Date of filing: 19/08/2020                                       

Date of Judgment: 19/05/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This consumer complaint is filed under section 35 of the Consumer Protection Act, 2019 by the complainants namely (1) Sri Swapan Kr. Ghosh and (2) Mrs. Archana Ghosh against opposite parties (referred as OPs hereinafter) namely Mukherjee Travels and Tours being represented by its partners namely Sri Ritwick Mukherjee and Mr. Brojeshwar Ghosal alleging deficiency in rendering of service on the part of the opposite parties.  

Case of the complainant in short is that they intended to visit their cousin brother in USA who was suffering from cancer and due to the old age of the complainants, they rang ‘just dial’. Consequent to the same, one of the partner of the OP namely Ritwick Mukherjee called the complainants. He had offered one package tour which included 3 nights / 4 days namely “Dubai Holiday”. It was finally settled that the journey shall begin on 07/12/2019 from Kolkata to Dubai where the complainants will spent 3 nights / 4 days in terms of the package tour and from Dubai, they shall fly for Los Angeles on 10/12/2019. It was also settled that the complainants shall return to Kolkata from John F. Kennedy International Airport, New York on 26/01/2020. The total cost towards air tickets, visa for Dubai and money exchange (Forex) was settled at Rs. 3,26,450/-. Complainants paid the said sum to the OP. But suddenly on 06/12/2019 a day before departure to Dubai, said partner Ritwick Mukherjee called the complainants over telephone and intimated that the trip was cancelled due to some restriction imposed on tourist visa in Dubai and accordingly Emirate Air Lines have been cancelled the said travel as scheduled. So upon cancellation of said travel schedule, OP arranged another schedule for travel to Los Angeles from Kolkata via Hong Kong by Cathay Pacific Airways on 09/12/2020 by taking extra payment of Rs. 50,380/- from the complainants. So without any fault, complainants were compelled to pay said extra amount. It was settled that the OP would arrange the required USD and AED in exchange of INR. The complainants paid Rs. 1,38,760/- for the arrangement of 2000 USD including 500 AED for Dubai package. OP through their employee handed over a kit of Indusind Bank containing a .Multi currency travel card (Visa) for using the same by the complainant at abroad in exchange of INR 1,38,760/-. But on reaching Calefornia on 23/12/2019 when the prepaid visa card was used at ATM the complainants were shocked that the screen of ATM showed only 99 USD lying deposited in the account of the said Visa Card. So complainant through WhatsApp message dated 24.12.2019 intimated the same to the partner OP 2 Sri Ritwick Mukherjee but they did not get any response. However on 28/12/2019 complainant was assured by the said Ritwick Mukherjee that his man who was then at Los Angeles would hand over the complainants 1000 USD on or after 30/12/2019 but nobody came and the said 1000 USD was not handed over. It was also learnt subsequently that the said Visa Card handed over to complainants in fact belonged to one another person. The complainants did not have any sufficient money and the high handed acts of the OPs had caused the complainants immense mental agony at a foreign country. Finding no alternative complainants were compelled to beg requisite USD from their relation at USA and purchase the air tickets from Air India to come to Kolkata from Los Angeles via Delhi by paying 1277.40 USD (equivalent to Rs. 89000). So the complainants had to pay extra sum of Rs. 12,410/-. Complainants paid to the OP Rs. 3,76,830/- of which OP only spent 1,42,560/-. On return to Kolkata complainants requested the OP to refund the said amount of Rs. 2,46,680/- and OP on much persuasion issued one account payee cheque amounting to Rs. 2,01,834/- towards the refund of the said amount in part but when the cheque was presented, it was dishonoured for the reason “fund insufficient”. OPs have failed to refund the said sum. Thus the present complaint is filed by the complainants praying for directing the OP to refund the said sum of Rs. 2,46,680/- along with interest @ 18% p.a. from 14/10/2019, to pay Rs. 10,00,000/- as compensation for harassment and mental agony in foreign land and to pay 1,00,000/- the cost of litigation. 

On perusal of the record, it appears that the OPs did not turn up on receipt of notice and thus the case has been heard exparte.

So the only point requires determination is whether the complainant is entitled to the reliefs as prayed for?

DECISION WITH REASON

In support of their claim that they had booked package tour to Dubai for 3 nights / 4 days, complainants have filed the tour programme / itinerary issued by the Ritwick Mukherjee representing the OP firm wherefrom it is evident that the journey was to begin on 07/12/2019 from Kolkata to Dubai. Complainants have also filed the money receipts issued by the OP wherefrom it appears that a total sum of Rs. 3,26,450/- was paid by the complainant Swapan Kumar Ghosh i.e towards air tickets from Kolkata to Dubai Rs. 30,200/-, Dubai to Los Angeles Rs. 37,200/- and then from Los Angeles to Kolkata Rs. 76,590/- and for Dubai tour Rs. 15,500/-, for INR to USD Exchange Rs. 16,200/-, Forex Card Rs. 1,38,760/- and Visa (Dubai) Rs. 12,000/-. These receipts and other documents indicate that the complainants were to fly to Los Angeles on 10.12.2019 from Dubai and were to return from Newyork on 26.01.2020 to Kolkata. But according to complainants on 06.12.2019 a day before the departure, they were intimated by the OP that trip was cancelled due to some restrictions imposed on tourist visa in Dubai and so embassy / emirate airlines had cancelled the travel schedule which according to complainants was not true.

An email dated 10/03/2020 is filed by the complainants sent by Emirates Consumer Affairs in response to the email of the complainant intimating that on 12.10.2019 even though booking was made through their call centre to travel from CCU (Kolkata) to DXB (Dubai) on 07.12.2019 and from DXB (Dubai) to LAX (Los Angeles) on 10.12.2019, however since no payment was ever received for said booking, the reservation was automatically cancelled. So from the said email, it is well established that OP did not make any payment towards Air Fare in time and thus ultimately false intimation was given to the complainants a day before the departure i.e. on 06.12.2019 that Dubai Embassy / Emirates Air lines had cancelled the travel schedule as some restrictions was imposed on tourist visa. There cannot be any dispute that this act of the OP is nothing but an unfair trade practice.

The claim of the complainants that they were compelled to pay extra amount of Rs. 50,380/- to travel to Los Angeles from Kolkata via Hong Kong for another schedule arranged by OP is substantiated from the said email referred to above and thus complainant is entitled to the refund of the said sum.

Complainants have filed the WhatsApp chat between the parties wherefrom it is apparent that the multi currency travel card which was handed over to the complainants by the OP had only 99 USD for which complainants who were senior citizen were not only put in awkward position but also they were unable to buy the tickets. It further appears from those chats that the said card was in someone else’s name. It is evident that OP had taken Rs. 1,38,760/- for the said Forex Card but it did not have sufficient sum leave alone equal amount paid by complainants. So the claim of complainants that due to acts of OP they had to buffer immensely at a foreign country cannot be disbelieved.

It may be pertinent to point out that photocopy of a cheque dated 18/01/2020 for Rs. 2,01,834/- issued by the OPs in the name of the complainant Swapan Kumar Ghosh has been filed along with Bank return memo wherefrom it appears that the said cheque has been dishonoured on the ground of “funds insufficient”. It is the specific case of the complainants that the said cheque was issued by OP towards refund of sum claimed by the complainants. Even though complainants had claimed refund of Rs. 2,46,680/-. The issuance of the said cheque towards refund itself indicates that the OPs knew that they were not only deficient in rendering of service but also were at fault. So since the cheque has been dishonoured but no payment has been made thereafter by the OP towards refund, complainants are entitled to the refund of sum of Rs. 2,46,680/- along with interest @ 10% p.a. (as compensation) especially when before this commission, there is no contrary material to counter the claim of the complainants. Since compensation is allowed in the form of interest, we find no justification to pass a separate order for compensation as prayed by the complainants.

Hence

           ORDERED

CC/164/2020 is allowed exparte. Opposite parties are directed to pay to the complainants Rs. 2,46,680/- together with interest on the said sum @ 10% p.a. from 14.10.2019 to till this date, Within 45 days from the date of communication of this order. OP is further directed to pay Rs. 12,000/- as litigation cost. In default of payment entire sum shall carry interest @ 10% p.a. till realisation.