As per Hon’ble President Mr. Atul Alshi.
1. The complainant has filed complaint case against OP for non refund of booking amount for Haj package for pilgrimage to Makka in Saudi Arebia for arbitrarily cancellation of tour and thereby seeking refund of amount of Rs.5,70,000/- alongwith interest, compensation and cost of litigation.
2. The complaint in short as under –
The complainant is resident of Kamptee and desirous to go for pilgrimage at Haj and OP are dealing in the tours and travels business and prepares tour packages of Haj and Umrah. The OP No. 1 & 2 are partners and have travel agency in the name “Al-Hizaz Haj & Umrah Tours” having shop and license which situated at Kamptee with intention to making arrangement for travelling, lodging and boarding for Haj in the year 2017. The complainant planned to go Makka for Haj with family and paid Rs.5,70,000/- as per offer of OP for 40 days package from his saving account through RTGS and assured that from 10.08.2017 to 20.08.2017 there will be flight for Haj. The flight will be from Nagpur and Visa and Ticket will be given in advance. After repeated demand, the OP failed to supply Ticket and Visa till 10.08.2017. The complainant visited the OP in their office of where OP assured that the complainant will be sent for Haj as last flight for Haj pilgrimage on 24.08.2017 but till that date the OP did not sent the complainant. Therefore, complainant requested the OP to refund the amount credited to OP but OP take undue advantage of complainant and misappropriated the amount of complainant for their personal use by indulging unfair trade practices and deficiency in service. Therefore, the complainant was constrained to issue legal notice through Advocate calling to pay amount of tour alongwith compensation. But OP has not complied, therefore, being a consumer the complainant has filed the present complaint.
3. The OP No. 1 & 2 filed reply and denied that they engaged in the business of tour and travels. OP No. 1 & 2 was acting as agent of Abdul Aziz Shakeel Ahmed Proprietor “Tayba Haj & Umrah Tours” at Malegaon, Dist. Nashik and doing successfully without any complaint since long. The complainant who was working as commission agent as OP were working. During course of work the OP 1 & 2 were several money transaction took place between complainant and OP 1 & 2 towards booking of Haj & Umrah. There was outstanding amount against the complainant, therefore the complainant paid the amount of Rs.5,20,000/- in the account of OP towards discharge of liability. It is further submitted in reply that the complainant being commission agent of Tayba Haj & Umrah Tours has cheated various pilgrimages and consequence of the same one of them namely Akbar Ahmad Taj r/o Kamptee had lodged criminal complaint on 08.09.2018 at Kamptee police station against complainant. The OP did not take any Haj booking from complainant as such of giving date about flight and other services does not arise as claim in complaint. There is absence of any relationship of consumer and interest between the parties therefore the complaint is liable to be dismissed with cost of Rs.10,00,000/-.
4. The counsel for complainant argues that the complainant filed the copy of amount paid for Haj tour by NEFT as Annex. 1, the statement of account of passbook alongwith bank receipt for the amount paid to the OP and OP promised to perform the package tour to the Haj within period of 10.08.2017 to 20.08.2017 and on 24.08.2017 and fail to issue the Visa and tickets and fail to refund the amount paid for pilgrim amounts to unfair practices.
5. The counsel for OP argues that there is no relationship of consumer between complainant and OP. The complainant is working as an agent of Abdul Aziz Shakeel Ahmed Proprietor Tayba Haj & Umrah Tours and allowed the complainant to use the firm account for purpose of booking amount which were collected for pilgrims. Therefore there is no direct nexus with OP and complainant. The proprietor of Tayba Haj & Umrah Tours Abdul Aziz Shakeel Ahmed has settled dispute and refunded amount of Rs.5,70,000/-. The OP 1 & 2 has not received any amount for Haj as claimed by complainant. Therefore, the complaint is liable to be dismissed with cost.
6. After hearing of case the following points arose for consideration.
POINTS
- Whether the complainant is consumer? Yes.
- Whether there is deficiency in service on the part of OP? Yes.
- 3) What order? As per final order.
REASONING
7. Point No. 1 to 3 – The OP are dealing in the business of tours and travels of providing Haj and Umrah packages to pilgrimages who intend to go for Haj and Umrah through Al-Hizaz Haj & Umrah Tours. As per pamphlet issued by OP for the package tour the complainant has deposited Rs.5,70,000/- through NEFT from the account of Indian Bank bearing account no. 536565870 from his account to Bank of India bearing account No. 877420110000105 for which the complainant file NEFT application form. The OP had promised to the complainant as per pamphlet the package tour to Haj and complainant and family will be sent from 10.08.2017 to 20.08.2017 but failed to issue Visa and tickets upto 24.08.2017 therefore the complainant issued legal notice through Akbani & Modi Associates, receipt of notice OP failed to comply the notice. The complainant file copy of pamphlet package of tour doc.No. 1, transaction slip as doc.no.3. The OP have failed to file the proof of refund of amount of Rs.5,70,000/- to the complainant. After repeated demand the OP failed to refund the amount paid for package tour therefore the complainant lodged police complaint for non refund of package tour amount therefore non refund of money for Haj tour to complainant amounts to unfair trade practice on the part of OP No. 1 & 2.
8. It is matter of records that Complainant had paid Rs 5,70,000/- on 25.10.2016 to OP for visiting Makka for Haj with family as pilgrimage tour. OP’s deficiency in services & unfair trade practice has been established. OP has utilized Rs 5,70,000/- for his business since December 2016 without refunding said amount to Complainant. Complainant had suffered in both ways .i.e. unable to complete pilgrimage tour & deprived of Rs 5,70,000/- since October 2016. The observations recorded by Hon’ble Supreme Court of India in the matter ‘Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC)’ are squarely applicable for the present matter, therefore, Complainant is certainly entitled to receive interest on the amount Rs 5,70,000/-.
“9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B.”
Moreover, it is noteworthy that Complainant had not deposited amount with OP as Bank deposit so directing OP to refund amount just with bank interest would not be justified as it will turn as incentive for OP to repeat same with other Consumers in future as OP would require to pay less interest than Commercial interest charged by Bank to OP for his business loans/limits. Commission is of the firm opinion that award of penal interest would not only serve the ends of justice for Complainant but definitely would turn out as deterrent to OP for not repeating same with any other Consumer. Complainant has claimed interest of 24% p.a. on refund amount of Rs.5,70,000/-, which is on higher side but considering above discussions , commission is of the opinion that directing OP to refund Rs 5,70,000/- with interest of 9% p.a. from dt 27.12.2016 till realization would be fully justified.
9. Complainant had claimed Rs 3,00,000/- as Compensation for harassment & mental agony suffered in the matter. Complainant had not given justification for said claim. The claim is on higher side. No doubt, suffering of the Complainant cannot be computed in monetary terms. Complainant is certainly entitled for reasonable compensation of Rs. 25000/-. OP did bother to send reply to the legal notice sent by Complainant. Complainant was required to file complaint before Commission, therefore, Complainant is entitled to receive Costs of Rs. 15000/- .
10. In the absence of specific directions to comply within specific period, OP may take advantage of ambiguity about period of Compliance. It is also necessary to give directions to OP to Comply order within 45 days so that OP cannot claim excuse for non compliance beyond 45 days.
Order
1) The Complaint is partly allowed
2) O.P. No 1 & 2 is directed to refund amount of Rs 5,70,000/- with interest @9% P.A. from 25.10.2016 till realization to Complainant.
3) O.P. No 1 & 2 is further directed to pay compensation of Rs 25,000/- for mental agony & Rs 15000/- towards litigation Costs.
4) O.P. No 1 & 2 is directed to comply above directions within 45 days from the receipt of order.
