Smt. Sahana Ahmed Basu, Member.
This is an application u/s.12 of the C.P. Act, 1986.
Briefly stated the facts of the present consumer complaint are that being intended to visit Australia the complainant contacted the O.P.-1 for getting the details and on 03/03/2017 he accompanied by his wife visited the office of the O.P. and discussed about their desired 9 days trip to Australia from 19/04/2017 to 27/04/2017. Being allured by the offer of the O.P.-1 for a discounted rate, on 06/03/2017 the complainant paid Rs.83,000/- vide cheque No.004248 dated 06/03/2017 drawn on Central Bank of India, which was duly received by the O.P.-1. Thereafter, on Juthika Tarai, Executive- Sales of the O.P.-1 contacted the complainant and introduced one Biplab Roy, official of the O.P.-1 company and said Biplab Roy informed the complainant that total cost of the desired tour was Rs.2,90,100/-. Accordingly, complainant paid Rs.1,20,000/- on 30/03/2017 by cheque No.653458 dated 28/03/2017 drawn on SBI, Rahara Branch on 30/03/2017 and Rs.1,29,842/- being cheque No.004255 dated 05/04/2017 drawn on Central Bank of India, Rahara Branch. As such, the complainant paid Rs.3,32,842/- in total to the O.P.-1. On 28/03/2017, the complainant submitted all the necessary documents for VISA to the O.P.-1 and gave assurance that not worry, the VISA will be approved soon. Surprisingly, on 10/04/2017 the said Biplab Roy of O.P.-1 company informed over phone that the VISA of the complainant and his wife is cancelled and in this case, O.P.-1 would refund entire money after deducting the VISA charges of Rs.16,000/- within two weeks. Thereafter, whenever the complainant tried to contact the O.P.-1. Thereafter, he sent registered letters to the O.P.-1 on 08/01/2018 requesting them to refund his deposited sum. On 31/05/2017 O.P.-1 refunded Rs.2,37,455/- vide cheque No.080848 dated 31/05/2017 drawn on Deutsch Bank, Kolkata. Despite of repeated requests along with several correspondences the O.P.-1 did not refund the balance amount of Rs.79,387/-. Ultimately, the complainant approached before the Assistant Director, CA & FBP but such mediation process has not cropped up any fruitful result. Finding no other alternative, the complainant approached before this Forum praying for a direction upon the O.P.-1 to refund the balance amount of Rs.79,387/- and for other reliefs.
O.P.-1 contested the case by filing W.V. contending inter alia that the instant complaint is false, frivolous and vexatious and is not maintainable either in law. The specific case of the O.P.-1 is that they are a leading tour conducting company. In their brochure it has clearly been noted that the tour participants are required to pay the non-refundable interest free booking amount tot eh them. The complainant voluntarily paid Rs.40,000/- per person as non-refundable interest free booking amount together with Rs.1500/- per person as the Secure Your Booking Amount on 08/03/2017 i.e. in total Rs.83,000/-. The total cost of the tour was Rs.3,90,220/- (Rs.2,58,439/- + AUD 2485 calculated at the rate of Rs.52.99). The tour was to be commenced on 19/04/2017. It is stated by the O.P.-1 that despite of repeated reminders, phone calls and sending of e-mails vide dated 20/03/2017 and 25/03/2017 the complainant paid only Rs.1,20,000/- on 30/03/2017 and on 07/04/2017 1,29,842/- which is merely 12 days prior to departure though in the terms and conditions of the booking form it was clearly mentioned that balance tour cost must be paid at least 45 days prior to departure. Complainant paid in total Rs.3,32,842/- out of total tour cost of Rs.3,90,220/- which is the deliberate failure and negligence on the part of the complainant in paying the balance amount. It is also stated by the O.P.-1 that complainant was asked to share required documents for visa application through e-mails dated 20/03/2017 and 25/03/2017 but those mails was ignored by the complainant and at last on 28/03/2017 complainant submitted the same. The visa was rejected on 09/04/2017 which is 9 days prior to departure which caused cancellation charges of Rs.1,00,000/- plus 9 percent GST as per the booking terms and conditions which were seen, understood and accepted by the complainant at the time of signing the booking form. Further case of the O.P.-1 is that they showed their good gesture by refunding Rs.2,37,855/- after deducting cancellation charges. Complainant failed to pay balance tour cost of Rs.57,278/-. Hence, there is no deficiency in service on the part of the O.P.-1 and as such the instant complaint is liable to be dismissed.
Notice was served upon the O.P.-2. On 10/07/2018 the complainant by filing a petition has prayed for expunging the name of O.P.-2 i.e. Mangala Biswas in view of some technical defects. Considering the prayer, the name of O.P.-2 has been expunged vide order No.-05 dated 10/07/2018.
On pleading of the parties following points came up for determination :
- Is the OP-1 deficient in service ?
- Is the OP-1 indulged in unfair trade practice ?
- Is the complainant entitled to get any relief/reliefs ?
Decision with Reasons
Points : 1 to 3 :-
All the points are taken up together for the sake of convenience and brevity in discussion.
Both the parties have tendered evidence through affidavit and replied to the questionnaire set forth by their adversaries. The OP-1 has filed BNA. We have examined the evidence and material on record and also given a thoughtful consideration to the argument advanced by the complainant and Ld. Advocate for the OP.
Fact remains that the complainant booked a tour to Australia from 19.04.2017 to 27.04.2017 through OP-1 for a discounted rate for two persons and paid Rs.3, 32,842/- by several cheques. Necessary documents also submitted by the complainant for Visa to the OP-1 as per their direction. It is admitted factthat on 10.04.2017 the complainant informed over phone that the VISA of the complainant and his wife is cancelled and OP-1 would refund the money after deducting the VISA charges within two weeks. It is also admitted that OP-1 refunded Rs.2,37,455/- vide cheque to the complainant.
On perusal of the documents furnished by the O.P.-1 we find that OP-1 sent e-mail to the complainant on 14.03.2017 seeking documents for Visa to submit by 18.03.2017. But the complainant failed to produce documents. The OP-1 sent reminders through emails on 20.03.201 and on 25.03.2017. They also sent all the necessary information regarding the said tour in proper time to the complainant. Therefore, we find no deficiency in service on the part of the OPs.
Proforma invoice furnished by the complainant shows that cost of total tour was Rs.2,90,100/- after deducting the discount of Rs.30,000/- and Discretionary Discount of Rs.26,000/- and adding service tax of Rs.19,916.40, Swatch Bharat Tax of Rs.711.30, Krishikalyan Cess of Rs.711.30, the cost was Rs.2,58,439/-. The complainant previously paid Rs.83,000/-. Therefore the amount payable by the complainant was Rs.1,75,439/-. The material on record show that on 30.03.2019 and on 07.04.019 the complainant issued two cheques of Rs.1,29,842/- and Rs.1,20,000/- vide cheque No. 005254 and 653458 respectively. Therefore, the amount paid by the complainant was Rs.2,49,842/-. As per OPs, total cost of the subject tour was amounting to Rs.3,90,220/- (Rs.2,58,439/- + Rs.2,485/- calculated at the rate of Rs.52.99). Therefore, complainant was entitled to pay Rs.57,380/-.
On 10.04.2019 Visa of the complainant was rejected. OPs levied cancellation charge of Rs.1,00,000/- plus at the rate of 9 percent GST. Annexure - D shows that “In case of cancellation written request should be sent to the OP”. In cancellation, minimum below cancellation charges will be applicable. If cancellation is made 14 to 06 days prior to the departure of the tour Rs.1,00,000/- per person + GST at the rate of 9 percent have to pay”. In the Booking Terms and Conditions of the OPs it is mentioned, “any cancellation of tour booking by Tour Participant will attract cancellation charges as specified by the Company.” We find that the said tour was not cancelled by the complainant, but the tour was cancelled due to rejection of Visa. In the booking terms & conditions it is also mentioned:
“ it will be the tour participant’s responsibility to apply for Visa with complete set of documents required by the Embassy / Consulate within the stipulated period as advised by the Company. In the event the Visa application made by tour participants or by the Company on his / her behalf is rejected by the Consulate due to either inadequate supporting documents or for whatever reason or where the Visa could not be processed due to late submission of application by the tour participants the Company shall not be liable for the eventuality and led to forfeiture of booking amount paid and no claim whatsoever shall be entertained for the same. All cost, charges in respect of the said Visa application shall be borne by the tour participants. Visa fees are non refundable under any circumstances whatsoever.”
We find the complainant agreed the booking terms & conditions by putting his signature on the booking form. Thus, the complainant is entitled to bear the cancellation cost. Therefore, we find no unfair trade practice on behalf of the OPs.
OPs issued a cheque of Rs.2,37,455/- to the complainant on 31.05.2017 bearing cheque No. 080484 which was duly encashed by the complainant on 06.06.2017. Therefore, the complainant is not entitled to get further refund of any amount from the OPs.
Thus, all the points answered in negative.
In the result, the merit of the case fails.
Hence,
Ordered
That the complaint case be and the same is dismissed on contest against the OPs.
No cost is imposed upon any of the parties.
