FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER.
This is a complaint case u/s 12 of the CP Act, 1986. The brief facts of the case is that the Complainants Sri Swapan Kumar Bhadra paid a sum of Rs. 5,000/- to Sri Sanjib Kumar Banerjee of M/s Cox & Kings Ltd., a Tour and Travel Co. Ltd. on 23.06.2017 as an advance for a tour to Thailand. The amount was paid in a Mela arranged by the said Tour Co. at Gateway Hotel, Kasba, Kolkata. The xerox copy of the money receipt of Rs. 5,000/- dated 23.06.2017 issued by the OP has been enclosed by the complainant in the complaint petition. But the tour did not take place or cancelled and the complainant was not contacted for further money and tour date. The complainant wanted to get back his money in December,2017. He visited the office of the OP 22 times and made follow up till 15.06.2019 but did not get back his money. By whatsApp the OP wanted to know the Bank Particulars of the complainant. The Bank details were provided through mail to them. But the OP ultimately refused to make the payment back. Finding no other way the complainant has approached the Forum for justice with the prayer as mentioned in the complaint petition.
The OP has contested the case by filing Written Version contending inter alia that the complaint is frivolous, false and deserves to be dismissed with costs. The OP has stated that the complainant understood the contents of How to choose your Holiday, Pearls of wisdom, Important Note on Visa, Booking Form, How to book Rule, Terms and Conditions (hereinafter collectively referred as Booking Conditions). The said booking conditions constitute a binding contract between the complainant and the OP. The OP has raised objection in the matter of jurisdiction of this Consumer Forum since the Registered Office of the OP is situated at Mumbai. As per their opinion this Consumer Forum has no jurisdiction to entertain this consumer complaint for which they have referred the relevant case laws in the matter of M/S Yash Hospitality Pvt. Ltd. v/s M/S Cox and Kings Pvt. Ltd. and others (Order dated 29th July 2006 in case No.APDF/601/2005) in the DCDRF, Pune and case law at DCDRF, Bangalore in the matter of S. Nagaraja v/s M/S Cox & Kings Ltd. In respect of parawise reply to the complaint petition the OP has stated that the complainant booked the Thailand Tour on 23.06.2017 with the OP for himself and for his wife. At the time of booking the complainant was given the Booking Form, Terms and conditions and How to Book Rules ( hereinafter referred to as the Booking Conditions.) The complainant agreed and accepted the said booking conditions of the tour for himself and on behalf of his wife. Photocopy of the standard Booking Conditions of the tour agreed and accepted by the complainant is enclosed. The OP further states that the complainant made payment of the Unsecure Reservation fee of Rs. 5000/- (for two persons) through cash. As per the terms and conditions the complainant is supposed to make full payment of the tour costs within 45 days prior to the departure. However the complainant paid only the Unsecured Reservation Amount of Rs.5,000/- (for two persons) on 23.06.2017 and no further payments was received by the OP towards the tour costs. After the booking the complainant was informed about the specific date of departure because the complainant was not able to fix a specific date of departure at the time of booking. The OP submits that the payment of the total tour cost was not received by the OP and the complainant has made payment of only Unsecure Reservation fees which is not refundable. The OP tried to contact with the complainant but could not contact him and the OP received no call from the complainant. The complainant contacted the OP for refund of Rs.5000/- after a period of almost 01 year and 07 months. The OP denies to receive letters dated 14.12.2017, 17.01.2018 and 26.12.2018 as alleged by the complainant. The OP received an e mail on 01.01.2019 from the complainant seeking refund of Rs.5000/- from the OP. But the said amount was paid against Unsecured Reservation fees which is not refundable. The said amount stands forfeited. On the contrary the complainant is supposed to pay Rs.1000/- more against the said Unsecured Reservation fees since the Unsecured Reservation fees is Rs.3000/- per persons. The OP denies the rest allegations made by the complainant and prayed for dismissal of the complainant.
Points for Determination
On the pleading of the complainant through his complaint petition and the WV filed by the OP against the said complaint the following points have necessarily come up for determination.
- Whether the OP has got deficiency in service.
- Whether the OP is indulging unfair trade practice.
- Whether the Complainant is entitled for the relief/reliefs as prayed for.
Decision with reasons
Points Nos. 1 to 3 :-
All the points are taken up together for the sake of convenience and brevity in discussion.
Complainant has tendered his evidence in chief against which the OP has failed to submit questionnaire against the said E/chief of the complainant. The OP also failed to submit their E/chief in the instant case. The case was finally fixed for argument by both parties on 13.01.2022 where the OP was also absent. As such there is no document or any affidavit affirmed by the OP other than the WV. While perusing the WV we do not find any enclosure in support of the contention made by the OP though the OP has mentioned submission of the enclosure in their WV.
We have travelled over all the documents placed on record.
Facts remain that an amount of Rs.5,000/- was paid in cash by the complainant to the OP on 23.06.2017 as an advance against the tour to Thailand which is also admitted by the OP in their WV. The complainant has produced the Xerox copy of provisional receipt dated 23.06.2017 issued by the OP. On perusing the records we do not find any detail of the tour which has been mentioned by the complainant as well as the OP. The complainant as well as the OP has neither produced any terms and conditions nor any booklets or any paper where from it could be substantiated that the said tour really took place. The OP in their WV has mentioned that the complainant was agreed with the terms and conditions of the said tour as per their booking condition and the money paid by the complainant was against the unsecured reservation fees which is non refundable. As such the money paid by the complainant stands forfeited as per their WV. But the OP has not been able to produce any single document which shows that the complainant was agreed with their booking conditions for which the contention of the OP is not acceptable to us. Mere statement of the OP in the matter of the Terms and Conditions of the tour without any cogent evidence does not give any support to rely on. The money was received by the OP and the receipt was accordingly issued by the OP where there is no mention of its forfeiture clause. No concrete document has been furnished by the OP to establish the non forfeiture clause. Moreover regarding jurisdiction of this Forum it is hereby mentioned that the OP has got their office at 6, Little Russel Street, Kolkata – 700071 under the Shakespeare Sarani P.S. which is very much within the jurisdiction of this Forum. As such the plea taken by the OP regarding jurisdiction is baseless.
In view of the above observation, we are of the considered view that the complainant has established his case where the OP has failed to produce the relevant proof in support of their contention.
Thus, all the points are answered accordingly.
In the result, the Complaint Petition succeeds.
Hence,
Ordered
That the Complaint Case be and the same is allowed against the OP with the following direction
- The OP is directed to refund the sum of Rs.5,000/- to the complainant with simple interest of 4% from 23.06.2017 till the date of realization.
- The OP is further directed to pay a litigation cost of Rs.3,000/- to the complainant along with the above payment.
The above orders are to be complied with by the OP within a period of 30 days from the date of this order, in default, the complainant will beat liberty to put the order in execution as per rules.
Order be communicated to the Complainant as per rules and the judgment be uploaded forthwith on the website of the Commission for perusal of the parties.
