Order-9.

Date-19/02/2018.

This is an application u/s.12 of the C.P. Act, 1986. The complainant saw the advertisement published by the OP for China package tour for 5 night and 6 days and collected detailed Itinerary. The package included air fare, Visa, 3 star hotel, breakfast and dinner and sightseeing through AC van.

            The complainant intended to avail himself of the offer of tour scheduled to have been commenced on and from 29/9/2016 and booked on 30/3/2016. Total cost for two persons was Rs 144000/-  at the rate of Rs 72000/-. The OP issued Booking Form duly signed by the complainant on 30/3/16.

The complainant paid for the proposed tour to the OP cash Rs 40000/- on 30/3/16 under Receipt No.747, cash Rs 32000/- on 27/4/16 and Rs 72000/- through cheque under Receipt No.206.

            The OP reportedly failed to arrange the proposed tour and in spite of verbal requests the OP could not arrange the tour and finally cancelled it. On several meetings, the OP agreed to refund the money. The OP sent cheque no. 823206 dated 27/12/2016 for Rs 72000/- and cheque no. 823209 dated 27/01/2017, both of P NB, Ballygunge Branch, to the complainant.

            The complainant deposited the cheques but the same were returned by the PNB with the remarks ‘Funds insufficient’.

The complainant wrote to the OP through letter dated 12/4/17 regarding such dishonour of returned cheques and asked him for refund an amount of Rs 144000/- but the said letter got returned with the postal remark ‘Addressee Left’. Thereafter the complainant approached the CA&FBP Directorate for redressal of his grievance but the OP did not turn up.

            The complainant prayed for return of Rs 144000/-, compensation of Rs 80000/- and litigation cost Rs 10000/-.

            The OP did not turn up in spite of paper notification through Bengali daily ‘Aaj Kaal’.   So, the case ran ex parte against the OP.

Points for Decision

1. Whether the complainant is a consumer under the OP;
2. Whether the OP is deficient ;
3. Whether the complainant deserves relief.

Decision with Reasons

1) We have perused the copies of documents filed by the complainant including the advertisement publicized by the OP, Booking Form, Payment Receipts and Return Cheques with the letter of complainant dated 12/4/2017 written to the OP.

            2) The OP did not turn up in spite of notice was publicized in the Bengali daily ‘Aaj Kaal’ in the event of Postal Track Report showing ‘Addressee Moved’. The office of OP is not in a remote place but in an important place of South Kolkata. The OP lost opportunity to controvert the allegations leveled against him by the complainant, by not taking part in the proceedings.

             3) From records, it appears that the OP, Sunny Sand Holidays publicized their Holiday Package Tour to China with special discounted price of Rs 73990/- + 3.63 percent GST per person for a 5N/6D Tour. The prospective tourists were also duped to book before 31/3/2016. The documents publicized by OP and filed by the complainant include detailed ITINERARY.

            4) The Booking Form was signed on 30/3/16 in the name of the complainant and another, stating therein total cost of Rs 144000/-  at the rate of Rs 72000/- per person and scheduled date of journey on 29/9/16, including facilities stated therein.

            5) The complainant made cash payment of Rs 40000/- on 30/3/16 under Receipt No. 747, cheque payment of Rs 72000/- under Receipt No. 206 through SBI, Sakher Bazar Branch on 26/8/16 and reportedly made cash payment of Rs 32000/- on 27/4/16 but no Receipt has been filed for such cash payment of Rs 32000/- by the complainant.

6) Whether we should consider the payment of Rs 32000/- as valid (due to non-filing of Receipt), we need to consider following relevant points.-

i) The complainant averred such payment in the complaint under Affidavit and confirmed under Affidavit on Affidavit.

ii) The OP did not come forward to reply or counter or controvert such averment of payment and so, indirectly admitted.

 iii) On cancellation of the tour at the close hours of starting the journey, OP sent two cheques bearing nos. 823206 and 823209 both dated 27/12/2016 and each amounting to Rs 72000/-.

            So, from above points, it is presumed that the complainant made the affirmed cash payment of Rs 32000/- to OP, to complete total payment of Rs 144000/-; otherwise, the OP would not have returned two cheques amounting to Rs 144000/-.

            Now let us decide other points for discussions.

            7) The complainant paid the full consideration in advance in assurance of OP to conduct the service of travelling to China.

            So, the complainant is a consumer under the OP as defined under section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as amended so far.

            8) The OP, in return, cancelled the tour at the fag end of expectation of the complainant thereby landing him in great disappointment and frustration apart from loss of monetary value.

          So, the OP is severely deficient in keeping his commitment to the complainant. Such deficiency of service is defined u/s 2(1)(g) read with 2(1)(o) of the Act.

            9) Moreover, the OP returned two stated cheques on 27/12/2016, i.e. about 3 months after the date of proposed but failed tour. As per reports of PNB dated 06/01/2017, the cheques could not be cashed and were returned due to insufficient fund in the account of OP.

           This conduct of the OP is not only deficient but also unfair because the OP knew that there was no fund in his account for encashment in favour of the complainant, yet he issued the cheques. It is presumed that the OP is in the practice of adopting such unfair trade with other tourists also and thereby increased his own benefit.

        10) The OP did not intimate the reasons of cancellation of the tour. He did not even reply the letter dated 12/4/17 of the complainant leading the latter take legal recourses.

        11) In all such considerations, the OP seems seriously negligent and deficient leading the complainant to physical harassment, mental agony, social disregard and monetary loss. So, the complainant deserves relief.

         In the circumstances of above analysis, we constrained to pass

ORDER

That the complaint be and the same is allowed ex parte against the Opposite Party, Ravi Sircar in terms of section 13(2)(b)(ii) of the Consumer Protection Act, 1986 as amended;

That the O.P. or his legal heir(s) or whoever represents him in the business is/are directed to return Rs 144000/- plus interest  at the rate of 9 percent on Rs 40000/- w.e.f. 30/3/2016, on Rs 32000/- w.e.f. 27/4/2016 and on Rs 72000/- w.e.f. 26/8/2016 till date of actual payment, to the complainant within 30 days from the date of this order;

That the O.P. or his legal heir(s) or whoever represent(s) him in the business is/are directed to pay Rs 15000/- as compensation u/s 14(1)(d) for physical harassment, loss of reputation and mental agony and Rs 5000/- for litigation cost to the complainant and Rs 20000/- u/s 14(1)(hb) to be deposited with the Forum, within 30 days from the date of this order;

That on failure of the O.P. or his legal heir(s) or whoever represent(s) him in the business, to comply with any of the orders within the stipulated time, the complainant shall have the liberty to put the orders into execution in terms of section 27 of the Act ibid.

Let copies of the order be handed over to the parties when asked for.