IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 13^th day of December, 2021

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member

Sri. K.M. Anto, Member

C C No. 185/2019 (filed on 01-11-2019)

Petitioner                                 :         K.P. John,

                                                         Kannothra House,

Thannikkalpadi,

Vadavathoor P.O.

Kottayam - 686010

(Rep. by his power of attorney holder

                                                          Manoj Philip)

                                                          (Adv. P.J. Joseph)                  

                                                                     Vs.                            

Opposite Parties                      :  (1) Niramaya Retreat backwaters and

                                                          Beyond Pallichira road,

                                                          Vayitharamattom, Kumarakom,,

                                                          Kottayam – 686563.

                                                          (Adv. Jomy Joseph)

Additional opposite party                     (2) Ivie John,

(impleaded as per IA 80/20)             Proprietor,

                                                          Travel Desk, 1^st floor,

                                                          Kannanthanam building,

                                                          Pulickal kavala P.O.

                                                          Kottayam – 685515.

O  R  D  E  R

Smt. Bindhu R. Member

  The complaint is filed under Section 12 of the Consumer Protection Act, 1986.

          The complainant is represented by his father as power of attorney holder.  The complainant has booked rooms in Niramaya Retreat backwaters and Beyond for 10 members for the stay from 11-08-19 to 12-08-2019 through the second additional opposite party and paid Rs.46,336/- as 25% advance through the second additional opposite party.  But due to the heavy rain and flood happened in Kerala 2019 August, the road from Kottayam to Kumarakom was filled with water up to 4 feet, the complainant and his family were not able to reach the resort of the 1^st opposite party.  The complainant informed the 1^st opposite party about his inability to reach on time through the 2^nd additional opposite party and demanded Rs.46,336/- the advance amount back.  But he was informed that the said amount was not refundable.  Hence the complaint is filed for a direction to the opposite parties to refund the money received.

          Upon receiving notice from this Commission, opposite parties appeared and filed version.

          The first opposite party in their version alleged that the complainant was not a consumer and the complaint is bad for non-joinder of necessary parties.                      The travel agency named ‘The Travel Desk’ being a necessary party should have been impleaded in the party array.  The statements regarding 2019 flood and inability of the complainant to reach the resort are utter false.  The averment that the complainant had intimated the opposite party that they could not reach and that the complainant had demanded the money back are all false.  The actual fact is the complainant originally made a booking at M/s.Niramaya Cardamom Club Thekkady, which belongs to the 1^st opposite party through the 2^nd additional opposite party.  Thus the 1^st opposite party has blocked 4 rooms as required by the complainant.  Thereafter, the complainant made a request to cancel the booking at Thekkady and to block another 4 rooms at M/s. Niramaya Retreat Backwaters and beyond situated at Kumarakom.  Thereafter without any valid reason the complainant intimated that he was cancelling the said booking.  As a good gesture the opposite party offered to postpone the booking to another date up to 31-3-2020.  But this offer was rejected by the complainant for reasons unknown to the opposite party.  It is pertinent to note that the complainant had booked the rooms after agreeing and accepting the terms and conditions of the opposite party including a definite condition that any customer who books a room with the opposite party had to make an advance payment of 25% of the room rent as a condition precedent for confirmation and the same was not refundable.  The complainant had booked the rooms subject to the above conditions.  The cancellation was made only to opt for another resort to spend the holidays.  Due to the bookings of the complainant the 1^st opposite party was prevented from taking other bookings at that time resulting in a loss to the tune of more than 2 lakhs rupees.  The reason for cancellation shown by the complainant is flood, which is false because almost all the rooms in the 1^st opposite party resort were occupied on the same days with guests who checked even on the same day when the complainant was expected to do.  Hence the contention of the complainant that it was not possible to reach the opposite party’s premises due to flood lacks bonafides.  Moreover the opposite party had already spent more than 50,000/- rupees to provide the amenities in those rooms which were booked by the complainant that is 4 premium villas of the opposite party.    The complainant is liable to compensate the opposite party for the loss of reputation caused due to filing of such a vexatious complaint is quantified as Rs.1,00000/- and the loss suffered by the 1^st opposite party Rs.3,50,000/-.  So the complaint is liable to be dismissed with compensatory cost with the 1^st opposite party. 

As per the contentions in the version of the 1^st opposite party the complainant had impleaded the 2^nd additional opposite party.  In the version of the 2^nd additional opposite party which is represented by I.V. John who is the owner of the same.  It is admitted that The Travel Desk had booked 4 rooms in M/s. Niramaya Retreat Backwaters and beyond situated at Kumarakom as per the demand of the complainant and paid Rs.46,365/- in total.  The details of the bank transfer also has been stated in the version.  All the allegations in the complaint are not known to the 2^nd opposite party.

Exts.A1 to A4 series were marked and the complainant was examined as Pw1 towards the evidence of the complainant where as the 1^st opposite party’s duty Manager Mridul was examined as Dw1 along with the documentary evidence Ext.B1 to B4sereis.

Upon giving a detailed consideration to the pleadings and evidence on record, we would like to frame the following points.

1. Whether there is any deficiency in service on the part of the opposite partite?
2. If so, what are the reliefs?

For the sake of convenience, we would like to consider point No. 1and 2 together.

Point No.1 and 2

          The complainant has booked 2 rooms in the 1^st opposite party retreat for 11^th August 2019 to 20^th August 2019.  But due to the heavy rain and flood, the complainant and his family could not reach there and anticipating this he had cancelled the reservation.  The opposite party though received 46,336/- as advance was not ready to return the said amount upon cancellation.  Hence the complaint is filed. Whereas the opposite party contented that the reason of flood is only a fabricated one and the complainant could have very well reached the resort so they could not return the advance amount.  The complainant has filed Exts.A4 series the newspapers of August 11 and 12 of 2019 of Kottayam edition.  Ext.A4 series very well report that during this period there was heavy flood and Kottayam -Kumarakom road was under water which prevented travelling.  Ext.A1 and A2 are the communication sent by the 1^st opposite party to the complainant regarding the reservation of the rooms.  In Ext.A1 it is noted that the deposit policy of the opposite party 1 is as 16^th April to 30^th September, 25% of the total amount should be deposited as a confirmation of the booking and the cancellation cut of date is 21 days prior to the arrival.  Here the complainant has paid Rs.46,336/- as per the policy but due to reasons unforeseen he could not reach the resort on time and he had intimated his inability to reach there on 10^th August 2019 itself.  Ext.B3 is the letter sent by the 2^nd opposite party who acted as the intermediary for the room reservation.  In Ext.B3 the cancellation of the rooms is intimated to the 1^st opposite party.  The 1^st opposite party’s contention is that the complainant had a plan to change the venue of his holidays from M/s. Niramaya Retreat Backwaters and beyond situated at Kumarakom to some other center and this was only the reason for his cancellation of the rooms.  Though the reason shown was heavy flood and inability to travel due to road block, several guests from different places of the world arrived the opposite party resort on the alleged dates.  They have produced Ext.B2 in support of this.  Ext.B3 is issued by the 2^nd opposite party as per the direction of the complainant to which the 2^nd opposite party had raised no objection.  In Ext.B3 it is stated that when the complainant contacted the 1^st opposite party hotel directly to enquire about the possibility of cancellation, they advised to him that he could postpone the stay until one year from the date of booking.  But as the complainant and his family who were proposed to stay in the hotel on the proposed dates were coming from different countries and so he could not accept that offer.  If there was no such flood as alleged by the 1^st opposite party, the 2^nd opposite party would have advised the complainant for not cancelling the rooms.  Moreover if the complainant had some other reasons to shift the location, he would have canceled the rooms earlier.  But as Ext.B3 is issued only on 10-08-2019 we infer that the complainant had a strong intention to stay with the 1^st opposite party, but due to the unforeseen conditions he did not dare to drag his family into such a dreadful situation. 

In Ext.A1, 4 packages are given based on the booking dates in which all the three packages are shown as the deposit amount is non refundable.  The counsel for the complainant pointed out that the package starting from 16^th April to 30^th September the deposit policy is shown as 25% of the total amount; as a deposit to confirm the booking.  Here it is not mentioned as nonrefundable.  So the inference drawn is that the intention of the deposit policy statement clearly show that the package from 16-04 to 30-09 was not intented to take the advance amount as non refundable.  The complainant’s booking comes under this package and so the advance amount can be considered as refundable. The complainant had paid the whole amount for the booking in advance.  The complainant was not able to cancel the booking earlier because of the sudden change of situation by act of God which was not in his control.

Though the 1^st opposite party has produced Ext.B2 it has not been authenticated and from the said document nothing is made clear as to whether there was any guests who travelled from Kottayam to the resort through Kottayam - Kumrakom road.  Moreover in Ext.B2 the arrival date and departure date of the listed people only is shown and no proof has been produced for their actual residence.  Nobody from Ext.B2 has been deposed before this Commission or any invoice or other documents have been produced in support of this.  Thus from the evidence on record we infer that the complainant had not willful intention to cancel the bookings made by him with the 1^st opposite party through the 2^nd opposite party but had to cancel the same because of the severe flood which was beyond his control.  So as the complainant cancelled the booking he and his family did not use any of the facilities of the 1^st opposite party retreat and so the opposite party did not have to suffer a big loss due to the cancellation.  Hence we find that the non refund of a refundable amount by the 1^st opposite party is a defective service and the 1^st opposite party is liable to compensate.    The complaint is allowed accordingly. 

O R D E R

1. The 1^st opposite party directed to return the deposit amount of Rs.46,336/- (Rupees Forty six thousand three hundred and thirty-six only) to the complainant with an interest of 6% from 11-08-2019 till date of realization.
2. The 1^st opposite party is directed to pay Rs.5,000/- as litigation cost.

The Order shall be complied with within a period of 30 days from the date of receipt of Order.

Order shall be complied within 30 days from the date of receipt of Order, in default of which, the amounts shall carry 9% interest from the date of Order till realization.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 13^th   day of   December,  2021.

Sri. Manulal V.S. President Sd/-

Sri. K.M. Anto, Member                  Sd/-  

Appendix

Witness from the side of complainant

Pw1 – K.P. John

Witness from the side of opposite party

Dw1 – Mridul M.S.

Exhibits marked on the side of the complainant

A1  :  Receipt of reservation dtd.11-08-2019

A2 –Receipt of Rs.46,336/- issued by opposite party

A3- General power of attorney in favour of K.P. John.

A4 – Newspaper  cutting of Malayala Manorama daily dtd.12-08-2019

A4(a) - Newspaper  cutting of Malayala Manorama daily dtd.11-08-2019

A4(b) - Newspaper  cutting of Malayala Manorama daily dtd.12-08-2019

Exhibits marked from the side of opposite party

B1 – print out of e-mail dtd.09-07-2019

B2 – Copy of details of guests in Niramaya Retreats from10-08-19 to 12-08-19

B3 – E-mail dtd.10-08-19

B4 – E-mail sent to John Kuriakose.

                                                                                                By Order

                                                                               Senior Superintendent