevant to refer the admitted facts before considering the controversies between the parties.

          11.     It is admitted and proved from ex.P1 and P2 that the complainants have paid in all Rs.50,000/- each as advance and agreed to pay balance of Rs.3,19,990/- to the OP.  Ex.P2 is the terms and conditions. These terms and conditions are not in dispute.  The condition No.4 indicates that if any members wants to cancel the tour of op in writing and such party must signed letter of cancellation.  It further indicates that if the OP received such written cancellation, it entitle to cancelation charges.  Ex.P4 is same that of Ex.P2.  Ex.P5, P6 are flight booking particulars.  It is admitted by the complainants and proved from Ex.P7 that a sum of Rs.23,040/- is paid towards visa charges.  The complainant also admitted in the complaint and in evidence that after deducting Rs.23,040/- towards visa charges, they are entitle to balance amount of Rs.76,960/-.  Ex.P8 and P9 are the appointment confirmation for visa. By issuing Ex.P10 letter dated 19.10.2021 the complainants called upon the OP to refund the amount with interest at 15% p.a. In response to this letter the OP issued Ex.P11 reply dated 19^th October 2021 sending forms requesting the complainants to fill up the forms and submit them to enable them to refund the balance amount.  The complainants also issued Ex.P12 notice dated 11.11.2021, to the OP1 calling OP1 to refund the balance amount.  In response to this notice, OP issued Ex.P14 letter dated 15.11.2021 that the OP can refund the tour advance amount after deducting visa cost and service expenses.  Ex.P15 is the performance voucher in which the OPs agreed to refund Rs.29,580/- to each of the complainant. But this proposal was not agreeable to the complainants.  Therefore by issuing Ex.P16 letter dated 28.12.2021, the complainants called upon the OPs to refund balance amount of Rs.76,960/- with interest of Rs.22,122/- at the rate of 15% p.a., on balance amount from 30.10.2019.  In response to this letter the OP issued Ex.P18 reply dated 30.12.2021 stating that the amount of Rs.11,520/- towards visa charges of Rs.12,500/- towards cost and service expenses is deductable from the advance paid by each of the complainant.  Ex.P19 and Ex.P18 are the same documents.  Ex.P13 and 14 are the postal acknowledgements of OP1. Ex.P20 is the latest legal notice issued by the complainant to the OP on 12.02.2022.  Ex.P21 and 22 are the postal acknowledgements; Ex.P23 is the receipt about payment of tour expenses, the package in Jennath –E-Kashmiri air tour package.  Ex.P24 and 26 indicate that the complainants have received back this amount.  These documents are not relevant so far as this case is concerned.  Ex.P25 is the certificate in respect of the pass book.  Ex.P27 is the bank statement about refund of Rs.10,390/- which is not relevant so far as this case is concerned.  Ex.P28 and 29 no way help the complainant to prove their contention.

          12.     It is relevant to refer the documents Ex.R1 to R12 relied by the OP.  Ex.R2 is the letter of OP to the complainant NO.1 on 4^th May 2020 informing the complainants about the tour of 18 nights and 19 days which is not in dispute. Ex.R3 bunch of tour receipts is not in dispute.  This bunch of receipts indicates payment of Rs.50,000/- as advance of each of the complainants.  Ex.R4 to R9 are the correspondences between the complainants and OPs.  The similar correspondences are also produced by the complainant which are referred while dealing the documents of the complainants.

          13.     The OPs relied Ex.R10 to R12, the copies of the order passed by the Ist Additional District Consumer Commission, Bangalore, in CC No.592/2020, CC 593/2020 and CC/594/2020 wherein Hon’ble Ist Additional Consumer Commission was pleased to pass an order for payment of paid amount deducting 20% with interest at 12% p.a.  but it is relevant to note that the payment of Rs.40,000/- and Rs.1,20,000/- in respect of cases relied by the OP where dated 30.01.2020 i.e., before covid effect.  Therefore these orders do not help the OP.

          14.     The complainants while seeking refund of balance of amount of Rs.76,690/- with interest at 15% p.a. relied on following decision.

1. Decision of the Hon’ble Supreme Court of India in the matter between Experion Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor in 2022 SCC OnLine SC 416.
2. Order of the Hon’ble Supreme Court of India in Writ petition No.570/2020, 590/2020 and 952/2020 dated 1^st October 2020.

15.         We carefully perused both the decisions.  In the first decision even though interest at 24% pa., was claimed by the company, but the Hon’ble Supreme Court of India in para 33 of the jugement ruled that we find that interest at 9% is fare and just.  In the second decision the Hon’ble supreme Court in para 2 has categorically relied that if the tickets have been booked during lockdown period through a travel agent for a travel within lockdown period any of such cases fully refund shall be given by the airlines immediately.  Of such refund, the amount shall be passed on immediately by the agent of the passengers.

16.         Even though complainants claim interest at 15% on Rs.76,960/- but in view of the first decision of the Hon’ble Supreme Court of India, it is proper to award interest at 9% only.

17.         It is admitted and proved fact that the proposed first USA tour was to be commenced on 13.05.2020 even though complainants made payment of advance amount of Rs.50,000/- each on 30.10.2019. It is not in dispute that the covid effect started in the month of March 2020.  Therefore date of commencement of the first USA tour was on 13.05.2020 i.e., during lockdown period.

18.         Even though OPs offered options to the complainants either to opt for future date of tour or seek for refund of amount, less visa charges cost and other expenses.  It is admitted and proved fact that the OP has spent Rs.23,040/- towards visa charges, even though OP claims Rs.25,000/- towards cost and service expenses. But in view of the second decision the OPs are liable to refund Rs.76,960/- out of Rs.1,00,000/- after deducting visa charges of Rs.23,040/-.  Even though OPs want to deduct Rs.25,000/- towards cost and service charges expenses but in view of the second decision relied by the complainants and in view of the non production of documents with regard to proof of cost and other expenses, OPs are not entitle to deduct any amount towards cost and other expenses.

19.         The retention of Rs.76,960/- by the OPs after receipt of first notice dated 19.10.2021 is not correct.  Therefore complainants are not only entitle to refund of Rs.76,960/-, but they are entitle to interest at 9% p.a., on this amount from 19.102021 till realization.  When we are awarding interest of 9% p.a., on Rs.76,960/-, the complainants are not entitle to interest separately. Accordingly we answer point NO.1 and 2 partly in affirmative.

20.         POINT NO.3: In view of the discussion referred above, the OPs are liable to refund Rs.76,960/- with interest at 9% p.a. from 19.10.2021 till realization.  The cost of this proceedings is quantified as Rs.5,000/-.  The OPs are liable to pay cost of this proceedings to the complainant. In the result, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs are directed to refund Rs.76,960/- with interest at 9% p.a., from 19.10.2021 till realization and litigation cost of Rs.5,000/- to the complainant.
3. The OPs shall comply this order within 60 days from the date of this order failing which the OP shall pay interest at 12% p.a., after expiry of 60 days on Rs.76,960/- till realization.
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 10^TH day of August, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :

HAV*