Hon'ble Mr. Haradhan Mukhopadhyay, President.
The concise fact of the case of the Complainant is that the Complainant is registered as Madhusudan Hore Mahavidyalaya and is dedicated to the promotion of higher education situated at Cooch Behar. The OP is a Travel Agency under the name and style of Leo Holidayz Private Limited. The Department of Geography of Complainant’s College proposed to organize an educational tour at Manali, Himachal Pradesh on 27.03.20 and on the basis of advertisement the Complainant contacted with the OP. Accordingly, the Complainant issued an account payee cheque to the OP for a sum of Rs.70,000/- as advance money of purchasing Railway ticket for the students and teachers of Geography Department. Accordingly, having received the cheque the OP issued a bill to the Complainant and affirmed the tour date on 27.03.21 and return journey on 03.04.21. Suddenly due to Covid-19 Pandemic and Lock down the said tour was cancelled due to non-movement of train as per direction of Govt. of India. The Complainant contacted with the OP several times and informed that due to pandemic the movement of train was stopped and the said tour had to be cancelled. The Complainant also requested to the OP to refund the said advance money of Rs.70,000/- but the OP failed to refund said sum of Rs.70,000/- and also failed to produce any Railway tickets in the name of the students and teachers concerned. They are bound to reimburse the entire amount of railway tickets as per notification vide No.TC-II/2003/2020/Refund-Corona dated 27.03.20 issued by Railway Board Ministry of Railways Govt. of India. Due to cheating by the OP, the Complainant lodged a complaint to the CA & FB Department, Siliguri on 22.07.21 wherein several meetings were called on but it was failed due to non co-operation of the OP. Hence the present case is filed. The OP committed negligence and caused deficiency in service. The cause of action arose on 07.03.20 and on subsequent dates. The Complainant therefore prayed for an award for a sum of Rs.70,000/- and Rs.1.5 Lakhs for mental pain and agony, Rs.60,000/- for travelling allowances of Siliguri and Rs.20,000/- towards litigation cost.
The OP defended the case by filing written version wherein they denied each and every allegation. The positive defence case of the OP in brief is that one Mr. Debanjan Basak of Complainant College contacted with OP for booking of package tour for 13 heads for the period 27.03.20 to 03.04.20. Tour itinerary is disclosed in the written version. The total cost for the said tour was fixed at Rs.1,02,700/- out of which Mr. Debanjan Basak paid Rs.70,000/-. The OP somehow managed to book all the tickets amounting to Rs.70,000/-. In the meantime due to Covid-19 pandemic the tour was cancelled by the customer and they also cancelled the tickets for Rs.22,620/-. The OP as a good gesture adjusted any next tour plan if the customer desired but Mr. Basak started pressurizing for refund of Rs.70,000/-. As per tour package clause if tour is cancelled due to natural calamities payment cannot be refundable and the tour operator will not be responsible for any loss or damage. The Mother of the OP is a Cancer patient and the OP has arranged for her treatment frequently. After any letter served upon the OP it was for squeezing money by illegal means. The Complainant has not provided any documents to the OP. The case is liable to be dismissed with cost.
The pleadings of the parties and the defence case led this Commission to ascertain the following points in dispute for proper adjudication of the case.
Points for Determination
- Whether the case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief in any the Complainant is entitled to get?
Decision with reasons
Point No.1.
Although the Complainant challenged the case as not maintainable on the ground of barred by limitation and that the Complainant is not a consumer yet in course of argument this point of objection were not agitated by the Ld. Defence Counsel.
However after perusing the pleadings of the parties and the evidence on record it is found that the Complainant advanced money for conducting a tour of the students of the Complainant’s College against proper money receipt which had to be cancelled for supervening impossibility. The OP admitted that money was advanced for conducting the tour. So the price was paid for availing service from the OP by the Complainant. Thus relation between the Complainant and the OP is just consumer and service provider.
While deciding the question as to the maintainability of the case regard being also had to the argument of Ld. Defence Counsel that the OP Madhusudan Hore Mahavidyalaya is a self foundation institution. Complainant filed the case against the secretary of the college but no name is mentioned. So it is not cleared as to who is representing the college.
After close scrutiny of the case record it transpires that the case is filed by the Secretary, Madhusudan Hore Mahavidyalaya and the complaint was signed by Sri Tanay Dey. Therefore the argument that there is no name of secretary does not hold good. Name is not necessary in this case because secretary may be changed from time to time since it is a college and secretary as an employee who may be transferred at any time. It does not mean that in absence of said secretary the case will be in-fructuous. A secretary functions in the official capacity. So non-mentioning of name of the secretary does not make the case as not maintainable.
The secretary Tanay Dey signed the complaint.
Ld. Defence Counsel also argued that cheque issued by another person who is not Tanay Dey.
The argument is not at all acceptable because whoever signed the cheque, the OP encashed the said cheque for Rs.70,000/- and it was credited to the account of the OP.
In view of the aforesaid observation the Commission comes to the finding that the case is maintainable in its present form and not barred by any legal embargo.
Point No.1 is accordingly decided in favour of the Complainant.
Points No.2 & 3.
These points relate to ascertainment as to whether the Complainant is entitled to get any relief or not.
It is the admitted fact that the Complainant advanced a sum of Rs.70,000/- to the OP for the schedule tour at Manali, Kulu and other places of Himachal Pradesh by the students of the college of the Complainant.
It is also the admitted fact that as per the Central Govt. notification (Ministry of Railways), due to Covid-19 Lock Down was declared for a certain period which feel within the disputed tour period.
Accordingly, the said tour had to be cancelled due to supervening impossibility like pandemic (Covid-19).
It is the specific case of the Complainant that since the Complainant was compelled to cancel the tour due to reasons beyond their control so the price of the tickets as well as the advance money has to be refunded to the students.
The defence plea is that they have already incurred some money. They are ready to adjust Rs.47,380/- i.e. Rs.70,000/- - Rs. 22,620/- in any next tour to the same place, but under no circumstances the entire advance money of Rs.70,000/- can be refunded.
It is evident from the document that the said tour had to be cancelled due to Covid-19. The Complainant proved a Govt. notification of Ministry of Railways being No.TC-II/2003/2020/Refund-Corona dated 27.03.20. As per the said notification it is notified inter alia that all tickets up to 14.04.20 will be refunded due to cancellation of passenger carrying train period is 21.03.20 to 14.04.20. The schedule date of journey was 27.03.20 which is well within the date of refund as per the Govt. of India notification.
The Complainant also proved the Office order of Govt. of Himachal Pradesh dated 12.03.20, 17.03.20 and dated 19.03.20 wherein the entry of tourist were banned in that state till further order.
Ld. Advocate for the Complainant argued that therefore the students and the tour party had no option but to cancel the tour.
Ld. Defence Counsel argued that the tour was cancelled due to Covid-19 situation over which the OP had no control. They did not cancel the tour, so money cannot be refunded.
The argument is not acceptable because Railway Department already decided to refund for the cancelled tickets. Accordingly, the bonafide ticket holder is entitled to get refund of money for their tickets.
Ld. Advocate for the Complainant argued that the OP did not handover the counter ticket to the Complainant nor did they send any online ticket to the Complainant. So there is nothing to show that ticket were handover to the Complainant.
The argument has reasonable force in as much as the OP neither filed any copy of the ticket nor any printed copy of online tickets. Therefore the defence plea that Rs.22,620/- was already spent for tickets has no leg to stand. Even for the sake of argument if it is presumed that the said tickets were actually purchased it is the OP who could have realised the entire money for the price of the tickets as refund from the Railway Department as per the Govt. notification. That apart the document also discloses that the 95% of the hotel charge are subject to refundable.
Ld. Defence Counsel argued that the tickets were handedover to Debanjan Basak. As per the Evidence Act if a document which is supposed to be in the custody of a person is not produced by the said party then adverse presumption could be drawn that if it is produced it would go against him.
The OP also did not call for any document from the Railway Authority or no document regarding information under the RTI Act regarding booking of hotel or purchasing of railway tickets from the concerned department. Ld. Defence Counsel filed a copy of e-mail sent by the OP to the Complainant wherein it is stated inter alia that if tour gets cancelled payment cannot be refundable. The said document does not help the OP because Railway Board decided to refund the tickets book. The Complainant had no alternative but to cancel the tour. So as per decision of the Govt. of India, the Complainants are entitled to get refund of the advance money.
In the backdrop of the aforesaid assessment of evidence and observation made on the basis of discussion in the foregoing paragraph the Commission comes to the finding that the Complainant is entitled to get the relief prayed for. The case record also shows that several meeting were held before the CA Department but it was failed due to noncooperation of the OP. Therefore it caused mental pain and agony to the Complainant as well as harassment.
The defence plea that the said money would be adjusted in the next year is not acceptable because it was an educational tour i.e. excursion. After expiry of academic session of the students they would not be permitted to conduct another excursion for the same academic session. Therefore the defence plea of adjustment of the advance money is not tenable in the given facts and circumstances.
The OP also could not file any contract between the parties to establish that under no circumstances advance money can be refunded. What is filed that is a unilateral decision informed through a letter.
Points No.2 & 3 are accordingly decided in favour of the Complainant.
In the result the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/59/2021 be and the same is allowed on contest with cost of Rs.5,000/-.
The Complainant do get an award for a sum of Rs.70,000/- towards refund of the advance money and Rs.10,000/- towards mental pain agony and deficiency in service.
The OP is directed to refund a sum of Rs.85,000/- (Rupees eighty five thousand only) to the Complainant within 30 days from the date of passing the Final Order by means of account payee cheque in the name of the Complainant, failing which the entire award money shall carry an interest of 6% per annum. The Complainant is also directed to refund the amount advanced by each student for their tour after getting the award money from the OP by means of crediting the same in the account of the respective student after giving intimation to each student of the said tour within one month from the date of receiving the award money and shall submit a compliance report to this Commission.
The Complaint case is accordingly disposed of.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
