Judgment : Dt.19.5.2017
Mr. Ayan Sinha, Member
This is a petition of complaint, under Section 12 of C.P.Act,1986, made by Sri Bhupal Chandra Goswami, son of Late Bidhu Bhusan Goswami, residing at 23A, Rupnarayan Nandan Lane, P.S.- Kalighat, Kolkata-700 025, against OP (1) Ms. M. Maitra, proprietor of ICHHEY TOURS & TRAVELS, having its office at 109/19, Hazra Road, P.S.-Tollygunge, Kolkata-700 026 and OP No.2 Ichhey Tours & Travels having its office at 109/19, Hazra Road, P.S.- Tollygunge, Kolkata-700 026, praying for an order directing the OPs to refund the entire booking amount of Rs.23,266/- with interest @ 18%p.a. and order also directing the OPs for payment of Rs.2,00,000/- & Rs.1,00,000/- as compensation and also order for cancellation of the OP’s trade license with an intimation to Tourist Dept. , Govt of India.
Facts in brief are that the Complainant has booked for an enjoyable tour of “Silk Route” in the Himalayan Range at Sikkim for the period from 28.10.2015 to 3.11.2015 and have paid an amount of Rs.25,436/- in two installments for two seats/heads.
The OP is a tour conductor and makes pronouncements by their tours in various destinations through electronic and print media including through circulation of brochure and leaflets. The Complainant came across one of such pronouncements of the OP for a conducted tour “Silk Route” and thus paid Rs. 25,436/- in two installments to the OP to cost of such tour for two persons.
After adjustments of all engagements and preoccupations and some preparations of purchasing sundry articles like pullover, jackets, bags and food items amounting Rs.20,000/-, he came to know from the OP suddenly on 27.10.2015 just a day before the date of commencement of the tour that the tour had been cancelled/postponed due to earthquake, alleged to have occurred in Hindukush range Parbathmala in Afthanistan/Pakistan. Thus, the Complainant was terribly hurt and depressed for cancellation of preplanned enjoyable holidays, but could not find any announcement in electronic media and newspaper of the aforesaid alleged earthquake purported to have happened in the Sikkim state or North Eastern States.
The Complainant requested the OP not to cancel the tour and not to deprive his opportunity from spending his vacation. The OP advised the Complainant to cancel his Railway tickets without paying any heed to Complainant’s request and also did not refund the booking amount paid by the Complainant for this cancelled tour.
The Complainant had to run from pillar to post seeking for the refund of Rs.23,266/- out of Rs.25,436/- wherein he did not claim the loss of amount, for cancellation of Railway tickets amounting to Rs.2,265/-. The OP No.2 vide their letter dt.17.11.2015 mentioned that they will not refund the amount and said amount will be adjusted within one year in case the Complainant avails in any of their tour package/ Silk Route within 1 year from 28.10.2015.
The Complainant, thus, approached to Consumer Affairs Dept., Govt. of West Bengal, for redressal of his grievance, where a tripartite meeting was called by the Asst. Director to resolve this dispute, where the Complainant agreed to get a refund of Rs.21,000/- and the OP No.2, was agreed to refund the money as per the letter of Consumer Affairs Dept., Govt. of West Bengal, vide No.CA/Estt/O/1G-1138/15 dt.9.3.2016. But, OP No.2 stated that they will make no refund for the cancelled tour as per their terms and conditions of their cancellation policies.
So, by the act and conduct of OP with deficiency in service and unfair trade practice, thus the Complainant filed this petition.
The OP filed written version denying and disputing all the allegations made out in the petition of complaint.
Main point for determination
Whether the Complainant wanted to avail the tour programme?
Whether the Complainant paid Rs.25,436/-?
Whether the tour was cancelled by OP?
Whether the Complainant was offered a different tour by OP within a span of 1 year?
Whether the OP has deficiency of service?
Whether the Complainant will be entitled to the relief as prayed for?
Decision with reasons
Ld. Advocate of the Complainant files affidavit-in-chief to which OP files questionnaire against which Complainant files affidavit-in-reply similarly OP files evidence to which Complainant files questionnaire against which OP files affidavit-in-reply.
On perusal of the records we find that
The Complainant wanted to avail this tour since he had taken all preparations and also requested the OP not to deprive him of this enjoyable vacation.
The Complainant paid Rs.25,436/- as per receipt by OP No.2 vide No.727 dt.23.6.2015 for Rs.8,000/- and 021 dt.14.10.2015 for Rs.17,436/-.
The tour was cancelled by OP on the ground there was an earthquake. But, earthquake was happened in Hindukush range Parbatmala in Afthanistan/Pakistan as per the Daily Bengali newspaper “Ananda Bazar Patrika” dt.27.10.2016 submitted by Complainant.
Upon request letter of the Complainant dt.16.11.2015 the OP No.1 replied by letter dt.17.11.2015 regretting the refund for cancellation of tour and informed that within 1 year the Complainant has to avail tour without mentioning any specific dates or written communication or offering any tour itinerary.
So, the OP has not given any specific tour proposal to Complainant within1 year.
We are in the view that OP has deficiency of service since the tour was cancelled by OP itself depriving the Complainant of enjoying the vacational tour. Even it was cancelled OP being not inclined towards the tourist, referred point No.16 of their terms and conditions
no refund against cancellation for natural calamities.
Considering all facts in records, we found that the tour was not conducted by OP due to which the Complainant faced harassment, depressed and unable to digest the terrible mental sufferance of having had to miss such enjoyable vacation. As such, the Complainant is entitled to get the refund.
In this regard, we relied upon the judgment of Hon’ble Supreme Court in the case of LIC of India and Anr. Vs. Consumer Education and Research Centre and Ors. 1995 AIR 1811; 1995 SCC(5) 482 when the Hon’ble Supreme Court stated – “It is, therefore, the settled law that if a contract or a clause in a contract is found unreasonable or unfair or irrational one must look to the relative bargaining power of the contracting parties. In dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forego the service forever. With a view to have the services of the goods, the party enters into a contract with unreasonable or unfair terms contained therein and he would be left with no option but to sign the contract.”
So, just by Force Mozure clauses, the refund to Complainant cannot be repudiated by the OP, when actually OP has cancelled the tour. In view of the said fact we hold that there was deficiency of service on the part of OP’s for which Complainant will be entitled to get the refund.
In regard to compensation it will be decided on the basis of quantum of monetary loss suffered by the Complainant.
Hence,
ordered
CC/444/2016 is allowed on contest with cost against the OPs. The OPs are directed to refund to the Complainant a sum of Rs.23,266/- (Rupees three thousand two hundred sixty six) only and we are in the view of directing the OP for compensation of Rs.10,000/- (Rupees ten thousand) only as appropriate for harassment and unfair trade practice, within 30 days from the date of communication of this order in default, an interest @ 10% p.a. shall accrue over the amount till full realization.
