DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION

Sealdah Court Room No. 302 and 309

1,Beliaghata Road, Kolkata-14

BEFORE:

HON'BLE MR. SUDIP NIYOGI                                                  PRESIDENT

HON'BLE MRS. MANJUSRI SARKAR CHOWDHURY          MEMBER

HON'BLE MR. AYAN SINHA                                                       MEMBER

PRESENT:

 Judgement

HON’BLE MR. AYAN SINHA,             MEMBER

            This is a complaint u/s 35 of the Consumer Protection Act, 2019 made by 25 complainants jointly alleging deficiency of service against the opposite party- OASIS Holidays Group, M/s Tomytrips Travel Pvt. Ltd and accordingly, pray for a direction to refund Rs.26,10,000/- along with interest @10% p.a. which is amounting to Rs.5,22,000/- approximately, to pay Rs.25,000/- as compensation for mental agony and Rs.25,000/- for expenses of engaging lawyer and for drafting all letters.

FACTS IN BRIEF

            In the instant case, there are 25 complainants who all came in contact with the representatives of M/s Tomytrips Travel Pvt. Ltd, namely, Mr. Shine Thomas (Vice-President), Captain Jose George and Mr. Anil Kumar wherein the later convinced these 25 members of Fatima Church for pilgrimage tour to Europe as per the schedule annexed with the complaint petition and the tentative date for this trip was fixed on 23^rd May, 2020. Accordingly, 25 complainants jointly paid Rs.26,10,000/- in various modes i.e. cheques/NEFT/cash between 23^rd November to 5^th December 2019 to which opposite party issued money receipts for the said payments. As stated in the complaint petition, the opposite party did not initiate any application for visa which was supposed to have been done by the end of February, 2020, as per the agreement signed between the parties on 5^th December, 2019. It is also stated in the complaint petition that the visit to Dubai was not finalized and included in the itinerary as all international flights to Europe was debarred due to Covid-19 pandemic situation. Opposite party also did not update the complainants about the visa application and as per the minutes of the meeting dated 7^th March, 2020. It was agreed that the members out of the 25 complainants who have opted to go in May, 2021 would get the refund within first week of April, 2020. Complainants also wrote letter on 22/02/2022 addressed to the Vice- President as discussed above demanding for the refund of the amount paid to which Mr. Shine Thomas (V.P) promised that they would refund the money for the said Europe tour by 10^th August, 2020. It is also alleged that opposite party had sent Whats App message on 18/07/2020 stating that they have not advanced any money for Air tickets or hotel booking for the said tour by the Grace of God. After several letters being sent, opposite party gave excuses that they are selling their Managing Director’s properties to refund back their money. On 7^th October, 2020, a separate letter was sent from Managing Director of the said opposite party stating that they paid some advances to their supplier in Europe. Thereafter, complainants made several phone calls to the opposite party requesting for the refund of the amount paid but the opposite party kept on giving excuses as alleged. Complainants also lodged a complaint with Entally Police Station and two police stations in Bangalore to which the travel company confessed to the police that the money taken from these 25 members of the Europe pilgrimage group would be refunded within a year. Complainants issued a legal notice dated 6^th March, 2021 demanding the money along with the interest accrued to which opposite party paid no heed.

            Thus, due to this breach of contract, negligency and deficiency in service on the part of the opposite party, complainants filed this instant case praying for a direction upon the opposite party with certain reliefs as discussed above.

            Notices were served to the opposite party through postal service and the same being unsatisfactory, complainants had to issue notice upon the opposite party by way of paper publication in English daily newspaper of Bangalore dated 25^th January, 2023.

            Opposite party did not contest this case by filing written version despite the effort of the complainants and finally the case was heard ex parte against the opposite party vide order dated 13/03/2023.

            Complainants filed evidence on affidavit in support of their contention where they have reiterated the facts as mentioned in their complaint petition. During the final course of hearing, Authorized Representative of the complainants was present and filed written notes of argument.

POINTS FOR DETERMINATION

1. Whether there was deficiency in service on the part of the opposite party as alleged?
2. Whether the complainants are entitled to the relief(s) prayed for?

DECISION WITH REASONS

We have carefully perused all the documents /annexures filed by the complainants and accordingly both the points are taken up together for the sake of brevity to avoid repetition of facts.

On careful scrutiny of the annexures there is no doubt that the twenty-five complainants paid Rs.26,10,000/- to Oasis Holidays Group, Tomytrips Travel Pvt. Ltd. for a Europe pilgrimage tour which was fixed on 23.05.2020.

The details of the money receipts as per the payments made by the complainants to the said OP are as follows: -

On further scrutiny we found a copy of agreement dated 05.12.2019 made by the OP for the said Europe tour which was duly signed by them stating the tour schedule date was mentioned as 23.05.2020 and would also provide the flight details with PNR No. before 30.12.2019. We have gone through the various WhatsApp communications between the OP and complainants on various occasions from where it is understood that the said tour got cancelled due to the Covid-19 pandemic situation globally. It is also observed from the WhatsApp communications that the OP had assured and committed to refund the money by 10.08.2020. On further scrutiny of copies of WhatsApp communications it is also understood that OP also admitted to refund the booking money by taking loan from Private Finance Company as they failed to refund within 10.08.2020.

We have seen the letter dated 07.10.2020 issued by the OP from where it is found that the OP had admitted since they have failed to refund the money by 10.08.2020 after their commitment, so they had applied for a bank loan which got struck due to Covid-19 pandemic situation. It is also stated in that letter since there was no business, nor any fund- flow, they asked the complainants to wait for refund. Undoubtedly, in the instant case, the OP had accepted the money from the complainants for the said Europe tour but the tour had to be cancelled due to lock down arising out of Covid 19 pandemic following the order of the Government.

Therefore, after accepting the money and failing to refund the same taking various pleas even after commitment to refund the amount, we opined that there was a gross deficiency in service on the part of the OP by neglecting to refund the booking amount to the complainants.

So, complainants being the ‘Consumers’ are entitled to the relief(s) as there were no laches on the part of the complainants. On the contrary the whole group mentally suffered on being deprived of their much-awaited Europe tour which they had booked from their hard earned money in todays’ life.

Therefore, considering the facts and circumstances as discussed we are of the considered view that the complainants are entitled to get the refund of Rs.26,10,000/- along with simple interest @7% p.a. which they paid as advance along with litigation cost of Rs.5,000/-.

Since, the compensation in the form of interest is allowed, we are not inclined to pass any separate order as to compensation.

In the end, the complainants had succeeded in proving their case.

Hence it is,

ORDERED

That the instant complaint case no. CC/122/2022 and the same is being allowed ex parte against the OP.

OP is directed to pay Rs.26,10,000/- (Rupees Twenty-Six Lakh Ten Thousand Only) along with simple interest @7% p.a. as per the booking money receipts issued by them within 60 days from the date of this order to the respective twenty- five complainants as discussed above, in default, the entire amount shall carry 9% interest p.a. until realization in full.

OP is further directed to pay consolidated amount of Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation to the complainants within the aforesaid period.

If the aforesaid order is not complied with by the OP within the stipulated period, the complainants are liberty to proceed in accordance with law.

Dictated and corrected by me

        Member

[HON'BLE MR. SUDIP NIYOGI]

PRESIDENT

[HON'BLE MRS. MANJUSRI SARKAR CHOWDHURY]

MEMBER

[HON'BLE MR. AYAN SINHA]

MEMBER